RAM CHARAN Vs. GAJADHAR

JUDGEMENT

(1.) This is a second appeal by the defendants against concurring decrees of the two lower Courts awarding the plaintiffs Rs. 75 damages for the cutting down of a neem tree in parti land in the village site by the defendants. The plaint set out that the tree was owned and possessed by all the zamindars of the village and that the defendants cut it down without any right. The written statement alleged that the tree was planted by the father of defendant 1 close to his house which was now used as a cattleshed and was still in the possession of the defendants, and that the tree was planted more than 40 years ago, and that the defendants required wood for the construction of their house and and therefore got the tree cut down. The written statement did not clearly say that the tree was planted with the permission of the zamindars. Further it did not say that there was any custom in the village by which the defendants tenants were entitled to the wood of trees planted by them on parti land in the village abadi. The sole issue framed was whether the plaintiff is the owner of the tree in suit and to what sum the plaintiff is entitled. The lower Court found that the plaintiff did not know who planted the trees, that the trees were planted by the ancestor of the defendant in parti land of the abadi, that there was no evidence of the custom, that the defendants were mere trespassers, and therefore the suit was decreed. The lower appellate Court found that there was no permission of the zamindar pleaded nor proved and it upheld the decree regarding the defendants as trespassers.

(2.) The defendants have appealed to this Court on the ground that they had a legal right to take the wood of this tree. The defendants rely on the ruling reported in Ramnath V/s. Mata Sahay 1923 72 All. 417, of Daneils, J., in which he dealt with other matters and at p. 109 he stated: It is next argued that in the absence of proof of special custom Jagannath, though in possession of the trees, had no right to transfer them. The lower Court relies on the ruling in Jabsar Sahu V/s. Raj Mangal 1921 All. 168, and I agree with the lower Court that whatever views may formerly have been held, the presumption now is that a tenant has a right to cut and sell trees planted by him.

(3.) The judgment shows that the suit related to the possession of certain trees and of a house in the abadi. The reasons given by the learned judge are vague and the ruling to which he refers relates to the case of trees planted on what had been an occupancy holding. That ruling in Jabsar Sahu V/s. Raj Mangal 1921 All. 168, does not apply, in our opinion, to the case of trees planted on parti land I in the abadi. On behalf of the plaintiffs reliance is placed on the case of Jagdish Narain Singh V/s. Jokhan Ahir (1910) 5 I.C. 437, in which Sir John Stanley and Piggott, J., held that, trees planted in a grove outside the occupancy holding of a tenant could not :be sold by the tenant and in the case I of Ram Sarup v. Jagannath 1914 All. 529, the sate Sundar Lal, J., held that a tenant had no right to sell trees planted on the wasteland in a village. We consider that these two latter rulings should be followed. For the plaintiffs reliance was also placed on the case of Gobardhan Pande V/s. Debi Bux Kurmi 1929 All. 146. This was the ruling by a learned Single Judge, Boys, J., and in regard to trees planted on parti land in the abadi he held that the criterion was where a person who has planted the trees gives or gives up something in return for the permission to plant the trees and that in the absence of other special considerations, the tree "becomes the property of the person who plants it, but where he gives nothing, the property in the tree becomes as that of a zamindar. We do not think that this is a general criterion which we should follow, as it is not apparent from where the doctrine of consideration is derived, but the case does not apply to the present suit, because in the present suit there was no previous permission to plant.