GOVERNOR-GENERAL IN COUNCIL Vs. D E RIVETT

JUDGEMENT

(1.) These two second appeals are cross-appeals arising out of a suit instituted in February 1945 in a Court at Ambala by some ten respondents of Kasauli, who are the owners of houses in the cantonment there, against the Governor-General in Council and the Cantonment Board at Kasauli through its Executive Officer as the principal defendants, claiming a declaration that they are entitled to cut down and appropriate any trees standing in their respective estates with the permission of the Cantonment Board, but without payment of any fee, and that they are entitled to remove any trees which have fallen naturally without any permission or payment of fee, and also claiming a perpetual injunction restraining the above-mentioned defendants from interfering with their rights in the trees. The plaintiff's case was that they or their predecessors in interest had been given perpetual grants or lease of the lands on which their houses stand under the provisions of the order of the Governor-General No. 179 of 1836, and they alleged that throughout their long enjoyment of their estates they had been allowed to cut down and appropriate trees standing in their estates with the permission of the Cantonment Board, which was very rarely refused, and that their rights to do with branches of trees or even whole trees which fell through natural causes had never been subjected to any interference at all, but in 1941 a notification was issued in the name of the Executive Officer of the Kasauli Cantonment to the effect that trees being the property of the Government a charge would be made for the trees by the Cantonment authorities and must be paid by the owners when permission for the removal of the trees had been obtained. Since 1941 this order has been in force and has been applied even in the case of trees which fell from natural causes. The plaintiffs claimed that they were entitled to continue in enjoyment of the rights which they had always enjoyed regarding the trees standing on their estates, if not legal by rights, at any rate by virtue of long usage and custom.

(2.) The suit was resisted on behalf of the Government and the Cantonment authorities who maintained that the land and the trees standing on it remained throughout the property of the Government, the plaintiffs merely being the owners of the building standing on their respective lands. They denied that the plaintiffs had acquired any rights in the trees and maintained the right of the Cantonment authorities to levy a charge on any tree which was removed. The trial Court framed the following issues :-

(3.) Both these issues were decided against the plaintiffs by the trial Court and their suit was dismissed. Nine of the plaintiffs filed an appeal, which was ultimately partially decided in their favour by the learned Senior Subordinate Judge, who granted them a declaration that they would be entitled to appropriate to themselves without permission of the defendants, and without making any payment to them, trees which had fallen to the ground by natural causes except timber trees which existed on the premises of the plaintiffs at the time when these premises were originally granted by the Government to them, or in other words, the plaintiffs shall be entitled to collect and appropriate all fallen, decayed and dried-up trees uprooted from the earth on their premises except the timber of those trees which existed at the time of the grant in their favour by the Government. The plaintiff's suit was dismissed regarding all standing trees. Both parties have now come in appeal against this decree.