MT BIBI MISRAN Vs. KISHUN PASI

JUDGEMENT

(1.) This application is by the plaintiff and arises out of a suit to recover damages from the opposite party in respect of the usufruct of the palm trees standing in plots NOS. 563 and 572 of village Peepra. These plots have been recorded in the record of rights as gairmazrua-am lands. The defendant tapped nine palm trees standing on these plots and appropriated the juice. He claimed to have done so by arrangement with one of the villagers who is alleged to have purported to settle with him the right of tapping the palms. The case raises the much debated question of the rights of the proprietor and villagers, respectively, in gairmazrua- am land. The Court below, relying on the decision in Muhammad Waliul Huq v. Ludput Upadhaya , has held that as gairmazrua-am land is not under the control of the proprietor he has no cause of action against the defendant, his right with regard to the palm trees being no better than that of the other residents of the village. The decision in the case referred to has been much misunderstood, owing to an observation of James, J.: It is said that there are two forms of khatian for non-agricultural land or waste land. In one (gairmazrua malik), is entered land, waste or uncultivated or utilised for building or non-agricultural purposes, which is under the control of the zamindar. In the other, (gairmazrua-am or public waste) is land of that kind not under the control of the zamindar. The latter part of this observation must be taken in connection with the facts of the case. The suit was one by certain Mohammadans for a declaration that they had a right to bathe in the Septadhara kund (pool) at Rajgir which was recorded in the record of rights as gairmazrua-am. The kund is a place of religious sanctity to the Hindus and from time immemorial the control of it has been in the hands of Brahmin priests who maintain it in good order and receive offerings from Hindu pilgrims who visit the place. The proprietor of the zamindary in which Rajgir is situated is a Mohammadan and I find from the paper book in the case that it was the contention of the plaintiffs that they had the tacit consent of the zamindar to bathe in the kund. The proprietor was impleaded as pro forma defendant. It is obvious that what James, J. meant by his observation was that as the kund was not in the exclusive possession of the zamindar, he could not, either expressly or impliedly, confer a right inconsistent with the established rights of the Hindus who from time immemorial had been in control of the kund. This decision was followed in Amiruddin V/s. Sonelal Jha A.I.R. 1937 Pat. 669. The facts of that case were that the plaintiffs obtained a settlement from the proprietor of the village of a portion of a plot which was used by the Mohammadan inhabitants of the village as a graveyard. This plot was recorded in the settlement record as gairmazrua-am. The plaintiff alleged that the defendants, who were successors in interest of the landlord interfered with their possession, and sued for a declaration of their occupancy rights in the land and for recovery of possession. It was held that the landlord had no right to settle the land and the plaintiff had acquired no tenancy rights by virtue of the settlement.

(2.) It is thus clear that, as in the first case, some of the villagers, namely, the Mohammadan inhabitants, had an established right to use the plot in question as a graveyard, and what was held in the case was that in these circumstances the proprietor had no right to make a settlement which would prejudice the established rights of the Mohammadan inhabitants. The next case in which the question arose was Mt. Bibi Safia V/s. Sahdeo Singh A.I.R. 1942 Pat. 286. The plaintiffs, proprietors of mouza Alipur Sohra, brought a suit against a number of persons as representing the inhabitants of the village. The plaintiffs claimed damages in respect of fish taken by the defendants from a ditch situated in the village. In the record of rights, the ditch was recorded as gairmazrua-am. It was held that the plaintiffs were not in a better position than the other inhabitants of the village and that they were only entitled to maintain a suit for damages and for a declaration that the villagers were not entitled to take fish if they could show that they had an exclusive right to the fishery. There was no evidence to show what the rights with regard to taking fish from the ditch were. With regard to trees situated in waste land, however, it is the general law that they belong to the zamindar: See Jagdeo Singh V/s. Mahendra Singh A.I.R. 1934 Pat. 287 and Dulhin Phulkuar V/s. Titan Singh A.I.R. 1984 Pat. 258 in both of which cases it was held that the general law is insufficient to rebut an entry in a record of rights that the raiyats of the village were jointly in possession of the trees standing on the waste land of the village, There is no such entry with respect to the trees standing on the plots which are the subject-matter of the present suit. The general rule will, therefore, prevail. We have been referred to the decision of a single Judge of this Court in Siban Singh V/s. Mt. Sitabo Kuer (Civil Revn. No. 696 of 1941, D/-15-4- 1942) The plaintiff was the proprietor and he sued to recover sairat rent in respect of trees standing on gairmazrua-am land. The suit was dismissed on the ground that the right to recover had been negatived by the decision in the Rajgir kund case. The right of a zamindar with respect to waste land within his zamindary is limited only by the statutory, contractual and customary rights of other persons. In villages where the inhabitants have no established rights to trees standing on gairmazrua-am land they belong to the zamindar and he is entitled to deal with them in such manner as he chooses so long as he does not interfere with the customary rights of the villagers. The result is that this application must be allowed, the decree under appeal set aside and the suit decreed with costs throughout. Shearer, J.

(3.) I agree.