1. The appellant is the jenmi of certain land in Malabar. By karars, dated 9th January 1843 (Exhibit I) and 18th January 1858 (Exhibit A), he and his predecessors had granted to Government perpetual permission to fell timber on kuttikanom on certain properties subject to a payment of one rupee per tree. The karars further stipulated that no permission to fell timber should be granted to any one else, but that Government should not object to the jenmi washing for gold or digging pits for the capture of elephants,
2. On the 17th of January 1888, Government published a notification in the Fort St. George Gazette under Section 33 (a) of the Madras Forest Act, declaring that the Governor in Council was pleased to undertake from the 1st February 1888 the management of those forests, accounting to the persons interested in the same for his or their interests. This notification was published under Chapter IV of the Madras Forest Act, which deals, with the control over forests and lands not at the disposal of Government or in which Government has a limited interest.
3. This notification was followed by a second on the 24th of January 1888. In this latter notification, Government intimated under Section 4 of the Forest Act, that it was proposed to constitute these lands 'as reserved forests,' and appointed a Special Assistant Collector of Malabar to be the Forest Settlement officer to enquire into and determine the existence nature and extent of any right claimed and to deal with the same as provided in Chapter II of the said Act.
4. It is clear that, by this notification, Government intended to acquire complete rights in the land under Chapter II, for in order that land should be constituted a reserved forest, it is necessary that it should first be at the disposal of Government, Kamaraju v. The Secretary of State for India I.L.R. (1888) M. 309 In effect, therefore, the latter notification superseded the preceding one, since Government by applying all the provisions of Chapter II declared of the intention to treat the land as completely at its own disposal and not as land in which Government had merely a limited interest.
5. The Forest Settlement Officer was, therefore, a court with special jurisdiction and was bound to determine claims arising under Section 10 as well as under Sections 11 to 13 of the Forest Act. The Forest Settlement Officer, however, first laid down that any claim. he admitted on the part of the present appellant was to be binding upon a rival claimant who apparently was not before him and who was entitled to notice under Section 6, and he next refused to consider whether the land was at the disposal of Government, as to do so would be to question the authority of Government to appoint himself. He refused to offer any commutation for the jenmi rights, and only considered the claims to compensation for the right of washing for gold, of digging elephant pits, and rights of way, pasturage, etc.
6. By this procedure, Government, who under the karars had only the right to fell and plant timber upon the land, has taken the whole proprietary right of the jenmi without any compensation whatever. The ownership of the land did not pass to Government under the karars, nor was the jenmi right and title mortgaged; and, if at any time the Government had seen fit to abandon the rights of felling and planting timber which the karar gave, the right to the soil would still vest in the jenmi and not in the Government. Even under the karars, there is nothing to show that the jenmi parted with the rights of pasturage, or even rights of cultivation on lands not required for planting timber. If the Government merely intended to retain the management of property in which it had a limited interest, it was open to it under Section 33 to apply such of the provisions of Chapter II as might be suitable but by applying the whole Chapter and declaring the intention to constitute the land a 'reserved forest,' it is open to the claimant to demand that his jenmi right shall be dealt with under Section 10. The Forest Settlement Officer refused to deal with it, and, though the point was taken in appsal, the District Judge has not gone into the question, but has treated the case as though the only notification issued had been under Section 33.
7. We must set aside the decree and remand the case to the Forest Settlement Officer for disposal. The appellant is entitled to the costs of this appeal, and the costs in the Courts below will be provided for by the order of the Forest Settlement Officer.