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M. Venkatakrishnier Vs. Secretary of State and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1926Mad408
AppellantM. Venkatakrishnier
RespondentSecretary of State and anr.
Cases ReferredSyed Ameer Sahib v. Venkatarama
Excerpt:
- - on appeal the district judge held that the only relief to which the first defendant's attention was directed was the declaration of the plaintiff's title to plant new trees on the roadside within the limits of the plaintiff's inam lands and to enjoy their usufruct......of the right to the land itself. the notice, ex. 1, certainly alleges that the inam lands and the avenue trees standing on the side of the road belonged to the petitioner; see para 2. paragraph 9 says that the public road does not include the roads passing through the inam village. paragraph 10 says that the road is subject to rights of individuals. paragraph 11 says that it is unjust to prohibit him from planting trees in his own inam. it is true that para. 13 mentions that he wants a declaration as to the right to plant new trees. but for this fact that he mentioned only one declaration in para. 13, there would have been no trouble. however, the question now is whether this is a proper notice according to law. in jones v. bird [1822] 5 b. & ald. 837 it was said with reference to a.....
Judgment:

Ramesam, J.

1. This second appeal arises out of a suit brought by the plaintiff against the Secretary of State for India in Council and the President. District Board, Ramnad, for certain declarations and for recovering damages. The plaintiff is the hakdar of the Mangammal Chatram and of certain inam lands at tached to it. Through the said lands passes a District Board Road No. 11, namely, the road from Thenkasi to Madura. The dispute between the parties relates to the eastern avenue of trees on the side of the said road. The dispute between the parties relates to the ownership of the ground of the avenue and of the trees. On a perusal of the pleadings in the case it is clear that the plaintiff says that he is the owner of the ground and avenue and as the result of it also of the trees growing on it. He also as a corollary claims the right to plant fresh trees at any place he likes on the avenue either in substitution of fallen trees or at other places. The defendants claim that the avenue is part of the road and as such the surface is vested in the District Board. But the first defendant claims the right to the sub-soil. It is obvious that the root of the difference between the parties is one relating to ownership. The right to cut the trees is merely an auxiliary of the title subject to one small exception which will be mentioned later on. The District Munsif has dismissed the suit on the ground that the notice issued by the plaintiff prior to the suit was not sufficient. On appeal the District Judge held that the only relief to which the first defendant's attention was directed was the declaration of the plaintiff's title to plant new trees on the roadside within the limits of the plaintiff's inam lands and to enjoy their usufruct. He held that the suit ought not to have been dismissed so far as this declaration is concerned and, as for the rest, as the other reliefs were not mentioned in the notice he held the suit was rightly dismissed. In the result he partially remanded the suit for trial. Plaintiff files this second appeal.

2. As I already pointed out the right to cut the trees is alleged only as the result of the right to the land itself. The notice, Ex. 1, certainly alleges that the inam lands and the avenue trees standing on the side of the road belonged to the petitioner; see para 2. Paragraph 9 says that the public road does not include the roads passing through the inam village. Paragraph 10 says that the road is subject to rights of individuals. Paragraph 11 says that it is unjust to prohibit him from planting trees in his own inam. It is true that para. 13 mentions that he wants a declaration as to the right to plant new trees. But for this fact that he mentioned only one declaration in para. 13, there would have been no trouble. However, the question now is whether this is a proper notice according to law. In Jones v. Bird [1822] 5 B. & Ald. 837 it was said with reference to a similar section that the object of such a section is merely to inform the defendant substantially of the ground of complaint. This was referred to with approval in Secretary of State v. Perumal Pillai [1901] 24 Mad. 279; in Jehangir v. Secretary of State [1902] 27 Bom. 189 it was said ' these notices must not be too strictly or too narrowly construed. They must not be construed as if they were pleadings and that they need not set out all the details and facts of the case which the plaintiff intends to prove, and that the notice must be considered sufficient if it substantially fulfils its object in informing the parties concerned generally of the nature of the suit intended to be filed. ' The cases in Jones v. Bird [1822] 5 B.& Ald. 837 and Secretary of State v. Perumal Pillai [1901] 24 Mad. 279 were followed. In Eales v. Municipal Commissioners of Madras [1891] 14 Mad. 386 Collins, C.J., and Shephard, J., observed, adopting the language of Pollock, that ' we must import a little commonsense into notices of this kind, ' though in that case the question was regarding the address of the plaintiff. I, therefore, think that the notice is substantially sufficient in so far as the prayers resting upon the plaintiff's ownership of the land are concerned. The cause of action is stated to be the order of Government of 10th August 1916 and the attitude which the defendants have now taken up was taken up in that order. Therefore there is no surprise to the defendants.

3. There are only two matters which require to be specifically dealt with, One is prayer (c) which relates to lopping off the branches where they cause the damage creating shade. In so far as this prayer rests on plaintiff's ownership of the land and the trees there can be no objection. But the Government Pleader apprehends, and rightly, that the plaintiff may probably claim a right to cut off the branches even if his ownership is not established on the ground that the defendant is not entitled to cause damage to his crops by over-shadowing trees. I agree with the learned Government Pleader in thinking that this cutting should not be regarded as alleged in the notice and there is no reason why the notice should be so construed as to cover a, claim of this kind. Therefore prayer (c) of the plaint if it is urged in respect of trees found to belong to the defendant would certainly be disallowed.

4. The only other point which requires to be specifically dealt with is the claim for damages in prayer (f). It is now conceded that it is not intended to be urged against the Government, the first defendant. It is enough to record this admission. So far as the District Board is concerned, the notice given to them, Ex. 2, does not mention this as one of the reliefs, but in para 3 of Ex. 2 plaintiff mentioned that some wind-fallen trees were sold by the Local Fund authorities and the sale proceeds were appropriated by them under orders of the Collector. I think this allegation of the appropriation of the proceeds relating to the ownership of the plaintiff is enough to constitute a notice to District Board. It is unnecessary to discuss the question whether the act of the second defendant in appropriating the proceeds falls within the language of Section 156 of Act V of 1884 and requires notice : vide Syed Ameer Sahib v. Venkatarama [1893] 16 Mad. 296.

5. With these remarks the whole suit will be remanded to the District Munsif's Court for trial and disposal according to law. The plaintiff will be entitled to refund of Court-fees both in this Court and in the lower appellate Court. Costs will abide the result.

6. The memorandum of objections of the first defendant will be dismissed with costs of plaintiff.


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