N.N. Mithal, J.
1. The plaintiff has come up in Second Appeal. Admittedly a money suit was filed by the respondent against one Chingi and his son Dasai and in execution of the decree, their one-half share in some agricultural land having trees and bamboo clumps thereof were attached. The decreewas passed by the Court of Small Causes and execution also took place in the same Court. Treating the trees and the bamboo clumps to be moveable property; being standing timber, the Court of Small Causes proceeded to put the same to auction and it was purchased by the defendant-respondents. The auction took place on 1-9-1958. Thereafter the present suit was filed on 15-1-1968 on the ground that the plaintiffs were not parties to the money suit and that without their knowledge the property has been put to sale. It was also alleged that the purchaser was trying to cut away the standing trees to which he had no right and on this ground reliefs were claimed for declaration that the auction sale in pursuance of the decree in Suit No. 21 of 1955 was a nullity and for a permanent injunction to restrain the defendant from interfering in the possession of the plaintiff over the land and the trees in dispute.
2. The suit was contested on the ground that the decree was rightly executed against the trees which were moveable property being standing timber and the Court of Small Causes was competent to execute the same.
3. Both the Courts below have dismissed the suit on the ground that the trees in question were standing timber and as such moveable property and the same could be proceeded against in the execution by the Court of Small Causes. It was also held that plaintiff's half share in the trees has not been touched and only the other half share of Dasai and Chingi has been put to auction. The plaintiff's right to the relief of injunction was also dismissed. Aggrieved by the said decisions the plaintiff has come up in Second Appeal and only a short question arises for determination as to whether the trees auctioned in execution of the decree were moveable or immoveable property. It is conceded that the Court of Small Causes at the relevant time was not competent to execute the decree against immoveable property.
4. 'Immoveable property' and 'moveable property' have been defined in various Acts. The first of such Acts is the Transfer of Property Act, 1882 which defines 'immoveable property' as under :
'Immoveable property' does not include standing timber, growing crops or grass'
The word 'moveable property' has not beendefined in the Act but only lays down that standing timber, growing crops or grass shall not be included in the definition of 'immoveable property'.
5. In the General Clauses Act, 1897, 'immoveable property' has been defined in Section 3(26) as under : --
'Immoveable property' shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to any thing attached to the earth'.
Under Sub-clause (36), the word 'moveable property' has also been defined in the following terms :
'Moveable property' shall mean property of every description, except immoveable property'.
It will thus be seen that the definition of 'moveable property' is negative in nature and all that is not included within the meaning of 'immoveable property' shall be treated to be 'moveable property'.
6. In the Registration Act, 1908, 'immoveable property' has been defined in Section 2(6) as under : --
'Immoveable property' includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries, or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to any thing which is attached to the earth, but not standing timber, growing crops, nor grass'.
Sub-clause (9) of the section defines 'moveable property' as including standing timber, growing crops and grass, fruit upon and juice in trees and property of every description, except immoveable property.
7. Similarly the Code of Civil Procedure, 1908 defines the word 'moveable property' in Section 2(13) as including growing crops.
8. All these definitions would indicate that for purposes of various Acts, the definition of the two words differs in some way or the other, but the common factor is that 'immoveable property' does not include standing timber, growing crops or grass. As to what is standing timber came up for consideration in a Division Bench case of this Court in Nanhe Lal v. Ram Bharosey : AIR1938All115 where it has been held that agrove consisting of Shisham and Neem trees does not constitute immoveable property as its definition in Section 3 does not include standing timber. The Court merely distinguished between timber trees and fruit trees but did not consider as to what would constitute standing timber.
9. In the matter of Raj Balamgir AIR 1931 392 a Full Bench of this Court was dealing with a reference went to it under Section 57 of the Stamp Act. There a person had agreed to purchase standing timber in a certain Jungle and had executed a document mentioned as a Kabuliyat promising to pay the price in a lump sum on a certain date and on default the owner of the timber had the right to realise the amount from him. It was also agreed that the wood of the said jungle will be cut and removed within a year. The document had one anna stamp affixed on it. It was held that standing timber which has to be cut down and removed is moveable property.
10. Similarly in a Division Bench case in District Board, Banaras v. Ghuihu Rai : AIR1956All680 , it was held that the real test for judging whether a tree is immoveable property or moveable property is not the nature of the tree but the way in which it is intended to be dealt with. If the intention of the parties in respect of a particular transaction is that tree, whether that be a Neem tree or Mango tree, is to be cut by the purchaser and removed, it will become timber, but if the intention is that it will, after the purchase, continue to grow and to yield fruit or shade, it may not be timber.
11. In a five Judge Bench of the Supreme Court in Smt. Shanta Bai v. State of Bombay : 1SCR265 , a similar matter came up for decision. Although a majority of Judges disposed of the appeal on a different question, Justice Vivian Bose discussed the question in some detail and after comparing the definition in Section 3(26) of the General Clauses Act, Section 2(6) of the Registration Act and the Transfer of Property Act, he had been pleased to say this on the point : --
'Before a tree can be regarded as 'standing timber' it must be in such a state that, if cut, it could be used as timber, and when in that state it must be cut reasonably early. The rule is probably grounded on generation ofexperience in Forestry and Commerce and this part of the law may have grown out of that. It is easy to see that the tree might otherwise deteriorate and that its continuance in a forest after it has passed its prime might hamper the growth of younger wood and spoil the forest and eventually the timber market. But, however, that may be the legal basis for the rule is that trees that are not cut continue to draw nourishment from the soil and that the benefit of this goes to the grantee'.
The learned Judge also observed in this connection as under : --
' 'Standing tree' must be a tree that is in a state fit for these purposes and further a tree that is meant to be converted into timber so shortly that it can already be looked upon as timber for all practical purposes even though it is still standing. If not, it is still a tree because, unlike timber, it will continue to draw sustenance from the soil'.
12. From the above, one thing would be obvious that in the larger definition of 'immoveable property' any thing attached to the earth would normally be treated as immovable property and a tree which is : attached to the earth and seeks its nourishment and sustenance from the soil in which it stands will be deemed to be attached to the earth with the only distinction that if it was tree of a kind which is usually used as timber and was of sufficient size so as it could be used as such and is intended to be severed from the soil reasonably thereafter, it may be treated to be immoveable property. Therefore, apart from the size of the trees, the relevant consideration would be the intention to cut the tree or to let it remain attached to the earth. In the former case, it will be termed as 'standing timber' while in the latter it must remain immoveable property.
13. Applying the aforesaid principles to the facts of the present case, one thing strikes the eye immediately. The attachment had taken place on 1-8-1958 followed by Court auction on 1-9-1958 but the suit was filed in January, 1968, nearly 10 years after, during this period of 10 years, none of the trees had been cut away and they had continued to remain standing on the land. From the sale certificate, it would be obvious that the four plots over which the disputed trees werestanding had five bamboo clumps, 39 mango trees and one sheesham tree. At the time when the suit was filed, the plaintiff gave out a list of the trees towards the end of the plaint and the number is exactly the same. In the written statement, this fact has not been challenged nor is there any evidence to suggest that the defendant had, after the auction sale, attempted to cut down any of the trees.
14. It is urged for the respondents that they had only only-half share in the trees and as such it was not possible for them to cut any of the trees. That may be so but there is nothing also to indicate on the record that any effort was made by the respondents to either seek an auction of trees in order to share half the price for which they may be sold or in any way seek partition of the same. It is suggested that the plaintiff also had not filed any suit for partition of the land. Despite that the respondents cannot derive any benefit from this land for the simple reason that he was not claiming any interest in the land under the trees. The land continued to remain with the judgment-debtor and was never put up for auction. The plaintiffs admittedly had one-half share in the entire land and one-half interest in the trees standing thereon. It is thus obvious that at no stage the defendant-respondent displayed any intention to cut away the trees or to do any such thing by which it could seek to recover its half price. Ten years is a sufficiently long period in which the intention of the respondents should have been displayed or indicated in some way after remaining silent for a number of years, it cannot be presumed that the respondents actually intended to cut away the trees as timber. Apart from one neem tree, the other trees are not exclusively timber trees. Mango by its very nature is primarily a fruit bearing tree and only on account of old age it may become useful as timber also. There is nothing, however, to indicate that it was so in the case of the trees in question. I am, therefore, in complete disagreement with the Courts below that the trees in dispute were moveable property being standing timber. In fact the trees are of the nature other than timber and were never intended to be cut down and, therefore, must be held to be immoveable property. That being so, the Court of Small Causes did not have any jurisdiction to proceed to execute the decree by sale of trees treatingthem as moveable property. The auction sale dt. 1-9-1958 was, therefore, without jurisdiction and does not confer any title to the respondents.
15. It is, however, urged that bamboo clumps at least should be regarded as timber as they are used for building purposes. It is true that bamboos are also used for building purposes but they cannot be regarded as such until it is intended to cut them for such use. As I have said there is no evidence to suggest that these were ever intended to be cut after purchase by the respondents. In paragraph 11 of the written statement, the respondents themselves took the stand that the defendant was in possession of the trees and was appropriating its usufruct in the shape of fruits etc. and wood. If any reference is necessary, the case of Bharat Sebaigrass Ltd. v. State of Madhya Pradesh AIR 1955 NUC 5612 (Cal) is an authority for the proposition that Bamboos are immoveable property and when they are sold, as so attached there would be sale of interest in land but when sold after detachment there would be a sale of chattels. Thus even in the case of Bamboo clumps, same principles would apply as I have mentioned earlier.
16. Thus, I find that there is sufficient force in the contention raised by the appellant and the appeal must succeed which is accordingly allowed and the suit of the plaintiff shall stand decreed for both the reliefs claimed. However, the parties are left to bear their own costs in this appeal.