GOBARDHAN PANDE Vs. DEBI BUX KURMI

JUDGEMENT

(1.) This is one of those cases of village disputes, superficially petty but which arise with great frequency and the principles governing them are therefore of some importance. I am afraid that no principle laid down by this Court will ever penetrate to the ordinary villager or petty zamindar, and he will still proceed to litigation in each case according to his lights. The plaintiff appellant as zamindar sued for a declaration of his right to two trees planted on parti land with damages for some wood sold from the trees. The defendants claimed to be the owners of the trees and that they had been planted by them. It is admitted that the trees are growing on parti land. Though the defendants did not plead that they had planted the trees by permission some evidence was apparently led without objection, and the case was decided in the lower Courts on the basis that the trees were planted by the defendants with the permission of the zamindar on parti land, and I have to determine in this appeal whether the zamindar is entitled to the trees and the defendants entitled only to the fruits, or whether the defendants are entitled to both. The trial Court gave the plaintiff a decree, but the lower appellate Court has dismissed the suit. The latter was of opinion that while formerly the decisions were in favour of the zamindar the trend of the more recent decisions was to hold the property in the trees to be in the tenant. It has relied for this proposition on the decision of Daniels, J., in Ramnath V/s. Mata Sahai A.I.R. 1923 All. 417. That was a case of trees planted on an abadi site. Daniels, J., remarked: The lower Court relies on the ruling in Jaleshwar Sahu V/s. Rajmangal A.I.R. 1921 All. 168; and I agree with the lower Court that whatever views may formerly have been held the presumption now is that a tenant has a right to out and sell trees planted by him.

(2.) Now it is to be noted that the case Jaleshwar Sahu V/s. Rajmangal A.I.R. 1921 All. 168 which was followed was a case in which a tenant had by the permission of the zamindar substituted trees, in fact a grove, for the agricultural cultivation. It is clear then that in that case the man who planted the grove was giving up something. In exchange for his agricultural cultivation he was planting trees. In other words, he was not a gratuitous gainer by the permission to plant the trees. How far the decision in that case really supported a decision in favour of the tenant in a case where he had planted trees on an abadi site occupied by him, is a question into which I need not enter. It is sufficient to note that case was the basis of the decision of Daniels, J., in(1) and it is this decision of Daniels, J., that is relied upon by the lower appellate Court in upsetting the decree of the trial Court. It appears to me that there is a manifest distinction between the case of an occupancy tenant substituting a grove for his agricultural cultivation with the permission of the zamindar and the case of a person planting a tree on wasteland with the permission of the zamindar without any proof of nazrana or other consideration given. If the zamindar is not to have a right in the wood then, unless it be proved that he got some nazrana or other consideration, he would be getting nothing at all for the permission which he has given to plant trees. It would seem, then, prima facie reasonable that he should get something; and when I find that the previous authorities to which I shall presently refer have supported the zamindar's right in such circumstances in the trees I am not prepared to deny that right in consequence of the judgment in Jaleshwar Sahu V/s. Rajmangal A.I.R. 1921 All. 168, which was on a quite different set of facts. In the present type of case the planter of the trees was giving and giving up nothing. The principle that the zamindar is entitled to the timber was followed in the case of Juggdip Narain v. Jokhan [1910] 5 I.C. 256: where permission had been given to plant on waste land, and that case was followed in Ramsarup V/s. Jagannath [1914] 25 I.C. 152; also a case of planting on waste land, though in the latter case it is not very apparent that the question of permission was raised or considered. Those two cases are directly in point and the decision in Jaleshwar Sahu V/s. Rajmangal A.I.R. 1921 All. 168, does not detract from them; all these are in accordance with a reasonable principle though that may not have been specifically stated, that where the planter gives or gives up something in return for the permission to plant the tree ordinarily, i.e., in the absence of other special considerations, becomes his property but where he gives or gives up nothing the property in the tree is in the zamindar.

(3.) In the present case it is not suggested that the planter, the defendant, gave or gave up anything in return for the permission. For these reasons I set aside the decree of the lower appellate Court and restore that of the Court of first instance. The appellant will have his costs throughout.