1. The plaintiffs are the lessees of the Sivaganga Zemindari in Madura District. The defendants are ryots with permanent occupancy rights in their lands. The question for decision is whether babul trees which have grown on the defendants' pattah land belong by law to the plaintiffs or to the defendants. The Courts below have held that they belong to the plaintiffs. Against this decision the 1st defendant appeals. We have no doubt the appeal is well founded. The plaintiffs do not rely on agreement or any custom whereby their right to the trees is established. The first issue as to the ownership of the trees was originally in general terms, but at the request of the plaintiffs' vakil it was restricted to 'whether the plaint trees belong, by law, to plaintiffs or to defendants.' The plaintiffs contend- and the courts below have held, that 'according to Regulation XXV of 1802 the proprietary right in the soil vests in the Zemindar, and as it is a well established principle of law that the trees go with the land to which they are attached, the Zemindar is the owner of the trees also.
2. We think that this view is radically unsound. It takes no account of Regulation IV of 1822, and it ignores the true relations and mutual rights that exist between Zemindars and their so-called tenants in this part off India. Regulation IV of 1822 was passed expressly because Regulation XXV of 1802 and some other early Regulations had been misunderstood and had been so construed as to infringe the established rights of the actual cultivators of the soil. The Regulation recites that such rights are 'properly determinable by judicial investigations only, and it declares that Regulation XXV of 1802 and certain other regulations 'were not meant to define, limit, infringe or destroy the actual rights of any description of land-holders or tenants; but merely to point out in what manner tenants might be proceeded against in the event of their not paying the rents justly due from them. 'The rights of the ryots in regard to their lands were not altered by the passing of the regulation. The mutual relationship and rights of the ryots and of the Zemindar were recently explained in the case of Venhatanarasimha Naidu v. Dandamudi Kotayya I.L.R. 20 M. 299. It was there pointed out that there is no substantial analogy between an English tenant and an Indian ryot for the simple reason that the rights of the ryots, in most cases, came into existence not under any letting by the 'Government of the day, or its assignees, the Zemindars etc., but independently of them. This view was further developed in the case of Cheekati Zemindar v. Ranasooru Dhora I.L.R. 23 M. 318. In the case of Venkatanarasimha Naidu v. Dandamudi Kotayya I.L.R. 20 M. 299 it was also pointed out that the interest in the land is divided into the two main heads of the Kudivaram interest and the Melvaram interest, and that the holder of the Kudivaram right, far from being a tenant of the holder of the Melvaram right, is really a co-owner with him. The Kudivaram right originated in priority of effective occupation and beneficial use of the soil, and the claim of Government and the assignees of Government was always, in these parts, to a share in the produce raised by the ryots. Lastly, it was pointed that in essence there is no difference between a ryot holding lands in a Zemindari village and one holding lands in a Government village and that in both cases the ryot an the absence of proof of contract, or of special or local usage to the contrary, is entitled to occupy his lands so long as he pays what is due and if he should commit any default in this or other respect, until he is evicted by the processes provided by law.'
3. In the present case the defendants are admittedly the holders of the Kudivaram right in perpetuity. s There is no suggestion that they derived their title from the Zemindar or that the ordinary Kudivaram right is limited, in their case, by any contract, or special or local usage. It is obvious that in these circumstances, it is misleading to speak of the Zemindar as the owner or proprietor of the soil in the sense in which an English landlord is the proprietor of the soil and to say that the trees growing on the soil must belong to the Zemindar as the owner of the soil. Rather should we say that the ryot, as the holder of the permanent right to occupy and cultivate the soil is the owner of the soil, so far, at least, as the title to the produce of the soil, whether ordinary crops or trees, is concerned. No doubt, in many parts of the country the Zemindars are entitled by custom to a payment on account of certain classes of fruit trees such as mangoes, Palmyra's and the like, and this is in accordance with the principle that the holder of the Melvaram right is entitled to a share in the produce, in the fruit raised by the holder of the Kudivaram right. By an extension of the same principle, the Zemindar is sometimes entitled by custom to a share in the .profit made by the sale of timber, and it may even be that in some places he is entitled by custom to a share in the profit made by the sale of small trees, such as babul, which are used chiefly for firewood, though so far as our experience extending over some thirty years goes, this is very rare. But such a right, resting on custom is altogether different from what the plaintiffs claim in thin suit, viz., that apart from custom and contract, they are, by law, entitled as Zemindars to the ownership of all trees growing on the land even of the permanent occupancy ryots of the Zemindari. We have no hesitation in holding that this claim is not supported by any law, and that it is opposed to correct fundamental conceptions of their rights and those of the occupancy ryots in their Zemindari.
4. The case of the true tenant in the English sense, that is, of the man who holds by a title derived from the landlord, may, of course, be very different, especially in the case of short leases and of trees in existence before the letting began. In the of the cases quoted by the Subordinate Judge Appa Rau v. Ratnam I.L.R. 13 M. 249 the leases were for three years only, and this court naturally held that 'prima facie( a tenant would not be at liberty to cut down fruit trees on the holding' especially as there was evidence of a recognized custom to the same effect, and the court added, 'it is shown that the prohibition does not extend to shrubs and small trees which are usually at the disposal of the tenant for the purposes of his holding.' In the other case quoted by the Subordinate Judge Appa Rau v. Narasanna I.L.R. 15 M. 47 it does not appear that the ryots had permanent occupancy rights, and [apparently a tax on the trees had. previously been payable to the Zemindar. In these circumstances, the observation of Parker, J., that 'prima facie a tenant has no right to cut down trees without his landlord's permission' cannot be regarded as a decision opposed to the views we have set forth above. The courts below have also relied on a series of judgments of the District Court in regard to other defendants in other villages of the Zemindari, Exhibits C, D, E, F, G and H. Two of these (Exhibits C and F) maintain the rights of the Zemindar to trees grown on the tank bunds and waste lands of the Zemindari. In regard to these waste lands the Zemindar, is, no doubt, the proprietor, by virtue of Regulation XXV of 1802, and his claim to the trees growing on the waste lands was rightly allowed; but they have no bearing on the rights of ryots to trees growing on their own pattah lands. In the other cases the District Court proceeded on the same view of the effect of Regulation XXV of 1802 which we have now shown to be incorrect. The present defendants were not parties to those suits, and are not bound by the decisions.
5. In the view we have taken, it is not necessary for us to decide on the effect of Exhibit I, on which the defendants rely as a bar to the plaintiffs' suit.
6. In the result we set aside the decrees of the Courts below and dismiss the plaintiffs' suit with costs throughout.