VASUDEVAN NAMBUDRIPAD Vs. VALIA CHATHU ACHAN

JUDGEMENT

(1.) The question for our decision is whether a kanomdar during the period of his occupation is entitled to remove and appropriate to himself all, or any, of the trees that he has himself planted on the land demised to him on kanom. It is found that the (plaintiff) jenmi has not proved any custom forbidding the (defendants) kanomdars to cut and appropriate such trees, nor have the kanomdars proved any custom allowing them to do so, On behalf of the plaintiff it is argued that, in the absence of custom or contract to the contrary, the general law forbids a tenant to cut trees on land held by him under a landlord, and a number of cases decided by the High Courts in other parts of India have been cited in support of this proposition. We do not, however, think it necessary to refer in detail to these oases. Many of them relate to trees not planted by the tenant, which of course stand on a footing totally different from that of those planted by the tenant himself. Others depend on the incidents of special tenures in Bengal and the North-Western Provinces and on the terms of the Tenancy Acts in those Provinces. The plaintiff also relies on the decisions of this Court Appa Rao V/s. Ratnam I.L.R. 13 Mad. 249, and Bhupati V/s. Raja Rangayya Appa Rau I.L.R. 17 Mad. 54, but those cases dealt with the rights of tenants in zamindari tracts and had no reference to kanom tenures in Malabar. So far as we are aware the question of a kanomdar's right to cut down trees planted by himself has not been decided by this Court in any reported case. It was, however, dealt with in two unreported cases which are relied on by the plaintiff's vakil.

(2.) In Ghangaran V/s. Chirutha Civil Revision Petition No. 445 of 1895 (unreported) a single Judge, following the decision in Nafar Chandra Pal Chowdhuri V/s. Ram Lal Pal I.L.R. 22 Calc. 742 at p. 750, held that, though a kanomdar might apparently cut down trees planted by himself, he might not appropriate them to his own use. The Calcutta case turned on the terms of the Bengal Tenancy Act, and it cannot, in oar opinion, be regarded as an authority applicable to kanomdars in Malabar. In the second case Unni Kutti V/s. Chathu Second Appeal No. 1775 of 1891 (unreported) a Bench of this Court held that, "Prima facie, the trees, &c., form part of the holding and the tenant would not ordinarily be entitled to remove them as they are not inimical to the purpose for which the holding was granted."

(3.) This decision seems to proceed on the assumption that the trees are the property of the landlord and that the tenant's only right is to receive compensations for them when he is turned out of the holding. That assumption was, however, held to be without foundation in the more recent case of Krishna Patter V/s. Srinivasa Patter I.L.R. 20 Mad. 124. It was there observed that "this assumption about the property being in the mortgagor even before compensation is paid by him, is not only not supported by any authority but; is directly contradicted by the fifth report," to which reference is then made. If the property in the tree is in the kanomdar who planted it, it seems to us to follow that he must be at liberty to cut it down and appropriate it, in the absence of any custom or contract to the contrary. It seems to us that the principle applicable to the case before us is that laid down in Section 108 of the Transfer of Property Act, clauses (h) and (o). These clauses are as follows: (h) the lessee may remove, at any time during the continuance of the lease, all things which he has attached to the earth: provided he leaves the property in the state in which he received it: (o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased or fell timber, pull down or damage buildings, work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto. These two clauses must be read together and in conjunction with the definition of the words "attached to the earth" in Section 3 of the Act. These words are there declared to mean: "(a) rooted in the earth, as in the case of trees and shrubs; (b) imbedded in the earth, as in the case of walls or buildings; or (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached."