MT MAHGINIYA Vs. SRI RAM CHANDRAJI

JUDGEMENT

(1.) THIS is a second appeal by a defendant against concurring decrees by two lower Courts. The plaintiff sued as a zamindar of a certain village and stated in the plaint that the defendant was an occupancy tenant of a plot of land No. 81, area 70 acres, in his zamindairi on which stand clumps of bamboos belonging to defendant and that out of the clumps of bamboos defendant 1 had sold 46 bamboos to defendant 2 for Rs. 23 and that there was a custom of realisation of zar chaharum, of the sale proceeds by the zamindar at the time of sale of groves or scattered trees, and accordingly the plaintiff claimed Rs. 5-12-0 and interest. The case was first brought in the Revenue Court and defendant 1, who is an old lady, admitted the claim but later she disputed it in the Revenue Court and the Revenue Court held that it had not got jurisdiction and the plaint was returned and has been presented in the Court of the Munsif. The case has been opposed by the appellant on the ground that the custom in question clocs not apply to the sales of these bamboos because they are not trees. For the plaintiff-respondent reliance is placed on the custom recorded in 1291 F. corresponding to 1883-84, in the "halat dehi" containing the customs of the village. The custom there is recorded as applying "bawaqt farokht baghat wa darakhtan mutafarrika." The question before us is: Can it be said that the sale of 46 bamboos out of certain bamboo clumps, in an occupancy holding does come under this. custom? The onus of proof was on the plaintiff to show that the custom would apply in such a case. No decision has been shown by the plaintiff in which the custom has been enforced for the sale of "bamboos from a clump. There is we consider a certain difference from the sale of bamboos in a clump, and the sale of a tree. When a tree is sold the tree is cut down and taken away and there is nothing remaining. The value of the holding therefore is depreciated by the cutting of the tree. On the other hand where bamboos are cut down and sold from a clump, in a few years other bamboos grow up from the same clump. The value of the holding therefore is not depreciated by such a sale. The sale is rather of the produce of the land and the growth of the bamboos is in the nature of the growth of a crop. Attention has been directed to a ruling of the Board of revenue in Ali Husain V/s. Marium Bibi (1934) 15 L.R.A. Rev. 132. The question before the Board was different from the question before this Court. The question before the Board was whether the land on which a large number of bamboo clumps were planted would be grove land. The Board held that the existence of these bamboo clumps would prevent cultivation and therefore within the meaning of the present Tenancy Act (Act 3 of 1926), Section 3(15), the land would be grove. But what we have to see is whether the custom applies in the present case. It is not argued that a grove has been sold, but the plaintiff desires to bring his claim under the words of the custom, which refer to the sale of scattered trees. We consider that the plaintiff has failed to make out his case and as the onus of proof was on the plaintiff we therefore allow this second appeal and dismiss the suit of the plaintiff with costs throughout.