1. This is a Rule calling upon the opposite party to show cause why the order of the Munsif, Second Court of Netrokona dated the 13th May 1908, should not be set aside. The plaintiffs instituted this suit against the defendants for compensation for removal of certain trees from the land.
2. In the case of Nafar Chandra Pal Chowdhuri v. Ram Lal Pal 22 C. 742 p. 743 it was held that property in trees growing on land is by general law vested in the proprietor of the land subject to any custom to the contrary. This refers to the removal of trees after they have been felled. There is no doubt, therefore, that the property in trees felled is ordinarily vested in the proprietor of the land unless there is any custom to the contrary. There is no finding as to this custom in the Munsif's-judgment. He remarks: ' I am of opinion that the defendant No. 1 has not contravened any local custom,' but this observation evidently refers to Section 23 of the Bengal Tenancy Act and the custom of cutting down the trees therein referred 'to and not to custom of removing trees after they are felled, which, as pointed out in the case cited above, is quite a different thing. The Munsif's judgment establishes that the tenants are entitled to cut down the trees, but he comes to no finding on the question to whom the wood belongs after the tree is cut down. If it belongs wholly or partly to the landlord, he is clearly entitled to compensation for its removal. Next the Munsif has held that the suit is barred by article 36 of the second schedule of the Limitation Act. But in our opinion the article that really applies to the present case is either 48 or 49. These two articles refer to specific movable property wrongfully taken. Article 48 refers to specific movable property lost or acquired by theft, or dishonest misappropriation or conversion or for compensation for wrongfully taking or detaining the same. Article 49 refers to other specific movable property or for compensation for wrongfully taking or injuring or wrongfully detaining the same. These two articles seem to us to cover all cases with regard to specific movable property wrongfully taken. In either of these two cases, the limitation is three years. That one of these articles applies to the present case is clear from the Full Bench decision in the case of Mangun Jha v. Dolhin Golab Koer 25 C. 692 : 2 C.W.N. 265.
3. Under the above circumstances the decision of the Munsif must be set aside and the case sent back for a finding as to whom the wood belongs, and disposal in accordance with the observations we have made. It will rest upon the tenants to displace by proof of custom or otherwise the presumption that the wood belongs to the plaintiff.
4. Costs will abide the result. We assess the hearing fee at two gold mohurs.