Basil Scott, Kt., C.J.
1. On the 21st of November 1904 the plaintiff contracted with the co-owners of 15/16 share of two jungles to cut down and convert into charcoal trees of certain descriptions, and on the 13th of February 1905 a more formal document was executed in which the material provisions, were as follows:---
The above-mentioned properties which have been our aneestral (sic) properties and which have been in out possession and UNDer our Vahivat up to this day, stand in Government records ill the name of Lahuji Amrutrao Raje Mulaue, he being a member of the eldest brunch of the family. As to that--excepting the trees standing in the one anna share of Lahuji Amrutrao out of the said property--all our rights and interest and ownership for the purpose of cutting the trees are agreed to be given to yon. The terms in respect thereof are as follows:--
1. The trees appertaining to our share in both the properties are agreed to be given to you for a price of Rs. 3,995. Out of that Its. loco are taken by us on the 21st of November 1904 and Rs. 1,500 in cash are paid this day in all Rs. 2,500 are received by us. There remain Rs. 1,495. As to that, at the time when the cutting of the trees of both the above mentioned villages will be commenced, Rs. 495 should be paid to us first and then the cutting should be done. The balance Rs. 1,000 should be paid before the expiry of the fifth year.
2. As to the aforesaid trees you should, within five years, out the same, and making them into charcoal remove the same at your own expense and you should defray the expenses in connection with the passes, and stamp, i. e., the expenses required to be made by Government for taking away the same, i.e., the goods.
3. As to the growth which there will be after one cutting, you are to have no right to the same.
4. As to the goods, i. e., trees, which will remain uncut and as to the goods cut which will remain on the spot after live years, you are to have no right to both these kinds of goods.
5. If any one causes obstruction to you in the cutting of goods, i.e., trees and if to remove the same, steps be required to be taken in Government offices and Courts, the risk and expenses in respect thereof are to lie on us The said expenses are to be defrayed by you from out of the sum mentioned in paragraph OHO, that is to say, from the sum which is claimable from you. And we will allow credit for such sum as you may name as expended. We will not raise any objection.
6. The trees which are not to be cut arc Moha, mango, jack-tree, tamarind, Harda. Excepting these--as to the remaining trees, that is to say, teak, blackwood, Tivas, Injayli and all other kinds of trees--you should cut the same, and making charcoal of them, remove the same. As to the kiln for manufacturing charcoal which will be made--the same should be made in open spaces, and you should take as much quantity of grass and loppings only as may be required for the kilns.
7. As to the period of live years which has been staled above--if any obstruction be caused to you during the same, then for the period for or during which you may be obstructed, we will give extension.
8. You should not cause obstruction to the taking of wood required by UB and our tenants for ploughs, &c.;, for purposes of agriculture.
9. You should not cause obstruction to cur taking grass, loppings &e.;, for burning the ground, for our and our tenants' agricultural operations.
2. It is to be observed that, this is a contract for the cutting of all kinds of trees to be converted into charcoal upon the ground excepting such trees us produce fruit or other forest produce. It is, therefore, an agreement distinguishable from that set out in the report in Secni Chettiar v. Santhanathan Chdtiar ILR (1896) Mad. 58 where it was held that an agreement which provided for the taking of produce as well as for cutting timber required registration.
3. The learned Chief Justice in that case said : 'It has long been settled that an agreement for the sale and purchase of growing grass, growing timber or underwood, or growing fruit, not made with a view to their immediate severance and removal from the soil and delivery as chattels to the purchaser, is a contract for the sale of an interest in land.'
4. This is a contract of the same nature as that in Marshall v. Green (1875) 1 C. P. D. 35 where the plaintiff sold to the defendant a quantity of timber trees growing upon the land with liberty to the defendant to go on to the land to remove the trees, and it was held that the sale of growing timber to be taken away as soon as possible by the purchaser was not a contract for sale of land, or any interest therein, within the 4th section of the Statute of Frauds. The same conclusion was arrived at by Mr. Justice Aikman of the Allahabad High Court in Mathura Das v. Jadubir Thapa ILR (1905) All. 277. He held that the document there under consideration was not one which conveyed an interest in immoveable property'. He said: 'In my opinion it is nothing but an agreement by the opposite party whereby he sold the trees standing in a certain area of land. These trees were sold, not that the produce thereof might be enjoyed, but simply with a view to their being cut down and removed. The document provides that the cutting was to begin from the day of execution. The fact that the applicants were to be allowed to cut down and remove the timber for a space of two years would not in my opinion render the transaction a transfer of an interest in immoveable property.'
5. We are of opinion that the trees, which the agreement now under consideration refers to, were standing timber within the meaning of the Transfer of Property Act, and, as such, were not immoveable property.
6. The agreement, therefore, of the 13th of February 1905 is an agreement relating to moveable property and not to immoveable property.
7. In the same year, 1905, a suit was instituted in the Court of the Second Class Subordinate Judge at Kalyan (being Civil Suit No. 92 of 1905) by the purchaser of the timber, under the agreement already mentioned, and his vendors, against the purchaser of the timber standing upon the share of the owner of the other 16th in the two jungles and his vendor, for possession by partition of their 15/16th share in the jungles mentioned in the plaint, by separating the share of the defendant No. 1, alleging that the land was enjoyed by each sharer separately but that the jungle was joint and that the plaintiff had purchased on the 13111 of February 1905 the jungles of the co-sharers of the defendant No. 1 and that the defendant No. 1 had sold the jungle to the defendant No. 2 and that the defendants obstructed the plaintiff in the enjoyment of the jungle, hence the suit for partition. It was, therefore, a suit instituted by the owners of 15/16th of that jungle together with the person interested under the contract already referred to in the standing timber growing upon that jungle for possession. On the 17th of January 1908, a decree for possession was passed in favour of the plaintiffs. On the 15th of October 1908, the plaintiff Alisaheb, as purchaser of the standing timber of the 15 annas share in the jungle, instituted this suit to recover damages from the purchaser of the standing timber upon the other anna share and the owners of that share on the ground that the first defendant had converted the standing trees into charcoal.
8. The learned Subordinate Judge has found, and it is not disputed on appeal to us, that the conversion complained of had occurred before the former suit, that is, Suit No. 92 of 1905, was instituted and the plaintiff knew of it. On the se facts the learned Subordinate Judge held that the present suit was barred by the provisions of Section 43 of the Code of Civil Procedure, on the ground that the claim for damages is part of the same cause of action as the claim for possession of immoveable property.
9. For the reasons already given we do not agree with his conclusion that the plaintiff had an interest in immoveable property. But this difference of opinion cannot, we think, help the plaintiff, for, if he had contracted for and acquired the right to the standing timber on 15/16th of the jungle and that had already been wrongfully converted by the defendant No. 1 to his use at the time of the first suit, the plaintiff was bound to claim compensation in Suit No. 92 of 1905.111 respect of that conversion, and he cannot now sue for damages as if a fresh cause of action had arisen.
10. It is also to be observed that this suit being filed in October 1908 appears to be barred by limitation on the footing of the plaintiff's interest being in moveable property.
11. For these reasons we affirm the decree-of the lower Court and dismiss the appeal with costs.