John Stanley, C.J. and William Burkitt, J.
1. The plaintiff appellant is a zamindar, and as such instituted the suit out of which this appeal has arisen for a declaration of her title to the trees growing on the cultivated and uncultivated land in mauza Kanohanpur in the possession 6f the defendants, who are her tenants. She also prayed for a perpetual injunction prohibiting the defendants from offering any obstruction to the cutting down and removal by her of the trees on their holdings. The defendants set up a right by custom to cut the trees in question, but this plea was rejected, and a declaration of title was given to the plaintiff appellant as prayed for in her plaint. The two lower Courts also granted to the plaintiff appellant the relief which was claimed by way of injunction ; but upon appeal our brother Richards reversed their decrees and allowed an appeal in respect of the injunction. From this decision the present appeal has been preferred under the Letters Patent. We are of opinion that the learned Judge of this Court was perfectly right in the decision at which he arrived. The presumption of law, and the general rule in the absence of custom, is that the property in timber on a tenant's holding vests in the zamindar, and that the tenant has no right to cut and remove such timber. But it appears to us to be clear that in the absence of a custom or of a contract to the contrary a zamindar has no right to interfere with the enjoyment by his tenant of the trees upon his holding as long as the relation of landlord and tenant subsists. A tenant has a right to enjoy all the benefits of the growing timber on his land during his occupancy. If the zamindar desire to have the privilege during a tenancy of entering upon his tenant's holding and cutting down and removing timber he must procure a special stipulation from his tenant in that behalf. In the case of Sheikh Abdool Rohoman v. Dataram Bashee Weekly Reporter, January to July 1864, page 367 the learned Judges laid down that while a zamindar has a right in the trees which the Court should maintain, the tenant has a right to enjoy all the benefits that the growing timber may afford him during his occupancy, but has no power to cut down the timber and convert it to his own use. We hold therefore that our learned brother was correct in his decision and we accordingly dismiss the appeal with costs.