1. The question raised is whether the Subordinate Judge has properly awarded damages to the plaintiffs, who are zemindars, in respect of the conversion of certain mango trees which were out down on their holdings and sold by the defendants, who are raiyats with rights of occupancy.
2. The rules were obtained on the ground that, regard being had to the provisions of Section 23 of the Bengal Tenancy Act, the Subordinate Judge had improperly imposed on the defendants the burden of showing that they were entitled to cut down and appropriate the trees. Mr. Woodrofte, who appeared for the plaintiffs to show cause, contended, in answer, that, on the proper construction of the section, it lay primarily on the defendants to justify the felling of the trees as an act necessary for the purposes of the cultivation of the holdings, and that only when this had been established could the question arise whether they were precluded by custom from cutting them down; He further argued that, assuming both these questions to have been decided against the plaintiffs, there still remained the question whether the property in the trees was in the plaintiffs or in the defendants.
3. We do not feel called upon to deal with the first of these points. It was not raised in the Court below, and the damages awarded being confined to the value of the trees cut down, it is not, we consider, material to the decision of the question now before us. As to the second point, Mr. Woodroffe admits that the burden of proof lies on the landlord to establish a custom prohibiting the cutting down of trees by an occupancy tenant, and not on the tenant to establish the contrary. But this question is, likewise, for the latter of the reasons just stated, in our opinion, immaterial. We may, however, say that we are inclined to think that Mr. Woodroffe is correct in his admission. There are not, so far as we are aware, any reported decisions on the question, but two unreported cases in which the matter was dealt with were brought to our notice during the argument. They are, however, not in acoord. The first was a Small Cause Court reference [Pyari Lall Pal v. Narayan Mandal]1 No. 9A of 1888, decided on the 18th May 1888, which was disposed of by Norms and Macpherson, JJ. There it was held that the onus lay upon the tenant of showing that he was entitled by custom to out down a mango tree. The other was Nafar Chandra Pal Chowdhry v. Hazari Nath Ghose2 a decision of O'kinealy and Ameer Ali, JJ., of the 6th March 1894 Civil Rules 2015 and 2016 of 1893, which related to the cutting down by the tenant of mango and other trees. The learned Judges there say: 'The Subordinate Judge held that it lay upon the defendants to prove a custom of cutting down trees in their favour, and that is clearly wrong. Section 23 of the Tenancy Act says that tenants having a right of occupancy can cut down trees subject to two conditions : (i) that the tenant does not impair the value of the land by doing so; and (ii) that he is limited by any custom or usage in contravention of that right.' The latter cases were in the result remitted to the lower Court for the decision of the question whether the trees when cut down belonged to the landlord. The decision of NORRIS and Macpherson, JJ., was not, so far as appears, cited in the argument before O'kinealy and Ameer Ali, JJ., which is to be regretted. But the above passage affords at all events a strong affirmation of the view, which, as we have indicated, we should have felt disposed to adopt had it been necessary to decide the question.
4. It may, however, we think, be assumed in the present case, without affecting the decision of the Court below, that the plaintiffs have failed to discharge the burden which the law laid upon them of proving a prohibitory custom, and that for all that appears the defendants were within their rights when they cut down the trees. Yet, since the right to fell trees and the right to appropriate them when felled are distinct rights, the question upon which the case must turn still remains, namely, whether the property in the trees was in the plaintiffs or the defendants.
5. The law on this subject is, we think, correctly stated in the case of Kenny v. Ameerooddeen Mundul Suth. S.C.C. Ref. 14, the earliest of a series of cases to which we were referred, which was decided by the Sudder Court on the 15th April 1862. There it was said: 'Ownership in such trees (mango trees), as well as timber generally, is in the proprietor of the land upon which they grow.' In another case decided by the same Judge on the same day [Shookada Soondery Dabia v. Surroop Shaih Suth. S.C.C. Ref. 17], it was laid down that by the common law of the country timber trees, when once planted by the tenant, belong to the proprietor of the and. The same view was taken in the case of Abdool Rahoman v. Dataram Bashee W.R. 1864, 367, where the zemindar sued to be maintained in his rights as zemindar to fruit trees grown on the land by his raiyat, and the Court in decreeing his claim said: 'Although the tenant has a right to enjoy all the benefits that the growing timbers may afford him during his occupancy, he has no power to cut them down and convert them to his own use.' So, in the case of Ruttonjee Eduljee Shet v. Collector of Thanna 11 Moo. I.A. 295. 10 W.R. P.C. 13, trees are said, by the Privy Council, to be part of the land on which they stand, and the right to cut them down and sell them is said to be incident to the proprietorship of the land. The decision of O'kinealy and Ameer Ali, JJ., already referred to, affords a further recognition of the same rule. Several cases also of the Allahabad Court to the same effect were cited to us, e.g., Ram Bar an Ram v. Salig Ram Singh I.L.R. 2 AIl. 896, where the question was between landlord and occupancy tenant, and the Court said that trees acceded to the soil and passed to the landlord with the land. So, in Kasim Mian v. Banda Husain I.L.R. 5 All. 616, it was laid down that the presumption of law and the general rule is that property in timber on an occupancy tenant's holding rests in the landlord; and see also Deoki Nandan v. Dhian Singh I.L.R. 8 All. 467 and Imdad Khatun v. Bhagirath I.L.R. 10 All. 159. No case of a contrary tendency was cited to us, nor are we aware of any such case; nor was it suggested that the common law, as declared in the cases to which reference has now been made, has been altered by legislation, so that it may, we think, be taken that, however the right of an occupancy tenant to cut down trees on his holding may have been affected by legislation, the property in the trees is still by the general law vested in the zomindar. His proprietary rights in this respect are, it is true (putting out of view the effect upon them of contract), subject to modification, (of which the unreported case of Nuffer Chunder Gliose v. Nund Lal Gossyamy3 Special Appeal 87 of 1889, decided by the Chief Justice and Banerjee, J., on the 27th February 1890, affords an example), or it may be to complete extinction by custom; but failing the proof of such a custom his right, as it formerly existed, seems to us to subsist unimpaired.
6. In the present cases the plea was that the defendants were entitled by local custom to appropriate the trees when felled. But the Subordinate Judge has properly, we think, placed the burden of showing the existence of such a custom on the defendants, and has found that they have not established it. That finding was not questioned here, and is binding on the defendants, and the result is that the rules must be discharged with costs.
1 The following case was referred by the Subordinate Judge of Dinajpur under Section 617 of the Civil Procedure Code for the opinion of the High Court:
' This is an action brought by the plaintiffs (zemindars) for recovery of damages from the defendant (a tenant) who has cut a mango tree that stood on his jotedari land. Defendant denies liability for the claim, pleading the existence of a custom enabling occupancy tenants to cut trees without the zemindar's consent. Defendant is presumably an occupancy tenant and relies on the provisions of Section 2S of the Bengal Tenancy Act. The first question that suggests itself for solution is that of onus; the question being whether the onus primarily rests on the plaintiff to make out a custom to the contrary, or on the defendant to prove the existence of the custom set up by him. Of course, if the '23rd section of the Bengal Tenancy Act be literally construed, it would follow that the Legislature warrants the presumption of the occupancy tenant's inherent right to cut trees, and renders it incumbent upon the zemindars to prove a custom to the contrary; but such a construction would be opposed to the previous case law on the same subject [see Abdool Roho-manv. Dataram Bashee (W. R., 1864, 367)] and the formerly accepted theory of the landlord's dominion of the land; and therefore on the maxim cessante ratione legis cessat ipsa lex, such a construction should not be countenanced. At the same time it may be argued that the Legislature has not approved of that case law, but that it places more value on the tenants' labour in growing a tree than on the land where from the tree gets its sap; and hence the enactment in section '23 of the Bengal Tenancy Act. As however a garden would be unfit for tenancy if a tenant can, without the landlord's consent, denude it of its trees in the absence of a custom to the contrary, and as in that case the two parts of the said 23rd section of the Act would be irreconcileable [see Reg. v. Bishop of Oxford L.R. 4 Q.B.D. 261] quoted by Wilson, J., in Alangamonjori Dabee's case I.L.R. 8 Cal. 157 I feel disposed to hold that the intention of the Legislature is otherwise than what the defendant's pleader suggests. In short I am for placing the onus previously on the defendant to prove the existence of the custom set up by him. If so, it is doubtless that defendant has failed to discharge it, though it is equally beyond doubt that the evidence offered by the plaintiff is not very satisfactory. It must be expressed here that the decision of this case therefore depends on the solution of the question as to onus-a question that is not free from difficulty and is one of general importance.
' I propose, therefore, to submit the following point for the opinion of the Hon'ble Judges:
' Whether the plaintiff zemindar shall first be called upon to prove the prevalence of a custom prohibiting the exercise by occupancy tenants of the rights of cutting trees without his consent.
' Contingent on the opinion of the Hon'ble Court on the above quoted question, I feel inclined to award to the plaintiffs by way of compensation the admitted value of the tree. Claim is therefore, partially allowed. Defendant shall pay to the plaintiff Rs. 1-4, with proportionate costs, less the costs payable to the former for the dismissed portion of the claim.'
Dr. Guru Das Banerjee and Babu Jasoda Nandan Pramanick for the plaintiff.
No one appeared for the defendant.
The judgment of the Court (NORRIS and MACPHERSON, JJ.) was as follows:
We are of opinion that the onus rests upon the tenant to prove a custom to cut down the mango tree.
2 In this suit which was one brought be recover from the defendants, tenants of the plaintiff, damages for cutting down and appropriating a tree on the land they hold under the plaintiffs, a rule was granted by the High Court on the application of the defendant to show cause why the following judgment of the Subordinate Judge of Krishnaghur, sitting as a Small Cause Court, should not be set aside:
' The issues are whether defendants in this suit and in suit No. 191 of 1893 have permanent right in the lands of their holdings, and whether plaintiffs are entitled to recover the damages claimed in these two suits respectively from defendants
' I find that the defendants in these two suits have no such permanent right in the lands of their holdings as to entitle them to cut trees from their land. I find that they have: simply a right of occupancy in the lands of their holdings. They have attempted to prove: that tenants like themselves have the right of cutting growing fruit trees on their land by the custom of the village. I am of opinion that they ought to have proved the existence of the custom all over the pergunnah, or at least some greater number of villages around, or else it cannot be a good custom. Some of the witnesses of defendants have proved that some tenants, who have some permanent right in the lands, have sold the standing fruit trees and. have appropriated the value; but I am of opinion that the defendants in these two suits have no permanent right in their lands, hence they cannot appropriate the value of the trees. I am of opinion that plaintiffs have failed to prove the defendants cutting all the trees alleged by them, as there is only one witness of the plaintiffs on the point, and I cannot rely upon his testimony, so I would pass decrees for plaintiffs for the value of one tree admitted by the defendants in each of the two cases. Hence a decree will be passed for plaintiffs for recovery of Rs. 6, and each party bear his own costs under the circumstances of the case.'
On the hearing of the rule,-
Babu Jasoda Nandan Pramanick for the defendant in support of the Rule.
Mr. Woodrqffe, Babu Saroda Prosonno Roy, Dr. Hash Behari Ghose and Babu Tiara Prosad Chatterjee for the plaintiffs showed cause.
The judgment of the Court (O'Kinealy and Ameeram, JJ.) was as follows:
This was a rule granted to the defendant, calling upon the other side to show cause why the decision of the Subordinate Judge of Krishnaghur, acting under his Small Cause Court powers, should not be set aside.
The plaintiffs, the landlords, sued their tenant, the defendant, for damages on account, of his having cut down a tree and appropriated it. The Subordinate Judge held that it lay upon the defendant to prove a custom of cutting down trees in their favour, and that is clearly wrong. Section 23 of the Tenancy Act says that tenants having a right of occupancy can cut down trees subject to two conditions : (i) that the tenant does not impair the value of the land by doing so; and (ii) that ho is limited by any custom or usage in contravention of that right.
On the question of appropriation the further point was raised, namely, has the plaintiff shown that the trees when cut belonged to him. That question has not been decided, and we think that it must be decided before the suit can be finally disposed of.
The rule will be made absolute, and the case will be returned to the lower Court for disposal. The costs of this hearing will abide the result.
3 This was an appeal by the defendants from the decree of Babu Kedar Nath Mazumdar, Second Subordinate Judge of Hooghly, dated the 27th of August 1888, reversing the decree of Babu Bhugwan Chundra Chatterjee, Munsif of Serampore, dated the 31st of March 1887.
On the appeal,-
Babu Nil Madhab Bose for the Appellant.
Babu Kishore Lall Gossami for the Respondent.
The judgment of the Court (Petheram, C. J., and Banerjee, J.) which sufficiently states the facts, was delivered by
Petheram, C.J.-This is a suit which has been brought by certain zemindars against their tenants, who are the occupancy holders of land within the zemindari, to restrain them from cutting down trees and for damages for having cut them down.
There has been an enquiry as to what is the custom in this zemindari, and the finding is, that the zemindars have a right to recover a one-fourth share of the value of the trees cut down by raiyats, when the raiyats cut them without the consent or permission of the zemindar. That I understand to mean that the raiyats by the custom in this zemindari have a, right to cut down trees within their holding, but that if they do so they must pay their zemindars one-fourth of the value of the trees so cut down. If that is the case, it must follow that a raiyat has a right to cut down trees without anybody's consent, and consequently any injunction restraining them from doing so must be wrong, and so far as the learned Subordinate Judge has granted an injunction, his decree must be varied and this appeal must be allowed. Then he has not in this case allowed any damages, and there is a cross-objection by the plaintiffs on that ground. It is said here that the value of the. trees cut down is Rs. 18, and that amount is not disputed, and it is admitted upon these findings of fact that the zemindars are entitled to a quarter share of that, so that they must have a judgment and decree for a quarter share of Rs. 18, which is Rs. 4-8. The judgment then of the learned Subordinate Judge will be varied in this way : that the plaintiffs' claim for an injunction will be dismissed, and, on the other hand, they will have judgment for Rs. 4-8, being the quarter share of the value of the timber which the defendants have cut down on this holding; but as the parties in this case seem to have mistaken their rights and to have overstated them all through, we think in the result that the fairest course we can take is to say that each party should pay his own costs all through.