John Edge, Kt., C.J.
1. The order of reference in this case is as follows: 'We refer to the Full Bench the question raised in this case, whether the trees growing on the land of the judgment-debtor are liable to attachment and sale in execution of the decree.' We are informed that the judgment-debtor is an ex-proprietary tenant within the meaning of Section 7 of the N.-W. P. Rent Act, and also that the judgment-creditor is the person who has purchased his proprietary interest and made him the ex-proprietary tenant he is. This being so, we have both landlord and tenant before us. Munshi Hanuman Prasad, on behalf of the landlord, the judgment-creditor, states that these trees do not belong to the landlord, but remain with the ex-proprietary tenant as part of his holding. Assuming, for the purposes of this case, that this admission is well-founded, the question is, can the trees be taken in attachment and ale under the decree
2. It appears to me that this question roust be answered in the negative. The object of the Rent Act was that these ex-proprietary tenants should be protected in their holdings, and that if any one should sell them up, they should remain and cultivate their tenancies. Section 9 of the Act provides that 'no other right of occupancy shall be transferable in execution of a decree or otherwise than by voluntary transfer between persons in favour of whom, as co-sharers, such right originally arose, or who have become by succession co-sharers therein.' This must be read with Section 7; and what we are asked to say is, that one of the rights enjoyed by the judgment-debtor as an ex-proprietary tenant--namely, the right to the trees growing on his holding and to the benefit of their fruit--shall be taken away from him for the benefit of his judgment-creditor, who happens in this case to be his landlord. This appears to me to be contrary to Sections 7 and 9. Further, with reference to Section 7 itself, when a person becomes an ex-proprietary tenant, the section provides that the rent shall be fixed upon this general principle: 'a rent which shall be four annas in the rupee less than the prevailing rate payable by tenants-at-will for land of similar quality and with similar advantages.' In many cases trees may be of advantage to a holding and possibly a higher rent might often be got for land which has trees upon it than for the same land when despoiled of those trees, particularly if the trees were fruit-trees, as they are in the present case. If the trees in question were cut down by the judgment-creditor, the result would be that the holding of the ex-proprietary tenant would be deprived of its advantages as compared with similar land with the advantages of fruit-trees. By cutting them down the judgment-creditor would be diminishing the landlord's rent, because if he were entitled to cut the trees, such action would be lawful as against both landlord and tenant, and a reduction would follow. For these reasons my answer to the reference is in the negative.
3. I am of the same opinion, but as I base my judgment upon somewhat broader grounds than those of the learned Chief Justice, I wish to state one or two additional facts. The plaintiff originally sued the judgment-debtor and obtained a decree, and himself purchased in execution thereof the rights of the judgment-debtor in certain zamindari lands. Naturally he assumed that the entire proprietary rights of the judgment-debtor in all the land short of what belonged to the ex-proprietary tenant's right had passed to him, and he brought a suit against the judgment-debtor for profits in respect of certain trees growing on the land. He obtained a decree in both the Courts below, but in appeal in this Court, a Division Bench held that he was not entitled to recover damages or profits in that suit.
4. In the result he fell back upon his decree in the former suit, and he now seeks the attachment of certain trees growing on the ex-proprietary holding of the judgment-debtor.
5. I am of opinion that he is not legally entitled to do this. It appears to me that when a proprietor sells his rights, and by operation of law becomes entitled, under Section 7 of the Rent Act, to the rights of an ex-proprietary tenant, he holds all rights in the land, qua such tenant, which he formerly held in the character of proprietor, short of the actual proprietorship, and of course paying rent in his capacity as tenant; and where there are trees upon the sir-land held by him at the time when he lost his proprietary rights, neither the purchaser of those rights nor he himself can cut down or sell them in invitum to each other. He has a right to enjoy the trees as before, and, short of cutting them down, the same rights remain in him that he originally had. It is clear, therefore, that in this case the decree-holder has no right to sell something in which he himself has no separate or divisible interest; and though he no doubt has a proprietary interest, that is subject to the ex-proprietary tenant's right to use and enjoy the trees as heretofore. My answer to the reference is in the negative.
6. I concur in the judgment of the learned Chief Justice. I think that any other answer to the reference than that which he proposes would defeat the object of Section 9 of the Rent Act. An ex-proprietor, who under Section 7 gets occupancy-rights in his sir-land, obtains rights of an analogous nature in the trees upon such sir-land. If the decree-holder has no power to sell the tenant's rights in the land, I cannot see how he can sell the rights in the trees upon the land as separate from the land, and for this reason I also would answer the reference in the negative.
7. I also concur in the answer proposed by the learned Chief Justice.
8. The appellant was formerly the zamindar of the land on which the timber stands, but it has passed from him by sale for debt to the respondent. The latter seeks to execute a decree which he holds against the former by bringing to sale some trees standing on the appellant's holding, which the respondent regards as the property of the appellant. But they can be so, as the respondent puts his case and claim, in no other way and under no other right than that of the occupancy-tenancy of the respondent, and as such the appellant's interests in the timber would not be liable to be transferred in execution of the respondent's decree. They would be protected by the provisions of Section 9 of the Rent Act. I do not of course lay down this proposition as one of general law, but only in regard to the peculiar circumstances of the plaint and pleadings as appellant has chosen to put them in this case. I concur in the negative answer to the reference.
9. On the case being returned to the Divisional Bench, the following judgment was delivered:
Oldfield and Brodhurst, J.
10. With reference to the opinion of the Full Bench of this Court on the point referred, we set aside the order of the Judge and restore that of the first Court with costs.