SHAH MD NAIM Vs. LACHHU SAHU

JUDGEMENT

(1.) This is an appeal by the plaintiff from a decision of the Additional District Judge of Patna reversing a decision of the Additional Munsif of Bihar. The appeal arises out of a suit by a landlord against an occupancy raiyat for compensation on account of the defendant having prevented the plaintiff from exercising his right to tap palm trees standing on the defendant's holding. The claim is in respect of 20 trees at Rs. 2 per tree per annum for the years 1339 to 1342. The defence to the suit was that the defendant had purchased the trees from the plaintiff's ancestor for Rs. 150. That defence has been found to be false by both Courts. The trial Court however held that the plaintiff was entitled to tap the trees and therefore was entitled to compensation for the act of the defendant in wrongfully preventing him from exercising his right. That decision has been reversed on appeal by the Additional District Judge. The lower Appellate Court held that by reason of the provisions of Section 23-A, Bihar Tenancy Act, the defendant was entitled to the produce of the trees and therefore the landlord plaintiff had no cause of action. The material portion of Section 23-A is as follows: Notwithstanding anything contained in Section 28 when a raiyat has a right of occupancy in respect of any land, if the rent of such land is paid in cash, the raiyat may appropriate the flowers, fruits and other produce of any trees or bamboos standing on such land.

(2.) It is not disputed that the defendant has a right of occupancy in the land or that he pays rent in cash. Prima facie therefore the decision of the Appellate Court would appear to be correct. But there is a Proviso to this Section and the language of that Proviso is as follows: Provided that if there is a specific entry in the latest Record of Rights regarding any tree or bamboo which was standing on any land specified in the Section before the date of the final publication of such Record of Rights, the rights of the landlord and the raiyat in such tree or bamboo shall be in accordance with such entry or with any decision of a Civil Court affecting such entry. Now, the record of Rights, was published in 1912. It recorded that there were 30 trees on the defendant's holding and that they were in the possession of the landlord. At present there are only 20 trees. The question is what meaning is to be attached to this entry in the Record of Rights.

(3.) On behalf of the appellant it is contended that the entry means that the landlord is entitled not only to his common law right to the timber but also to the produce of the trees. On behalf of the respondents however it is contended that the tenant has & common law right in the produce of the trees and that the landlord is not entitled to the produce unless there is an agreement between them to the contrary. Ordinarily, one would expect a person in possession of a tree to be entitled to its produce and from that point of view the entry in the Record of Rights expressly recording the landlord's possession of the trees would indicate that the landlord has the right to the produce.