MOTIMIYAN Vs. HABIBMIYAN

JUDGEMENT

(1.) 1. The point for determination in this second appeal is whether an occupancy tenant in surrendering his holding is entitled to retain any right in fruit trees standing on the holding. The plaintiff in this case had become a tenant of a field with 15 mango trees therein under a patta, dated 16th June 1928. On 21st December of that year he executed a surrender deed of the holding but professed to retain his rights in the trees and the landlord acceded thereto. He brought a suit for damages against the defendant who, as a representative of the subsequent tenant, had removed mangoes from the trees. The trial Court held that as the trees were part and parcel of the holding, there was nothing to prevent the tenant making a surrender of part of the holding and retaining part and considered that the tenant was entitled to surrender and the landlord was entitled to accept the rights in the soil itself the tenant retaining the rights in the trees. The lower appellate Court reversed this finding and held that the transaction between the plaintiff and his landlord was entirely illegal and was in contravention both of the wajibularz and the provisions of Section 95, Tenancy Act. The plaintiff now comes up in second appeal against the dismissal of his suit.

(2.) IT is contended, in the first place that Section 25, Tenancy Act, merely raises evidentiary presumptions and premises only the sameness of the right in the trees as in the holding provided that the right is held by the same person, but does not postulate that the same persons should have the right in the trees and in the holding. This argument appears to me to be in direct contravention of the words of Sub-section (1) where it is stated that the tenant, subject to certain exceptions, shall have during the period of his tenancy the same rights in fruit trees in the holding as he has in the holding itself, that is to say, that the tenant cannot have an occupancy right in his holding without having similar rights in respect of the fruit trees therein. Section 95, Tenancy Act, was expressly enacted to obviate the inconveniences arising from persons other than the tenant having rights in trees in a holding. That inconvenience had been long recognized by the Courts and the law as to trees standing on tenancy lands was stated by Stanyon, A. J. C., in Hiria v. Mahamed Sirajuddin Khan (1908) 4 Nag LR 104. The provisions of Section 95, Tenancy Act, embody the law generally as laid down in that judgment except that right in the annual produce of such trees is limited by statute to the fruits.

(3.) IT is contended by the learned Counsel for the appellant that this prohibition does not extend to the retention of trees by an owner surrendering his hold ing and the argument is implied that what is not expressly denied in the wajibularz is allowed. The meaning of the provision is, in my opinion, clearly that the rights in the trees are inseparable from the rights in the land whether an attempt is made to separate the rights by a lease of the trees alone or by a transaction in respect of the land apart from the trees and Section 95(1), Tenancy Act, gives statutory force to this provision. The appellant does not rely on the limiting provision of Sub-section (1), Section 95, whereby the terms of the Sub-section are limited by any right existing at the time the Act came into force or by any entry in the village administration paper, but bases his argument on what he contends to be the established right of the tenant to surrender a part of his holding provided the landlord consents to accept such surrender and to continue the tenancy in respect of the part not surrendered. The cases which have been cited before me laying down the tenant's right to surrender an undefined part of his holding have no applicability to the present case since they all by their very nature necessarily deal with cases where the surrendering tenant of the undefined portion was one of several co-tenants. [No sole tenant can possibly surrender an undefined portion of his holding.