Ghose and Gordon, JJ.
1. In these cases the zemindar sued to recover damages from the defendants, his raiyats, on account of certain trees cut down and appropriated by them. The trees in question appear, upon the finding of the Judge of the Small Cause Court, to be 'agachha,' or valueless trees : trees which are generally-used, for the purposes of fuel. They have been shown to have grown on the lands of the raiyats after they were inducted into possession. The evidence on the part of the landlord, was, as set out in the judgment of the Small Cause Court Judge, to the effect that there was a custom in the village that the raiyats could, when they required firewood for the purposes of cremation, and on occasions of marriage feasts, and the like, appropriate such trees with the permission of the barua, the village headman, who represented the zemindar; and that when such permission was asked for, nothing had to be paid by the raiyats. It does not appear upon the findings of the Judge of the Small Cause Court that any such permission was taken from the barua in these cases : but it appears quite clear upon his judgment, and upon the facts of this case, that the zemindar could have sustained no damage in consequence of such permission not being taken.
2. According to certain cases decided by this Court under Section 23 of the Bengal Tenancy Act, the onus in a case like this is upon the landlord to show that a tenant with occupancy right is debarred from cutting down the trees on his land, and not on the tenant to prove a custom giving him the right to do so--Grija Nath Roy v. Mia Ulla Nasoya I.L.R. 22 Cal. 744 (re), and Nafar Chandra Pal Chowdhuri v. Ram Lal Pal I.L.R. 22 Cal. 742; and in accordance with that principle, we take it that the landlord in these cases ought to prove what the custom is; and it seems to us that if the custom is as is represented by the witnesses called by the plaintiff, the raiyats have only to ask for the permission of the barua, and such permission would be given; and in this view of the matter, the landlord could have sustained no damage by reason of the acts of the raiyats in cutting and appropriating the trees. It is not necessary in this case to decide whether, when any tree is grown by a raiyat on his land after the land has been settled with him, he has an absolute right to appropriate it; or whether it belongs to the landlord.. We think it is sufficient for the purposes of this case to say that the Judge of the Small Cause Court was right in holding that the plaintiff sustained no damage by reason of the acts of the defendants; and, therefore, no cause of action has accrued to him. We accordingly discharge these rules. We make no order as to costs.