RADHIKA NATH ROY Vs. SAMIR FAKIR

JUDGEMENT

(1.) THIS is a Rule obtained by the plaintiff calling upon the defendant to show cause why the judgment and decree of the Small Cause Court at Rungpore, dated the 30th May 1916 complained of in the petition should not be set aside. The plaintiff brought the suit to recover from the defendant the value of certain mango trees which had been felled by the defendant, and appropriated to his own use. The plaintiff was the landlord and the defendant was the tenant. The learned Judge of the Small Cause Court has found that the defendant is a raiyat holding at a fixed rate of rent; that is, that the tenant has a raiyati interest under a perpetual grant at a rent which is not liable to be increased. THIS Rule was obtained on the ground that a raiyat of that class is not entitled to fell and appropriate the timbers when so felled. The case has been argued before us not only on that footing but an attempt has also been made to get us to differ from the finding arrived at by the learned Judge of the Small Cause Court that the interest of the defendant is that of a raiyat holding at a fixed rate of rent. As regards the second part of the argument, namely, that the evidence does not establish the fact that the defendant is a raiyat holding at a fixed rate of rent, I am not disposed to differ from the conclusion arrived at by the learned Small Cause Court Judge. The question, therefore, resolves itself to this:--Has a raiyat holding at a fixed rate of rent the right to appropriate the timber when the tree is cut? The matter is not res integra. It is covered, in my opinion, by two decisions of this Court. The first is the case of Sharoda Sundari Debia v. Gonee Sheik 10 W.R. 419. That case cannot, in my opinion, be distinguished from the present case. It is admitted that the interest granted to the tenant in that case was a raiyati interest at a fixed rate of rent. The other case is the case of Goluck Rana v. Nubo Soonduree Dossee 21 W.R. 344. No doubt, in that case, the decision turned on the question whether a raiyat holding at a fixed rate of rent had the right to appropriate the trees which had been planted by him. The grounds of the decision seem to me to support the view that a raiyat holding at a fixed rate of rent has the right to cut and appropriate the timber, not only in cases where he planted the trees himself but also in cases where the trees were growing on the holding at the time of his lease. The decision that has been relied upon by the petitioner, the plaintiff, is a decision of this Court in the case of Nilmani Maitra v. Mathura Nath Joardar 5 C.L.J. 413. The report unfortunately in this last case is merely a reprint of the judgment delivered at the hearing of the Rule. The report is extremely obscure and difficult to follow. But so far as I can gather, the Court did not decide in that case that a raiyat holding at a fixed rate of rent had not the right to appropriate the timber when felled. The two decisions that I have cited reported in the l0th and the 21st Volumes of the Weekly Reporter were not cited in that case or dealt with in the course of the argument. That case, in my opinion, cannot be set up as an authority against the express decisions in the cases of Sharoda Soondari Debia v. Gonee Sheik 10 W.R. 419 and Goluck Rana v. Nubo Soonduri Dossee 21 W.R. 344. In my opinion, we ought to follow the decisions that I have referred to reported in the Weekly Reporter. In that view, the present Rule must be discharged with costs, one gold mohur. Richardson, J.

(2.) ON the whole, I agree in the view which my learned brother has ex-pressed. Authority for that view is to be found in the case of Sharoda Soondari Debia v. Gonee Sheik 10 W.R. 419. I add that the conclusion is at any rate not inconsistent with anything in the Bengal Tenancy Act relating to the status of a raiyab holding at a fixed rent and that the law appears to be the same in the Upper Provinces [Harbans Lal v. Maharaja of Benares 23 A. 126 : A.W.N. (1901) 15].