F F CHRISTIEN Vs. TEKAITNI NARBADA KUNWARI

JUDGEMENT

(1.) This appeal arises out of a suit for a declaration of certain rights in, and for partition of, two tracts of jungle situated in Gadi Domechanch in the District of Hazaribagh. Tekait Churaman Singh was a former proprietor of the Gadi. He was succeeded by his son Tekait Tohal Ram Singh who was succeeded by his uncle Tekait Maharaj Singh, since deceased. The defendant No. 3 is the son of Maharaj Singh and is the present Tekait of the Gadi. Defendant No. 1 is a bybil-wafadar or mortgagee from the latter under a mortgage executed sometime in 1901. Tekait Maharaj Singh, the father of defendant No. 3 being desirous that the plaintiff should " pass her life with comfort, honour and power " granted to her by a khorposh sanad bearing date the 6 December 1894, two mouzasj Raidih and Kusabana, ten bighas of paddy land, and half the income of jungle collections from bankar mahsul and half the price of wood in Gadi Domechanch for her life by way of maintenance. Since the date of this grant the plaintiff has been and is now in possession of these two mouzas and the paddy land and was in receipt and enjoyment of the jungle collections until 1904 when, in consequence of certain disputes between her and defendant No. 1 concerning the right to cut sakua trees from the jungles in suit, a proceeding was held under Section 145 of the Criminal Procedure Code and the jungles were placed under attachment by the order of the Criminal Court. The plaintiff has, therefore, brought this suit asking for a declaration that she is entitled to sell sakua trees from the jungles in suit and to realise half the proceeds thereof; and also for partition of the jungles by division into two equal parts.

(2.) The defendant No. 1, who alone contested-the suit, averred that by the khorposh sanad, the plaintiff is only entitled to realise bankar mahsul in respect of such wood only as is not Valuable, and is only used for fuel, and that she can also receive half the sale-proceeds of such valuable trees that dry up and fall by themselves, but that she had no power to destroy the jungle. The defendant No. 3 supported the plaintiff. Upon these pleadings the two cardinal points for decision were embodied in issue No. 5: What are the rights of the plaintiff in the jungles in suit? And in issue No. 4 : Is the plaintiff entitled to have the jungles partitioned out?

(3.) The Court below has held that the plaintiff is entitled to collect half the bankar mahsul and half the tolls levied on the manufacture of catechu and the rearing of silk cocoons, as also, some other minor profits; and further that the plaintiff is entitled to cut or to have cut and to sell sakua and other trees of the jungles in suit and that the defendant is likewise entitled to exercise the same right of cutting and selling similar trees of the jungles; and in order that these rights may be effectually exercised and that the parties may peacefully exercise these rights in the future, the Court below has directed a partition of the jungles. The Subordinate Judge has proceeded to make a further declaration that the rights of the plaintiff and defendant No. 1, in these jungles are subject to the customary rights therein of the different classes of raiyats of Gadi Domechanch.