MOFIZ SHEIKH Vs. RASIK LAL GHOSE

JUDGEMENT

(1.) The substantial question of law which calls for decision in this rule, relates to the right of a tenant of homestead land to cut and appropriate fruit-trees grown by him or his predecessors- in-interest on the holding, when it is established that the tenancy was created before the Transfer of Property Act, 1882, came into operation. The plaintiffs, opposite party, commenced this action for recovery of damages on the allegation that the defendant petitioner had cut and appropriated one jack tree which stood on his holding. The defendant resisted the claim, inter alia, on the ground that the tree had been planted by his grandfather after the commencement of the tenancy, and that he was consequently entitled to cut and appropriate it. The learned Judge of the Court of Small Causes did not come to any finding upon this point, but decreed the suit on the ground that, as the defendant was not a cultivator, Section 23 of the Bengal Tenancy Act, 1885, was inapplicable, and consequently the tenant was not entitled to cut and appropriate the tree in the absence of any evidence to establish a contractual or a customary right to that effect. We have been invited by the defendant to, set aside this judgment on the ground that, as the tree, was planted by the tenant, and the holding was of a non-agricultural character, he was entitled to cut and appropriate the same.

(2.) It may be stated at the outset that the evidence as to the origin of the tenancy and the time when the tree was planted is entirely one-sided, and is sufficient to establish the allegations of the defendant that the holding was created long before the Transfer of Property Act came into force, that it was neither agricultural nor horticultural, and that some ancestor of the defendant planted the tree. Section 23 of the Bengal Tenancy Act has, therefore, obviously no application. Under these circumstances, it has been contended before us on behalf of the tenant that under Section 108, Clause (h) of the Transfer of Property Act, he is entitled to cut and appropriate the tree. This position has been controverted on behalf of the landlord, on the ground that, by reason of the provisions of Section 2 of the Transfer of Property Act, the rule laid down in Section 108, Clause (h), is inapplicable; and it has further been argued that as no statutory provisions govern the matter, the property in the tree ought to be deemed to have vested in the landlord on the principle that what is permanently attached to the earth becomes part of the soil and passes with it. In this connection, reference has been made to the rule on the subject recognised under the Common Law of England. Before we examine the validity of these arguments, it is desirable to consider for a moment what law is applicable to the matter now before us.

(3.) In the first place, it is clear that the provisions of the Bengal Tenancy Act have no application because, as found by the Judge in the Court below, the tenancy is neither agricultural nor horticultural. No useful purpose, therefore, would be served by an examination of the provisions of Section 23 of that Act, or of the judicial decisions in which that section has been interpreted; nor is it necessary to review the earlier cases which refer, directly or indirectly, to the principles of law applicable to agricultural tenancies before the Bengal Tenancy Act came into force. It is also clear that the rule laid down in Section 108, Clause (h), of the Transfer of Property Act has no application, because Section 2 expressly provides that nothing contained in the Act shall be deemed to affect any right or liability arising out of a legal relation constituted before the Act came into" force, or any relief in respect of any such right or liability. No doubt it is conceivable that provisions of the Act which are consistent with the rules of justice, equity and good conscience may be applied to cases where the legal relation was created before the Act came into force Parameshri V/s. Vithappa (1902) 12 Mad. L.J. 189 but such application is sustained, not on the ground that the provisions of the Act directly govern the matter, but rather on the principle that, in the absence of any statutory or judicial rule applicable to the subject, the rules recognized by the Act may be applied as based on equitable grounds. In view, therefore, of the provisions of Section 2 of the Transfer of Property Act which excludes the operation of Section 108, Clause (h), and in view of the nature of the holding which excludes the operation of Section 23 of the Bengal Tenancy Act, we are left without any statutory provision which directly governs the matter. The landlord has, therefore, contended that the rules of English Law on the subject should be adopted and applied as based upon grounds of justice, equity and good conscience. In answer to this contention, it has been argued by the tenant that the principles recognised by the English law are based upon a technical law of Fixtures, and ought not to be extended to this country, inasmuch as a law of Fixtures does not find a place in the Common Law of India.