Zahhadur Rahim Zahid Suhrawardy, J.
1. This Rule was issued under Section. 25 of the Provincial Small Cause Courts Act to revise the judgment of the Small Cause Court in a suit brought by the petitioner for recovery of price of two Karai trees which are admittedly timber trees cut and appropriated by the defend-ants. The plaintiff is the landlord and the defendants are tenants under him of a piece of land on which the disputed trees sued for, betal-nut and other fruit trees stood. The plaintiff's case is that the defendants took lease of the land from him about 30 years ago and that they had no right to appropriate the trees standing thereon. The defence was that the defendants were occupancy raiyats and that they had the right to the trees. They further alleged that their tenancy was very old, The learned Munsif presiding over the Small Cause Court has not found sufficient facts for the determination of the question raised. With regard to the origin of the tenancy he is of opinion that it is very old and that the ancestors of the defendants possessed the land before them. With regard to the question as to who grew the trees he observes that the trees were planted or allowed to grow by the defendants' father. He holds that the Bengal Tenancy Act does not apply but he is unable to find decisively if the lease was granted to the defendants' ancestors before the passing of the Transfer of Property Act or subsequent thereto. On these findings if they can be so-called the Munsif has held that the defendants had the right to remove the trees under Section. 108 (h) of the Transfer of Property Act or if the lease was granted before that Act came into operation under the ruling reported as Mofiz Sheikh v. Rasik Lal Ghosh 6 Ind. Cas. 706; 37 C. 815; 14 C. W. N. 952; 12 C. L. J. 246. It is difficult to hold upon the findings of the Court below, which are not decisive on the points in dispute, as to whether he has applied the law correctly.
2. The question raised Cannot be lightly treated as it is of great importance to both parties, especially to the landlord.
3. I assume for the purposes of the present controversy that the lease was granted before the Transfer of Property Act. In that case the decision of the Munsif according to the view consistently held by this Court would be wrong. With the case of Mofiz Sheikh v. Rasik Lal Ghosh 6 Ind. Cas. 706; 37 C. 815; 14 C. W. N. 952; 12 C. L. J. 246 on.which the lower Court has relied I will deal later. On the authorities the law seems to be that before the Transfer of Property Act was passed the property in the trees was in the landlord and the tenant had the right to them if there was any custom or usage to the contrary. The cases on this point have been collected in Nafar Chandra Pal v. Ram Lal Pal 22 C. 742; 11 Ind. Dec. (N. S.) 493.
4. Before proceeding further it is better to refer to the argument which has been addressed to us which differentiates the case of trees standing on the land at the time of the granting of the lease and the trees planted and grown by the tenant. It has been argued that whatever might be the law with regard to the trees standing on the land at the time of the lease, the tenant had certainly the right to the trees grown by them after the lease. The cases, however, do not make any such distinction; and it has been laid down that whether the trees were grown by the tenant or were on the land at the time of the lease the property in them would be in the landlord or the owner of the soil. The earliest cases are to be found in Sutherland's Small Cause Court Reference at pages 14 and 17 where it was held 'the ownership in trees as well as timber generally is in the proprietor of the land upon which they grow'. In Ruttonji-Edulji Shet v. Collector of Tanna 11 M. I. A. 295; 10 W. R. P. C. 13; 2 Sar. P. C. J. 292; 20 E. R. 113. there is an observation by their Lordships of the Judicial Committee at page 313 of the report that the trees upon the land were a part of the land on which they stood and the right to cut down and sell those trees was to be incident to the proprietorship of the land. In the following cases it was held that though the trees might have been grown by the tenant the property in them was in the proprietor of the land upon which they grew. Shookada Soondery Dabia v. Surroop Shaik Suth. S. C. C. Ref. 17; Abdool Rohoman v. Dataram Bashee W. R. (1864) 367; Janki v. Sheodhar 23 A. 211; Gangi Dei v. Badam 30 A. 134; 5 A. L. J. 99; 3 M. L. T. 194; A. W. N. (1908) 51 and lastly the case of Nafar Chandra Pal v. Ram Lal Pal (SIC). A contrary view has been taken by the Madras High Court which makes a distinction between the law affecting trees standing on the land at the time of the lease and that affecting trees grown by the tenant after the lease, on the analogy of Section. 108 (h) and (o) of the Transfer of Property Act and the construction put thereupon, as embodying principles of justice, equity and good conscience. See Vasudevan Nambudripad v. Valia Chathu Achan 24 M. 47; 10 M. L. J. 321 (F. B.); Gangamma v. Bommakka 5 Ind. Cas. 437; 33 M. 253; 7 M. L. T. 231 and Krishnacharya v. Anthakhi 31 Ind. Cas. 12; 29 M. L. J. 314; 18 M. L. T. 218; (1915) M. W. N. 726. In some of these cases it has been held that before the Transfer of Property Act there was no statutory law governing the rights of the landlord and tenant with regard to fixtures on the land and the question, therefore, was whether such rights should be decided on principles of justice, equity and good conscience: and it was suggested that the rule embodied in Section. 108, Transfer of Property Act, might be taken as being consonant with those principles. Upon this analogy it has been argued before us that under Section. 108 (h), Transfer of Property Act, the right in the trees is in the tenant. If the Transfer of Property Act or the analogy sought from it applies to the present case, I feel difficulty in holding otherwise. Section 108 (h) provides that a lessee may remove at any time during the continuance of the lease all things attached to the earth provided he leaves the property in the state in which he received it, The expression attached to the earth has been defined in Section. 3 of the Act as (a) rooted in the earth as in the case of trees and shrubs. But it is contended on behalf of the petitioner that cl. (h) is controlled by cl. (o) of Section. 108. In cl. (o) the lessee is prohibited from doing various acts one of which is felling timber, It is urged that this clause should be read with cl. (h) and effort should be made to give a consistent meaning to the two clauses for it must be presumed that the Legislature did not intend to enact two conflicting and contrary provisions of law in the same Act and especially in the same section of the Act. To my mind the correct explanation of this apparent inconsistency between the two clauses has been given by the Madras High Court in the case of Vasudevan Nambudripad v. Valia Chathu Achan 24 M. 47; 10 M. L. J. 321 (F. B.) where it is said that the prohibition contained in cl. (o) applies only to timber that stood on the land at the time of the lease. This interpretation gains support from the words which follow, namely, pall down or damage buildings'. These words indicate that the building which the lessee has no right to pull down must be a building which stood on the land at the time of the lease or which was not put up by the lessee. For it was the law even before the passing of the Transfer of Property Act that the lessee had the right to remove the building raised by him on the land and his obligation was only to leave the land in the state in which he had received it. It seems to me, therefore, that if the law as it stood before the Transfer of Property Act be applied to the present case it must be held that the ownership in the trees is in the landlord unless the tenants succeed in proving a custom giving him the right to appropriate them. In the case of permanent tenancies different considerations will arise.
5. I now come to the consideration of the case upon which the Court below has relied and which apparently seems to hold a contrary view. In Mofiz Sheikh v. Rasik Lal Ghosh 6 Ind. Cas. 706; 37 C. 815; 14 C. W. N. 952; 12 C. L. J. 246 the question was with regard to the property in the trees planted by the lessee. The lessee in that case claimed to have kayemi tenancy and claimed the right to appropriate the trees. The learned Judges proceeded to examine this question but it does not appear from their judgment that they based their decision upon the character of the lease in that case. They start by saying that the English Law of fixtures which is to the effect that anything attached to the earth becomes the property of the owner of the soil is not applicable in India. This view is perfectly correct and it cannot be disputed, since long ago in the matter of the petition of In the matter of the petition of Thakoor Chunder Paramanik B. L. R. Sup. Vol. 505; 6 W. R. 228 it was held by a Full Bench of this Court that the Law of England vesting the property in anything attached to the earth though put up by the tenant in the landlord does not apply to India and that the tenant who has made the improvement is entitled either to remove the materials restoring the land in the state in which it was before the improvement was made or to obtain compensation for the value of the building if it was allowed to remain for the benefit of the owner of the soil. In Mofiz Sheik's case 6 Ind. Cas. 706; 37 C. 815; 14 C. W. N. 952; 12 C. L. J. 246 after discussing the English Law on the point, and the cases which make that law inapplicable to this country, the learned Judges quoted some authorities under the Hindu and Muhammadan Laws with reference to the ownership of trees and came to the conclusion that according to those systems of law the ownership of the trees is in the tenant. The learned Judges do not consider the cases of this Court I have mentioned above which hold the view that the ownership in the trees before the transfer of property was with the proprietor of the land. Those cases do not seem to have been cited before their Lordships and, therefore, there is no reference to the decision in the case of Nafar Chandra Pal v. Ram Lal Pal 22 C. 742; 11 Ind. Dec. (N. S.) 493. That is a case which seems to me to have most carefully dealt with this point and considered every relevant case on the subject. The authority of Mofiz Sheik's case 6 Ind. Cas. 706; 37 C. 815; 14 C. W. N. 952; 12 C. L. J. 246 is accordingly very much shaken; and with the greatest respect to the learned Judges who decided it I am unable to follow the general proposition laid down there. On the facts of that case in which the tenancy was claimed as permanent the decision may have been correct but to say generally that before the Transfer of Properly Act came into operation the question was to be decided on Hindu or Muhammadan Law alone without reference to the decided cases in British Courts seems to me to be open to objection.
6. In the unsatisfactory state of the findings of the Small Cause Court I think that it is in the interest of both parties that the facts should be distinctly found and the law applied to them. It should be distinctly found as to whether the tenancy originated before or after the Transfer of Property Act. If it originated before the Transfer of Property Act came into operation under the law as then obtaining the landlord will have the right to the trees unless the tenants succeed in proving a custom to the contrary. I may here note that the evidence of custom was given by both sides in this case; but the Munsif has come to no finding upon it. It is necessary that he should do so. If the tenancy came into existence after the Transfer of Property Act was passed it seems to me that under a. 108 (h) of the Act the ownership of the trees grown by the tenant will be in the tenant. This case will accordingly go back to the Court below for a finding on the points indicated above.
7. The Rule is, therefore, made absolute, the decree of the Court below set aside and the case remitted to that Court to be re-tried on the evidence on the record. Costs will abide the result. We assess the hearing fee at three gold mohurs.
8. I feel some doubt whether the case is one in which we ought to interfere in revision in the exercise of our powers under Section. 25 of the Provincial Small Cause Courts Act. I do not, however, feel strongly enough upon the point to induce me to differ from my learned brother, and I concur in the order which he proposes to make.