MOHAN SINGH Vs. LACHMAN DAS

JUDGEMENT

(1.) THE facts of this case are simple. THE judgment-debtor is an ex-proprietary tenant and on one of the plots in his holding there stands a grove of trees which he planted while he was still a zamindar. THE whole holding has been assessed to rent. THE decree-holder is the zamindar at the present moment. It appears that he obtained a mortgage decree against the judgment-debtor in execution of which the zamindnri property was all sold up. THE ex-proprietary holding was subsequently assessed to rent and the decree-holder is now seeking to recover the balance of the decretal amount from other non-mortgaged property of his judgment-debtor. A plea was taken that the grove is a part and parcel of the ex- proprietary holding and is not liable to sale in execution of a decree. To this the Court of first instance acceded. THE lower Appellate Court has held that the tenant has a saleable right in the trees and that right may be sold in execution of a decree. It bases its decision upon the conditions entered in the wajib-ul-arz. An examination of the wajib-ul-arz, which has not been quite correctly translated in the judgment of the Court below, shows that it lays down that tenants of the village who have groves on their land, for which rent is paid are entitled to cut and sell trees without any permission from the zamindar and that in the case of groves on land for which no rent is paid the tenants cannot cut and sell trees without the sanction of the zamindar. THE judgment-debtor has come here in second appeal and the plea taken is that the trees form part of the holding and, therefore, are not saleable. Reliance is placed on the following decisions: Deoki Nandan v. Dhian Singh 8 A. 467: A W.N. (1886) 192; Imdad Khatun v. Bhagirath 10 A (sic)59 : A.W.N. (1888) 32 and Janki v. Sheoadhar 23 A. 211; It seems to me that none of these rulings will help the judgment-debtor in the circumstances of the present case. All those decisions are qualified by the words "in the absence of a custom or contract to the contrary." In the present case we have the fact that the zamindar is perfectly willing that the trees shall be sold. THE learned Vakil for the appellant at first admitted that if the zamindar and the tenant are both desirous of having the trees sold, they could be sold. If that were so, then it is clear that the trees could not form part of an ex-proprietary holding because the law, as laid down in the Tenancy Act, distinctly forbids the sale of an ex-proprietary tenant s interests in execution of a decree. He was then forced to take up the position that the trees being part arid parcel of the ex-proprietary interest could not be sold at all, even if both tenant and zamindar so desire. This, it seems to me, brings us more or less to an absurdity. THE cases which have been cited arc all cases in which the zamindar objected to sale by tenants of trees which stood in the grove in dispute. Section 20 of the Tenancy Act provides that the interest of an ex-proprietary tenant is not transferable in execution of a decree of a Civil or Revenue Court or otherwise than by voluntary transfer between persons in favour of whom is co- sharers in the tenancy such right originally arose. It seems to me quite clear that the trees of the grove (as in the present case) do not necessarily form part of an ex-proprietary holding and that it would be absurd to say that the law ever Contemplated that in such a case as the present the trees could not be sold even if both zamindar and tenant wish to dispose of them. In the present case it is true that the tenant does not wish to lose the trees, for the simple reason that he does not wish to pay the debt which is due from him. Under the wajib-ul-arz he clearly has a right to cut and sell trees more specially if the zamindar agrees to the same. In my opinion the decision of the Court below is correct. THE auction-purchaser under the sale will be entitled only to cut and remove the trees and the judgment- debtor will be entitled to retain his ex-proprietary interest in the land and cultivate it. THE appeal, therefore, fails and is dismissed with costs.