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Shriniwas Dwarkadas Agarwal and anr. Vs. Sundarbal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 959 of 1968
Judge
Reported inAIR1974Bom203; 1974MhLJ51
ActsBombay Tenancy and Agricultural Lands (Viidarbha Region) Act, 1958 - Sections 25, 26, 41, 46 and 49-A; Transfer of Property Act, 1882 - Sections 8
AppellantShriniwas Dwarkadas Agarwal and anr.
RespondentSundarbal and ors.
Appellant AdvocateM.W. Pallekar, Adv.
Respondent AdvocateJ.N. Chandurkar and ;P.G. Palshikar, Advs. and ;V.V. Naik, Asst. Govt. Pleader
Excerpt:
the case questioned whether, on the purchase on the tiller's day or upon the statutory purchase when the property in land is conveyed in the favour of a tenant, the property in all the trees standing in that land also passes to him - it was held that, the trees standing does not pass to him - - order 1. an interesting but important question relating to the statutory ownership that the tenant is entitled to possess under the provisions of the bombay tenancy and agricultural lands (vidarbha region) act, 1958 (hereinafter called the tenancy act of 1958) and his right to get upon such transfer all the trees in a holding, has been raised in this petition. however, with respect to trees, the land-holder asserted that there were mango trees as well as other trees and two wells in the land......order1. an interesting but important question relating to the statutory ownership that the tenant is entitled to possess under the provisions of the bombay tenancy and agricultural lands (vidarbha region) act, 1958 (hereinafter called the tenancy act of 1958) and his right to get upon such transfer all the trees in a holding, has been raised in this petition.2. certain facts may be noticed. the respondents 1 to 7 appear to be the lasses of survey no. 204, area 12.38 acres, a field assessed to rs. 30/- and situate at village thugaon -pruna of district amravati, one bhikamchand is the predecessor-in-title of these respondents. it appeals that on december 21, 1962, he made an offer to the land-holders who are the petitioners in this case for the purchase of the field under they tenancy act.....
Judgment:
ORDER

1. An interesting but important question relating to the statutory ownership that the tenant is entitled to possess under the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter called the Tenancy Act of 1958) and his right to get upon such transfer all the trees in a holding, has been raised in this petition.

2. Certain facts may be noticed. The respondents 1 to 7 appear to be the lasses of Survey No. 204, area 12.38 acres, a field assessed to Rs. 30/- and situate at village Thugaon -Pruna of district Amravati, One Bhikamchand is the predecessor-in-title of these respondents. It appeals that on December 21, 1962, he made an offer to the land-holders who are the petitioners in this case for the purchase of the field under they Tenancy Act of 1958 at a statutory price. Mean-while the land-holders had taken proceedings for resumption of the land under that Act on the ground that they needed the same for personal cultivation. Those proceedings terminated on October 1964. Thereafter, on September 20, 1965, an application was made by said Bhikamchand to the Agricultural Lands Tribunal, Amravati, for the determination of the reasonable price of the land as provided by the Tenancy Act of 1958. In that application it was admitted that there were mango trees to purchase the land leased to him for a statutory price to be determined by the Tribunal..

3. Before the Tribunal the fact of lease was not in dispute. However, with respect to trees, the land-holder asserted that there were mango trees as well as other trees and two wells in the land. It was specifically urged that mango trees did not form part of the tenancy nor can be covered by the land leased. Evidence standing was in dispute. The Agricultural Lands Tribunal came to the conclusion that there were 40 mango three but it having taken the view that as it was not established as to who had planted them, it did not fix any price. By following the provisions of the Act, the Tribunal fixed the price of the land at Rs. 2521.41. In an appeal to the Special Deputy Collector it was urged that the mango trees did not pass with the land leased nor any such right of purchase as to trees can be claimed by the tenant and if at al trees were to be transferred, the land-holder is entitled to itis price as admittedly the same were not planted by the tenant, same were not planted by the tenant. The fact that the trees were in the possession of the land-holders and they were taking the yield thereform was restated and asserted. The appellate authority declined to interfere and the matter was taken in revision before the Maharashtra Revenue Tribunal. The learned Member of the Revenue Tribunal took the view that the case of the land-holder was not that the trees were excluded from the lease. The mere assertion of the land-holders that they were in possession of the mango threes and were taking the yield, according to the learned Member, was not sufficient, However, the learned Member observed that the trees growing on land would also pass under the statutory purchase and there was no cause to settle any price or pay to the land-holders.

4. It is plain that a very technical approach was taken by the learned Member of the Maharashtra Revenue Tribunal upon the pleadings of the parties. In fact throughout the petitioners land-holders were contending that the trees were not part of the lease and as such if at all they were to be transferred to the tenant, they must be paid the price or compensation. View taken by the Revenue Tribunal upon the case of the land-holders on the face of it is erroneous. That is sufficient to set aside that order.

5. However, an important controversy is raised as to whether there is any jurisdiction in the Agricultural Lands Tribunal constituted under the provisions of the Tenancy Act of 1958 to confer rights in trees upon the tenant who either becomes the statutory owner on the tillers' day or by a compulsive sale brought about under the provisions of the Act. As a fact the holding which is the subject-matter of transfer under the Act. includes mango trees of considerable value as also 2 weels., Further it was the case of the land-holders that there are 10 other tress also. They had claimed that there were 60 mango trees worth Rs., 10,000/- some other threes worth Rs. 500/- and the well worth Rs. 5000/-

6. These facts were put in issue by the Agricultural lands Tribunal while reaching the conclusion that there was no definite proof in support of the claim of the land-holders and therefore he accepted the case of the tenant that there were only 49 mango trees spread over the entire filed. Surely these are not planted by the tenant. The Tribunal felt that proper evidence has not been leld as to the age of the trees and no compensation was hence awarded. As to the wells he came to the conclusion that they are worth Rs. 733/- There is no definited finding as to the order trees. He did not grant anything on account of the trees and calculated the price of the land leased. At the appellate stage reliance was placed on Section 108 of the Transfer of Property Act to find that no price is at all payable with respect to such trees as the same are the part of land. No evidence is scanned on that count. The revision had met the similar treatment.

7. In this Court, therefore, several questions are raised and considerable arguments on both sides have been advanced as to the legal effect of the statutory ownership being transferred in favour of a tenant of a holding and passing of the property, i.e. the trees standing in such holding.

8. I was taken through the earlier enactments both available and applicable to the lands in Berar and also the then Central Provinces. Similarly, the effect of Madhya Pradesh Land Revenue Code and thereafter the Maharashtra Land Revenue Code was also pressed in aid. For the petitioners it is contended that under the provisions of the Tenancy Act of 1958 what passes or can be transferred is the land leased; the trees which are the distinct object of property, through attached to land, does not at all pass under any of the provisions. If it can be said to pass because of the statute for any reasons, then it must be held that Agricultural Land Tribunal should include all the trees in the land which is an item of property of the land-holder recongnised by law and none can be deprived of the property without the compensation, just and equivalent.

9. On behalf of the tenant it is urged that the law contemplated passing of the land and with it everything attached thereto. Trees being the part of the land must necessarily pass to the tenant upon transfer. It is further urged that both in Berar as well as Central provinces and thereafter in Madhya Pradesh, the property and rights in trees followed the land. Whoever was the owner of the trees. As to the price, that must be regulated by the express provision made by the statute. There cannot be any difference in applying the principles for determining the price only because the sale is upon an offer to purchase under the statute.

10. Both the sides took me through the several provisions of the Tenancy Act of 1958 to substantiate respective submissions.

11. Both in Central Provinces as well in Berar, the tree had been a cherished object of fruitful litigation as well of legislative measures. Its life at law therefore in the past is clustered by well recognised tenets found in judicial pronouncements and statutory interventions. With utility therefore I may look back to this passage of time and endeavour to encase the various streaks of light that leak through the leaves of history.

12. trees qua the agricultural land and the rights therein have a tale-telling legal past in the old area of Berar which became part of Madhya Pradesh state. In those districts the matter was governed by the provisions of Land revenue codes as well by customary rights. I may begin with advantage with the commentary of Berar Land Revenue Code, 1928 written by late Mr. N.P. Hirurkar. The learned author has summarised the position as to the trees and rights therein in Chapter VI classifying the land into unalienated and its further sub-classification of the trees themselves. It is noticed that Berar Settlement Rules classified trees as fruit trees sub-divided into valuable and not valuable, timber trees and other trees. The historical data properly indicate that trees could be the property of one person, while the field or the survey number could be owned and possessed by another person. It is quoted from Jones that the position with respect to the rights in trees prior to the Berar Settlement Rules of 1865 was that the planters of the fruit trees had a right of property alienable at pleasure and separable from the right in occupancy of the soil divide their produce equally between them. That gave rise to what is known as the shade-right recognized in Berar conveying the concept that the trees belonged to the persons who surrendered half of the produce as a rent to the holder of the field itself. Berar settlement Rules, 1865 tried to evolve uniformity in respect of rights in trees. Where the field had fruit trees and the property in trees was of the occupant, no excess assessment was there; while where there were other trees than fruit trees the principle was different. (see Rules 1,2 and 10). State conceded to the holder of the land the right in trees free of any charge or additional assessment of land in lieu of those trees. The rights in different districts relating to the trees belonging to the State as well as of the occupants need not be considered, but it is plain that the property in trees was treated as a distinct item and could be enjoyed independently of the land as such. The provisions of Berar Code of 1896 clearly point to that effect. Even thereafter in Berar Land Revenue Code, 1928, Section 45 dealt with the Government trees and forests and declared that except in so far as they are vested in persons, all trees, shrubs, brushwood and other natural products wherever growing shall vest in the Crown and shall be disposed of in accordance with rules made under that Code. Section 46 of the Code declared that in unalienated lands, trees shrubs, undergrowth and other natural products shall be deemed to be part of the land on which they are situate. Section 47 spoke about alienated lands, and declared that trees, shrubs, undergrowth and other natural products shall not vest in the Crown unless they were reserved to the Crown at the time the land was alienated. Section 48 held persons removing the trees vesting in the Crown liable to pay the value thereof to the Crown and so also provided penalty. These provisions are indicative that in certain class of cases, i.e., with respect to unalienated land, though trees, shrubs and other natural products were not part of the land, the statute declared that they shall be deemed to be so. In other words, a deeming provision was required to be introduced. All this shows that 'tree' in Berar was a separate property distinguishable from 'land' and was capable of being enjoyed as such. The vesting declared with reference to alienated land similarly indicates to the same effect. There is clear obligation to pay to the Crown engrafted under Section 48. The land may belong to one but trees were subject to other rights and obligations, either recognised by suction or carved out by statute.

13. As to areas forming Central Provinces one may briefly consider the position under the Central Provinces Tenancy Act, 1920. A very lucid and erudite commentary exists on the 'Law of Agricultural Tenancy and village service Lands' in the Central Provinces, by Shri R.M. Hajarnavis. The general principles as well as the different rights in trees have been considered by the learned author under a separated head (see pages 369 to 373 of the book)

14. From the analysis noted by the learned author it appears that the Tenancy Acts of 1883 and 1898 did not have specific provisions defining the rights of landlord and tenant in respect of trees standing in the holding and the matter was referable to the general principles available in general law or to the application of the provisions of the Transfer of Property Act. The landlord, i.e., the proprietor of the village, was the owner of the trees standing on the holding in the enjoyment of a tenant. In the absence of any special agreement or custom governing agricultural leases, however, the landlord was entitled to the fruit of the trees standing on any land covered by the tenancies. Prior to the C.P. Tenancy Act, 1920 (Act No. 1 of 1920), the position was found in Hiria V. Mahomed sirajuddin Khan 1908) 4 NLR 104 that the landlord was the owner of the trees on the land of his tenant; the tenant was entitled to the natural annual produce of such trees-fruit or flower and removal of such natural produce did not encroach upon the corpus of the trees itself. The landlord had the right to carry away any part of the produce of such trees which may be severed from the soil. Shamrao V. Sitaram, AIR 1918 Nag 235 decided that in the absence of an express agreement, the ownership in trees would pass along with the ownership in trees would pass along with the ownership of the land. Thus corpus of the tree and its yield were treated differently having different ownerships or rights of enjoyment. Though the land was leased, proprietor of the lessor carried and retained the rights with respect to trees. It appears that 'tree' was the subject-matter of land and its corpus was differently treated, from its natural produce, like flower, fruit or any other useful product of the tree and could be governed by agreements or contracts. The shade rights, i.e., the liability for the injury caused to the adjoining land with regard to light, heat or damage to the soil, were also the matters of adjustment along with the rights in trees and its enjoyment.

15. Section 95 of the C.P. Tenancy Act, 1920 was concerned with tenant's right during the period of his tenancy with respect to trees. He had the same right in all trees in a holding as he had in the holding itself, Right to fell timber of Babul trees and to clear lands of scrub jungle was expressly provided in favour of the tenant. The second proviso to sub-section (1) of section 95 made it clear that the tenant shall be entitled to fell any other trees which hinders the cultivation of the holding. Certain jurisdiction was created to enable the revenue officers to fix the value of such rights. It may be noticed that this provision applied to fruit trees but other trees yielding valuable income like moue were still matters of individual contracts It was by an amendment to Section 95 (C.P. Act No. 11 of 1940) the rights of tenant were enlarged and he was declared to have the same rights in all the trees as he had in the holding. Judicially it was noticed that the very term 'land' did not include by presumption the trees standing thereupon Kisan V.paikoo . This case of course related to Sir land. In Gopaldas V. Mst. Malla, , what came to be considered was the right to timber and it was ruled that timber of Babul tree may be taken away by the tenant but not other kind of timber. The tenant may clear scrub jungle from the land nut however he was not entitled to appropriate it or sell its proceeds as of right.

16. As to the rights relating to propagation and collection of lac and pluck and appropriate it, Section 96 of C.P. Tenancy Act came to be enacted after the decision in (1908) 4 Nag LR 104 where the court found that the tenant had the same right in palas trees as he had on the holding itself and was entitled to possess them. But lac not being a fruit nor sa flower, the landlord was entitled to appropriate it. Apart from the land, however, after the 31st of October, 1944 no landlord could claim any right in palas trees. Section 96 was construed to include no merely palas but all trees from which lac could be gathered. It may be mentioned in passing that contracts of a lease for lac cultivation were separately conceived and held to need even registration under the provisions of the Registration Act read with the Transfer of property Act whenever such a lease of lac was reduced to writing. In Imam Ali V. Priyawati Devi, ILR (1938) Nag 31 : AIR 1937 Nag 289, such a separate lease was considered by the court.

17. With a view clearly to prohibit attachment of merely trees and to do away with severance of trees from the holding, Section 97 of the C.P. Tenancy Act was specifically enacted. That clearly indicated the policy that trees standing on agricultural lands could be treated as part and parcel of the holding and tenant's right could extend to trees. The right of purchase through revenue machinery was recognised under Section 95 (2). The C.P. Tenancy Act understood the holding meaning a parcel of land held by a tenant of a landlord under one lease or one set of conditions. (see S. 2 (4) ). In Moti Miyan V. Habib Miyan , the judicial Commissioner's court considered a question whether tenant could retain any right in trees while surrendering the holding. It was observed with reference to the definition of the 'holding' that 15 mango trees situated in the holding could not be themselves constitute a separate parcel of land nor could be retained. It was concluded that rights in fruit trees would pass along with land.

18. This summary review under the Berar Land Revenue Code and C.P. Tenancy Act illuminates the interclavicles and vicissitudes as to the rights in trees. Because of various uses of the trees, it was properly treated as an independent object of property. Contract or agreement to enjoy its produce has thus a well recognised origin. Legislature stepped in only to facilitate the enjoyment of agricultural lands either under lease or transfers. Supervening efforts are apparent to keep the trees embedded in earth with the person holding the land subject however to the agreements between the parties. This concern clearly emanated from the fact that tree was a source of valuable income. In the life of cultivation it was an object of perennial utility and enjoyment. Flowers and fruits were and are valuable returns, so also its life-juices like lac. Its leaves, bark and branches had its prime importance. The wood may be useful as firewood or valuable timber. The root-system damaging the adjoining parcels of lands belonging to others provided a cause of action for compensation. The shade-rights were distinct from the other rights of beneficial enjoyment. Tree thus was an object of enjoyment and ownership giving rise to both rights and obligations. The inference is irresistible from this that it was and is an item of proprety capable of being owned and enjoyed and being transferred subject to limitations placed by law.

19. This position and treatment under law is also available when after M.P. Abolition of Proprietary Rights (Estates, Mahals and Alienated Lands) Act, 1950 (I of 1951) a compendious code was put on statute book being M.P. Land Revenue Code, 1954 byM.P. Act No. 2 of 1955. The provisions of that code more or less reflected the known pattern of the systems of tenancies noticed above, both under the 1928 Berar Code and by the C.P. Tenancy Act of 1920 with an attempt to collate and unify the same. It defined 'agriculture' which included the raising of periodical crops and garden produce, horticulture, the planting and upkeep of orchards in a holding (section 2 (1) (2)]. The holding was a parcel of land separately assessed to land revenue and with reference to the land held by a tenant from the tenure-holder it was a parcel of land held under one lease or set of conditions, {Sec 2 (1) (7) }. The term 'improvement' included the contraction of tanks, wells, water channels, embankments and also planting of trees and the reclaiming, clearing, enclosing, levelling or terracing of land. {Sec 2 (1) (8) }. This code defined 'land' to mean a portion of the earth's surface whether or not under water and further extended its meaning to things which were attached to or permanently fastened to any such land. {Sec 2 (1) (9)}. 'Timber trees' were separately defined by section 2 (1) (21)

20. Section 50 of the code declared that except as otherwise provided by any law in force, all lands which are not the property of the persons, were the property of the State. By section 51, every land was liable to the payment of revenue to the state. The provisions further indicate the class of persons known as 'tenure-holder' {Section 1 (1) (20)} to mean the persons holding land from the state Government as Bhumiswami or Bhumidhari and 'tenants' {section 2 (1) (19)} meaning persons holding land from a tenure-holder as an ordinary or an occupancy tenant under Chapter XIV> The third class of persons were Government lessees. Thus the entire lands and rights therein were carved out in favour of the State Government, the tenure-holders, and the lessee either from the tenure-holders or from the Government.

21. Chapter XII dealth with tenure-holders signifying two types of tenures one Bhumiswami and another Bhumidhari (section 145). Section 146 of the Code defined and declared the persons who shall be treated as Bhumiswami while Section 147 defined and declared the persons who will be holding the land as Bhumidhari. Provisions of Section 150 contemplated conferral of Bhumiswami rights of Bhumidhari; in other words, enlarging his status. Rights of transfer were regulated by section 152. That provided that a Bhumiswami may transfer any interest in his land and a Bhumidhari may tranfer, otherwise than by way of mortgage, any interest in his land. The words 'interest in land' would therefore obviously take in all species of interests which are capable of being transfered. Specific provision was made by section 154 conferring a right upon a tenure-holder to make improvements which will take in planting of trees.

22. By section 162 of the Code. Provision relating to rights to trees in a holding was made. All trees standing in a holding held by a Bhumiswami and all trees other than timber trees standing in a holding held by a Bhumidhari, were declared to be the property of Bhumiswami and Bhumidhari respectively. This declaration was necessary in view of the history earlier noticed and is also indicative how the tree was an item of an independent property. though a Bhumiswami held the rights in trees absolutely which were standing in his holding, a Bhumidhari was entitled to the same rights in all trees excepting the timber trees. Sub-section (2) of Section 162 operated upon the right of a Bhumidhari as to the appropriation of the produce. Sub-section (3) of that section preserved all rights in trees in the holding of a tenure-holder in favour of any other person existing on the date of coming into force of the code but enabled the tenure-holder to apply to the Collector to fix the value of such right and purchase the right through the Collector in such manner as may be prescribed. Section 163 of the code put a restriction on the right of transfer by a tenure-holder with respect to trees. It provided that the transfer by a tenure-holder of any trees standing in any land comprised in his holding except by a sublease for a period not exceeding one year shall be void unless the land itself was transferred. Sub-section (2) thereof further made it clear that the trees standing in any land comprised in the holding of a tenure-holder would not be attached nor sold in execution of a decree or order of a civil court or by the revenue authority.

23. The provisions of Chapter XII, therefore, clearly bring out that when the code was applied and made a law, the legislature was aware that rights in trees are the matters of independent treatment and specific provision was made for transfer and enjoyment of the rights in trees. A tenure-holder was enabled to purchase the right pre-existing. That was however not an eclipse of the rights of any other person holding such rights. The land thus may belong to tenure-holder and still property in trees continued subject to its condition to be with the other persons. By itself that property is not divested under this code. It is further clear that sub-lease in respect of trees was valid if only for a period of a year and thus was a permissible device. Only if the period of one year was exceeded it would be void unless the land itself was also transferred. The position of trees and rights therein have been thus separately dealt with and also preserved apart from the holding in which they stood, though the land, as contemplated for the purpose of the code, included the things attached permanently to the land and the term 'agriculture' included planting and upkeep of orchards as well as horticulture. In fact 'improvement' of the agricultural land was thought of by planting trees which will take in all kinds of trees and several and similar contracts with respect to trees.

24. Chapter XIV of the M.P. Land Revenue Code which was repealed by item No. 2 of Schedule I of the Bombay Tenancy Act of 1958, concerned itself with rights of tenants. The term 'tenant' in the M.P. Land Revenue Code, 1954, meant as indicated above, a person holding the land from a tenure-holder or an occupancy tenant. It, therefore, contemplated the tenure-holder creating a sub-servant right of enjoyment in the land in favour of another person who is not the tenure-holder but merely a lessee or a tenant. These persons in Berar were given certain protected status by Berar were given certain protected status by Berar Regulation of Agricultural Leases Act,1951 and declared that the lease held in the year 1951-52 would be deemed to be for a period, firstly, for five years, then by an amendment, to 7 and 8 years. That was a protected lease. This protection obviously operated upon the rights that were conferred upon a lessee under a contract or an agreement in an agricultural year 1951-52. If, therefore, the lease of that year was only a lease for cultivating the land without reference to trees, such rights alone stood protected by virtue of Section 3 of the Berar regulation of Agricultural Leases Act, 1951. The rights of tenants under Chapter XIV of the M.P. Land Revenue Code apart from protected lessees retained all its origin and operation in a contract carving out estate enjoyable in lands by the terms of lease and did not extend to items outside the demise. Trees may not be the part of lease though the lease-hold property was given to a lessee.

25. The provisions of chapter XIV of the M.P.L.R. Code and particularly Section 167 bring out that occupancy tenant was enabled to hold the land on such terms as may be agreed between him and his tenure-holder and it was subject to the terms of contract that his rights were passing by inheritance or survivorship (section 168). Occupancy tenants who were so declared under Section 169 could further be declared as tenure-holders under Section 171 of the Code. That provision enabled the occupancy tenant to apply to Deputy Commissioner for the purpose of the right of tenure-holdere in the land in the prescribed manner.

26. This was the uniform and universal pattern of rights and obligations applicable to the entire area to which the Tenancy Act of 1958 was made applicable. Legislature thus conceived of tenure-holders on the one hand having dominion over the land with all the bundle of rights with respect to its ownership. Though that class was the master of land still the trees therein may or may not form part of their absolute ownership. Statutorily they had a right of purchase from others. If that is not so purchased, it was clear that property in trees continued to rest with other parties not being the tenure-holder of the land and continued to enjoy the same in their own right but subject to statutory or customary obligations. Even with respect to trees of the tenure-holder of the land and continued to enjoy the same in their own right but subject to statutory or customary obligations. Even with respect to trees of the tenure-holder he could create sub-lease and transfer the same. The tenure-holder was not prohibited from enjoying the land by leasing it out to tenants under contracts, reserving all rights in trees to himself. That was all the matter of agreement and contract. There could therefore be a lease in favour of a person to cultivate land as such and another lease or licence with respect to the trees and its yield.

27. The further enactment being Maharashtra Land revenue Code of 1966, though a law codified after the Tenancy Act of 1958. contains similar provisions. Chapter III of the Maharashtra code deals with lands. With respect to the rights of trees standing or growing on any occupied land specific provisions is to be found in section 25 of the said code. By sub-section (1) it declares that right to all trees standing or growing on any occupied land vests in the holder thereof subject to the regulatory measures provided by the State Government. Sub-section (2) states that the rights in trees in the holding of an occupant in favour of any person existing on 1st day of October, 1955 are not affected, but the occupant is enabled to apply to the Collector to fix the value of such rights in trees and purchase the rights through the Collector in such manner as may be prescribed. Thus the law inforce, both under the earlier Code i.e. M.P. Land Revenue Code as well as under the Maharashtra land Revenue Code, clearly envisages similar saving of the rights in trees as on 1st day of October, 1955 and further permits the occupant to purchase it through the Collector.

28. It is, therefore, abundantly clear that when the Tenancy Act of 1958 which was an enactment to amend the law relating to tenancies of agricultural lands and sites used for allied pursuits in the Vidarbha Region of the State of Maharashtra and to bring the status and rights of tenants as for as possible in line with those in other parts of the State, what was present historically to the Legislature was the contract of tenancies which envisaged the enjoyment of the land apart from the trees. These contracts were firstly protected as not determinable only because the time fixed for the duration of lease had expired (Section 9 of the Act). The word 'tenant' was defined to mean a person who holds land on lease and included a person who is deemed to be a tenant under Sections 6, 7 and 8 and a person who is protected lessee orn occupancy tenant and the word 'landlord' was to be construed accordingly. Section 2 (31) defines 'tenancy' which means the relationship of landlord and tenant. The 'land' under Section 2 (17) means land which is used or capable of being used for agricultural purposes and includes the sites of farm holdings appurtenant to such land and for the purpose of certain sections, the sites of dwelling houses occupied by agriculturists, agricultural labourers or artisans and land appurtenant to such dwelling houses and the sites of structures used by agriculturists for allied pursuits. Thus it did not include expressly the 'trees' standing on the land. The term 'improvement' is defined by Section 2 (15) which is more or less on the similar lines of the definition in the M.P.Land Revenue Code and includes planting of trees and the reclaiming, clearing, enclosing, levelling or terracing of land.

29. Though on the one hand tenancy could not be terminated by efflux of time and the relations between landlord and tenant were to be regulated by the provisions of the Tenancy Act, on the other, express provision came to be legislated as to the determination of tenancy on given grounds, Section 19 of the Tenancy Act of 1958 provides how the tenancy of the land with which the Act is concerned can be determined or terminated under the circumstances mentioned in sub-sections (1) and (2) of that section. Thus it limits the grounds of determining the tenancy and the right of the landlord to that extent stands modified. This has the effect to keep the tenant in enjoyment of the rights which he had under his lease taken from the landlord. This has however not the effect of transferring or enlarging or adding any further rights of conferring any other property not covered by the terms of the lease itself.

30. Section 20 permits surrender of the rights by a tenant in favour of his landlord and section 21 prescribes how the surrender has to be actually worked out. tenant cannot be evicted from the dwelling house standing on the site belonging to the landlord except in given contingencies as provided in section 22. A sort of pre-emptory right is created in favour of the tenant with respect to the sit of the dwelling house which is the subject-matter of section 22.

31 Specific provision is to be found of some relevance in section 25 with respect to trees planted by the tenant. If the tenant has plated or plants any trees on the land leased to him, he is entitled to the produce and wood of such trees during the continuance of his tenancy and upon determination of the tenancy is entitled to receive compensation of the said trees as is to be determined by the Tahsildar. He cannot get compensation if the tenancy is surrendered. The landlord is also obliged to take the same rent of the land as if the trees were not plated. Thus in the trees which are planted. Thus in the trees which are planted by the tenant in the land leased to him certain right are created by the statute. To that extent it can be safely inferred and found that such trees become the part of the land leased to the tenant.

32. Section 26 provides and secures however to the landlord the working of his right in respect of trees specified therein. Sub-section (1) concerns with rights to the trees naturally growing on the land and the tenant is made entitled to receive two-thirds of the total produce while the landlord one-third of such produce. If there be any dispute with this respect, a forum is provided before the Tahsildar, Section 26 therefore operates and applies to the kinds of threes naturally growing on the land leased to a tenant. The modification of the rights of the landlord is only limited to those species of trees which can be said to be naturally growing upon the land and not to any other trees or the trees which are planted or nursed or cultured with a view to have produce by the landlord. Chapter II in which all these provisions find place therefore, formulates certain statutory rights with respect to the tree apart from the land or the agreement to lease. No provision is made by the Legislature that all the trees which are standing on the land can be treated as the part of lease capable of being enjoyed by the tenant. Therefore, provisions of Chapter II clearly envisage a tenant enjoying the rights in land, in that cultivating the surface of land for the purpose of taking periodical agricultural produce and the landlord or a tenure-holder having full rights in enjoyment of the trees. That is the plain reason why Section 25 and 26 of the Act have made specific provisions as to certain trees only. Section 26 merely laid a statutory term in favour of the tenant with respect to the trees naturally growing on the land and, therefore, can be taken to be a term of lease. Similarly Section 25 provides another statutory term of such a lease wherein a tenant planting trees upon the land leased is enable to enjoy the same during the period of his lease. Except these two categories of trees, i.e, one planted by the tenant and another naturally growing on the land, all other trees are not the subject-matter of the lease held by the tenant. Though Ligature was aware of all types of trees which can be planted, cultivated or cultured in the land the provisions of the Tenancy Act are themselves restrictive.

33. With these leases properly found provisions of Chapter III conceive of creating new rights. Section 41 confers a right on the tenant to purchase the land, Section 46 and Section 49-A statutorily transfer the ownership of land to the tenant and Section 47 prescribe the purchase price and determination thereof under Section 48. The scheme of Sections 38,39 and 39-A clearly is a scheme in favour of a landlord who is enabled upon the statutory conditions to enter upon the land even after the coming into force of this Tenancy Act of 1958. Section 41 is termed as 'Right of tenant to purchase land'. The words of sub-section (1) relevant may be extracted.:

'41. (1) Notwithstanding anything to the contrary in any law, usage or contract but subject to the provisions of Section 42 t 44 (both inclusive) a tenant other than an occupancy tenant shall, in the case of land held by him as a tenant, be entitled to purchase from the landlord the land held by him personally.'

(Underlining is mine).

This sub-section clearly operates upon the object called 'land' which is held by a tenant under a lease. The right to purchase is, therefore, with respect to the land leased to a tenant cultivating the said land personally. It clearly enures to the benefit of the tenant and enables him to purchase the land which is the object of his lease. Section 42 prescribes the procedure with respect to this statutory purchase and indicates how an offer has to be made and price determined. Sub-section (2) and (3) of Section 43 may now be seen:-

'(2) If the landlord refuses or fails to accept the offer and to execute the sale deed within three months from the date of the offer, the tenant may apply to the Tribunal for the determination of the reasonable price of the land.

(3) The Tribunal shall, after giving an opportunity to the tenant and the landlord and all other persons interested in such land to be heard and after holding an inquiry, determine the purchase price of such land, which shall consist of

(a) the price of such land determined by the Tribunal in accordance with the provisions of Section 90, and

(b) the amount of the arrears of rent, if any, determined by the Tribunal as lawfully due on the date on which the tenant has made an application under sub-section (2)'.

(emphasis provided).

Thus the price contemplated is clearly referable to the land leased. The expression 'such land' means the land leased to tenant or which is properly the object of his lease. If cannot be strained to take into compass all that is on the land including the trees which are not the part of lease. Section 42 cannot be construed apart from the initial right conferred by Section 41 of the Act. further provision is therefore made how the price has to be paid and only after this has been reached, sub-section (14) of Section 43 declares as under:-

'After the issue of the certificate under sub-section (8) the Tribunal shall declare the tenant to be Bhumiswami or Bhumidhari, according as the land was held by the landlord with effect from the agricultural year next following the date of issue of the certificate.' (Underlining by me).

The effect of all these provisions is that after the statutory purchase goes through and a certificate under sub-section (8) is issued, the Tribunal has to make a declaration that the tenant has become a ration that the tenant has become a Bhumiswami or a Bhumidhari according to the land held by the landlord with effect from the agricultural year next following the date of issue of the certificate. Thus the purchase make the tenant, a tenure-holder in either Bhumiswami or Bhumidhari right as contemplated by the provisions of the M.P. Land Revenue Code, 1954, of that land which was the object of his lease.

34. Even in the case of statutory transfer of ownership either under Section 46 as on the tillers' day i.e. April 1, 1961, or under Section 49-A on another tillers' day, i.e. April 1, 1963, provisions are identical with respect to the rights of the tenant and object of property upon which that right is operative. Section 47 speaks of the purchase price payable by the tenant under Section 46 for statutory ownership of the land held by him as a tenant. It includes the depreciation value of any strutted and other permanent fixtures made and trees planted by the landlord on the land after the period of the last Settlement or where no such Settlement is made during the period of thirty years before the commencement of this Act, if the purchase is by a tenant other than an occupancy tenant. Similar is the position of transfers under Section 49-A of the Act.

35. Another provision that may be noticed along with the aforesaid provision which deals with the price is Section 90 which is the part of Chapter VIII. It is a general section prescribing reasonable price of land for the purposes of its sale or purchase. It prescribes how the reasonable price has to be calculated, any by clause (b) of sub-section (1) of Section 90, it is provided that the price shall include the depreciated value of any structures, wells and embankments constructed and permanent fixtures made and the value of any trees planted on the land by the landlord or the tenant after the period of the last settlement or where no such settlement is made, during the period of thirty years before the commencement of this Act.

36. The provisions of Section 47 (1) (iii) and Section 90 (1) (b) therefore include the depreciated value of certain items spoken of by that section as the part of price and cannot enlarge the property to be conveyed under any of the provisions of the Act.

37. All this survey of legislative provisions of the Tenancy Act of 1958 evinces in clear terms a firm policy firstly to protect the leases of the tenants, secondly with respect to certain trees enable them to enjoy it as part of lease and thirdly enable the tenants to become Bhuumiswami or Bhumidhari with respect to the land held by them under a lease. This anxiety to confer final ownership during the period protecting the lease has all clear reference to the property which was given by the landlord to the tenant for its beneficial enjoyment initially either under a contract or which became capable of being so enjoyed by virtue of the deeming provisions of the statute or the protection provided there-under. Whenever, therefore, a statutory conveyance is conceived by this law, it has only reference to that property which was held under a lease or which came to be recognized by law as a statutory lease and nothing more.

38. The ownership rights that ultimately the tenant gets are that of tenure-holder as indicated earlier either in Bhumiswami or Bhumidhari tenures. The rights of the tenure-holder are not the subject-matter of the present statute. Those rights will have to be found out initially in the provisions of M.P. Land Revenue Code, and thereafter in the Maharashtra Land Revenue Code, the law now in force.

39. As indicated earlier, under the system of these Code, rights in trees are the subject-matter of express statutory provisions. A tenure-holder or an occupant is entitled to be the owner and to possess rights standing in the holding subject to the rights saved expressly either under Section 162 (3) of the M.P. Land Revenue Code or under Section 25 (2) of the Maharashtra Land Revenue Code, 1966. It does not appear that this saving has been affected in any manner by conferring the right of purchase which ultimately makes a tenant a tenure-holder under the provisions of the Tenancy Act of 1958.

40. No doubt, the present law reconstructs and brings into effect new rights. Even written law which takes a leap beyond merely regulating the details for the purpose of construing should be observed and treated as a piece of art having all unity of design and continuity of execution. All of its part and parcels should have fullest interplay of light and shade so as to find out its true reach and application. As in art so in legislation, there are always present interwoven textures of past and present attitudes, fused with concepts inbuilt, with an awareness and effort of creating new rights. In such a attempt, legislation in its permissive field does demolish to declare new rights for the known and felt necessities. That dictates a cautious approach to clearly find out the new legislative premises which will not cause unnecessary damage to the known rights of persons. What should be attempted, therefore, is to find out the fringes of such legislative contemplation. Unless expressly or by necessary intendment the rights in property are clearly put under eclipse, the Court is not competent to attribute such an intention to Legislature to the prejudice of those who possess those rights. that will mean taking upon itself the onus to legislate. Surely, such a course is not available in the process of finding the nature of the legal right.

41. In the present statue, no doubt, the Legislature has conferred a changed status upon the tenant to be the tenure-holder. The provisions of Section 41, 46 and 49-A are all indicative to make him the full owner of the land held by him a as lessee. The word 'full owner' used in Section 46 clearly indicate the ownership rights as a tenure-holder and nothing more. In other words, the scheme of these sections either enabling the tenant to seek a statutory purchase or conferring a statutory ownership makes him the tenure-holder on the land. These are all statutory devices and nothing more can be implied.

42. The general principles as to the trees which are attached to the earth and referable to the English maxim Quicquid plantatur solo, solo credit cannot replace the statutory intendements. That maxim means and is understood to convey whatever is affixed to the soil as belonging to the soil, passes to the person, who takes the soil, the trees being the part of soil or the thing belonging to the soil, normally would stand conveyed under this maxim upon a transfer to the transferee. This maxim is, the basis of even Section 8 of the Transfer of Property Act.

43. That provision of Section 8 cannot apply plainly to the statutory transfers. I may, briefly, refer to some of the decisions which turn upon the application of that section to the agricultural tenancies. Under the provisions of Agra Tenancy Act the question arose with reference to the rights in trees upon transfer of proprietary rights in Sir land. The Full Bench in this decision which is reported in Fitrat Husain v. Liaqat ali : AIR1939All291 , was considering the question under Section 14 and 15 of the said Act, By referring to the definition of 'land' which included trees and shrubs under the words ' attached to the earth' it was observed:

'Therefore, the title to trees and shrubs passes with the transfer of proprietary rights in the land'. Another Full Bench of that Court in a decision reported in Deota Din v. Gur Prasad : AIR1955All292 was considering the question of a building as appurtenant to the Zamindari transfer under the provisions of Section 8 of the Transfer of Property Act.With reference to the provisions of Section 8 of the said Act it was observed that the section itself is subject to the exception to the general rule if a different intention is express or is necessarily implied. Referring to the or is necessarily implied. Referring to the Privy Council decision in Narayan Das v. Jatindra Nath , the Full Bench noted that there is no rule of law in India that whatever is affixed or built on the solid becomes a part of it and is subject as to the same rights of property as the soil itself. Unless the transfer makes it clear that the residential house of the Zamindar was intended to be included, it must necessarily imply that it was not intended that it should be included. These observations were clearly intended to cover the case with respect to the sale of the entire Mahal as distinguished from a sale of a plot of land. In the latter case clearly there is an observation to be found in the judgment of the Full Bench that everything that is attached to the earth would go with the earth. In other words whenever there is a sale of land as such, the general maxim of Quciquid plantiatur solo, solo credit, would be given effect to. These decisions do-indicate that this rule is subject to the exceptions or express intendments.

44. It is no doubt true that under the provisions of the Tenancy Act, as stated earlier, a full ownership is contemplated. The Legislature has emphasized its intention by an adjectival term followed by the juridical phrase of 'ownership'. The legislative pronouncement is emphatic, Not only the tenant is the owner, but the Legislature has declared him to be the full owner. In other words, there are no limitations to be conceived as against his right to hold the land. As indicated earlier, the effect of this ultimate statutory declaration is to have a legislative metamorphosis of a tenant into a tenure-holder.

45. The concept of ownership denotes relationship of a person and the right that is vested in him. The Legislature has used that word while conferring the status of a tenure-holder, and it must be understood to have complete and as full as possible the wide connotation of that term. According to G.W.Paton (in his 'A Text book of Jurisprudence' Third Edition at page 467), the full rights of an owner are:

(a) the power of enjoyment (e.g. the determination of the use to which the res is to be put, the power to deal with produce as he pleases, the power to destroy):

(b) possession which includes the right to exclude others:

(c) power to alienate inter vivos, or to charge as security:

(d) power to leave the res by will

Juridical, therefore, whenever the right in ownership passes, all the incidents must be available to the owner as such. Thus is the fundamental and basic bundle of rights to make it owner as such. This is the fundamental and basic bundle or rights to make it ownership. However it is always moulded and circumscribed by the terms of law. Though the ownership takes of law. Though the ownership takes in the right to freely alienate the property or to abandon the property at will, that may still validly be subjected to legal inhinitions. There is evidence in the provisions of the Tenancy Act of 1958 itself to this effect that the land which is statutorily conveyed may not be subjected to disuse nor be subjected to transfer. In other words, though on the one hand the Legislature has emphasized that on the tillers' day or upon a statutory purchase, there is a complete conveying of property in land in favour of a tenant, it has to be enjoyed within the limits of the law under which the property is taken. If follows that the rights preserved by other laws are not touched.

46. The fixing of the price by the Tribunal with reference to certain items of trees is not an evidence by itself to indicate that all rights in trees must necessarily pass to the new owner, whether those were the part of lease or not, What is given to the tenant is a new status and that is of a tenure-holder. The rights of the tenure-holder either as Bhumiswami or Bhumidhari with reference to the land in ownership will therefore be possessed by such tenant. It will future follow that the rights in trees will naturally be governed by the provisions of the M.P Land Revenue Code or under the provisions of the Maharashtra Land Revenue Code of 1966, for under both Codes rights in trees are specific items of statutory intendment which is not in express terms abrogated. As noticed earlier, if any person had any right in trees on the 1st day of October, 1955. that right can be purchased by applying to Collector., Both sub-section (3) of Section 162 of the M.P. Land Revenue Code are meant to enable the tenure-holder to purchase the rights in trees in his holding. The effect of the statutory transfer under the make he tenant a tenure-holder either in Bhumiswami or Bhumidhari, he will have a further right to purchase the rights in trees under the provisions of either the M.P. Land Revenue Code, 1954 or under the Maharashtra Land Revenue Code, 1966, as the case may be if he so chooses.

47. Both provisions of Section 47 (1) (iii) and Section 90 (1) (b) of the Tenancy Act of 1958, no doubt, deal with item of value on account of trees and also refers to trees planted on the land by the landlord within the last thirty years. These provisions prescribe the value or the price payable by a transferee and are not the sure guide to think that all trees must pass upon the transfer under the Act to the new tenure-holder. As is experienced, the trees by themselves are the valuable property any may require care and cultivation for years together. The varieties of such capital yielding trees are well-know and it cannot be accepted that only because some mention is made of certain item while determining the price to be paid, such valuable property should pass to the tenant. It is plain that these provisions provide for fixation of price of the land. That word has clear reference to the earlier sections under which the original right emanates, meaning the object of the lease: if it is to be assumed that all the property in trees would pass, a serious inroad on the rights of the landlords, who have not leased out such trees or who have not parted with that property, would in effect follow. It is, therefore, obvious that the legislature being fully aware that the tenure-holder can upon following the provisions of the M.P. Land Revenue, Code or the Maharashtra Land Revenue Code, purchase the rights in trees after fixation of fair price by the Collector, has advisedly not made any specific mention in the Tenancy Act of 1958 as to the passing of the trees. It is not a permissive construction to provide for an item of conveyance by mere construction of the statutory intendment. What appears from Section 41, 46 or 49-A of the Tenancy Act of 1958 is clear enough to convey in favour of the tenant whatever he held under a lease and nothing more. He becomes the tenure-holder of that property. As indicated earlier, this lease would include obviously trees which are treated as the part of his lease by virtue of Section 25 and Section 26 of the Tenancy Act of 1958.

48. This construction appears to me to further the best interests of every one concerned without doing damage to the rights of either the land-holders or the tenant or even third parities. Under the system of our laws, none can be deprived of the property except by or under a law, and for just and equivalent compensation. the latter may not be available when the rights are being modified with reference to agricultural land. That is however no reason to take away, by construing a statute, the rights well-known and capable of being enjoyed by the owners thereof. The trees have several facets of enjoyment and, therefore are the objects of valuable rights. In all parts of the State the legislative history is replete and throws a light how rights in trees from the State or the Crown to the proprietors of the land and further to the tenants have passed and were possessed. Certain trees by their very nature like sandal-wood or fruit bearing trees like catch etc. are extremely valuable property. Only because these happen to be standing and cultivated upon a holding of which a tenet becomes tenure-holder under a statute, it will not be reasonable to think that without anything more these trees and the rights therein should automatically pass to the tenant. The provisions of the Code, both as was applicable in Madhya Pradesh and now applicable in the entire State of Maharashtra, indicate a permissive course which must be followed for possessing such rights.

49. Giving my anxious considerations therefore to all he facets, it is plain that the English maxim quicquid plantatur solo, solo credit, or the provisions of Section 8 of the Transfer of Property Act cannot apply to the compulsory transfers effected under the provisions of the Tenancy Act of 1958.

50. The conveying of the property is firstly restricted to that land which was the subject-matter of lease under the contract or under the deeming provisions of the statue. It would extend to the trees to which a lessee had been given rights under Section 25 and 26 of the Tenancy Act of 1958. The property excepting these two types of trees, in other trees he is declared to be the tenure-holder of the holding upon payment of statutory price under the Act.

51. Therefore, whenever the matter comes to be tried by the Agricultural Lands Tribunal for determining the price of the land, it has to work out the price as indicated by the section themselves irrespective of the passing of the title in the other trees. The payment of price so fixed is a condition precedent to make the tenant a tenure-holder. Once that price is paid, all that was held in lease-including they trees under Section 25 and 26- would pass to the tenant upon a certificate showing what was transferred and then tenant becomes the tenure-holder. After that if there are any other trees standing and not conveyed to him it will be for him to follow the provisions of the Code, either the M.P. Code or the Maharashtra Code, as may be applicable, to get these trees purchased after determining and paying the price as provided.

52. This being the position, in my view, the present petition will have to be allowed. That matter will have to be remitted to the Agricultural Lands Tribunal to find out what were the trees included in the lease itself which were being enjoyed by the tenant and which are the trees that answer the provisions of either Section 25 or Section 26 of the Tenancy Act of 1958. Upon that finding alone, the property that passes to the tenant as a tenure-holder will be specified in the certificate to be issued to him.

53. The petition, therefore, is allowed and the orders made by the tenancy authorities are hereby set aside and the matter remitted back to be decided in accordance with the directions given above, by the Agricultural Land Tribunal, Amravati. The petitioners will be entitled to their cost of this petition from respondents Nos. 1 to 7.


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