GANESH SUBRAYA Vs. HANMANT VITHOBA

JUDGEMENT

(1.) This second appeal raises an interesting question about the right of a mulgenidar to cut the trees growing upon the land leased to him under a mulgeni lease. The facts ot the case are these. Survey No. 128/1 has been owned jointly by the families of the plaintiffs and the defendants for a very long time. The plaintiffs leased out in mulgeni their undivided joint interest in the Ganesh Subraya and Ors. vs. Hanmant Vithoba and Ors. (05.03.1951 -BOMHC) Page 3 of 12 ya and Ors. vs. Hanmant Vithoba and Ors. (05.03.1951 -BOMHC) Page 3 of 12 property to the defendants' family. This took place some time prior to the year 1865, and the precise date when the mulgeni lease was given is not on record. On this land there is, according to the findings of the two lower Courts, a vast medley of wild trees, old and young, including shrubs. The defendants have admittedly cut some trees from the land. The panchnama EX. 25 mentions that about 66 trees have been cut by the defendants, although the purshis which was given in the course of the trial by the plaintiffs' pleader stated that only about 16 trees were cut by the defendants. The version of the defendants, on the other hand, is that they cut not more than five or ten trees. But there is no dispute that some trees were cut by the defendants. This has given rise to the present suit. The plaintiffs in the suit put up a case that Survey NO. 128/1 of the Chitrigi village was granted by Government to both the plaintiffs and the defendants as a sort of an accessory land called hadi land for the use of their other Survey Nos. 125, 126 and 127 of the same village, the purpose of the grant being that the dry leaves from Survey No. 128/1 were intended to be used for the purpose of providing manure for the other three survey numbers. As such, it was alleged that the defendants were not entitled to cut the trees. This case of the plaintiffs has been found to be disproved by both the lower Courts. There is no evidence on record to prove that Survey No. 128/1 was given as a hadi land for the use of the other three Survey Nos. 125, 126 and 127. Thus the case which the plaintiffs sought to make out in the plaint was not established by the evidence on record. But from the evidence, both the lower Courts came to the conclusion that the survey number was jointly owned by the plaintiffs and the defendants. It was further found that the undivided share of the plaintiffs in this survey number had been given on a mulgeni lease by the plaintiffs' ancestors to the defendants' ancestors. On these facts, the trial Court came to the conclusion that the defendants had no right to cut any of the trees in Survey No. 128/1 which was of the joint ownership of the plaintiffs and the defendants, in spite of the fact that the defendants were co-owners of this survey number, and the plaintiffs' undivided half share had been given on a mulgeni lease to the defendants. The trial Court, therefore, gave a declaration that "the defendants, as co-owners, were not entitled to cut the trees or plants on the suit property or to commit waste of the suit property to the detriment of the plaintiffs' interest therein." The trial Court further gave an injunction "restraining the defendants from cutting the trees or plants in Suit Survey NO. 128/1 to the detriment of the plaintiffs' interest therein." The defendants were further ordered "to pay the plaintiffs Rs. 3 and costs of the suit with future interest at 6 per cent. per annum from the date of the suit till realisation." The defendants were ordered to bear their own costs. This order was substantially confirmed in appeal by the learned District Judge of North Kanara. He made a slight variation making it clear that the future interest was allowed by the lower Court only on the amount of the damages that were awarded. Now, the defendants have come in second appeal.

(2.) In the arguments before us, the matter has been argued on the footing of joint ownership of plaintiffs and defendants of the survey No. 128/1 and on the basis of the defendants being mulgeni-dars of the survey number. So far as the position arising from the joint ownership of the land is concerned, there is no dispute. The plaintiffs and the defendants having a joint undivided interest in every bit of Survey No. 128/1, it was not open to one of the joint co-owners to Ganesh Subraya and Ors. vs. Hanmant Vithoba and Ors. (05.03.1951 -BOMHC) Page 4 of 12 ya and Ors. vs. Hanmant Vithoba and Ors. (05.03.1951 -BOMHC) Page 4 of 12 treat the property in such a fashion as to amount to committing a waste without the consent of the other co owner. Admittedly, the defendants have not obtained the consent of the plaintiffs to cut any of the trees growing on this land, and to that extent their action could not be covered by any right vesting in them as co-owners. The real point which has been argued before us is that the defendants being the mulgenidars of the plaintiffs' undivided interest in these properties, they have, as such permanent tenants, every right to cut the trees in the land which has been demised to them.

(3.) The question, therefore, arises as to what are the precise rights of the defendants-tenants in respect of the lands leased to them by the plaintiffs- landlords. The general position in law was considered as long ago as 1867 by their Lordships of the Privy Council in Ruttonji Edulji Shet v. The Collector of Tanna, 11 Moo ind. App. 295. Their Lordships were in that case dealing with a lease to a khot, and in dealing with the general law of the tenant's rights to cut the trees growing upon the land leased to him, their Lordships observed at page 313 as follows: