1. This series of second appeals is from the judgment of the lower appellate Court in a batch of similar suits. The plaintiff is the Zamindar of South Vallur and the defendants are his raiyats. Certain palmyra trees stand on the holdings of the defendants. Bach party claims these as his possession absolutely. The defendants have been enjoying the usufruct of these trees chiefly by tapping them for country liquor. The plaintiff came into Court on the footing that this enjoyment of the defendants was a trespass on his rights and caused wrongful loss to him and he sued to recover the estimated loss. He originally filed his suits on the small cause side and they were transferred to the original side and tried there. The trial Court and the lower appellate Court decided in favour of the plaintiff and the defendants appeal.
2. The plaintiff takes a preliminary objection that no second appeal lies because the suits are of small cause nature and the amount sued for is under Rs. 500. I may point out that both the lower Courts are somewhat obscure in their own minds as to what is the character of the cash amount for which the plaintiff is suing. The District Munsif hovers between calling it a usufruct and calling it rent, by which apparently he means not a tax but some sort of compensation. The lower appellate Court seems decided enough in calling it a tax, but obscures the issue by saying that that means 'customary compensation.' The plaintiff himself styles lit as usufruct. Prima facie the suit would appear to fall under the category of a suit for mesne profits derived from immovable property belonging to the plaintiff, which have been wrongfully received by the defendants and therefore coming within the category of Article 31, Schedule 2, Provincial Small Cause Courts Act, and thus not of small cause nature. The plaintiff argues that the usufruct of growing trees is not profits of immovable property but that position seems to me untenable. Trees standing on land are immovable property: see Umed Ram v. Daulet Ram  5 All.564, Sakharam v. Vishram  19 All. 207 and Purnachandrachowdry v. Kinkar Manji  9 I.C. 133. The plaintiff relies on Vira Pillai v. Rangasioami Pillai  22 Mad. 149, a case not of usufruct from trees but of damages for use and occupation of land by a tenant holding over, and Seshagiri Aiyar v. Marakkathammal 11899] 22 Mad. 196, a case of mesne profits which follows Kunjo Bihari v. Madhubchendra Ghose [18961 23 Cal.884, but both these latter cases were dissented from in a Reference to the Full Bench in Savari Muthu v. Aithurusa Rowther  25 Mad. 103, and impliedly the Pull Bench, agreeing with the referring Judges, also dissented. The ruling in Drigpal Singh v. Kunjal 40 All.142, is directly in point and in the appellant's favour. The plaintiff relies further upon Rajah of Ramnad v. Kamid Rowther A.I.R.1926 P.C.22 a Privy Council case not exactly in point. The suits there were by a landlord against his tenants for damages for their having cut and removed palmyra trees, and it is pointed out, though the Privy Council itself does not consider the point, that the procedure adopted indicates that the suits were held to be of small cause nature. Even so, clearly trees cut and removed are not immovable property or the mesne profits of immovable property; so that that case does not assist. The . same remark applies to Naranappa v. Venkatarathanam  36 I.C. 202. The case in Annamdevulu Thata v. Ahamadulla A.I.R. 1925 Mad.890 does not discuss the point and the Full Bench ruling in Savarimuthu v. Aithurusa Rowther  25 Mad. 103 is not mentioned therein.
3. The case in M. Ankaya v. A. Rattamma : AIR1926Mad622 , to which I was a party, is not in point, being similar to Vira Pillai v. Rangaswami Pillai  22 Mad. 149. The case in Koppa Anki v. Venkatasubbaya A.I.R. 1925 Mad. 884, to which I was also a party, is very similar to the present, the suit not being based on any contractual relation between plaintiff and defendants. On the authority of the Full Beach decision, I must hold that a second appeal lies. On the merits, the defendants rest their case on Section 12, Madras Estates Land Act. That declares that a raiyat has the right to use, enjoy and cut all trees now in his holding unless such rights are reserved by the landholder by custom or by contract in writing executed by the raiyat before the passing of the Act. It is contended as a point of law that the landholder has adduced no evidence of such a contract, while no case of custom was pleaded by him. In any case, if custom was pleaded in the lower Courts there is no finding by either Court upon it. Both Courts rest their decision on the finding that the plaintiff has by definite contract reserved to himself the right to the suit trees.
4. This definite contract is stated to be set out by a term in the khats, Ex. B series, registered muchilikas for their holdings executed to the plaintiff by the defendants for a period of fifteen faslis expiring with the end of Fasli 1329. The suit faslis are 1329 to 1331. The claim for Fasli 1329 has been held to be barred by limitation. Therefore the suit faslis with which we are here concerned are beyond the period for which the khat contract was in force. The clause relied on is:
As the motharpha on the palmyra trees and fruit-bearing trees in these lands was not included in the said cist, we shall protect them and, whenever required for cultivation purposes, we shall out down the required babul trees after obtaining permission.
5. I think the legitimate implications from this term in the muchilikas is that while the babul trees may be cut with the permission of the landlord the palmyras and the fruit-bearing trees are to be protected for him to ensure that ho shall not lose the motharpha on them. Incidentally it has been contended by the appellants that such a reservation of the right to motharpha is illegal and contrary to public policy as the tax is of a nature of an abkari charge which the estate holders have no right to levy; but I think from the context that, the word being applied not only to palmyra trees but also to fruit-bearing trees, it is used generally in the meaning of tree tax. This point, I may note, was not taken in the Court below.
6. So that the contract appears to have reserved the right to the landholder during its currency to levy a tax for the palmyra and fruit-bearing trees. Is that sufficient for the purposes of Section 12. The contract, as has been noted, expired in Fasli 1329 and there is no indication in it that the right to levy the tax is not created by it and therefore exists outside it. I cannot subscribe to the contention of the respondent that, if the landlord has once got a contract from his tenant reserving a right, that right continues in spite of the contract coming to an end. I understand Section 12 to mean that the reservation of the right is effected either by force of custom or by a definite contract to reserve it. In the latter case, unless the contract states that the reservation is in perpetuity, it must cease with the ceasing of the contract. When a respondent, ashore, is claiming that he has a right to possess and enjoy in perpetuity the trees standing on his tenant-holding, he is really pleading not a definite contract to that effect set out in the khat but a custom outside the contract which was implicit in it to the knowledge of both the contracting parties.
7. There is another difficulty in the respondent's way. If there is a contract reserving any right to the landlord, what is reserved is clearly a right to levy motharpha. I take it that that means tree tax generally; then what he can sue for is that tree tax which he has reserved his right to levy. I do not see how he can claim that; under that contract he has reserved full ownership in the trees themselves so as to permit him, for example, to cut and take them away. All that he reserves is, so to speak, a melwaram right in the trees. On this footing what he can recover is only the tree tax leviable for the use of the trees But this is not all that he is suing for He is suing for the value of the usufruct wrongfully taken from him on the footing that he is the owner of the trees and that the defendants have no right to use them in any way whatever. I cannot find that there is any contract reserving this sort of right to him. It would in fact amount to reserving a right to recover damages for tort--a provision in a contract which is really without meaning. The decision of the lower Courts allowing the plaintiff's suit on the footing that this khat contract reserved to him the right on which his suit is now based, cannot, in my view, stand. The plaintiff contends that he should be allowed to base his case on custom. Unfortunately, this matter of custom has not been brought forward and decided in the lower Courts and the question remains whether I should remand the case for a finding thereon. A plea of custom was put forward in issue 9 on the same plane as the plea of contract. In paras. 19 to 24 of the District Munsif's judgment, he sets out certain facts which might have a bearing on this question of custom but he does not draw any definite conclusion thereon that these facts were sufficient to establish a custom (see para. 25), and he does not rebut Section 12, Madras Estates Land Act, on the ground of approved custom (see para. 39), and his finding on issue 9, in para. 48 is definitely on a contract only. The lower appellate Court also clearly founds its judgment on a contract which gives, in its view, the landlord the right to levy a tree tax. It goes on to say that this tree tax is 'customary compensation' for the enjoyment of trees, but the context shows that it is merely referring to the amount and not to the right to levy. I think a satisfactory decision in this case requires a finding on this point. I therefore remand the case to the lower appellate Court for a finding on the evidence already on record as to whether there is a custom within the meaning of Section 12, Madras Estates Land Act, that the plaintiff is entitled to the usufruct of the palmyra trees standing on the holding' of the defendants. The finding to be submitted within two weeks after the re-opening of this Court after the vacation. Time for objections ten days.
Second Appeal No. 1245 of 1926.
8. This judgment does not cover Second Appeal No. 1245 of 1926 which has abated, Respondent will get his costs out of appellants' estate.
9. In pursuance of the order contained in the above judgment, the Subordinate Judge of Bezwada submitted the following
Whether there is a custom within the meaning of Section 12, Madras Estates Land Act, that the plaintiff is entitled to the usufruct of the palmyra trees standing on the holdings of the defendants.
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10. So the finding that I return upon the question remitted is a finding in the negative.
11. These second appeals coming on for final hearing this day, after receipt of the abovesaid finding the Court delivered the following