KRISHNA DATT DUBE Vs. BRIJ LAL

JUDGEMENT

(1.) THE plaintiff in this case is the proprietor of a plot of land on which there is standing a grove. THE first seven defendants are in possession of the said plot and of the trees thereon, with the rights of grove-holders. THE finding is that these defendants sold two standing trees for Rs. 50 to defendant No. 8 who felled the trees and removed the timber. THE plaintiff claims that, by village custom as recognised in the wajib-ul-arz he is entitled to 1/4 of the price. It is quite clear from the pleading and from the Judgment of the Court below that both parties were agreed that the local custom determining the rights inter se of the proprietor of the soil and the grove-holders, in respect of the grove in suit, was correctly recorded in the wajib-ul-arz and that both parties were bound by that record. THE only question remaining for determination was the interpretation of the relevant entry in the Wajib-ul-arz considered in its bearing on the established facts of this case. THE Trial Court found that under the custom so recorded, the plaintiff was not entitled to recover 1/4 of the price. THE plaintiff has brought the matter before this Court in revision. THE decision of the Court of Small Causes is one calculated to have far reaching consequences affecting the rights of the plaintiff and the other proprietors, if any, in this village with reference to grove lands. If it wore a mere question of the interpretation of particular words in a document, and the circumstances were such that these words were clearly susceptible of more than one interpretation, I have no doubt that this Court would decline to interfere in revision. THE view which I take, however, admits of being briefly stated. THE parties are admittedly bound by a record of custom which says that at the time of sale the proprietor of the land receives 1/4 of the sale price in virtue of his proprietary rights. THE words are plain enough and really admit of only one possible interpretation. THE only question raised in the Court below may be put in the form of a question, namely, at the time of the sale of what does this right arise in favour of the proprietor? THE Trial Court was evidently much impressed with the very wide rights enjoyed by grove-holders in this village under the terms of the wajib-ul-arz. THE document contains other clauses very favourable to the grove- holders, and it is not surprising that the defendants in the present suit should have placed their reliance upon this document and should have been quite ready to accept it as a complete and correct record of: the custom by which the parties were bound. THE Trial Court obviously thinks that in as much as any grove holder in possession under this custom could have felled any tree and appropriated the timber to his own use, and moreover was entitled under the custom to maintain the character of the grove by planting a new tree in place of any tree that he might fell, it would be an illogical development of the custom to require him to pay to the zemindar a portion of the sale price, in the event of his selling the timber instead of appropriating it to his own use. My own opinion is that a good deal could be said by way of rejoinder to the argument as thus stated, but the consideration which determines my decision is that the facts as found by the Trial Court are not those assumed for the purpose of the argument above stated. THE first seven defendants to this suit did not fell the trees, remove the timber and sell the same for their own profit. THE finding is that they sold the trees as they stood and that it was the vendee who cut them down. In my opinion this circumstance makes the decision of the Trial Court hopelessly inconsistent with itself and fully warrants interference by this Court in the exercise of the general powers of supervision vested in it by the Provincial Small Cause Courts Act. THE Court below says that the right to receive 1/4 of the price would arise in case of a sale of grove, or a fractional share thereof, or a specified portion of it. Now the sale of two standing trees is to my mind quite indistinguishable from the sale of a specified portion of a grove. I am of opinion, therefore, that this application must be allowed. I set aside the decree of the Court below and in lieu thereof give the plaintiff a decree for the sum of Rs. 12-8-0 claimed by him with costs throughout.