LACHMAN DAS Vs. MOHAN SINGH

JUDGEMENT

(1.) THIS second appeal arises out of a suit brought by Lachman Das and Tota Ram win describe themselves as owners and zemindars of a certain village in pargana Koil. They state that there are trees standing on a plot owned and possessed by them, and that the defendants, without any right to do so, have wrongly cut down a nim tree of the value of Rs. 20 and intend to out down the rest. They pray that a decree may issue for Rs. 20 as the price of the said tree and further that an injunction may be issued prohibiting the defendants from cutting down the trees in future. The written statement of the defendants says that the land on which the trees in question stand, together with other lands, was in the possession of themselves and their ancestors as their khud kasht land. The grove of which the tree cut down formed one was planted by them. A partition took place in 1893 in which the defendants were entered as ex-proprietary tenants of the land on which the trees stand. The Mutisif of Koil held that the trees in this grove were planted by the defendants when they were zemindars of the land on which the trees stand. The defendants became ex-proprietary tenants and the view he took was that under such circumstances the defendants were entitled to cut the trees. He, therefore, dismissed the plaintiffs claim. The plaintiffs went in appeal to the District Judge. Their contention was that the trees were planted by the former zemindars, and that in any case they passed with the transfer of the zenindari land to the zemindars. The defendants had not proved any custom to the contrary, and that being so, they were not entitled to cut the trees. The finding of the lower Appellate Court is that the defendants as zemindars planted the grove. They lost their zemindari rights, and are now ex-proprietary tenants of the grove. The proprietary rights passed to the plaintiffs and in a subsequent partition they acquired possession of the grove. For these reasons, it agreed with the Court of first instance that there i3 nothing to prevent the defendants from cutting the trees. The appeal was dismissed with costs. In appeal before me, it is contended that the presumption of law and the general rule being that the property in the trees on the tenant s holding vests in the zemindars, the tenant has no right to out and remove such timber. It was added that the case of an ex-proprietary tenant who may have planted the trees when he was zemindar is no exception to the general rule. In support of this contention, the learned Vakil for the appellants referred me to the case of Jugal v. Deoki Nandan 9 A. 88. THIS was a case decided by a Fall Bench of this Court, and it was held by the Pall Bench that an ex- proprietor who, under Section 7 of Act XII of 1881, gets occupancy-rights in his sir land obtains analogous rights in the trees upon such sir land. All the learned Judges agreed in the view thus taken, One of them, Mr. Justice Straight, went so far as to say that the ex-proprietary tenant had a right to enjoy the tree3 as before and short of cutting them down the same rights remained in him that he originally had. His view was that though the decree-holder, namely, the zemindar, had a proprietary interest, that interest was subject to ex-proprietary tenant s right to use and enjoy the trees as heretofore. The other learned Judges held that the attachment and sale of trees on the holding of an ex-proprietary tenant was prohibited by Sections 7 and 9 of Act XII of 1831. The learned Vakil for the appellants also cited the case of Ganga Dei v. Badam 30 A. 134 : 5 A.L.J. 99 : 3 M.L.T. 194 : A.W.N. (1908) 51, where a rule is laid down that property in timber growing on a tenant s holding vests in the zemindar, and the tenant has no right to cut and remove such timber. It was also held that in the absence of a custom or contract to the contrary, a zemindar has no right to interfere with the enjoyment by his tenant of the trees on his holding so long as the relation of landlord and tenant subsists. If the zemindar desires to have the privilege daring the tenancy of entering upon his tenant s holding and of cutting down and removing timber, he must procure an express stipalation from his tenant in that behalf. The same view appears to have been taken in Sheikh Abdool Rahoman v. Data Ram Bashee W.R. (1864) 367 where as regards the tenant s rights it was held that he has no power daring his tenancy to cut down the timber and convert it to his own use. In the absence then of any custom to the contrary, the view taken by this Court would appear to be that the property in timber growing on a tenant s holding vests in the zemindar and that neither party has the right to cut and remove the timber without the consent of the other. All these cases, except the last but one, wore decided before Act II of 1901 found its place on the statute book. No reference was made in Ganga Dei v. Badam 30 A. 134 : 5 A.L.J. 99 : 3 M.L.T. 194 : A.W.N. (1908) 51 to Act II of 1901. It will be seen that the learned Judges accepted the law as hitherto laid down by the Court on the subject. It was contended that land occupied by groves must now be considered land let or held for agricultural purposes, and whether that were the case or not, the definition of the word "tenant" in that Act is specially broad enough to bring a person in possession of a grove within the definition of tenant. If that view were correct, the case before me might possibly be affected thereby. I find, however, that the course of rulings by this Court from the very beginning has been consistently in the direction that grove land occupied by trees has been dealt with as land over which Civil Court had jurisdiction. The view apparently taken is that a tenant who takes land for agricultural purposes commits a breach of contract when he, without the zemindar s permission, plants trees thereon, and cases to remove such trees and cancel sales of such tree haze been heard and decided by the Civil Court. A Fall Bench of this Court, in Koonj Behari Patuck v. Shiva Baluk Singh Agra, F.B. 1867 Ed. 1874, 89 took this view, and in their judgment said that the decision is not at variance with any former decision passed by the late Sadder Court. To the same effect is the case of Jugal Kishore v. Chhattar Singh N.W. P.H.C.R. 1866 p. 27 and Jhona Singh v. Neaz Begam N.W. P.H.C.R. 1867 p. 183. Reference was made in the course of the argament to the definition of the word agricultural as given in Stroud s Judicial Dictionary, pages 62 and 63. Throughout these two pages, any reference to the planting of timber, except in property under the Agriculture Act which is a very special Act and where agriculture was held to include horticulture, seems to have been avoided. In any case, I do not think the definition will be of much assistance to us. The case then of Ganga Dei v. Badam 30 A. 134 : 5 A.L.J. 99 : 3 M.L.T. 194 : A.W.N. (1908) 51 seems to be consistent with the law both as it stood before Act II of 1901 and after f that Act came into force. The result, therefore, is that the appellants are entitled to the injunction they ask for, and the act of cutting down the nim tree being a wrong done to their share of the property in the tree, they are entitled to some compensation. The learned Vakil for the appellants tells me that he is prepared to take a decree for Rs. 2 rather than to have the case sent back for further findings, and no opposition is made by the other side. I allow the appeal, set aside the judgments and decrees of the Courts below, and grant the appellant a decree for Rs. 2 (rupees two only) and injunction as prayed for with proportionate costs.