The provision in Order IX R.9 which debars a plaintiff from instituting a suit on the same cause of action is a substantive right and not a procedural right, and therefore not applicable to the present petition.

1. This appeal under S.8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter called the Act) is by the State and the Custodian of Vested Forests, Kozhikode. The Order under challenge is in a proceeding under S.8 of the Act for a declaration that the petition schedule property, 22.99 acres of land in Sy.No.569/1/1 of Pathanamthitta Village, has not vested in the State under the Act. The proceedings were initiated by respondents 1 to 4 who were the applicants before the Forest Tribunal. According to them, the petition schedule land which forms part of a larger extent of 99 acres was a plantation belonging to Zacharia and Sons Pvt. Ltd. The company went into liquidation and the liquidator as per three documents Exts. A1 to A3 dated 11-9-1969 assigned 33.65 acres to one V.Z. Joseph, 33.15 acres to V.Z.Zacharia and 33.14 acres to Smt. Elikutty Joseph. The company had registered it as a tea estate and the estate had Tea Board registration, which was renewed in the name of the assignees. Sri.V.Z.Joseph, the assignee under Ext.A1, assigned his rights under Exts.A4 and A5 dated 29-5-1979 to one K.C. Antony and Varkey. Under Exts.A6 to A9 dated 30-4-1980, K.C. Antony and Varkey assigned their rights to the four petitioners. Petition schedule property is a portion of the properties included in Ext.A1 sale deed in favour of V.S. Joseph and the applicants claim title on the basis of the above documents. They further alleged that the entire land is bounded on the east by Government reserve forest and is clearly demarcated by Kayyala and Fire Belt put up by the Forest Department. But after the Act came into force, the forest officials put up survey stones in the petition schedule property while it was in the possession of V.Z. Joseph and he filed O.A.No.133/77 before the Forest Tribunal under S.8 of the Act for a declaration that it is not a vested forest. Pending that he assigned it to Antony and Varkey under Exts.A4 and A5 authorising them to get themselves impleaded and prosecute the proceeding before the Tribunal. But they did not prosecute the matter and O.A.No.133/77 was dismissed for default by the Tribunal on 30-11-1979. After the purchase by the applicants in 1980, they made enquiries and came to understand that the proceeding initiated by V.Z.Joseph was dismissed for default and the present petition was filed on 19-6-1980. The disputed property forms part of a plantation area and is included within well-defined boundaries clearly marked for the entire estate. It is not a wooded area and the applicants and their predecessors have been doing regular cultivation of pepper, tea, cashew etc. and consequently it is not a private forest as defined in the Act and will not vest in the State. On these allegations, the application was made for a declaration as stated above.

2. The State and the Custodian filed a written objection wherein the title of the applicants over the land was not disputed; but they contended that the petition schedule property is lying adjacent to Kumaramperur reserve forest of Konni Range, that it is a wooded area consisting of teak and other miscellaneous forest species. There is a teak plantation in 1.5 hectares and the remaining area is a natural forest containing teak and miscellaneous forest species like Thenpavu, Maruthu etc. and the property vested in the State. They also denied the fact that the disputed area is planted with pepper vines, arecanuts, tea or cashew. They further contended that the present application is barred in view of the dismissal of O.A.No.133/77 in respect of the same property for the very same relief.

3. After trial the Forest Tribunal came to the conclusion that the present application is maintainable and that the dismissal of O.A.No.133/77 for default will not bar the present application. The Tribunal further came to the conclusion that the disputed area is part of a plantation and that it was not a private forest as on the appointed day. Consequentl