Decided on February 14,1967

AHAMMAD Appellant


- (1.) The appellant (the second defendant) was directed by the lower courts to pay damages to the first respondent (the plaintiff) for cutting and removing timber trees belonging to the latter from the holding leased to the former by the latter. The lower courts have held that the first respondent is not entitled to recover possession of the property, in other words, the appellant is entitled to fixity of tenure. In the light of the second finding, the question for consideration is whether the decision of the lower courts awarding damages can stand.
(2.) This question as now posed by the counsel before me was not raised before either of the lower courts. The lower courts proceeded on the basis that the appellant was liable in damages; and they only considered the quantum of damages depending on the question whether all the trees alleged to have been cut were cut within three years prior to suit. The appellant has filed C. M. P. No. 589 of 1967 for raising additional grounds in second appeal to the effect that if the first respondent is not entitled to recover possession, the award of damages cannot be sustained.
(3.) There is difference between a case where the trees cut are fruit-bearing trees for which the tenant is paying rent and a case where the trees cut are timber trees which do not yield any income towards the annual rent. In the former the tenant may have a right to cut the trees as long as he is not asking for reduction in rent. On the other hand, if the trees are timber trees and if the landlord is entitled to cut and remove them at any time even during the subsistence of the lease, the tenant cannot cut and appropriate them, because they belong to the landlord and for them the tenant is not paying any rent. Viewed in this light the position appears to be different in the case of timber trees.;

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