D SHANMUGHA RAJA, PROPRIETOR OF SIVAGANGA ESTATE, BEING MINOR, REPRESENTED BY DEWAN BAHADUR V PONNUSWAMI PILLAI, MANAGER Vs. ARMSUPPIAH SERVAI

JUDGEMENT

(1.) The plaintiff who is the appellant is the proprietor of the Sivaganga Estate represented by his manager. He sued for a declaration that the property, described in the schedule to the plaint, situated in Oorawayal village belonged to him and was in his enjoyment, for a permanent injunction restraining the defendants from trespassing upon its limits and cutting off the trees therein and for damages and other reliefs. He alleged that the village was situate in his estate and that the tank and forest of the village belonged to the estate. In paragraph 6 of his plaint, he alleged that the property described in the plaint schedule had been declared by the Government to be a " Reserved Forest" and that the Zamindar for Sivaganga had been appointed Forest Officer in respect of the said forest. The defendants denied the plaintiff's title and also took objection to the maintainability of the suit. This latter plea was contained in paragraph 11 of their written statement which runs as follows: If there is any truth in the allegation that the suit property is reserved forest, the suit presented by Raja Avergal is not sustainable under law. Only proceedings under the Forest Act ought to have been taken and as such the present suit cannot be entertained and it is liable to be dismissed on that ground alone. The learned District Munsiff of Devakottai who tried the suit overruled the objection raised as regards the maintainability of the suit, found on the other questions in favour of the plaintiff and granted him a decree.

(2.) On appeal by the defendants, the learned Subordinate Judge of Devakottai without going into the merits of the case, held that the plaintiff was not entitled to claim a declaration that the property belonged to him and also found that the suit brought by him as proprietor of the Sivaganga estate was not maintainable. He accordingly dismissed the suit and the plaintiff has therefore filed the above second appeal.

(3.) The learned Government Pleader who appeared for the appellant contended that there is nothing in the provisions of the Forest Act or in the rules framed thereunder which takes away the proprietary right of the zamindar to forests to which the provisions of the Forest Act have been made applicable by notifications thereunder. I entirely agree with him.