1. The plaintiffs in this case sued originally for a declaration of title to Survey No. 353 with the palmyra trees standing thereon and to 39 palmyra trees standing on Survey No. 352 and for a perpetual injunction restraining the defendants from interfering with their enjoyment. The original Court decreed the suit but the Lower Appellate Court dismissed it. The plaintiffs appeal regarding their title to the trees only and have given up the claim to the land, Survey No. 353.
2. The facts are as follows : Up to the resettlement of 1909 in this District of Tinnevelly there were separate pattahs for the suit land and for the suit trees thereon. Such separate pattahs were a common feature in that District before the resettlement. The defendants in this case held the land pattahs and the plaintiffs the tree pattahs. At the resettlement the general Government policy of getting rid of tree pattahs was carried out, and in pursuance of that policy, the plaintiffs' tree pattahs were cancelled. Since then it is found that the defendants have been in possession of the trees, but since twelve years have not elapsed on the data of the suit from the cancellation of the tree pattahs, the plaintiffs' title to sue is not extinguished unless by the cancellation of the tree pattahs their title was taken away. The general question for decision therefore is, what right did the plaintiffs possess in the trees by virtue of the tree pattahs and what was the effect on that right of the cancellation of the tree pattahs.
3. The sort of right which tree pattadars possessed in the trees is somewhat indefinite. But it appears to have been a permanent right to the usufruct so long as they paid the tree pattah kist. They were not full owners of the trees in the sense that they could cut them down. The Government retained the right to the timber. But they were permanent occupancy holders--if the phrase may be used--of the right to the usufruct; that is, they were not liable to be ejected from that use except upon failure to pay the kist. Now when the Government decided to abolish the double holding of land and tree pattahs, it laid down rules for the purpose which are embodied in the Board's Standing Orders, Rule 18. The rule applicable to the present case is S.O. No. 18 (1) dealing with trees on occupied lands. It is to this effect:.No claim should ordinarily be made on behalf of the Government to any rights over trees growing on land held on ryotwari pattah. ...Separate pattahs should not be issued for the trees, and where such pattahs now exist, the tree pattah. should be cancelled and the tree pattadar left to make his own arrangements with the land pattadar, if the two are different persons.
4. At the same time the assessment on the tree pattah was added to the assessment on the land pattah, and the Government in future looked to the land pattadar for the combined assessment. The respondents argue from that fact that the cancellation of tree pattahs put an end to the right of the tree pattadar to the trees and conveyed it to the land, pattadar. This is directly contrary to the ruling of this Court in Sengoda Goundan v. Varadappan I.L.R.(1911) M. 148 : 22 M.L.J. 201. If respondents' view is accepted, there is no point in directing the tree pattadar to make his own arrangements with the land pattadar, since there was nothing left with him to arrange about. The meaning of the rule clearly is that the, land pattadar must either arrange to buy out the tree pattadar or to collect the tree pattah kist from him. It is suggested by the respondents that the rule was that the party to be bought : out was not the tree pattadar but the Government, and the resettlement pattahs, Exhibits A and A-1, are referred to. But there is certainly nothing in these to show that the respondents paid Government : for the trees and there is no evidence to that effect. If the respondents had done so, there ought to be available evidence. Besides, that such an idea is erroneous seems quite clear from the District Gazetteer, which was compiled by a Tinnevelly Settlement Officer and may therefore be regarded as authoritative on this point. In Vol. 1 at page 309 it says:
In respect of all palmyras standing on pattah lands Government waived their right to the timber,
and further down on the same page
In order to induce the ryots to effect by mutual arrangement a transfer of rights and to terminate the system of 'mixed holdings' special officers were at the resettlement appointed to act as mediators,
As a rule, the land pattadar bought the palmyras from the tree pattadars.
5. The Lower Appellate Court has fundamentally misunderstood the position. It has applied Standing Order No. 18 (2) which is not the Standing Order applicable to the case; for it relates to trees on unoccupied lands. That rule no doubt states that the ownership of the trees continues to vest in the Government, but since that rule has no application to the present case, the Lower Appellate Court made an error in applying it. It has inferred that the cancellation of the tree pattah amounts to the defeasance of the rights of the tree pattadar, which, as I have said, is directly opposed to the ruling in Sengoda Goundan v. Varadappan I.L.R.(1911) M. 148 : 1911 22 M.L.J. 201 and is clearly opposed to the principles of the resettlement as set out in the Gazetteer.. The right to the usufruct did not vest in the Government and, therefore, the Government could not have transferred it from the tree pattadar to the land pattadar. The Lower Appellate Court has also misquoted Exhibits A and A-1 when it says that they show that the Resettlement Officer directed the plaintiffs to sue for the trees. On the, contrary the Resettlement Officer directed the plaintiffs to sue for the land for which they were then also making a claim. The Lower Appellate Court's decree cannot therefore be supported. The plaintiffs' title to the trees--the Government having surrendered their right to the timber--is now absolute and they have not lost it by adverse possession.
6. I must, therefore, modify the decree of the Lower Appellate Court as regards the claim to the trees on land Nos. 353 and 352 and declare the plaintiffs' title to the plaint trees, and grant an injunction that the defendants are restrained from interfering with the plaintiffs' possession of these. The appellants will get their costs here and each party will pay his own costs in the Lower Courts.