MT. PUNTRIBAI Vs. SM. SARJUBAI

JUDGEMENT

(1.) THIS judgment will decide two appeals, namely, Nos. 596 and 631 of 1943. They arise out of two different suits (Civil Suits Nos. 36-A and 37-A of 1942) filed by the plaintiff-respondent as landlord of the village Raisalpur, tahsil Hoshangabad, against his certain tenants of that village. The tenants in each case were the defendants appellants in this matter.

(2.) THE plaintiff sued for recovery of damages from the defendants, Mt Puntri Bai (appellant in Second Appeal No. 596 of 1943) and Reotiramanprasad and Rohmprasad (appellants in Second Appeal No. 631 of 1948) on account of the wrongful recovery of the lease money from one Lalloo Bhai of Itarsi to whom the plaintiff had given the sindi trees (hereinafter referred to as the trees) for extracting toddy. The plaintiff's case was that as landlord she was the owner of the trees standing on the occupancy holdings of the defendants and that she alone was entitled to the income that was derived from the sale of toddy juice. The defence in the case was that the trees belonged to the occupancy holders and that the tenants had the same right in the toddy juice as they had in the holdings. It was further contended by the defendants that the today juice was in the nature of fruit and hence the tenant-defendants were entitled to it to the same extent as they were entitled to the produce of the agricultural holdings. The Court of first instance accepted the defence and refused to give a decree to the plaintiff. The plaintiff appealed to the District Court, Hoshangabad. In appeal the learned Additional District Judge reversed the decree of the trial Court and decreed the plaintiff's claim with costs. The defendants have now preferred these two second appeals.

(3.) IT is admitted that the toddy trees standing on the occupancy lands are of spontanecus growth It is also conceded that today juice is neither fruit nor flower, but it has been argued that it is in the nature of annual produce and consequently the occupancy tenants have the same right thereto as they have to the usufruct of the lands, I do not think that toddy juice is in the nature of annual produce at all. In the first place, today juice is not extracted every year, but it is extracted once every 3 or 4 years.. Secondly it is not natural annual produce and, therefore, it cannot fall within the definition of j "agriculture" under Section 2(2), C.P. Tenancy Act, 1920 It has been correctly laid down in a case to be found in Hira v. Mahomed Sirajuddin Khan 4 N.L.R. 104 at p. 111, that while, however, the landlord is the owner of the trees on the land of his tenants, it is equally well established that, under the same general law, the tenant is entitled to the natural annual produce of such trees namely, fruit and flowers. In this connexion the observations of the learned Judges of the Division Bench in Gopaldas v. Mt. Malla A.I.R. (30) 1943 Nag 200) may be profitably cited: A tenant, therefore is a person who holds the land let out to him for agricultural purposes, and the definition of agriculture does not include raising scrub-jungle. The property in scrub jungle would, therefore, necessarily be in the landlord if severed from the soil. In a later part of the same matter they said at page 305: Another point to be considered in this connexion is the fact that scrub-jungle is of spontaneous growth. It is not the result of human labour on land and is not thus a part of agriculture That spontaneous growth which is on the land is a part and parcel of the land and, therefore, if the land belongs to the landlord that spontaneous growth also belongs to the landlord.... The statement that toddy juice extracted from the trees is neither fruit nor flower, nor is it in the nature of annual produce, appertaining to agriculture, is further supported by the ruling of this Court in Phiroz Shaha v Indar Singh S.A. No. 413 of 1942, D/ 12-2-1946. I, therefore, agree with the lower Court of appeal in holding that the tree is not a fruit tree within the meaning of the old Section 95(1), C.P. Tenancy Act.