1. In dealing with this batch of Second Appeals it will be convenient to set forth the facts.. These suits relate to the ryotwari village of Muttlam in the North Arcot District. From time immemorial the ryotwari holdings were being held by the ryots excluding the trees, all the trees in the village being held under a separate tree patta by a tree pattadar. In the year 1906 the Government have changed the! policy of having separate land pattas and separate tree pattas, and the Board's standing Order No. 18 was altered as follows:
Trees on occupied lands.--Subject to the exception noted below, no claim should ordinarily be made on behalf of the Government to any rights over trees growing on land held on ryotwari patta, or as inam, or as village or town house-site. Separate pattas should not be issued for the trees and where such pattas now exist the tree patta should be cancelled and the tree pattadar left to make his own arrangements with the land pattadar, if the two are different persons.
'Exception.--When conditions have been expressly inserted in the patta limiting the pattadar's rights over the trees or when land has been assigned on special patta; cowle or lease with such limiting conditions, those conditions should be strictly enforced.
2. Reading the new rule and exception it is clear that the policy of the Government is to dispense with tree pattas and include the trees in the land pattas wherever practicable, but where not practicable the old system would continue. 'The exception shows this. The suit village was re-settled in Fasli 1323. In the Settlement Register of this new settlement, which is Exhibit O (page 3), the following statement occurs:
Except in the case of trees standing on land registered as 'poramboke' tree pattas have been cancelled at re-settlement wherever' practicable and the tree tax replaced by land assessment. The following poramboke revision survey fields contain topes which are held on original tree patta.
3. Then follows a table of survey numbers which are all admitted to be poramboke lands and the tree assessment is shown as Rs. 119-12-7. The present suits are brought by the tree pattadars for a declaration of their rights to the enjoyment of the trees on the lands included in the land pattas and therefore not 'poramboke' and for mesne profits and damages. The claim for mesne profits and damages was not. pressed in the Lower Appellate Court and need not be pursued further. The only question that has to be discussed here is the right to the trees.
4. The District Muhsif on a consideration of the fact that there is some difference between the old assessment and the new assessment on the lands, that there is some addition to the old assessment in arriving at the new assessment on the land and also of the fact that there is some reduction of the assessment in the tree patta from Rs. 133 to. Rs. 119-12-7, inferred that all the trees must have been resumed from the tree pattadars, i.e., the plaintiffs, and must have been included in the land pattas. Incidentally it may be observed that only some land pattadars denied the plaintiffs' right to the trees and these suits are filed only in respect of such pattadars. There are other lands in the village containing trees in respect of which no suits have been filed. The District Munsif also held that the decision in Sengoda Goundan v. Varadappan I.L.R. (1911) M 148 : 1911 22 MLJ 201 does not apply to the facts of this case. He therefore dismissed the plaintiffs' suits.
5. The plaintiffs, who are the same in all the suits, appealed. The District Judge did not apply his mind to the events that happened at the time of the settlement, i. e., he did not consider the question whether the trees in the patta lands were included in the land pattas and were excluded from the tree pattas. He addressed himself solely to the question as to the proper construction of the decision in Sengoda Goundan v. Varadappan I.L.R. (1911) M 148 : 22 MLJ 201. He held that, even if the tree pattas are cancelled and are included in the land pattas, that does not amount to a resumption of the possession of the trees from the tree, pattadar or to a re-grant of the trees to the land pattadar. On this ground he reversed the District Munsif's decision and decreed the plaintiffs' suits declaring their right to the trees. The defendants filed these Second Appeals.
6. In these Second Appeals I am inclined to agree with the view of the District Judge on the proper construction of the decision in Sengoda Goundan v. Varadappan I.L.R. (1911) 148 : 1911 22 MLJ 201, i. e., I do not think that Government can, by merely altering' the Standing Order and by refusing to issue fresh tree pattas and by including the trees in the land pattas, put an end to the rights over the trees of the tree pattadars; nor do I think this is what was intended by Government by the Standing Order. Only where it is feasible, i. e., where the land pattadar and tree pattadar happens to be the same, the new policy was intended to be carried out and not that the trees should be forcibly taken up from the tree pattadar and granted to 'the land pattadar. Again the last sentence in the Standing Order. ''The tree pattadar is left to make his own arrangements with the land pattadar, if the two are different persons' shows that the trees were intended to be left in the possession of the tree pattadar and that the land pattadar in whose patta they are to be included, while becoming liable to pay the assessment on them to Government, will make the collection of the assessment in his turn from the tree pattadar. This is what is meant by saying that he must make his own arrangement with the land pattadar. So that, if in the case of this village the facts are that the trees were excluded from the tree pattas of the plaintiffs and were included in the land pattas of the defendants, the proper result would be that, while the plaintiffs are entitled to the possession of the trees, they would be liable to pay the assessment on them to the defendants who in their turn will pay to the Government. Thus it is clear that a mere construction of the decision in Sengoda Goundan v. Varadappan I.L.R. (1911) M 148 : 1911 22 MLJ 201 is not enough in this case, as was properly pointed out by Mr. Patanjali Sastri, the learned Vakil for the respondents to settle the rights between the parties. It is still necessary to find whether the trees were included in the land pattas of the defendants and were excluded from the tree pattas was found by the District Munsif. As the District Judge has not addressed himself to this question and has given no finding on this matter and as I have gone fully into the case I can give a finding here and will now proceed to do so.
7. The District Munsif was influenced by the consideration that the assessment on the lands of the defendants was increased in the new settlement and that the assessment on the tree patta was reduced. Taking the first consideration I find that not only in respect of the lands with trees on them but in respect of lands without trees and as to which there has never been any question of separate tree patta the assessment has been different from that in 1884. A comparison of Exhibit D, the settlement register of 1884 and Exhibit O, the settlement register of 1915 shows this. It is obvious that the assessment on the village has been enhanced in pursuance of the Government's right to do so at periodical settlement. Then again the District Munsif referred to the other consideration, namely, that there is reduction in the assessment of the tree patta, the old assessment was Rs. 133 and the new assessment Rs. 119-12-7. He therefore conies to the conclusion that this reduction is due to the exclusion of the trees on the patta lands from the tree patta, Rs. 119 now representing the assessment only on the trees on the poramboke lands. Ex. C is an account prepared by the Revenue Officers and is described as No. 2-C account. It gives the number of trees on all the lands in the village including the patta lands and the poramboke lands and it shows that the total number of the trees is 7,435 and column 11 says:
Assessment paid to Government is Rs. 119-12-7.
and, in column No. 12, it says:
They are paying the assessment mentioned in column No. II and are enjoying the same as bilmuktha patta.
8. Ex., C clearly shows that the tree pattadars are enjoying all the 7,435 trees on payment of the assessment of Rs. l19-12-7 and the reference in paragraph 13 of the Descriptive Memoir to Rs. 119-12-7 as the tree assessment simply means that the assessment of the trees on the poramboke lands was included in Rs. l19-12-7 and not that it actually amounts to Rs. 119-12-7 This is obvious from another consideration if one looks, at the number of trees. . The number of trees on the poramboke lands which consist of S. Nos. 3, 7, etc., given at the end of Ex. C is 159 trees and the number of trees on the rest of the lands is 7,276. If Rs. 133 was the assessment on all the trees in the village, namely, 7,435, it is absurd to imagine that Rs. 119-12-7 is the assessment on the trees in the poramboke lands which are 159 in number. The inference is obvious that the reduction of Rs. 133 to Rs. 119 is not due to the exclusion of the trees on the patta lands but to some other cause. The learned vakil for the respondents explains that four of the lands on which there were trees, which are not formerly granted on patta to anybody, have now been given to the tree pattadar, and as in this case; the tree pattadar and the land pattadar happens to be the same there is no difficulty in carrying out the policy of the Board's Standing Order. The trees on these lands were therefore included in the land pattas and were excluded from the tree pattas and the reduction of Rs. 133 to Rs. 119 is due to this. The District Munsif seems to have dealt with an argument of this kind in paragraph 13 of his judgment; but it seems to me he has not grasped it completely. The number of the new patta granted to the tree pattadars is given as No. 23. The District Munsif then complains that it has been withheld and has not been produced. The learned vakil for the respondents has offered to produce it here before me. but I found it unnecessary to take it and I will not base my judgment on that paper.. On an examination of the Settlement Register, pages 2, 26, 34 and 36, it appears that four items of lands, namely, Nos. 3/ 3,154, 193 and 203 were lands granted under Patta No. 23 and the grantees are Munisawmi Nattan, who is the predecessor-in-title of the 2nd plaintiff, Raju Goundan, the 1st plaintiff and Venkatrama Aiyangar, the predecessor-in-title of the 3rd plaintiff. Thus the explanation of the respondents' vakil seems to be well founded and the sentence in paragraph 13 of the Descriptive Memoir, namely, 'Tree pattas have been cancelled at re-settlement wherever practicable' seems to apply only to the trees on these four lands. These trees are now excluded from the tree patta and included in the land pattas. But so far as all the other trees in the village are concerned, that is, those on the patta lands other than these four items and those on the poramboke lands, they are still included in the tree patta, because it is not practicable to exclude them, and the new assessment of Rs. 119 for the trees includes all these trees and therefore the trees on the suit lands. It does not matter whether a separate tree patta has been issued or not. Ex. C shows that some trees in the village are being held on an assessment of Rs. 119-12-7. The only question is where are those trees, are they only the trees on poramboke lands, or do they include the trees on patta lands other than the lands? I think they include the trees on the patta lands other than the four lands. In this view no question arises as to the construction of Sengoda Goundan v. Varadappan I.L.R. (1911)M 148 : 22 MLJ 201. The decree granted to the plaintiffs in the Lower Appellate Court is right. The second appeals are dismissed with costs.