- (1.)The writ petitioner was a 'cultivating tenant' in respect of 66 cents of land. The respondents 2 to 7 were the land owners. The land came into possession of the predecessors of the petitioner as per Otti Deed of 1087 (M.E.). The rights over the land were subsequently devolved on the petitioner. Suits for redemption, O.S.No.233/66 and O.S.No.216/79 filed by respondents 2 to 7 were dismissed by the civil court on the ground that the petitioner was a cultivating tenant entitled to fixity of tenure. The petitioner thereafter applied for assignment of the right, title and interest of the land owner in respect of the said holding vested in the Government invoking S.72B of the Kerala Land Reforms Act, 1963 (for short 'the Act'). That application was registered by the Land Tribunal as S.M.91/87. In the earlier suit the civil court had found that there were four timber trees standing in the holding at the commencement of tenancy. Therefore the respondents 2 to 7 filed application O.A.20/S7 under S.52(6) of the Act claiming that they are entitled to half the market value of those timber trees. However the Land Tribunal stayed further proceedings in the said application in as much as the proceeding in S.M.91/87 was then pending. Subsequently the Land Tribunal, while deciding S.M.91/87 found that the petitioner was entitled to assignment of the right, title and interest in respect of the land vested in the Government under S.72 of the Act. After conducting enquiry the Land Tribunal issued Certificate of Purchase to the petitioner as per Ext. P1 order. Consequently the purchase price was deposited by the petitioner in the office of the Special Tahsildar, Land Reforms, Pala as per Ext. P2 receipt. The first respondent thereafter took up O.A.20/87 and allowed an application for appointment of a commission filed by respondents 2 to 7, vide Ext. P4. As per the said order passed by the Land Tribunal, Pala a commission was directed to inspect the land and report the details of timber trees on the land, its age, measurements and market value. The proceedings in O.A.20/87 and Ext. P4 order passed thereon are sought to be quashed in the present writ petition.
(2.)Under S.72 of the Act all right, title and interest of the land owners and intermediaries in respect of lands held by cultivating tenants vests in the Government on the date of vesting free from all encumbrances created by the land owners and intermediaries. Trees are part of the land and the expression "all right, title and interest" is wide enough to include trees also. That being so, the trees standing in the holding also pass to Government on vesting. However, under S.72A the land owners and intermediaries whose lands have vested in the Government shall be entitled to compensation the aggregate of which includes "one half of the value of timber trees belonging to the land owner and intermediaries if any" as stipulated in clause 1(c) of sub-s.(2) thereof. S.72B stipulates that the cultivating tenant shall be entitled to assignment of land in respect of which the right, title and interest have vested in the Government. Therefore, in the present case, the petitioner being a cultivating tenant filed application under S.72B. That application was allowed by the Land Tribunal as per Ext. P1 order. Ext. P1, inter alia, provides that the respondents are entitled to the amount of Rs.200/- towards the value of the timber trees. The fixation of value of timber trees as per Ext. P1 order was made in accordance with the provisions contained in S.72D(2) which provides the manner of fixation of purchase price payable by the "cultivating tenant' to the Government on assignment. Clause (C) to sub-s.(2) thereof provides that one half of the value of timber trees which belonged to the land owner and the intermediaries, if any, at the time of vesting in the Government shall be included in the aggregate amount of purchase price payable by the cultivating tenant. The total purchase price fixed as per Ext. P1 is Rs.400/- which includes the value of timber trees namely, Rs.200/-. This amount had been paid by the petitioner. Ext. P2 dated 12-6-1989 is the acknowledgment issued by the Special Tahsildar, Land Reforms for the receipt of total purchase price of Rs.400/-.
(3.)The question to be decided is whether the respondents are entitled to get any relief under S.52(6) of the Act notwithstanding the payment of purchase price by the petitioner. S.52(6) is thus-:
"If any dispute arises as to the rights of the landowner, intermediary and cultivating tenant over timber trees,, the Land Tribunal shall, on the application of the landowner, intermediary or cultivating tenant, by order, decide the question after hearing all the persons interested."

Sub-s.(1) of S.52 provides that all timber trees planted by the cultivating tenant or his predecessor-in-interest or spontaneously sprouting and growing in the holding after the commencement of the tenancy in favour of the cultivating tenant or his predecessor-in-interest, shall belong to the cultivating tenant. Under sub-s.(2) the cultivating tenant shall have the right to cut and remove such timber trees standing in the holding of a cultivating tenant at the commencement of his tenancy. The exercise of such right by the landlord or the intermediary has been specifically prohibited in the sub-section. Thus the right to cut and remove timber trees standing in the holding is the exclusive right of the cultivating tenant. However, under S.108(0) of the Transfer of Property Act, 1882, a tenant is forbidden to fell or sell timber trees. All the trees planted by a tenant pass to the land owner in the absence of a contract to the contrary. All such intericacies are now obviated by reason-of the 'non-obstante' clause contained in sub-s.(1) of S.52.

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