KEDAR NATH BOSE Vs. GOBINDA CHANDRA DAS

JUDGEMENT

(1.) This Rule was issued under Section. 25 of the Provincial Small Cause Courts Act to revise the judgment of the Small Cause Court in a suit brought by the petitioner for recovery of price of two Karai trees which are admittedly timber trees cut and appropriated by the defend-ants. The plaintiff is the landlord and the defendants are tenants under him of a piece of land on which the disputed trees sued for, betal-nut and other fruit trees stood. The plaintiff's case is that the defendants took lease of the land from him about 30 years ago and that they had no right to appropriate the trees standing thereon. The defence was that the defendants were occupancy raiyats and that they had the right to the trees. They further alleged that their tenancy was very old, The learned Munsif presiding over the Small Cause Court has not found sufficient facts for the determination of the question raised. With regard to the origin of the tenancy he is of opinion that it is very old and that the ancestors of the defendants possessed the land before them. With regard to the question as to who grew the trees he observes that the trees were planted or allowed to grow by the defendants father. He holds that the Bengal Tenancy Act does not apply but he is unable to find decisively if the lease was granted to the defendants ancestors before the passing of the Transfer of Property Act or subsequent thereto. On these findings if they can be so-called the Munsif has held that the defendants had the right to remove the trees under Section. 108 (h) of the Transfer of Property Act or if the lease was granted before that Act came into operation under the ruling reported as Mofiz Sheikh v. Rasik Lal Ghosh 6 Ind. Cas. 706; 37 C. 815; 14 C. W. N. 952; 12 C. L. J. 246. It is difficult to hold upon the findings of the Court below, which are not decisive on the points in dispute, as to whether he has applied the law correctly.

(2.) The question raised Cannot be lightly treated as it is of great importance to both parties, especially to the landlord.

(3.) I assume for the purposes of the present controversy that the lease was granted before the Transfer of Property Act. In that case the decision of the Munsif according to the view consistently held by this Court would be wrong. With the case of Mofiz Sheikh V/s. Rasik Lal Ghosh 6 Ind. Cas. 706; 37 C. 815; 14 C. W. N. 952; 12 C. L. J. 246 on.which the lower Court has relied I will deal later. On the authorities the law seems to be that before the Transfer of Property Act was passed the property in the trees was in the landlord and the tenant had the right to them if there was any custom or usage to the contrary. The cases on this point have been collected in Nafar Chandra Pal V/s. Ram Lal Pal 22 C. 742; 11 Ind. Dec. (N. S.) 493.