- (1.) In this case, an interesting question of laws arises on certain undisputed facts. The appellant herein is the owner of Singara Estate situate at Mosinagudi village in Ootacamund taluk. On 16th June 1969, a tusker elephant was found dead in his patta land bearing S.No. 207 of Mosinagudi village which formed part of his estate. On 17th June 1969, the plaintiff informed the second defendant, of his intention to bury the carcase in his estate. The Forest Officer, Segur and a Veterinary doctor came to the spot and conducted an autopsy and on the instructions of the Forest Range Officer the Forester of Segur section took custody of the two tusks of the dead elephant from the plaintiff after giving an acknowledgment that the tusks would be returned to the plaintiff after getting formal approval of the Higher authorities. Since the second defendant did not returned the tusks, the plaintiff called upon the department to return the same. However, the plaintiff was informed by the second defendant that his claim for return of the tusks had been rejected. The plaintiff, therefore, filed a suit, O.S. No. 43 of 1971 on the file of the Sub-Court, Ootacamund, for the recovery of a sum of Rs. 7000 being the value of the two tusks.
(2.) The defendants resisted the suit contending that the elephant was found to be moving in the forest with difficulty, that the guards of the forest department were keeping watch over the elephant since 15 days prior to its death, that the tusks are the property of the Government and that, therefore the plaintiff is not entitled to ask for the return of the tusks. 2A. The trial court after duly considering the evidence found that the tusker found dead in the plaintiff's patta land was a wild elephant, that the tusker had been shot at, several times by some unknown persons during a period of six months prior to its death, that it was moving about in the reserve forest in the wounded condition, that the officials of the forest department kept a watch over its movements and that subsequently they found it lying dead in the patta land of the plaintiff. On these facts which are more or less admitted, the trial court went into the question as to who will be entitled to the tusks in question as between the plaintiff on the one hand and the Government on the other. The Government placed reliance on S. 3 of the Wild Birds and Animals Protection Act and also G.O.Ms. No. 2152 dated 21-2-1960 in support of its claim for the ownership of the tusks in question. The trial court held that neither the provisions of the said Act nor the Government Order in question will apply to the facts of this case and that under the general law, the tusker, which is a wild animal, having been found dead in the plaintiff's patta land, he is entitled to the ownership of the tusks. According to the trial court G.O.Ms. No. 2152 dated 21 6-1960 which treated a ten mile belt around Mudumala Wild Life Sanctuary as a close time for the whole year and which made it unlawful to capture, sell, buy or possess any bird or animal or the flesh thereof which had not been captured or killed before the commencement of such close time cannot apply to the case in question. It also held that Wild Birds and Animals Protection Act is applicable only in respect of animals and birds which are specified in the schedule and not to an elephant which is not an animal specified in the schedule to that Act.
(3.) The matter was taken up in appeal to the District Court. The District Court after agreeing with the facts found by the trial court held that in view of another G.O.Ms. No. 3440 dated 15-11-1954, as the elephant had been pursued by the department the two tusk vests in the Government. In this view, it allowed the appeal and dismissed the plaintiff's suit.;