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ishar DIn and anr. Vs. Mumtaz HusaIn Khan and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in39Ind.Cas.974
Appellantishar DIn and anr.
RespondentMumtaz HusaIn Khan and anr.
Cases ReferredAzmatullah Khan v. Mangni Ram A.W.N.
Excerpt:
grove - grove-holder, right of, to plant new trees--wajib-ul-arz, evidentiary value of--wajib-ul-arz, construction of. - - 1. the plaintiffs who were zemindars of a village brought the suit out of which this appeal has arisen for the removal of certain trees which the defendants bad planted in a grove held by them as grove-holders. i think the view taken by the learned judge of the lower appellate court is correct and this appeal must fail......for the removal of certain trees which the defendants bad planted in a grove held by them as grove-holders. the plaintiffs relied upon the terms of the wajib-ul-arz of the village and contended that the defendants were not entitled to plant new trees. the defendants on the other hand urged that they had only replaced trees which had been cut down by them and that they were entitled to do so. the court of first instance decided in favour of the defendants. on appeal the, learned judge held a different opinion and decreed the claim. the case turns upon the interpretation of the wajib-ul-arz. chapter iv of that document relates to the rights of cultivators and paragraph 5 relates to groves of cultivators and persons who are not proprietors of land. in this paragraph it is provided.....
Judgment:

P.C. Banerji, J.

1. The plaintiffs who were zemindars of a village brought the suit out of which this appeal has arisen for the removal of certain trees which the defendants bad planted in a grove held by them as grove-holders. The plaintiffs relied upon the terms of the wajib-ul-arz of the village and contended that the defendants were not entitled to plant new trees. The defendants on the other hand urged that they had only replaced trees which had been cut down by them and that they were entitled to do so. The Court of First Instance decided in favour of the defendants. On appeal the, learned Judge held a different opinion and decreed the claim. The case turns upon the interpretation of the wajib-ul-arz. Chapter IV of that document relates to the rights of cultivators and paragraph 5 relates to groves of cultivators and persons who are not proprietors of land. In this paragraph it is provided that proprietors of groves have a right to sell the fruits and cut down the trees in their groves. It then provides that when a grove is denuded of trees, the grove-holder will have preferential right to cultivate it and it would not be let to any other tenant unless the grove-holder refuses to cultivate the land.' It concludes with the following provision: In future no person will be entitled to plant new trees without the permission of the pattidars.' The learned Judge is of opinion that this last provision deprives the grove-holder of the right to plant new trees in the grove except with the permission of the zemindars The learned Munsif was of opinion that what the clause means is that after a grove had been denuded of trees, no new trees could be planted without the permission of the zemindars. I do not think that the clause in the wajib-ul arz is capable of the, interpretation which the learned Munsif has placed upon it. It deals with the rights of grove-holders and it provides for what should happen in future, that is to say, after the time when the wajib-ul-arz was prepared, and the provision is that no grove-holder should plant new trees in his grove without the permission of the zemindars. If a grove-holder wishes to cut down a number of trees, he has a right to do so. But if he wishes to plant new trees, he must obtain the permission of the zemindar even if his intention is to replace the trees which ho has cut down. The clause is a general one and limits the rights of the grave holders. The wajib-ul-arz is part of the Record of Rights, and the entries in it must be deemed to he correct until the contrary is proved. There is nothing to show that the entry in the wajib-ul-arz does not correctly represent the rights of the parties in the village. The case of Azmatullah Khan v. Mangni Ram A.W.N. (1886) 138 ; 5 Ind. Dec. (N.S.) 207 has no bearing upon this case, as in that case it was admitted that the tenants had a right to renew and replace the trees which were cut down. I think the view taken by the learned Judge of the lower Appellate Court is correct and this appeal must fail. I dismiss it with costs.


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