BANSIDHAR Vs. BAIRAGI

JUDGEMENT

(1.) MOHIUDDIN , A.J.C. 1. This appeal arises out a suit which the plaintiffs, who are the malguzars of mouza Dangarhai had filed in the Court of Sub-Judge, First Class, Hoshangabad, against the defendants, who are the tenants of the same village, for a declaration that they have a right to propagate lac on kusum trees which stand in defendants' occupancy fields, and that the defendants have no such right. The defendants disputed the malguzars' right to grow lac on kusum trees in their holding and relied on Section 96, C.P. Tenancy Act, in support of their right. The plaintiffs also urged that the defendants' right if any, was extinguished under Article 1, Schedule 2, Tenancy Act, because the plaintiffs were in adverse possession from 1920 upto August 1926.

(2.) THE Court of first instance held that the defendants were in possession of the trees in question, that this suit for mere declaration maintainable, that Section 96, C.P. Tenancy Act applied to kusum and other trees so far as the right to propagate lac on those trees was concerned, that there was no extinction of defendants' right, and dismissed the suit. The plaintiffs had filed an appeal in the Court of District Judge, Hoshangabad, and the appeal was dismissed on 31st January 1928.

(3.) IT was argued on behalf of the appellants that the expression "trees in the holding" at the end of para. 1, Section 96, Tenancy Act, referred only to palas trees which were specified just before and in the same sentence, and was not intended to include kusum and other trees. It is quite clear from a perusal of Section 96, that by that section the tenant was given the same right in palas trees in his holding which we already had in the holding and in addition to this, the right to propagate lac on trees in the holding and to take the produce thereof was also conferred on him. The word "trees" at the end of the paragraph do not refer to palas trees only but refer to all trees on which lac can be propagated.