JUDGMENT : Sathish Ninan, J. The order of the Tribunal, declaring the application schedule property to be excluded from vesting under the Government under the Kerala Private Forests (Vesting and Assignment) Act , 1971 (hereinafter referred to as 'the Vesting Act'), is under challenge in this appeal by the State. 2. The application schedule property has an extent of 22.14 acres. The property belonged to one late Krishnankutty Nair, on 'Verumpattom' right under Ext.A1 Lease Deed of the year 1945. The 1 st applicant is the widow and the 2 nd petitioner and the 3 rd respondent are his children. Alleging obstruction by the forest officials in the enjoyment of the property claiming it be vested forest, the original application was filed. The applicants claimed that the property is exempted from vesting under Sections 3 (2) and 3 (3) of the Vesting Act. 3. The Tribunal upheld the claim of exemption under Section 3 (3) of the Vesting Act. Incidentally it is noticed that it is the third round of litigation followed by two earlier remands by this Court. 4. We have heard Shri.Nagaraj Narayanan, the learned Special Government Pleader (Forests) for the appellants- applicants and Shri.P. Vijayakumar, the learned counsel for the respondents. 5. The points that arise for determination in this appeal are; (i) Are the claimants entitled for exclusion from vesting under Section 3 (2) or 3(3) of the Vesting Act? (ii) Does the order of the Tribunal warrant any interference? 6. The Tribunal, as per the impugned order, held that the property is excluded from vesting under Section 3 (3) of the Act. To claim exemption under (3), the applicant has to prove; (i) that the property is held under a valid registered title deed executed before the appointed day (10.05.1971); (ii) that he does not hold property in excess of ceiling area, including the property claimed; (iii) that the property was held, as on the appointed day, with an intention to cultivate. 7. The Tribunal held that the applicant established all the three ingredients above. The learned Special Government Pleader (Forest) was unable to point out any material to interfere with the findings on ingredients (i) and (ii) above. The main challenge is with regard to the finding on ingredient (iii) namely, that as on the appointed day the applicant was holding the property with an intention to cultivate. 8. The learned Special Government Pleader (Forest) was unable to point out any material to interfere with the findings on ingredients (i) and (ii) above. The main challenge is with regard to the finding on ingredient (iii) namely, that as on the appointed day the applicant was holding the property with an intention to cultivate. 8. With regard to the intention of the applicants to cultivate the property as on the appointed day, all that has been stated by the Tribunal is at paragraph 12 of the order. It reads thus: “12. PW2 the second applicant has stated that they had the intention to plant rubber in the disputed property during 1970-71. But due to financial difficulties they could not plant rubber. I therefore find that the 2 applicants had the intention to cultivate the rubber in the property. As I have found that the applicants have title and are holding lands within the ceiling limit and they had intention to cultivate the disputed land during 1970-71 they are entitled for the benefits of exclusion u/s 3 (3) of the Vesting Act. Point found in favour of the applicant.” This is the only discussion by the Tribunal, on the point. Evidently, the Tribunal had relied solely upon the oral evidence of the 2 nd applicant as PW3 (mistakenly written in the order as PW2). According to PW3, though during the period 1970-71 the applicants had the intention to plant the property with rubber, due to financial constraints, they were unable to do so. There is no evidence that they had attempted to raise money from any source to do the cultivation. Moreover, there is no plea in the original application that the applicants intended to plant rubber in the property and they were unable to do so due to the financial constraints. 9. In the original application, the plea is that their predecessor-in-interest, late Krishnankutty, had planted the property with cashew and other trees, which are presently standing in the property, and that in the remaining extent the applicants were raising fugitive crops. The learned counsel for the claimants referred to the existence of two bunds in the property, which were put up to prevent soil erosion and that it proves the intention of the applicants to cultivate the property. 10. The learned counsel for the claimants referred to the existence of two bunds in the property, which were put up to prevent soil erosion and that it proves the intention of the applicants to cultivate the property. 10. As was noticed earlier, what the applicants have to prove is that, as on the appointed day the property held with an intention to cultivate. The age of the bunds are not brought out. Even according to the applicants, their predecessor-in-interest had cultivated the property on taking it on lease in the year 1945. Therefore, the mere existence of two bunds in the property is not sufficient to find that the applicants had an intention to cultivate the property as on the appointed day. The Commissioner's report does not reveal any acts of cultivation suggesting the intention of the applicants to cultivate the property. 11. Ext.B1 is the order dated 30.09.1975, issued by the Custodian of Vested Forests exempting approximately 7.38 acres of the property from out of the total extent of 22.14 acres from vesting. Ext.B1 order was passed in favour of the 3 rd applicant, on her application. In the last remand order, the significance of Ext.B1 was directed to be considered. However, the fact remains that after passing of Ext.B1 order, it was not further pursued and no rights were asserted thereunder. Concededly, no rights are being claimed thereunder even now. At the time of Ext.B1, the 3 rd respondent was only a co-owner and she could not stake claim over any specific portion from out of the total extent of the property. The property covered under Ext.B1 is not identified nor attempted to be identified. If the applicants were holding the property as on the appointed day with an intention to cultivate, they would have approached the Custodian of Vested Forests and sought for exclusion of the entire property. The very fact that such a course was not adopted, is a circumstance against the applicants’ claim of having held the property with an intention to cultivate. The finding of the Tribunal that the applicants were holding the property as on the appointed day with an intention to cultivate, is not based upon any materials. Therefore, the finding of the Tribunal is liable to be set aside and we do so. 12. The finding of the Tribunal that the applicants were holding the property as on the appointed day with an intention to cultivate, is not based upon any materials. Therefore, the finding of the Tribunal is liable to be set aside and we do so. 12. Now, coming to the claim of the applicants under Section 3 (2) of the Act, Ext.C1 Commissioner's report does not support the claim. The total extent of property is 22.14 acres. Going by Ext.C1 report, the property contains approximately 300 trees of forest species and a maximum of 20 cashew trees of more than 35 years' age and 12 cashew trees aged about 20 years. The Commissioner's report was filed in the year 1989 and 20 years would be prior to the appointed day. The report also makes mention of the existence of 70 palmyra trees scattered all over the property. They are not planted in a row, but are scattered all over, indicating that it is not grown by human intervention but is spontaneous growth. Therefore, the mere existence of 32 cashew trees as on the appointed day in a large extent of 22.14 acres, is insufficient to find that as on the appointed day, the property was under personal cultivation. The order passed by the Tribunal is thus liable to be set aside. 13. Section 3 (2) exempts “...so much extent of private forests held by an owner under his personal cultivation…”. Along with Ext.C1 is a rough sketch which is marked as Ext.C2. Therein the location where the cashew trees are standing is indicated. They are not scattered but is in one location. Such portion of the property wherein the cashew trees stand is liable to be excluded from vesting. But for the rough sketch Ext.C2, the extent of such portion has not been measured, nor its location correctly specified and indicated in a plan. 14. The original application is of the year 1981 and has already underwent two remands. We do not propose to remand the matter for the purpose of identification. We are of the opinion that a preliminary decree could be passed declaring that the extent of the property covered by the cashew trees, as indicated in Ext.C2 rough sketch is exempted from vesting. We do not propose to remand the matter for the purpose of identification. We are of the opinion that a preliminary decree could be passed declaring that the extent of the property covered by the cashew trees, as indicated in Ext.C2 rough sketch is exempted from vesting. The Tribunal could pass a final decree after identifying such portion with reference to Ext.C2, and a plan prepared, by deputing a commissioner to be assisted by a surveyor. 15. In the result, the appeal is allowed and the order of the Tribunal is set aside. The original application will stand allowed declaring that the extent of property wherein the cashew trees are situated, which is shown in Ext.C2 sketch, will stand exempted from vesting. The Tribunal shall pass a final decree after having the said portion identified by a commissioner with the assistance of a surveyor. Parties to appear before the Tribunal on 07.04.2026. No application would be necessary to initiate final decree proceedings and the Tribunal shall proceed with the final decree proceedings. We are sure that the Tribunal will have the proceedings concluded as expeditiously as possible.