1. This is an appeal by the plaintiff and arises out of an action brought by him for damages for misappropriation of a mohua tree which stood on the land of defendant 2 and which the plaintiff had foiled for his own use. The defence of defendant 2 was that the mohua stood on his mokarari mourasi jote under the plaintiff's zamindari and he was entitled to the timber of the tree both under law and under a local custom. The Munsiff held that defendant 1 was an occupancy raiyat and was not entitled to appropriate trees without the landlord's permission and that there was no custom-overriding the general law in favour of Madhusudan and he decreed the plaintiff landlord's suit. Against this decision an appeal was taken to the Court of the Subordinate Judge Rajshahi with the result that the appeal was allowed and plaintiffs' suit was dismissed. A second appeal has been, taken to this Court by the plaintiffs.
2. A preliminary objection has been taken by the learned vakil for the respondent to the hearing of this appeal. It has been argued that the suit being, of a Small Cause Court nature and having been valued at less than Rs. 500 is barred by Section 102, Civil P.C. It seems to me that the preliminary objection must prevail and second appeal No. 1004 is dismissed. The plaintiff, however, has put in an application for revision in the alternative. It is said that as the suit was of a Small Cause-Court nature and although it was tried by a Munsiff under the ordinary procedure as there was a Small Cause Court in the district which could try suits up to the value of Rs. 50 no appeal lay to the Subordinate Judge and in support of this petition for revision the following case was relied on : viz., Mohini Mahan Roy v. Ramdas Paramhansa A.I.R. 1324 Cal. 487. In my opinion this decision supports the contention of the plaintiff applicant before me. The Subordinate Judge had no jurisdiction to entertain the appeal. Prima facie when a Court is faced with a decree which is made without jurisdiction it is a very strong thing not to interfere in revision because otherwise all sorts of trouble may arise. On the merits I think this is a case in which I ought to interfere. It is now well settled that the right to the timber is in the landlord and the defendant had no right to misappropriate the tree. The decree of the Subordinate Judge is set aside and that of the Munsiff restored with costs which I assess at one gold mohur. Appeal No. 1005. The suit in which this appeal arises was brought by the plaintiff, now respondent, for recovery of Rs. 200 as damages from the defendants, now appellants. The case stated in the plaint is that the defendants landlords had entered unlawfully on the land of the plaintiff and had unlawfully felled the mahua tree which stood in his mourasi mokarari jote. The allegation in the plaint clearly amounts to criminal trespass and mischief within the meaning of Chap. 17,1. P.C. The defence of the appellants raised two grounds, (i) Madhu the plaintiff had no mourasi mokarari jote right in the lands; (ii) and no right whatever in the tree. The Munsiff upheld the first ground of defence but negatived the second and decreed the respondent's suit for Rs. 40 only. On appeal the Subordinate Judge affirmed the Munsiff's decision.
3. A second appeal has been taken to this Court by the defendants. A preliminary objection has been taken to the hearing of this appeal on the ground that the suit was one of a Snail Cause Court nature and the second appeal was consequently barred by Section 102, Civil P.C. It seems to me that the preliminary objection is not well founded. The allegations in plaint make the acts of the defendant one of trespass and mischief and this suit being for compensation for acts which fall within Chap. 17, I.P.C., are clearly exempt from the jurisdiction of the Court of Small Causes : see Article 35 of Schedule to the Provincial Small Causes Court Act (9 of 1887). It has been argued by the learned; vakil for the respondent that the defence of the defendant shows that the act of the defendants were done bona fide in the assertion of a claim and the allegations in the plaint taken with the defence take the acts out of the definition of trespass and mischief as defined in the Penal Code, but the answer to this contention is that the nature of the suit doe not depend on the defence but has to be judged from the allegations in the plaint. That being so, the suit as laid in the plaint was not a suit of a Small Cause Court nature. The preliminary objection must therefore be overruled.
4. Mr. Brojolal Chakravarti who appears for the appellant in this case contends that both the Courts below are clearly in error in holding that the landlord had no right to cut down the trees. His argument is that under the general law right to the trees is vested in the landlord, and the right to cut down and sell the trees are ordinary incidents-of the ownership in the trees. In support of this contention reliance has been placed on the decision of the Judicial Committee of the Privy Council in the case of Ruttonji Edulji v. Collector of Thana  11 M.I.A. 295. The learned vakil for the respondent concedes that the property in the trees is under the general law vested in the landlords (the defendants-appellants) in the present case but contends that the right has been cut down by Section 23, Ben. Ten. Act.
5. Let us examine the section to see if this contention is right. Section 23 in the-concluding part runs as follows:
But shall not be entitled to cut down trees in contravention of any local custom.
6. All that this section lays down is that the occupancy raiyat shall be entitled to cut down trees unless the landlord can establish that there is a custom prohibiting the raiyat from cutting down the trees : see Nafar Chandra v. Ramlal  22 Cal. 742. But there is nothing in the section to show expressly that the landlords' right to cut down trees on the occupancy holding has been taken away. It is argued that the same right can not coexist in the landlord and the tenant. It is said that:
as the tenant has the right to cut down the trees the landlord cannot cut it.
7. It is said on the other hand that the lands which are let for agricultural purposes form the subject of the occupancy right and in order that the growth of trees may not prejudicially affect the growing of crops the tenant is given the right to cut down trees. It is said for the appellant that the interest of the landlord to allow the trees to grow in order that he may make profit from the same when in course of time these trees become fit for valuable timber and it is certainly optional with the landlord to cut down the trees, the property which undoubtedly belongs to him under the general law and it is further said for appellant that to read Section 23 as depriving the zamindar of his right as proprietor to cut down the trees would be to read into it something which it does not say and which can not reasonably be implied from its language.
8. The trees in this casa are not shown to have been planted by the plaintiff tenant nor are they shown to be fruit bearing trees. The trees are mahua trees from the fruits of which a certain kind of country liquor is made and a profit is made by the tenant.
9. In the case of Nafar Chandra v. It am Lal  22 Cal. 742 the following observations occur:
So in the case of Ruttonjee Edulji v. Collector of Thana trees are said by the Privy Council, to be part of the find on which they stand and the right to cut them down and soil them is said to be incident to the proprietorship of the land.
10. In the same case it was said:
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 zamindar. His proprietary rights in this respect are subject to modification 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.
11. These observations do not lay down anything contrary to the contention of the respondent that the proprietary rights of the zamindar in the trees has been cut down by Section 23 to this extent that he has no right to cut down the trees so long as the lands are in the occupancy of the tenant. It has been argued by the appellant that if ownership of the trees is in the landlord it is an ordinary incident of that ownership that he has a right to cut it down and sell it. If the contention of the respondent, it is said, is right then the landlord can never be able to cut down valuable timber on the occupancy holding in cases the occupancy holding continues to exist for generations as it does in most cases and rarely reverts to the landlord. An examination of Nafar Chandra's case  22 Cal. 742, however, shows that the observations refer to the right of landlord to felled timber. Under Act 10 of 1859 the raiyat had nob the right to cut down trees except those planted by himself : see Abdul Rahman v. Dataram  W.R. Gap. 367, Goluk v. Nabo  21 W.R. 344. The Bengal Tenancy Act has in this respect improved the status of occupancy raiyats by laying down:
He shall not be entitled to cut down trees in contravention of any local custom.
12. By implication it seems to me that Section 23 supports to take away the proprietary right of the landlord to cut down the trees and sell them when ho liked during the existence of the tenancy. The right of occupancy is granted with respect to the lands, and the right to cut nown trees is given to the tenant also in the absence of a prohibitory custom and this does impair the right of the landlord to cut down trees which is an incident of his ownership in the trees, until the tenancy reverts to to him. The trees when felled whether by the landlord or the tenant belong to the landlord. On this point there is no controversy. In support of the respondent's contention the case in Ganga Dei v. Badam  30 All. 134 has been cited. I think the Allahabad case supports the contention of the respondent. It is said in that case:
Bat it appears to us to be clear that in the absence of a custom or of a contract to the coutrary a zemindar has no right to interfere with the enjoyment by his tenant of the trees upon his holding as long as the relation of landlord and tenant subsists. A tenant has a right to enjoy all the benefits of the growing timber on his land during his occupancy. If the zamindar desires to have the privilege during a tenancy of entering upon his tenant's holding and cutting down and removing timber he must procure a special stipulation from his tenant in that behalf. In the case of Shaikh Abdul Rahman v. Dataram Bashee  W.R. Gap. 367, the learned Judges laid down that while a zemindar has a right in the trees which the Court should maintain, the tenant has a right to enjoy all the benefits that growing timber may afford him during his occupancy but has no power to cut down the timber and convert it to his own use.
13. The Allahabad decision follows an early Bengal case where it was laid down that while a zamindar has a right in the trees which the Court should maintain the tenant has a right to enjoy all the benefits that the growing timber may afford him during his occupancy : see Abdul Rahman v. Dataram  W.R. Gap. 367.
14. An examination of the decision of the Judicial Committee in Ruttonji v. Collector of Thana  11 M.I.A. 295 referred to by the appellant will show that in that case the trees did not from the subject of the demise and consequently the proprietary right in the trees remained in the zamindar and the landlord had a right to cut down the trees and sell. Where trees are exempted from the demise there the landlord is entitled to enter at all reasonable times on the tenant's holding and cut them : see Foa on Landlord and Tenant, 6th Edn. p. 109.
15. I think the decisions of the Courts below arc right and must be affirmed and the appeal dismissed with costs.
16. The application in revision in the alternative will be dismissed.
17. This is a Letters Patent appeal from the concurrent decision of three Courts in a suit by the tenant who is an occupancy holder against the Ian3lords for damages for the landlords' wrongful act in coming upon the holding and cutting down a certain tree. The tree appears to be a mahua tree from which a certain form of crude alcohol can be made. Now, the tree when cut down was appropriated by the tenant and the present appellants the landlords have succeeded in a suit in which they have recovered Rs. 40 as damages against the tenant for wrongful conversion of the timber. The present appeal is an appeal by the landlords in which they seek to have it established that they were entitled to enter upon the holding of the tenant and cut down this tree without the tenant's consent. As I have said, the Munsiff, the Subordinate Judge and the learned Judge of this Court in second appeal have unanimously negatived that contention. In my opinion, on a review of the authorities and on principle, they are clearly right.
18. The first principle in these matters' in that prima facie the right in the land and in trees which are let along with the land is in the zemindar and the second principle is that, when the zemindar settles a tenant on the land, that tenant gets certain rights not only in the land but also in the trees which go with the land. If one looks to Section 23, Ben. Ten. Act, one will find that, by virtue of special legislation applicable to agrarian holdings in this province, the enjoyment of this tenancy includes, in. the case of a raiyat who has a right of occupancy, a right to use the land in any manner which does not materially impair the value of the land or render it unfit for the purposes of the tenancy subject to this restriction that the tenant shall not be entitled to cut down trees in contravention of any local custom. From that section, it would appear that the right of enjoyment which a tenant of the present character, that, is the respondent now before us, has in. his land is a right to have a certain limited use of the trees including the right under certain restrictions to cut them down. Whether or not there ever was a time at which it could be said1 that a tenant of this sort had no right to cut down trees at all, it is clear from Section 23 that the position has now changed. We are not, however, concerned in this case with the tenant's right to cut down trees : we are concerned with the landlords' right to enter upon the holding, and cut down trees without the consent of the tenant. As regards that matter, the eldest authority which need be consulted is I think the case of Abdool Rohoman v. Dataram Bashee  W.R. Gap. 367. The law, as declared in that case, is reasonably clear. It is said there that the tenant has a right to enjoy all the benefits that the growing timber may afford him during his occupancy; but it goes on to say and it was no doubt true in that case that he has no power to cut the trees down and to convert the timber to his own use. The latter part of that clause is broadly speaking still true, though it may be modified by local, custom.
19. Apart, however, from the judgment as regards the right of the zemindar to the trees, it was held that the tenant has a right to enjoy all the benefits that the growing timber may afford him during his occupancy; and, in that case, the claim of the landlord was to have his title in the growing trees declared and to obtain a declaration that the pretentions of the raiyat were not legal. There was no claim, therefore, of the landlord to enter upon the holding and to cut the trees down. It is quite clear that any such claim would be inconsistent with the principle upon which the judgment was based. In the case of Ganga Dei v. Badam  30 All. 134 this very question arose. In that case, it. appears that the landlady instituted a. suit for declaration of her title to the trees. She also prayed for a perpetual injunction restraining the tenants from offering any obstruction to the cutting; down and removal by her of the trees, on the holding. As regards the claim for injunction, it will be seen that if raised the same point as in the present case. The plaintiff landlord wanted the tenants to be restrained from resisting her when she came upon the tenant's land to out down trees. Curiously enough, the first Court accepted that contention. But when the case went to the Allahabad High Court, Richards, J., dissolved that injunction. The learned Judges of the Division Bench upheld that decision saying that:
She presumption of law and the general rule in the absence of custom is that the property in timber on a tenant's holding vests in the zemindar and that the tenant has no right to cut and remove such timber. But it appears to us to be clear that, in the absence of a custom or of a contract to the contrary, a zemindar has no right to interfere with the enjoyment by his tenant of the trees upon his holding as long as the relation of landlord and tenant subsists. A tenant has a right to enjoy all the benefits of the growing timber on his land during his occupancy. If the zemindar desire to have the privilege during a tenancy of entering upon his tenant's holding and cutting down and removing timber, he must procure a special stipulation from his tenant in that behalf.
20. It seems to me that, in the other cases [which have been cited to us, there is no law laid down to the contrary. We have been referred to the case of Nafar Chandra v. Ramlal  22 Cal. 742 where the real question was as to the person entitled to the felled timber and the same is true of the case of Prodyot Kumar Tagore v. Gopi Chandra  37 Cal. 322. There is only one case in all the long line of cases which seems to me even to suggest that, because the landlord has general proprietary right in the timber, he is entitled to exercise his right by cutting it down after the land has been settled with the tenant. That case, however, in no way bears out the contention. I propose to refer to it. It is the case of Ruttonjee Eduljee v. Collector of Thana  11 M.I.A. 295. In that case, the Court was construing a farming lease of certain jungle lands which had been granted by the Government. The question arose as to whether on certain part of the land the rights granted to the lessee included the the right to fell and take away timber. Dealing, therefore, with this question which was as to the tenant's right to cut trees, the argument of their Lordships was as follows : They pointed out that before the lease was granted, the whole right was in the Government. They went on to say that, if the tenant claimed to have the right to fell trees, he must do it either by showing that that right was a necessary incident of the lease by reason of the objects of the lease or that he had got it under some positive law or under some custom to be incorporated in the lease or under the express terms of the lease. Now, it is the passage upon which their Lordships' reasoning is founded which has given rise, it would seem, to some misapprehension. The passage is this:
At the time then that this lease was made, the whole of the land and all the rights connected with the land, subject to such claims as third parties might have upon it, belonged to the Government. The trees upon the land were part of the land and the right to cut down and sell those trees was incident to the proprietorship of the land.
21. So it was, 'at the time that the lease was made.' This proposition is no authority for the view that a landlord after he has leased out the land can come upon the holding of his tenant and cut down trees without the consent of the tenant. In my judgment, the learned Judge has very correctly appreciated the state of the law. In that view, the appeal fails and must be dismissed with costs.
C.C. Ghose, J.
22. I agree.