BEHARI KALAR Vs. MANGLOO BHOYAR

JUDGEMENT

(1.) MACNAIR , J.C. 1. The plaintiff-respondent Mangloo is the absolute occupancy tenant of certain fields on which stand a large number of trees. The plaint alleged that the defendants, who are malguzars of the village, claimed a right to cut these trees and had actually cut down tamarind trees and babul branches, removing the latter. The plaint asked for a declaration that the defendant had no eight to any of the trees and for damages. The defendants claimed to be the exclusive owners of most of the trees and also claimed some rights in the remaining trees. They allege that the trees were of spontaneous growth grown without any care or attention on the part of the plaintiff. It has been held that the trees in question were in existence at the time of the settlement of 1892-93. The administration paper prepared at that settlement has the following entry with respect to trees: Every tenant can plant trees on his land and shall be proprietor of all trees so planted by himself or his ancestors. When land is transferred the right to the trees on the land shall pass with it. Trees of spontaneous growth within holdings belong to the malguzar, but he will give permission to the cultivator in possession of the holding to cut the wood for the benefit of the holding without charge.

(2.) I note that the custom as recorded is vague in one respect; it does not clearly state whether trees which were not planted by the tenant but were tended by him and are thus not of spontaneous growth belong to the tenant or to the malguzar. The Wajibularz of the next settlement, Ex. D-3, supplies this omission. After stating that legislation would determine rights of tenants with regard to trees, it added: For the present the trees which have grown after the tenancy was taken up and which have been taken care of by the tenant belong to the tenant.

(3.) IT seems obvious that the Wajibularz does not refer to saplings. A tenant must always have had a right to uproot young growth, while preparing his land for crops. It is not now disputed that the trees originated when the plaintiff's ancestors were tenants. If the plaintiff deliberately forbore to uproot saplings which interfered with his cultivation, he must, in my opinion, be considered to have taken care (hifazat) of them: the saplings when they grow into trees belong to him. But it is by no means clear that all the trees grew from saplings which obstructed cultivation. This was never put in issue. It does not appear necessary to send back the case for a precise statement regarding each of the trees, in order to give the plaintiff a declaration with regard to particular trees, the grant of a declaratory decree is discretionary. The defendants out babul and tamarind trees and it is now admitted that the tamarind is a fruit tree, and Section 95, Tenancy Act, gives the tenant right in babul and tamarind trees. Now that the parties have been enlightened as to their rights, they should be able to come to agreement regarding the remainder of the trees. I therefore restore the decree of the first Court in so far as it refers to the plaintiff's rights in trees and to damages. Costs in the first Court will be borne as directed by that Court, and costs in the appellate Courts will be borne as incurred.