SIVANU THEVAR Vs. OMAIYORUBHAGAM PILLAI

JUDGEMENT

(1.) The plaintiffs in this case sued originally for a declaration of title to Survey No. 353 with the palmyra trees standing thereon and to 39 palmyra trees standing on Survey No. 352 and for a perpetual injunction restraining the defendants from interfering with their enjoyment. The original Court decreed the suit but the Lower Appellate Court dismissed it. The plaintiffs appeal regarding their title to the trees only and have given up the claim to the land, Survey No. 353.

(2.) The facts are as follows : Up to the resettlement of 1909 in this District of Tinnevelly there were separate pattahs for the suit land and for the suit trees thereon. Such separate pattahs were a common feature in that District before the resettlement. The defendants in this case held the land pattahs and the plaintiffs the tree pattahs. At the resettlement the general Government policy of getting rid of tree pattahs was carried out, and in pursuance of that policy, the plaintiffs tree pattahs were cancelled. Since then it is found that the defendants have been in possession of the trees, but since twelve years have not elapsed on the data of the suit from the cancellation of the tree pattahs, the plaintiffs title to sue is not extinguished unless by the cancellation of the tree pattahs their title was taken away. The general question for decision therefore is, what right did the plaintiffs possess in the trees by virtue of the tree pattahs and what was the effect on that right of the cancellation of the tree pattahs.

(3.) The sort of right which tree pattadars possessed in the trees is somewhat indefinite. But it appears to have been a permanent right to the usufruct so long as they paid the tree pattah kist. They were not full owners of the trees in the sense that they could cut them down. The Government retained the right to the timber. But they were permanent occupancy holders--if the phrase may be used--of the right to the usufruct; that is, they were not liable to be ejected from that use except upon failure to pay the kist. Now when the Government decided to abolish the double holding of land and tree pattahs, it laid down rules for the purpose which are embodied in the Board's Standing Orders, Rule 18. The rule applicable to the present case is S.O. No. 18 (1) dealing with trees on occupied lands. It is to this effect: ...No claim should ordinarily be made on behalf of the Government to any rights over trees growing on land held on ryotwari pattah. ...Separate pattahs should not be issued for the trees, and where such pattahs now exist, the tree pattah. should be cancelled and the tree pattadar left to make his own arrangements with the land pattadar, if the two are different persons.