DARSAN DAS Vs. LAKSHMAN PRASAD

JUDGEMENT

(1.) This is a plaintiff's second appeal in a suit for recovery of damages being his half share of the price of timber, cut down and appropriated from a nakdi occupancy holding in possession of the defendants. The plaintiff based his claim on what he calls a well-established, local custom giving him right to half the price of timber of any tree standing on the tenancy lands in Subhankarpur (the village in which the disputed holding lies). The defendants resisted the suit on the ground that it being a cash paying holding, they are entitled to cut and appropriste the entire timber of the trees standing on the land. They admit having cut only 100 trees and sold them for Rs. 600. In short, the defendants seek to vindicate their right on the basis of the provisions of Section 23A, Bihar Tenancy Act. Beth the Courts below have dismissed the plaintiff's suit. The trial Court recorded a finding in favour of the plaintiff's alleged custom. The custom, however, according to. Section 23A is of no avail being inconsistent with the law promulgated therein.

(2.) Mr. Lalnarayan Sinha appearing for the appellant has based his case on the proviso to Section 23A of the Act and a decision of the civil Court upholding the landlord's claim to half the price of the timber of trees cut down and appropristed by the tenants in nakdi holdings in this village in suits instituted by the plaintiffs against certain other tenants in relation to certain other holdings in the same locality. The proviso reads: Provided that if there is a specific entry in the latest record of rights regarding any tree which was standing on any land specified in Clause (a) before the date of the final publication of such record of rights, the rights of the landlord and the raiyat in the timber of such tree shall be in accordance with such entry with any decision of a civil Court affecting such entry. The question arises whether there is any specific entry in respect of the holding in question. The Khatisn of the disputed holding is on record. In, the remarks column of the khatisn, after mentioning the number and kind of trees, it is stated "bakabje raiyat." This phrase simply means possession of the raiyat. There is no definition of the respective rights of the landlord vis a vis the tenant with regard to the timber of the trees; but this phrase cannot be intended to have been inserted simply to indicate possession of the raiyat. Taken in that sense it would be merely a redundant entry. As the holding was in possession of the tenant, necessarily the trees standing on it should be in his possession. The law, as it stood at the time of the entry, would give the tenant untrammelled right to the produce of the land including that of the trees standing thereon. Some meaning bearing upon the rights of the parties to the timber must have been intended to be conveyed by the term. The entry, therefore, can be interpreted in the light of the village notes according to which the tenant is entitled to cut and appropriste the entire timber of the trees standing on nakdi holdings. It is clear, therefore, that "bakabje raiyat" in this entry means that the tenant is entitled to appropriste the timber and the landlord has no share in it.

(3.) Mr. Jha wanted to argue that this cannot be said to be a specific entry within the meaning of the proviso inasmuch as it docs not record the rights of the landlord and tenant in the timher. I, however, overrule this contention and hold that the present is a case of a specific entry in the record of rights. Village notes may not be record of rights by themselves, but they are autheritative rocords prepared by public servants in discharge of public duties and they certainly can be used for the purpose of interpretation of entries in the record of rights. In this view, I hold with Mr. Lalnarayan Sinha that the case is governed by the proviso. But to what effect? If the entry stands alone, it gives the entire timber to the tenants. So, reservation, if any, as against a statutory. provision giving the tenants the lull right to the timbers of the trees is in their favour. The appellant, however, contends that the civil Court decision, already referred to, affects the entry, his submission being not as was contended in the Court of appeal below that they were res judicata between the parties but that the judgments in these cases were evidence of a conclusive character as to the custom under Section 42, Evidence Act, and that thus all the entries in all nakdi holdings in the village are affected by these judgments which declare that the local custom should overrule the settlement entries. This contention no doubt carries great force but does not appear to be very convincing.