AHMAD ALI Vs. JOTI PRASAD

JUDGEMENT

(1.) We have before us four connected appeals, namely, First Appeals Nos. 95 and 124 of 1941 arising out of suit No. 120 of 1937 in the Court of the Civil Judge of Dehra Dun and First Appeals Nos. 96 and 125 of 1941 arising out of suit No. 389 of 1938 in the same Court. The parties were the same in the two suits. First Appeals Nos. 95 and 96 have been instituted by the defendants and First Appeals Nos. 124 and 125 by the plaintiffs. The plaintiffs claimed damages in the two suits upon the ground that the defendants had cut down a number of trees in the forest of Guljwari, the property of the plaintiffs, and that they had been guilty of certain breaches of an agreement or lease which was evidenced by a document executed by the plaintiffs, Joti Prasad and Jugal Kishore, on 10 September 1935. In this document Joti Prasad and Jugal Kishore are described as the first party and the defendants, Shaikh Ahmad AH, Nur Ahmad Niyaz Ahmad and Benarsi Das are described as the second party. Paragraph 1 of the agreement is as follows : "Whereas we, the first party, are the owners and zamindars of mauza Guljwari, mohal Lala Joti Prasad and Jugal Kishore, pargana Paehhwa, district Dehra Dun, recorded in the khewat as holding No. 1 according to the partition of the year 1923, the area whereof according to the public papers is 6693 bighas 3 biswas 10 biswansis out of which 5479 bighas 15 biswas 10 biswansis is uncultivated land and is occupied by forests, rivers, brooks and high and low land and the rest is cultivated. The second party has taken on lease from the first party all the sal and kokat trees sianding on the uncultivated plot aforesaid but (except?) the trees which have been exempted from the lease in lieu of Rs. 50,000. The parties have agreed to the following terms which will be binding upon their heirs and successors:" The particular terms which may be mentioned were that the whole forest should be divided into four blocks and that the operation for cutting down the trees should be carried on in the blocks successively, that is, that the cutting operations should be completed in one block before they could be begun in the next; that the whole of the operations were to be carried on between 1 October 1935 and 31 May 1940; that the defendants were not to cut down any tree which was less than 17 inches in circumference at a place 6 inches from its base and if they cut down any such tree or damaged it in the course of cutting down other trees they were to leave in its place another tree at least 18 inches in circumference; that the defendants were to supply to the plaintiffs, free of charge, 10 cartloads of pharras (which we understand means planks cut from the outer side of a tree with the bark on one side), 200 head-loads of firewood and 25 kandis (loads) of charcoal; that they were also to pay Re. 1 per cent, of the Rs. 50,000 to the servants of the plaintiffs as commission; and that this sum of Rs. 50,000 was to be paid in four instalments of Rs. 12,500 each and the commission to the servants was to be paid with the instalments. The plaintiffs complained that the defendants had cut down sal trees in plots which were not included in the lease, that they had cut down certain trees which were not sal or kokat and which were exempted from the operation of the lease, that they had cut down or damaged some trees less than 17 inches in circumference and had not left other trees standing in their place, that they had cut down certain trees in a block in which cutting operations were already completed in order to make a road and that for the purposes of the road they had removed certain stumps to which they were not entitled and that they had not supplied the pharras, firewood and charcoal in accordance with the terms of the lease and had not paid the commission due to the servants of the plaintiffs. The two suits were instituted respectively to recover damages for the loss occasioned to the plaintiffs in the years 1936-37 and 1937- 38. In suit No. 120 of 1937 the learned Judge of the Court below gave the plaintiffs a decree for Rs. 5079-5-5. This sum is made up of the following items, namely:

(2.) In suit No. 389 of 1938 the learned Judge allowed the plaintiffs a decree for Rs. 5734-1-9. This sum consists o the following items:

(3.) The two suits were tried together and the evidence was the same. The appeals have also been argued together and the questions involved in the appeals are of the same nature. The first question is whether the defendants cut down trees in plots which were not included in the lease. The plaintiffs in suit No. 120 of 1937 in para. 4 of their plaint enumerated a number of plots which they contended were not included in the lease. The defendants in their written statement in para. 4 of their additional pleas specifically claimed that the plots mentioned in para. 4 of the plaint were uncultivated and were included in the lease in their favour. They did, however, add in para. 5 that some trees standing on plots Nos. 500 to 503/3 had been cut down by the tenants and that plot No. 833 was stony and open land upon which there were no trees and upon which no trees had consequently been cut down. They also said that they had cut down no trees in plots Nos. 793 and 504 and that they had cut down only 15 to 20 trees in plots Nos. 775 to 778. They further added in para. 6 that they had cut down not more than 1000 trees in plots Nos. 831/1, 831/2, 831/3, 610, 611, 612, 506 and 606. Plot No. 506 was not specifically mentioned in para. 4 of the plaint but all the other plots were mentioned therein. In the other suit the plaintiffs enumerated a number of plots in para. 5(a) of their plaint. The defendants in their written statement in para. 3 of their additional pleas contented themselves with saying generally that the plots were included in the lease because they were part of the forest. In that suit they did not raise the point that they had cut down fewer trees than those alleged in the plaint.