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Chokhey Lal Vs. Behari Lal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1920All17; 60Ind.Cas.115
AppellantChokhey Lal
RespondentBehari Lal and ors.
Excerpt:
.....when one comes to read the context the meaning does seem to be that, apart from the rights of the existing grove-holder which have been just specified, no tenant in the village is recognised as having a right to plant a grove, that is to say, in effect to plant a new grove, without the consent of the proprietors......the defendant is a tenant of the village and is in possession of two plots of land constituting a grove or groves. it is not clearly stated anywhere whether the two plots of land are contiguous, but from the pleadings and the manner in which evidence was adduced it would seem that they must be; at any rate, it will be convenient to speak of the 'defendant's grove.' it is alleged in the plaint that, at the time of the settlement in 1301 face, there were 383 frees standing in the for and that there are only 1311 scattered trees. the plaintiffs, relying on their rights as proprietors of the land and on the provisions of the wajib-ul-arz prepared at settlement, claimed that the defendant's grove, or at least some unspecified portion of the same, had become, denuded of trees and had lost the.....
Judgment:

1. The plaintiffs in this suit are the Zemindars of a certain village. The defendant is a tenant of the village and is in possession of two plots of land constituting a grove or groves. It is not clearly stated anywhere whether the two plots of land are contiguous, but from the pleadings and the manner in which evidence was adduced it would seem that they must be; at any rate, it will be convenient to speak of the 'defendant's grove.' It is alleged in the plaint that, at the time of the Settlement in 1301 Face, there were 383 frees standing in the for and that there are only 1311 scattered trees. The plaintiffs, relying on their rights as proprietors of the land and on the provisions of the wajib-ul-arz prepared at Settlement, claimed that the defendant's grove, or at least some unspecified portion of the same, had become, denuded of trees and had lost the character of a grove. They sought relief by way of a declaration and also by way of an injunction restraining the defendant from planting new trees in the grove, coupled with an order directing him to remove a number of trees alleged in the plaint to have been planted between a year and six months prior to the institution of the suit. The suit was resisted on a variety of grounds. The Court of first instance found that the land in suit, consider as a where, had not lost its character of a grove, so that no right of re entry had come into existence in favour of the plaintiffs Zemindars, either in respect of the land as a whole or in respect of any portion of it. The learned Munsif went on to criticize the form of the relief claimed and held that, in any case, the plaintiffs were not entitled to relief by way of declaration, because if any right of re entry had command to them they should have defined the area in respect of which that light had accused and claimed possession over the same, and not a mere declaration. On the question of the injunction the Trial Court inspirited the provisions of the wajib-ul-arz in favour of the defendant and held that he had a tight to continue planting new trees within the limits of the grove as defined in the Settlement papers. There were one, or two other issues fixed which were not tried out, but the first Court d if missed the suit substantially upon the-e findings. In appeal the learned Additional Subordinate Judge has not discussed some of the points taken by the Court; of first instance. He has not thought it necessary to consider whether the claim for relief by way of a declaration was in fast maintainable. He seems to have limited his consideration to the plaintiffs claim for an injunction placing an interpretation upon the terms of the wajib-ul-arz different from that adopted by the first Court, he has held that the defendant has no right to plant new trees without the permission of the plaintiffs. Upon this finding he has remanded the suit for final disposal to the Court of first instance. In appeal before us there has been some argument on the questions discussed in the first Court's judgment which have not been touch upon in appeal, The learned Munsif was, in our opinion, clearly justified in his finding that, on the admission contained in the plaint itself, the land in suit still retains its character of a grove, so that no right of reentry had some into existence in favour of the plaintiffs, either in respect of the land as a whole or in respect of any portion of it. There is also great force in the reasons given by the learned Munsif for his finding that, in no event, were the plaintiffs entitled to maintain a suit for a mere declaration, and those reasons have not been dissented from by the lower Appellate Court. There remains, forever, the 'question whether the plaintiffs are or are not entitled to an injunction restraining the defendant from planting new trees. The point must be determined with reference to the provisions of the wajib-ul-arz and to the evidence on the record as to the previous conduct of the parties, that is to say, the rights hitherto exercised By the grove-holder. The Trial Court laid no small stress on the fast that in the period of 30 years or so between two Settlements, a very large number of new trees, 147 at least according to the learned Munsif, must have been planted by the grove-holder. It has also been shown to us that the re planting of the grove on which the defendant has now embarked is on a considerable scale. According to the evidence, there are 2 or 3 hundred young trees at present standing in the grove over and above the 109 old trees referred to in the plaint. There was much controversy as to the age of these newly planted trees, but we do not think that anything substantially turns upon it. We are content to accept the finding of the lower Appellate Court that this re-planting of trees in the grove was at least started some four years prior to the institution of the suit. As to the terms of the wajib-ul-arz the essential points are the following: There is, first of all, a dear reference to these two groves as held by a 'raiya', the predecessor in title of the present defendant, and as standing on a wholly different footing from the comes of proprietors of which a detail is also given. It is clearly laid down that the grove-holder is to enjoy the full benefit of the grove, including the fruit and the right to remove the timber. Then comes a provision that when the grove becomes denuded of trees the Zemindars shall have a right to occupy and to bring it under their own cultivation. This is followed by the crucial words which we are asked to interpret. Rendered as literally as possible, the words are as follows, and no tenant (riaya) has any right without the consent of Zemindars to plant a grove or scattered trees.' The case for the plaintiffs-respondents is that these words refer to all riayas in the village, including the holder of the two particular groves which are mentioned just before this sentence, and that the amount to a prohibition of the planting of new trees within the grove in suit, either to re place the old ones as those fall down or under any other circumstances, unless the consent of the Zemindars is obtained. The Trial Court regarded these words as wholly independent of the provisions immediately preceding about the two be if groves belonging to the defendant's ancestor. It treated them as merely containing a general statement that, in future, tenants of the village would not have any right either to plant a new grove or to plant individual trees, as, for instance, on the boundaries of their fields, or on the waste lands of the village, without previously obtaining the consent of the Zamindars. The lower Appellate Court seems to have thought it sufficient to bold that the words 'aur kisi riaya ko' are perfectly general and are sufficient to include the predecessor-in-title of the defendant. This is a fair remark enough, if the attention of the Court is to be limited to these words alone; but it is certainly difficult to apply the words immediately following to the case of the existing grove-holder whose rights have just previously been defined. We had to put it to the learned Counsel for the respondents whether he wished us to apply this particular sentence to the facts of the present case on the ground that the defendant had been planting scattered trees, or on the ground that the defendant had been planting a grove. The former alternative he very property abandoned. It seems, indeed, quite impossible to apply the words 'lagans darakht mutafarriqa' to the facts disclosed by the evidence as to what the defendant has been doing within the boundaries of his own grove. The contention, therefore, is that the defendant has transgressed a provision of the wajib-ul-arz are by virtually planting a grove. We think time this contention is almost as difficult to adopt as the other. The defendant has presumably waited until a considerable number of the trees in the grove had reached an age at which they were no longer valuable as fruit-bearing trees, but were likely to yield a profit either as timber or as firewood. He has then begun to plant a large number of trees to re plane those which leave thus been lost, The expression 'lagane bagh' as it appears in the wajib-ul-arz certainly seems to us to refer to the planting of a new grove. It is quite true that there is no word like 'jadid' in the sentence in question, but when one comes to read the context the meaning does seem to be that, apart from the rights of the existing grove-holder which have been just specified, no tenant in the village is recognised as having a right to plant a grove, that is to say, in effect to plant a new grove, without the consent of the proprietors.

2. Something has been said to us about the rights of the parties under the general law. So far as decided cases go, the tendency has been to limit the decision by the provisions pf the wajib-ul-arz and to assume that the grove holder possesses all rights in respect of his grove which are not excluded by those provisions. At any rate, we think that, if it had been intended to prevent this grove-holder from keeping up the character of the grove by the planting of new trees, something explicit would have been said on the subject in the wijib-ul-arz, and in this connection, the evidence relied upon by the first Court as to the practice of planting new trees which had apparently been going on without question for the entire interval between two Settlements becomes of considerable significance. The learned Additional Subordinate Judge has said that the terms of this wajib-ul-arz are very similar to those of another wajib-ul-arz which a learned Judge of this Court was called upon to interpret in another case. There is, no doubt, a certain similarity but, as a matter of fact, the judgment under appeal is an illustration of the danger of attempting to interpret a document in one case by the interpretation which may have been put upon a differently worded document in some other case. We think the wording of the wajib-ul-arz which has to be considered in the present case is distinguishable in the most crucial point from that of the wajir-ul-urz referred to in the judgment of the lower Appellate Court. In our opinion, therefore, the decision of the Court of first instance was correct. The plaintiffs were entitled to no relief and the order of remand passed by the lower Appellate Court is unsustainable. We allow this appeal, set aside the order of the lower Appellate Court, and restore the decree of the Court of first instance, with costs throughout in favour of the defendant.


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