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Muhammad YasIn Vs. Ilahi Bakhsh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Judge
Reported in(1912)ILR34All545; 16Ind.Cas.455
AppellantMuhammad Yasin
Respondentilahi Bakhsh and ors.
Excerpt:
land-holder and tenant - rights of tenants with respect to groves--custom--wajib-ul-arz--construction of document--'malik.' - - it is almost impossible to understand how in many cases the planter of a grove could enjoy to the full the benefits conferred upon him by the zamindars when he agreed to plant a grove unless he had a right to transfer it......the benefits conferred upon him by the zamindars when he agreed to plant a grove unless he had a right to transfer it. the wajib-ul-arz contemplates enjoyment beyond an ordinary man's life. it almost seems to follow from the terms of the wajib-ul-arz itself that the planter of the grove had a right of transfer. prima facie every man has a right to dispose of any property he possesses, whether it be a grove or anything else. of course it frequently happens that the legislature for reasons of policy places restrictions on rights of transfer ; for example, in the case of certain tenancies, it is expressly provided by act of the legislature that the tenant shall have no power to transfer, and if the grove in question was part of, or an appurtenance to, such a tenancy, it is clear that the.....
Judgment:

Henry Richards, C.J. and Tudball, J.

1. This appeal arises out of a suit in which the plaintiff claimed to recover possession of a grove. The court of first instance and the lower appellate court decreed the plaintiff's claim. On second appeal to this Court the decrees of the courts below were reversed and the plaintiff's suit dismissed. The facts are very simple and undisputed. The grove was planted by one Thakur Dayal with the consent of the zamindars. The plaintiff, who is also a zamindar, purchased it from Jagaoli Lal, the representative of Thakur Dayal, on the 20th of December, 1900. He has been ousted from possession by the other zamindars, who have been put into possession evidently under Section 145 of the Code of Criminal Procedure. The wajib-ul-arz deals very fully with the rights of persons to plant groves. It is notorious that in some places it is considered by the zamindars themselves very desirable to encourage the planting of groves. The wajib-ul-arz in the present case shows that this was the case in the village in question. It provides that persons who plant with the consent of the zamindars, or are in possession of groves, are to have the rights of a malik. They can cut down and sell the trees on terms of paying one-fourth of the value of the timber to the zamindars. They are entitled to retain possession of the grove so long as it continues to have the characteristics of a grove. They are entitled when a tree is cut down, or falls down, to replace it with another without even asking the consent of the zamindar. Even after the trees have been cut down entirely, they are to have the first right to become tenants of the land at a rent payable to the zamindars. From the above recital of the wajib-ul-arz it would appear that the zamindars, on whose behalf the wajib-ul-arz was prepared, made provision not only for the actual planters of the groves but for persons who had become possessed of them. Furthermore, it is quite clear that long possession of the grove by persons other than zamindars was contemplated. Trees do not grow up in a day, and further the owner for the time being of the grove was entitled to renew it from time to time by planting fresh trees. It is, therefore, quite clear that the person who planted a grove with the consent of the zamindars acquired substantial right of a lasting and valuable nature. It is almost impossible to understand how in many cases the planter of a grove could enjoy to the full the benefits conferred upon him by the zamindars when he agreed to plant a grove unless he had a right to transfer it. The wajib-ul-arz contemplates enjoyment beyond an ordinary man's life. It almost seems to follow from the terms of the wajib-ul-arz itself that the planter of the grove had a right of transfer. Prima facie every man has a right to dispose of any property he possesses, whether it be a grove or anything else. Of course it frequently happens that the Legislature for reasons of policy places restrictions on rights of transfer ; for example, in the case of certain tenancies, it is expressly provided by act of the Legislature that the tenant shall have no power to transfer, and if the grove in question was part of, or an appurtenance to, such a tenancy, it is clear that the tenant could not sell the trees. We know of no law which prohibits a person who has acquired rights similar to those of Jagaoli Lal from transferring such rights. Jagaoli Lal planted this grove and acquired all the rights and privileges mentioned in the wajib-ul-arz. There certainly is no legislative enactment prohibiting such a transfer. In the present case it is urged that there was a finding of the Court that there was no custom or evidence of a custom entitling a grove-holder to sell. In our opinion the wajib-ul-arz affords the strongest evidence that the grove-holder in the present case had an interest which he was entitled to transfer. Reliance is placed on an unreported case, Letters Patent Appeal No. 23 of 1909. In some respects the facts in that case were not altogether dissimilar to the facts in the present case, but it would appear from the judgment that there was this very important distinction. The wajib-ul-arz, instead of stating that the planter of a grove was a malik of the grove, on the contrary, stated that the trees belonged to the zamindars. The only entry in favour of the defendant was a note to the effect that the tenants also claimed the trees. We think that this case is quite distinguishable from the case before us. In our opinion the decree of the lower appellate court on the facts of the present case was correct and ought to be restored. We, accordingly, allow the appeal, set aside the decree of this Court, and restore the decree of the lower appellate court with costs of both hearings in this Court.


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