(1) The question in this Second Appeal is whether trees of spontaneous growth on lease-hold property belong to the land-holder or the tenant.
(2) The facts that give rise to the aforesaid question may be stated. The plaintiff is the owner of the suit land which is a tank in an estate. He leased it for a period of five years to defendants 1 and 2 under a deed, dated 22.8.1939, for grazing purposes. During the period of tenancy, there was spontaneous growth of babul trees on the land. Nine of them were cut by the defendants shortly before the filling of the suit. The question is who is the owner of the trees, whether it is the land-holder or the tenant ?
(3) Both the Courts found that the said babul trees were of spontaneous growth during the period of the tenancy and that the ownership of the said trees is in the land-holder. On these findings a decree for an injunction waa granted restraining the defendants from cutting the babul trees and also for the recovery of the fuel of the trees cut by them. The defendants preferred the above Second Appeal.
(4) The short question in the appeal is whether the land-holder or the tenant is the owner of the trees of spontaneous growth during the period of the tenancy. At the outset, some ground may be cleared to enable me to focus on the point raised. Though the land is situated in an estate, tank bed is excluded from the definition of 'ryoti land' under S. 3 (16), Madras Estates Land Act, and therefore the provisions of S. 12 of that Act regulating the ownership of the trees, do not apply. There is also no evidence, much less a finding, that the tenure is otherwise regulated by a contract between the parties or custom obtaining in the locality. Therefore, this is a simple case of conflicting rights between a land-holder and a tenant not governed by any statute or custom.
(5) In Woodfall on 'Landlord and Tenant' 25th Edn., the following statement of law is found at page 810:
'The property in trees is vested in the owner of the inherintance of the land upon which they grow, for the property in trees, or of that which is likely to become timber, is in the landlord.'
In -- 'Ruttonji Edulji Shet v. The Collector of Tanna', 11 Moo Ind App 295 (A) the Judicial Committee held that trees upon the land were part of the lands and the right to cut down and sell them was incidential to the proprietorship of the land. But, in the case of fixtures, there is a divergence of views between Roman Civil Law and Enghlish Law. Under the Roman Civil Law, a tenant was entitled to remove all fixtures which he had attached to the lease-hold property, where it could be effected without material injury to the property. Under English Law, whatever is affixed to the soil becomes part of it, the rule being relaxed only in respect of certain kinds of tenant's fixtures and not generally. See -- 'Ballygunge Bank Ltd. Calcutta v. Income-tax Commissioner of Bengal', AIR 1947 Cal 159 (B).
(6) Section 108, Cls. (h), (i) and (o) embodied the Roman Law in preference to English Law. They read :
'Section 108 (h) : The lessee may even after the determination of the lease remove at any time while he is in possession of the property leased but not afterwards all things which he has attached to the earth, provided he leaves the property in the state in which he received it.
(1) (a) When a lease of uncertain duration determines by any means except the fault of the lessee, he or his legal representative is entitled to all the crops planted or sown by the lessee and growing upon the property when the lease determines and to the free ingress and egress to gather and carry them.
(b) The lessee may use the property and its products if any as a person of ordinary prudence would use them if they were his own. But he mustnot use, or permit another to use the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor or work mines or quarries not open when the lease was granted or commit any other act which is destructive or permanently injurious thereto.'
(6a) The effect of a combined reading of the above provisions is summarised by a Full Bench of the Madras High Court in -- 'Vasudeva Nambudripad v. Valia Chathu Achan', 24 Mad 47 (FB) (C), as follows :
'Under the Transfer of Property Act, then, a lessee may, during the continuance of the lease remove trees which he has himself planted and buildings which he has himself erected, provided he leaves the property in the state in which he received it. The prohibition in regard to the felling of timber and pulling down of buildings in Cl. (o) does not limit the right declared in Cl. (h). It is subject to that right ; that is, the lessee must not fell timber or pull down buildings unless the timber had been planted or the buildings ercted by the lessee and he must leave the property in the state in which he received it'.
At page 56, the learned Judges further observed :
'We do not, however, wish to suggset that the Transfer of Property Act of its own force, applies directly to the present case, but the rules in the Act to which we have referred are, we think, founded on reason and equity, and may properly be adopted as a statement of the law which ought to apply to the case before us.'
(7) When other decisions were cited before the learned Judges, they distinguished them on the ground that many of them related to trees not planted by the tenant which of course, stand on a footing totally different from that of trees planted by the tenant himself. This decision, therefore, is authority for the position that a tenant can remove the trees planted by him and that neither the provisions of the Transfer of Property Act nor the principles underlying the said provisions entitle a tenant to cut or sell trees not planted by him.
(8) In -- 'Gangamma v. Bhomakka', 33 Mad 253 (D), a Division Bench of the Madras High Court, consisting of Benson C. J., and Krishnaswamy Ayyar J., held that mulgeni lessee is not entitled to cut trees standing at the date of the grant. The learned Judges applied the provisions of the Transfer of Property Act by analogy. In -- 'Krishnacharya v. Anthakki', AIR 1916 Mad 939 (E). another Division Bench of the Madras High Court consisting of Spencer and Kumaraswamy Sastry JJ., held that a mulgeni tenant is entitled to cut and appropriate the trees on the holding, whether planted by him or of spontaneous growth, so long as the trees growing on the land at date of the lease are not interfered with, and the nature of the holding is not changed. The learned Judges at pp. 939, 940 stated as follows :
'The observations in 'Ruttonji Edulji Shet v. The Collector of Tanna (A)', that the trees upon the lands were part of the lands and the right to cut down and sell them was incidental to the proprietorship of the land had reference to trees standing in the land when the lease was made .................... In this country it may well be that on leasing land capable of growing timber, the lessee may intend to raise and cut timber for sale as firwood, etc., and so long as the trees growing on the land at the date of the lease are not interfered with, and the nature of the holding is not changed, it is diffcuilt to see why the tenant should not be entitled to any benefit conferred on him by nature'.
(9) The observations are very wide and general. But they must be confined to the mulgeni tenure for the learned Judges ingnored the principles embodied in the Transfer of Property Act, which are summarised by the Full Bench in 'Vasudevan Nambudripad v. Valia Chathu Achan (C)', to the effect that a lessee must not fell timber or pull down buildings unless the timber had been planted or the buildings have been erected by him. The Full Bench decision clearly lays down that a lessee can only cut down timber trees planted by him, whereas the Division Bench indicates that timber trees other than trees that were in existence at the time of the lease could be removed by the tenant.
(10) In -- 'Surya Rao v. The Chairman, Municipal Council, Cocanada', AIR 1936 Mad 919 (F), it was held that, in the case of a pathway vested in the Municipality, the Zamindar would continue to be the owner of the soil of the pathway and trees spontanceously growing on it. This can only be on the principle that trees of spontaneous growth belong to the owner of the soil.
(11) To summaries, the general and accepted principle is that the trees on a land belong to the owner. They are part of the land and the right to cut and sell them is incidental to the proprietorship of the land. This general principle is subject to the law of fixtures. Under the Roman Law, a tenant is entitled to remove all fixtures which he has attached to the lease-hold property, whereas under English Law, whatever is fixed to the soil subject to some exceptions becomes part of it. The transfer of Property Act practically adopted the principles of Roman Law and embodied them in S. 108 of the Act. Under the said provisions, the lessee must not fell timber or pull down buildings unless the timber had been planted or the building had been erected by the lessee and he must leave the property in the state in which he received it.
(12) There is no provision enabling a tenant to remove trees of spontaneous growth in his lease-hold property. The principles embodied in the said act are founded on reason and equity and, therefore, they are also applied to analogous cases which are not governed by the express provisions of other Acts, or regulated by custom. It follows that unless there is an established practice or statutory rule, trees of spontaneous growth on a land belongs to the owner.
(13) In the present case, as I have already stated, though the tank bed is in an estate, it is not a ryoti land and is not governed by the provisions of S. 12, Madras Estates Land Act. No custom has been established enabling a tenant to cut trees of spontaneous growth. No contract to that effect has been pleaded. In the circumstances, applying the aforesaid principles, I hold that the babul trees, which were of spontaneous growth belong to the plaintiff and that the defendants have no right to cut them or otherwise remove them. The conclusion arrived at by the lower court is correct.
(14) The appeal fails and is dismissed with costs. No leave.
(15) Appeal dismissed.