VASUDEVAN NAMBUDRIPAD Vs. CHATHOO ACHAN
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(1.) The question for our decision is whether a kanomdar during the period of his occupation is entitled to remove and appropriate to himself all, or any of the trees that he has himself planted on the land demised to him on kanom. It is found that the (plaintiff) jenmi has not proved any custom forbidding the (defendants) kanomdars to cut and appropriate such trees, nor have the kanomdars proved any custom allowing them to do so. On behalf of the plaintiff, it is argued that, in the absence of custom or contract to the contrary, the general law forbids a tenant to cut trees on land held by him under a landlord, and a number of cases decided by the High Courts in other parts of India have been cited in support of this proposition. We do not, however, think it necessary to refer in detail to these cases. Many of them relate to trees rot planted by the tenant, which of course stated on a footing totally different from that of those planted by the tenant himself. Others depend on the incidents of special tenures in Bengal and the North-Western Provinces and on the terms of the Tenancy Acts in those Provinces. The plaintiff also relies on the decision of this Court reported in Rangayya Appa Row V/s. Kadiyala Ratnam (1889) I. L. R. 13 M. 249 and Bhupathi V/s. Raja Rangayya Appa Row (1893) I. L. R 17 M. 54 but those cases dealt with the rights of tenants in Zemindari tracts and had no reference to kanom tenures in Malabar. So far as we are aware the question of kanomdar's right to cut down trees planted by himself has not been decided by this Court in any reported case. It was, however, dealt with in two un-reported cases which are relied on by the plaintiff's vakil.
(2.) In C. R. P. No. 445 of 1895 a single Judge, following the decision in Najar Chandra Palohowdhuri V/s. Ram Lal Pal (1894) I. L. R. 22 C 718 (n), held that though a kanomdar might apparently cut down trees planted by himself he might not appropriate them to his own use. The Calcutta case turned on the terms of the Bengal Tenancy Act, and it cannot, in our opinion, be regarded as an authority applicable to kanomdars in Malabar. In the second case (S.A. No. 1775 of 1891) a Bench of this Court held that, "prima facie, the trees, &c., form part of the holding, and the tenant would not ordinarily be entitled to remove them as they are not inimical to the purpose for which the holding was granted."
(3.) This decision seems to proceed on the assumption that the trees are the property of the landlord and that the tenant's only right is to receive compensation for them when he is turned out of the holding. That assumption was, however, held to be without foundation in the more recent case of Krishna Pattar V/s. Srinivasa Pattar (1896) I. L. R. 20 M. 124. It was there observed that "this assumption about the property being in the mortgagor even before compensation is paid, by him, is not only unsupported by any authority but is directly contradicted by the Fifth Report" to which reference is there made. If the property in the tree is in the kanomdar who planted it, it seems to us to follow that he must be at liberty to cut it down and appropriate it, in the absence of any custom or contract to the contrary. It seems to us that the principle applicable to the case before us is that laid down in Section 108 of the Transfer of Property Act, Clauses (h) and (o).;
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