1. The plaintiff who is the appellant is the proprietor of the Sivaganga Estate represented by his manager. He sued for a declaration that the property, described in the schedule to the plaint, situated in Oorawayal village belonged to him and was in his enjoyment, for a permanent injunction restraining the defendants from trespassing upon its limits and cutting off the trees therein and for damages and other reliefs. He alleged that the village was situate in his estate and that the tank and forest of the village belonged to the estate. In paragraph 6 of his plaint, he alleged that the property described in the plaint schedule had been declared by the Government to be a ' Reserved Forest' and that the Zamindar for Sivaganga had been appointed Forest Officer in respect of the said forest. The defendants denied the plaintiff's title and also took objection to the maintainability of the suit. This latter plea was contained in paragraph 11 of their written statement which runs as follows:
If there is any truth in the allegation that the suit property is reserved forest, the suit presented by Raja Avergal is not sustainable under law. Only proceedings under the Forest Act ought to have been taken and as such the present suit cannot be entertained and it is liable to be dismissed on that ground alone.
The learned District Munsiff of Devakottai who tried the suit overruled the objection raised as regards the maintainability of the suit, found on the other questions in favour of the plaintiff and granted him a decree.
2. On appeal by the defendants, the learned Subordinate Judge of Devakottai without going into the merits of the case, held that the plaintiff was not entitled to claim a declaration that the property belonged to him and also found that the suit brought by him as proprietor of the Sivaganga estate was not maintainable. He accordingly dismissed the suit and the plaintiff has therefore filed the above second appeal.
3. The learned Government Pleader who appeared for the appellant contended that there is nothing in the provisions of the Forest Act or in the rules framed thereunder which takes away the proprietary right of the zamindar to forests to which the provisions of the Forest Act have been made applicable by notifications thereunder. I entirely agree with him.
4. The learned advocate for the respondents tried to maintain the position that after the issue of a notification under the Madras Forest Act, the Zamindar as zamindar ceased to have the right to the possession and management of the suit forest and that he was not entitled to maintain a suit as a zamindar and as owner.
5. My attention has been drawn to Notification No. 452 dated 22nd June, 1937, under which the Provincial Government extended the provisions of Section 26 of the Forest Act to the forests and waste lands in the Estate of Sivaganga. This was done at the desire of the Zamindar. The power to extend the provisions of the Forest Act to lands which do not belong to Government is contained in Section 32 of the Act. Under that section, the owner of any land may, with a view to the formation or conservation of forests thereon, represent in writing to the Collector his desire, inter alia, that all or any of the provisions of this Act or rules made thereunder be applied to such land and the Government may in any such case, by notification, apply to such land such provisions of this Act as it thinks suitable to the circumstances thereof and as may be desired by the applicant. It is clear from the notification No. 452 that what the Zamindar desired the Government to do was to extend the provisions of Section 26 of the Act to the forests and waste lands in his estate. Section 26 confers on the Provincial Government the power to regulate the use of the pasturage or of the natural produce of land and to make rules with respect to such land regulating or prohibiting the clearing or breaking up of land for cultivation and otherwise regulating the use of such land consistent with the objects of the Act. The Provincial Government may also by rules prescribe penalties for infringement of the rules. After extending the provisions of Section 26 to the forests and waste lands in the Sivaganga Estate by notification No. 452 the Government issued another notification No. 453, under which they made rules to regulate the management of the forests and waste lands in the Sivaganga Estate. The first of the rules is as follows:
These rules shall be subject to all rights legally vested in any individual or community on the date of their publication.
Under Rule 2, forests and waste lands in the Sivaganga Estate and at the disposal of the Zamindar thereof shall, for the purpose of these rules, be classified into reserved lands and unreserved lands. There are rules making due provision for the safeguarding of the forest produce and for the preservation of the forests, with which we are not concerned. It will suffice if we refer to Rule 3, under which it shall be unlawful for any person to fell, remove, girdle, mark, lop, etc., or otherwise damage, any tree, or remove any forest produce unless he is authorised to do so by the Collector or by some one duly authorised by him to grant such permission. The Collector is given several powers under these rules in the management of the forests and waste lands. Rule 7, Sub-rule 3, provides that reserved trees shall not be felled or otherwise interfered with except on a permit granted by the Forest Officer or an official of the Estate authorised by the Collector in this behalf. By Rule 13, a provision is made for punishment of those who infringe the rules. The last rule No. 15, says:
In the above rules, the expression ' forest officer' means the Zamindar of the Sivaganga Estate.
The learned advocate for the respondent contended that by reason of the notification, the Zamindar was not entitled to maintain the suit as Zamindar. He attempted to support his argument by referring to cases which lay down that a lessor cannot before the termination of the lease granted by him sue to eject a trespasser from the demised property. He cited Ramanadan Chetti v. Pulikutti Servai : (1898)8MLJ121 and Mohideen Ravuther v. Jayarama Iyer (1920) 40 M.L.J. 38 : I.L.R. 44 Mad. 937. I am unable to see the bearing of these cases or the proposition of law which was enunciated therein, on this case. The fact that large powers have been granted by the notification to the Collector for regulating the management of the forest does not mean that either the ownership or the legal right of the Zamindar to possession has been taken away. In any event having regard to the fact that this suit is not a suit to eject the defendants there is no room for an application even by analogy of the principle laid down in these cases.
6. The first prayer in the plaint is for a declaration that the property described as S. No. 2 in Ooravayal village, belongs to and is in the enjoyment of the plaintiff. I have not been referred to any provision of the Forest Act which deprives a Zamindar of his ownership of forest land which has been declared by notification to be 'Reserved Forest.' What the Zamindar requested the Government to do was to extend the provisions of Section 26 of the Forest Act to the forests and waste lands in his estate. These forests and waste lands do not become the property of the Government on the issue of a notification under Section 32 of the Madras Forest Act. I therefore do not see how the plaintiff as a Zamindar cannot maintain a suit for a declaration that the property belongs to him and is in his enjoyment.
7. It was admitted by the learned advocate for the respondents that neither the sections of the Act nor the rules framed under the Act provide for the institution of a suit by a Forest Officer as such. It is therefore difficult to understand the objection as developed in the lower Courts that the suit was not instituted by the Zamindar as a Forest Officer. The issue in the trial Court was whether the suit was not maintainable as it was not filed by the Forest Officer and in the trial Court reliance appears to have been placed for the defendants on Section 56 of the Madras Forest Act. This section has obviously no application. In the lower appellate Court the argument which appears to have found favour with the learned Subordinate Judge was that the suit should fail inasmuch as the suit was not filed by the Government or under the authority and sanction of the Government or by the plaintiff in his capacity as Forest Officer. I have not been shown any provision under which either the Government or the Forest Officer as such could maintain a suit for a declaration of title and ownership as regards forest lands in the estate.
8. In this case it is not as if the defendants pleaded that their action was justified on account of any permission granted by the Collector under the rules made by the notification, Ex. P-2. There is no conflict in this case between the powers of the Collector under the notification and the rights of the Zamindar as the proprietor of the estate in which the forests are situate. In such circumstances it is imposible for me to accept the contention on behalf of the respondents that the suit is not maintainable.
9. My attention was drawn to the provisions of Madras Act XVIII of 1946 which received the assent of His Excellency the Governor-General on 20th October, 1946. Under Section 5 all suits, proceedings in execution of decrees or orders and other proceedings by way of appeal or revision in which a claim to customary or prescriptive rights in forest is involved,...which are pending at the commencement of this Act...shall stand stayed and shall not be proceeded with until after the expiration of this Act. I am clearly of opinion that the provisions of this Act do not apply to the present case for two reasons: (1) this is not a case in which a claim to customary or prescriptive rights in a forest is involved; and (sic) the Act itself does not apply to reserved forests constituted under the Madras Forest Act of (sic). The learned advocate for the respondents contended that the words ' but does not apply to reserved forests constituted under the Madras Forests Act, 1882 ' are only an exception to Sub-clause (iii) of Sub-section (2) of Section 1, i.e., to private forests situated in other areas in the Province of Madras and having; a contiguous area exceeding 100 acres which may be declared by the Provincial Government to be forests for the purposes of this Act by notification in the Fort St. Gearge Gazette. It is clear from the terms of the sub-clause that the contention is without any substance. Sub-clause (iii) refers to private forests which will be declared by the Provincial Government to be forests for purposes of the Act by notification in the Fort St. George Gazette. There is no point in saying that to reserved forests among such a class of forests, the Act will not apply, because one would presume that the Government would not declare certain forests to be forests for purposes of this Act, knowing at the same time that under the proviso if they are reserved forests, the provisions of the Act will not apply. In my opinion the words 'does not apply to reserved forests constituted under the Madras Forest Act, 1882,' will certainly apply to Sub-clause (iii) namely, to forests situated in estates as defined in the Madras Estates Land Act including the suit forest. For these two reasons, I hold that the hearing of this second appeal need not be stayed.
10. As the learned Subordinate Judge did not deal with the merits but dismissed the suit on this preliminary point, the second appeal is allowed and the case is sent back to the learned Subordinate Judge for disposal on the issues other than the issue disposed of by this Court.
11. Costs of the second appeal will abide the final result. Court-fee on the memorandum of appeal will be refunded. (Leave refused).
12. C.M.P. Nos. 3552, 3553 and 5682 of 1945.--These applications are only made for interlocutory relief till the disposal of the second appeal. They are therefore dismissed. If necessary, the plaintiff will be at liberty to make similar applications to the lower appellate Court.