MEDASANI VALLAYYA Vs. BOMMADEVARA SATYANARAYANA VARA PRASADA RAO

JUDGEMENT

(1.) This series of second appeals is from the judgment of the lower appellate Court in a batch of similar suits. The plaintiff is the Zamindar of South Vallur and the defendants are his raiyats. Certain palmyra trees stand on the holdings of the defendants. Bach party claims these as his possession absolutely. The defendants have been enjoying the usufruct of these trees chiefly by tapping them for country liquor. The plaintiff came into Court on the footing that this enjoyment of the defendants was a trespass on his rights and caused wrongful loss to him and he sued to recover the estimated loss. He originally filed his suits on the small cause side and they were transferred to the original side and tried there. The trial Court and the lower appellate Court decided in favour of the plaintiff and the defendants appeal.

(2.) The plaintiff takes a preliminary objection that no second appeal lies because the suits are of small cause nature and the amount sued for is under Rs. 500. I may point out that both the lower Courts are somewhat obscure in their own minds as to what is the character of the cash amount for which the plaintiff is suing. The District Munsif hovers between calling it a usufruct and calling it rent, by which apparently he means not a tax but some sort of compensation. The lower appellate Court seems decided enough in calling it a tax, but obscures the issue by saying that that means "customary compensation." The plaintiff himself styles lit as usufruct. Prima facie the suit would appear to fall under the category of a suit for mesne profits derived from immovable property belonging to the plaintiff, which have been wrongfully received by the defendants and therefore coming within the category of Art. 31, Schedule 2, Provincial Small Cause Courts Act, and thus not of small cause nature. The plaintiff argues that the usufruct of growing trees is not profits of immovable property but that position seems to me untenable. Trees standing on land are immovable property: see Umed Ram v. Daulet Ram [1883] 5 All.564, Sakharam V/s. Vishram [1895] 19 All. 207 and Purnachandrachowdry V/s. Kinkar Manji [1911] 9 I.C. 133. The plaintiff relies on Vira Pillai V/s. Rangasioami Pillai [1899] 22 Mad. 149, a case not of usufruct from trees but of damages for use and occupation of land by a tenant holding over, and Seshagiri Aiyar V/s. Marakkathammal 11899] 22 Mad. 196, a case of mesne profits which follows Kunjo Bihari V/s. Madhubchendra Ghose [18961 23 Cal.884, but both these latter cases were dissented from in a Reference to the Full Bench in Savari Muthu V/s. Aithurusa Rowther [1902] 25 Mad. 103, and impliedly the Pull Bench, agreeing with the referring Judges, also dissented. The ruling in Drigpal Singh v. Kunjal [1918] 40 All. 142, is directly in point and in the appellant's favour. The plaintiff relies further upon Rajah of Ramnad V/s. Kamid Rowther A.I.R. 1926 P.C. 22 a Privy Council case not exactly in point. The suits there were by a landlord against his tenants for damages for their having cut and removed palmyra trees, and it is pointed out, though the Privy Council itself does not consider the point, that the procedure adopted indicates that the suits were held to be of small cause nature. Even so, clearly trees cut and removed are not immovable property or the mesne profits of immovable property; so that that case does not assist. The . same remark applies to Naranappa V/s. Venkatarathanam [1916] 36 I.C. 202. The case in Annamdevulu Thata V/s. Ahamadulla A.I.R. 1925 Mad. 890 does not discuss the point and the Full Bench ruling in Savarimuthu V/s. Aithurusa Rowther [1902] 25 Mad. 103 is not mentioned therein.

(3.) The case in M. Ankaya V/s. A. Rattamma , to which I was a party, is not in point, being similar to Vira Pillai V/s. Rangaswami Pillai [1899] 22 Mad. 149. The case in Koppa Anki V/s. Venkatasubbaya A.I.R. 1925 Mad. 884, to which I was also a party, is very similar to the present, the suit not being based on any contractual relation between plaintiff and defendants. On the authority of the Full Beach decision, I must hold that a second appeal lies. On the merits, the defendants rest their case on Section 12, Madras Estates Land Act. That declares that a raiyat has the right to use, enjoy and cut all trees now in his holding unless such rights are reserved by the landholder by custom or by contract in writing executed by the raiyat before the passing of the Act. It is contended as a point of law that the landholder has adduced no evidence of such a contract, while no case of custom was pleaded by him. In any case, if custom was pleaded in the lower Courts there is no finding by either Court upon it. Both Courts rest their decision on the finding that the plaintiff has by definite contract reserved to himself the right to the suit trees.