1. The plaintiff in this suit is an occupancy tenant and he brought a claim against his landlord to recover a certain sum of money by way of damages alleging that the landlord had without any right deprived him, the plaintiff, of the fruits of certain trees which stand upon his occupancy holding.
2. The first Court dismissed the claim, but the lower Appellate Court has decreed it in part. It has given the plaintiff relief with respect to the compensation demanded on account of the taking away of mango fruits but has dismissed the claim as regards the fruits of the two other trees, namely, a jamun and a lasora tree.
3. The defendant zemindar has appealed and the plaintiff has filed cross-objections. The case came up before a Judge, of this Court who has referred it for decision to a Bench, being of opinion that a question of general importance is raised.
4. It seems to us that the law on the subject presents no difficulty whatever. There can be no doubt that the plaintiff (the tenant) has been in occupation of this land, which is, as we have said, his occupancy holding. Then land is let out to a tenant; the lease confers upon the tenant the right to occupy the land which is let out and also to enjoy the fruits of the trees growing thereon and, in the absence of any contract or custom to the contrary, it is the right of the tenant to enjoy the occupation of the land and also to enjoy the fruits of the trees.
5. The lower Appellate Court in dealing with this matter appears to have been under the impression that it was necessary for the plaintiff in this case to make out some title by adverse possession. Be that as it may, it is quite clear on general principles that the tenant in this case had a right to enjoy the land and to enjoy the fruits of the trees which were on the land, unless there was a custom or agreement to the contrary. In the Court of first instance the defendant tried to set up a contract by which he had reserved to himself the right to enjoy the fruits of these trees but that contract was not proved.
6. As regards the law on the subject we need only refer to two rulings of this Court, one in Imdad Khalun v. Bhagirath 10 A. 159 : A.W.N. (1888) 32 : 6 Ind. Dec. (N.S.) 107 and the other in Ganga Dei v. Badam 30 A. 134 : 5 A.L.J. 99 : 3 M.L.T. 194 : A.W.N. (1908) 51. In the first mentioned case it was held by the Bench that on a review of all the authorities the trees on an occupancy holding, whether planted by the tenant himself or not, belonged and attached to the occupancy holding. Again, in the latter case it was laid down as follows:
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 zemindar, and that the tenant has no right to cut and remove such timber. But it appears to be clear that, in the absence of a custom or of a contract to the contrary, a zemindar 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.
7. The law, as laid down in these cases, clearly covers the case which is now before us. The defendant's appeal, therefore, fails and is dismissed with costs including fees on the higher scale.
8. The plaintiff has filed cross-objections urging that the lower Appellate Court was wrong in dismissing the claim regarding the jamun and lasora trees. It is quite clear that there is no ground for drawing any distinction between the case of the mango trees and the case of these trees and the consequence is that the cross-objections must be allowed. The result of all this is that the decree of the Court below is modified and we direct that the plaintiff's claim be decreed with costs in all Courts including in this Court fees on the higher scale.