Second Appeal No. 398 of 1948

5th March, 1951.

Petitioner Counsel: G.P Murdeshwar, s
Respondent Counsel: N.M. Shanbhag, .

Cases Cited:
('67) 11 Moo Ind App 295,(10 WR 132 PC) [Para 3]
('83) 7 Bom 256 [Para 10]
(1960) 24 Bom 81,(1 Bom LR 489) [Para 6]
('03) 27 Bom 373,(5 Bom LR 241) [Para 10]
('10) 12 Bom LR 831,(8 Ind Cas 411) [Para 10]
('14) 38 Bom 716,(AIR (1) 1914 Bom 312 (1)) [Para 5]
('20) 22 Bom LR 118,(AIR (7) 1920 Bom 332) [Para 10]
('49) F. A. Nos. 91 and 97 of 1945 decided by Bavdekar and Shah,JJ.; D/- 3-3-1949 (Bom) [Para 3]
('50) C. R. A. No. 120 of 1950 decided by Bhagwati and Chainani,JJ. D/- 19-12-1950 (Bom.) [Para 7]
('50) 53 Bom LR 315,(AIR (38) 1951 Bom 355) [Para 8]
('68) 10 WR 419 [Para 10]
('94) 17 Mad 218,(3 Mad LJ 287) [Para 10]
('10) 33 Mad 253,(5 Ind Cas 437) [Para 6]
('11) 34 Mad 231,(7 Ind Cas 321) [Para 7]
('16) AIR (3) 1916 Mad 939,(31 Ind Cas 12) [Para 10]

JUDGMENT

Rajadhyaksha, J. :-This second appeal raises an interesting question about the right of a mulgenidar to out the trees growing upon the land leased to him under a mulgeni lease. The facts of the case are these. Survey No. 128/1 has been owned jointly by the families of the plaintiffs and the defendants for a very long time. The plaintiffs leased out in mulgeni their undivided joint interest in the property to the defendants' family. This took place come time prior to the year 1865, and the precise date when the mulgeni lease was given is not on record. On this land there is, according to the findings of the two lower Courts, a vast medley of wild trees, old and young, including shrubs. The defendants have admittedly cut some trees from the land. The panchnama Ex. 25 mentions that about 66 tress have been cut by the defendants, although the purshis which was given in the course of the trial by the plaintiffs' pleader stated that only about 16 trees were out by the defendants. The version of the defendants, on the other hand, is that they cut not more than five or ten trees. But there is no dispute that some trees were cut by the defendants. This has given rise to the present suit. The plaintiffs in the suit put up a case that Survey No. 128/1 of the Chitrigi village was granted by Government to both the plaintiffs and the defendants as a sort of an accessory land called hadi land for the use of their other Survey Nos. 125, 126 and 127 of the same village, the purpose of the grant being that the dry leaves from Survey No. 128/1 were intended to be used for the purpose of providing manure for the other three survey numbers. As such it was alleged that the defendants were not entitled to cut the trees. This case of the plaintiffs has been found to be disproved by both the lower Courts. There is no evidence on record to prove that Survey No. 128/1 was given as a hadi land for the use of the other three Survey Nos. 125, 126 and 127. Thus the case which the plaintiffs sought to make out in the plaint was not established by the evidence on record. But from the evidence, both the lower Courts came to the conclusion that the survey number was jointly owned by the plaintiffs and the defendants. It was further found that the undivided share of the plaintiffs in this survey number had been given on a mulgeni lease by the plaintiffs' ancestors to the defendants' ancestors. On these facts, the trial Court came to the conclusion that the defendants had no right to cut any of the trees in Survey No. 128/1 which was of the joint ownership of the plaintiffs and the defendants, in spite of the fact that the defendants were co-owners of this survey number, and the plaintiffs' undivided half share had been given on a mulgeni lease to the defendants. The trial Court, therefore, gave a declaration that "the defendants, as co-owners, were not entitled to cut the trees or plants on the suit property or to commit waste of the suit property to the detriment of the plaintiffs' interest therein." The [trial Court further gave an injunction "restraining the defendants from cutting the trees or plants in Suit Survey No. 128/1 to the detriment of the plaintiffs' interest therein." The defendants were further ordered "to pay the plaintiffs Rs. 3 and costs of the suit with future interest at 6 per cent. per annum from the date of the suit till realisation." The defendants were ordered to bear their own costs. This order was substantially confirmed in appeal by the learned District Judge of North Kanara. He made a slight variation making it clear that the future interest was allowed by the lower Court only on the amount of the damages that were awarded. Now, the defendants have come in second appeal.

2. In the arguments before us, the matter has been argued on the footing of joint ownership of plaintiffs and defendants of the Survey No. 128/1 and on the basis of the defendants being mulgenidars of the survey number. So far as the position arising from the joint ownership of the land is concerned, there is no dispute. The plaintiffs and the defendants having a joint undivided interest in every bit of Survey No. 128/1, it was not open to one of the joint co-owners to treat the property in such a fashion as to amount to committing a waste without the consent of the other co owner. Admittedly, the defendants have not obtained the consent of the plaintiffs to cut any of the trees growing on this land, and to that extent their action could not be covered by any right vesting in them as co-owners. The real point which has been argued before us is that the defendants being the mulgenidars of the plaintiffs' undivided interest in these properties, they have, as such permanent tenants, every right to cut the trees in the land which has been demised to them.

3. The question, therefore, arises as to what are the precise rights of the defendants-tenants in respect of the lands leased to them by the plaintiffs-landlords. The general position in law was considered as long ago as 1867 by their Lordships of the Privy Council in Ruttonji Edulji Shet v. The Collector of Tanna, 11 Moo Ind App 295. Their Lordships were in that case dealing with a lease to a khot, and in dealing with the general law of the tenant's rights to cut the trees growing upon the land leased to him, their Lordships observed at page 313 as follows :

"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 out down and sell those trees was incident to the proprietorship of the land.

The Appellant, therefore, who complains of an interruption suck as is described in his plaint, must ground his title to these trees, and the right to out them down, either upon this, first, that it is a necessary incident of the lease by reason of the objects of the lease; or, secondly, under some positive law; or thirdly under some

custom to be incorporated in the lease; or, fourthly, under the express terms of the lease."

Unless the tenant could bring his claim to cut the trees under one of these four rights, the general presumption must be that the right to cut down and sell the trees vests in the proprietor of the land. The position in England is somewhat different. That arises from the maxim with regard to the fixtures which have been affixed to the land by the tenant. As was pointed out by this Court in Ganapati Pundlik v. Gulappa, F. A. Nos. 91 and 97 of 1945 (Bom) the position in India is not the same and it is what has been stated by their Lordships of the Privy Council in the case referred to above, which was itself a case which came up before them from India.

4. That being so, the question arises in this particular case of mulgeni lease whether there is any provision of law or in the document constituting the grant which would entitle the defendants-tenants to cut the trees growing upon the land. In considering this matter, we have to consider three aspects of the problem. The first is with regard to the trees which were upon the land when the mulgeni lease was granted in favour of the defendants; secondly, with regard to the trees which have been planted by the defendants-tenants on this Survey No, 128/1 after the grant of the lease; and, thirdly with respect to the trees which have grown spontaneously after the grant of the lease.

5. So far as the second category of trees is concerned, viz. trees which have been planted by the tenant after the grant of the lease, there is no dispute whatever that the proprietorship of these trees vests in the tenant and he is entitled to cut them or to make any other use as he likes, whether they are timber trees or otherwise. Under S. 108 Cl. (h), T. P. Act :

'the lessee may remove, at any time whilst he is in possession of the property leased but not afterwards, all things which he has attached to the earth; provided he leaves the property in the state in which he received it."

In the case of trees which a tenant has himself planted, and which might be regarded as things which he has attached to the earth; he would be entitled to cut them provided he leaves the property in the state in which he received it. That was the view taken by this Court in Sitabai v. Sambhu Sonu, 38 Bom 716. That was also a case of permanent lease, the origin of which was lost in antiquity, and it was held that

"the permanent tenant who had planted trees upon the land demised had a right to out them down and to use them, and this was so, although the English law of fixtures and the principles on which it is based have no application in this country."

It was pointed out that, although S. 108 (h) of the Transfer of Property Act did not in terms apply to agricultural leases, the principles embodied in it were principles which were good law, but which subsequently found expression in S. 108 (h) of the Transfer of Property Act. Therefore we have no difficulty in holding that so far as the trees planted in the suit survey number since the grant of the lease by the defendants-tenants, are concerned, the defendants have every right to cut the trees whether they are timber trees or otherwise.

6. With regard to the trees which were in existence at the time when the lease was granted, the position is governed by S. 108 Cl. (o), T. P. Act. Under that section.

"the lessee may use the property and its products (if any) as a person of ordinary prudence would use them as if they were his own; but he must not .... fell or sell timber or pull down or damage buildings belonging to the lessor."

The section therefore clearly draws a distinction between timber trees and non-timber trees, and according to the section, a lessee may not fell or sell timber belonging to the leaser, but that he may use the demised property and its products as a person of ordinary prudence may use them. The word "immoveable property" is defined in S. 3 of the Act as not including standing timber, growing crops or grass. By "standing timber" is meant trees fit for use for building or repairing houses. See Krishnarao v. Babaji 24 Bom 31. Fruit-bearing trees such as mango, mahua, palm and date trees have been held to be not standing timber within the meaning of the section, whereas babul trees and neem trees have been held to be timber. See page 17 of Mulla's Transfer of Property Act," 3rd Edn. It would thus appear that with respect to non-timber trees, the lessee would be entitled to use the usufruct thereof, but he would have no right to fell or sell timber trees. Accordingly it was held in Gangamma v. Bhommakka, 33 Mad 253 that (p. 253) :

"The rules contained in S. 108 (h) and (o) will apply to mulgeni leases and a mulgeni tenant is not entitled to cut trees standing at the date of grant."

It was pointed out in that case that (p. 254)

"cutting down, destroying or tapping all trees which are timber either by the general law or by the particular custom of the country, is waste."

It was held that according to the provisions of the Transfer of Property Act, the defendants had no authority to cut down the jack trees which were both timber and fruit trees. A similar view was taken in Krishnacharya v. Anthakki AIR (3) 1916 Mad 939. That was also a case of a mulgeni lease in South Kanara District, and it was held, following Gangamma v. Bhommakka, that a mulgeni lessee was "not entitled to cut trees standing at the date of grant." It is true that it has been held in Sharoda Soondari Debia v. Gonee Sheik, 10 WR 419, that

"the permanent tenants of the land who were entitled to retain their holding upon the payment of a fixed rent were entitled to out trees even timber trees."

That was an action brought by the plaintiff as Zemindar to recover from the defendants Rs. 10, being the value of a mango tree unlawfully cut

and carried away by them. It was held by the Calcutta High Court that the lease was granted in perpetuity at a fixed rent and the lessor reserved no reversionary interest in the land or in the trees which were growing on it. Consequently the defendants were entitled to the ownership of the trees. The case was decided upon the footing that where there was a grant in perpetuity at a fixed rent and the lessor bound himself to accept a specified sum of money reserving no other interest for himself either in the land or in the trees growing upon it. It was only in such a case that it could be argued that the landlord's rights had come to an end, and the lessee would foe entitled in such a case to remove both timber and non-timber trees. We have no evidence in the present case that the mulgani lease which had been given to the defendants was of this type. It was precisely upon this footing that in the case of Gangamma v. Bhommakka, the Calcutta case was distinguished. It was pointed out that in the Calcutta case the lessor reserved no reversionary interest in the land or in the trees which were growing on it, and that that case would not apply unless there was clear and unambiguous evidence to prove that the lease which falls to be construed was of that particular type. We are, therefore, of the opinion that with respect to the trees which were standing at the time when the mulgeni lease was granted to the defendants, the defendants are not entitled to fell or sell timber trees, but that with respect to non-timber trees, they are entitled to make use of the property and utilize its usufruct as a person of ordinary prudence may use it as if they were his own.

7. Coming then to the question of the trees' which are the result of a spontaneous growth after the premises were leased to the defendants, we have again to draw a distinction between a lease of the type dealt with in Sharoda Soondari Delia v. Gonee Sheik, 10 WR 419 and other kinds of leases. This was pointed out by this Court in Ganpati Pundlik v. Gulappa, (F. A. Nos. 91 and 97 of 1945 Bom). It would appear from judgment of Mr. Justice Bavdekar in those appeals that if the landlord is not entitled to raise rent, and had got no further interest in the land except the recovery of a specific sum, there is no reason, why in such cases, the tenant should not be entitled to all the trees timber or otherwise. In the present case, there is no evidence as to whether the landlord is or is not entitled to enhance the rent. If a tenant wishes to establish exclusive right to all the spontaneous growth, he must be able to show that he is not liable to pay anything more than the fixed rent which was not liable to be enhanced. There is no evidence on that point in the present case, and in fact the parties did not appear to go to trial on that issue. The burden being on the defendants-tenants, it cannot be said that that burden has been discharged. The finding of the learned District Judge on the point is this :

"There is no evidence whether the landlords had or had not stipulated for the right of reversion either in the trees or in the land. That question was never gone into. For the pleaders themselves never referred to that part of the question at all. I cannot therefore say that here is a case where the landlords were proved to have had no reversionary rights in the soil or in the trees." As I have already stated it was exactly on this footing that the Calcutta ruling was distinguished in Gangamma v. Bhommakka (33 Mad 253). We cannot therefore say that the lease before us is of the type dealt with in Sharoda Soondari Debia v. Gonee Sheik and therefore the ordinary presumption that the ownership of the trees vests in the proprietor of the land must prevail.

8. Even so, we must draw a distinction between timber trees and non-timber trees with respect to the spontaneous growth subsequent to the grant of the lease, It was pointed out to us that in the case of Krishnacharya v. Anthakki, AIR (3) 1916 Mad 939 it was held by the Madras High Court that (p. 939)-

"the landlord has no title to the trees planted by the lessee after the commencement of the lease or to trees and plants of spontaneous growth. The lessee can remove such trees provided he restores the land at the end of his lease period in as good a condition as he received it at the beginning."

While there can be no quarrel with the dictum laid down with regard to the trees planted by the tenant after the commencement of the lease, with respect, it does not appear to us that the view taken by the Madras High Court with regard to the spontaneous growth is altogether correct. As was pointed out by a Division Bench of this Court in Ganpati Pundlik v. Gulappa, (F. A. Nos. 91 and 97 of 1945 Bom) a distinction has to be drawn between timber and non-timber trees. Bavdekar, J., has pointed out that the decision in the Madras case proceeded upon

"the inability of the advocate of the appellant to advance any sound reasons for vesting in the mulgenidar the entire right to trees that have sprung up without any effort or expenditure on his part and partly on the ground that even in England the property in bushes was in the tenant and it was likely to cause hardship in case the landlords were to have the power to prevent their tenants from clearing the ground of shrubs and undergrowth."

He went on to say :

"... It was also observed that in this country the tenants may lease land capable of growing timber and the lessee may intend to raise and cut them for sale as firewood etc. Consequently, so long as the trees growing on the land at the date of the lease are not interfered with and the nature of the holding is not changed, there was no reason why the tenant should not be entitled to any benefits conferred upon him by nature. We find, therefore, that even though the case of Krishnacharya v. Anthakki, AIR (3) 1916 Mad 939 was a case of a mulgenidar, the argument did not proceed upon the permanent character of his tenure. The case followed, as I have already mentioned, upon the inability of the appellant's advocate to show way the landlord who had not made any effort or expenditure in regard to the trees which had sprung up spontaneously in his land could have the entire right to them and secondly upon the right which even in England the tenants have got in

bushes. Now, we can understand that just as a tenant is entitled in England to cut down trees which are not timber, even an annual tenant is entitled in India to cut down trees which are not timber. Undoubtedly, in India we must not follow very closely the English common law; but the reason for making a distinction between timber on the one hand and other trees on the other is to be furnished in India by the terms of the Transfer of Property Act itself, S. 108 (0) of which prevents the tenant from selling timber belonging to the landlord. The section does not give any assistance so far as the case before us is concerned, because it does not say which timber is the property of the landlord and which not; but the important point is that by specifically mentioning 'timber' in S. 108 (0), T. P. Act, the Legislature has thought fit to make a distinction between timber on the one hand and the other kinds of trees on the other. The section like other sections of the Transfer of Property Act dealing with tenancies does not apply to agricultural leases; but all the same the section does make a difference and the principles underlying these sections have been applied to agricultural leases where they suitably could be applied. In our view, therefore, there is a good reason for making distinction in India between timber on the one hand and the other kinds of trees on the other ; but there is a difficulty in cases in which the landlord is entitled to enhance the rent if it is contended that the permanent tenant has got a right to the timber which grows upon the land whether with his own efforts or without them."

9. The difficulty which the learned Judges felt in that case does not arise on the findings in this case and also did not arise on the findings certified to the Court after remand in the case which Bavdekar and Shah, JJ., had before them. Ultimately, the learned Judges gave a declaration that the plaintiff who was a tenant in that case was not entitled to any timber which had grown or which may grow spontaneously upon the land. That decision is binding upon us, and following the view taken in that case, we must hold that with respect to the spontaneous growth after the lease was granted to the defendants, a distinction must be drawn between timber trees and non-timber trees. With respect to the timber trees, the position is that the defendants-tenants would not be entitled to cut them. But with respect to non-timber trees, they would be entitled to cut them or to put them to any other use as they pleased.

10. It was further argued by Mr. Murdeshwar that most of the cases, to which I have already made a reference, were cases of permanant tenancy. He pointed out that the defendants-tenants in the present case were mulgenidars, and that therefore their rights stood on a somewhat higher footing than those of ordinary permanent tenants. In this connection he invited our attention to the case of Vyanktraya v. Shivrambhat, 7 Bom 256. In that case, the learned Judges have attempted to examine historically the precise origin of the mulgeni tenure. They have quoted from Sir Thomas Munro's Report on the condition and assessment of Kanara written in 1800, describing how the land was held in the fourteenth century. The observations of Sir Thomas Munto are in these terms (p. 259) :

"These proprietors had under them an infinite number of lesser proprietors holding their lands of them with all the same proprietary rights as those under which they held their own of Government. It was usual for the original proprietors to rent, either for a term of years or for ever, such a portion of their lands as was sufficient to discharge the whole of their public rent, and to keep the rest in their hands. The tenants for ever became a second class of proprietors whom nothing could deprive of their right of possession unless their own act of gift or sale."

They have also quoted from the Minutes of the Revenue Board of the year 1880. They have pointed out that although originally a mulgeni could be alienated by gift or sale, certain restrictions began to be imposed thereon in subsequent years by the terms of the grant. The minutes contain the following observations (p. 259) :

"The Mulgenis, or permanent tenants of Kanara, were a class of people unknown to Malabar, who, on condition of the payment of a specified invariable rent to the muli, or landlord, and his successors, obtained from him a perpetual grant of a certain portion of land to be held by them and their heirs for ever. This right could not be sold by the mulgeni or his heirs, but it might be mortgaged by them, and so long as the stipulated rent continued to be duly paid, he and his descendants inherited this land like any other part of their hereditary property. This class of people, therefore, may be considered rather as subordinate landlords than as tenants of the soil, more especially as though many of them cultivated their lands by means of hired labourers or slaves, others sub-rented them to the Chali genis or temporary tenants."

Mr. Murdeshwar has invited our special attention to the expressions used in these documents, viz., "subordinate landlords" and "a second class of proprietors." Undoubtedly, these expressions do occur in the two reports. But they have been mentioned in showing the historical origin of the mulgeni tenant. At page 260 of the Report, the conclusion of this Court is stated in these terms : "These authorities show clearly that the mulgenis were only tenants, although tenants in perpetuity, holding under their superior landlords, the mulgars, whose estate, like that of tenants in fee simple in England, would appear to have been the highest estates in the land known to the law in Kanara; and, further, that although originally mulgeni tenants were not restricted by the terms of their leases from alienation, the practice had grown up - how soon it does not appear, but at any rate by the beginning of the present century - of leasing the land in perpetuity at a fixed rent coupled with such and other restrictions."

It would thus appear that even a mulgeni tenant was not placed on any higher footing than a tenant in perpetuity. As has been pointed out by Gajendragadkar, J., in his judgment in LaxmanGopal v. Vishnu Raghoba, 53 Bom LR 315, the judgment of this Court in Vyankatraya v. Shivrambhat did not regard the mulgenis as sub-proprietors of the land. The learned Judge has pointed out that

"if they had been treated as sub-proprietors of the lands in their possession, the clause prohibiting alienation of their rights would clearly have been held to be invalid." In that judgment the learned Judge has reviewed all subsequent authorities of this Court in Narayan v. Shri Ramchandra, 27 Bom 373; Narayan v. Nagappa, 12 Bom LR 831 and Ganpati v. Nagabhatta, 22 Bom LR 118 :

"In all these cases whenever a dispute arose between a mulgeni and a mulvargdar, and when the matter came to

this Court, the Mulgenis have always been described as permanent tenants."

The learned Judge has also referred to the two decisions of the Madras High Court in Unhamma Devi v. Vaikunta Hegde 17 Mad 218 and Vidyapurna Thirthaswami v. Uggannu, 34 Mad 231, and has pointed out that even in Madras, the mulgenia were treated as no better than permanent tenants and he has concluded with the following words :

"But whatever may be the position in Madras there can be no doubt that this Court has consistently taken the view since 1875 that the mulgeuis are not proprietors but are permanent tenants."

This decision of Gajendragadka, J., was cited with approval in a judgment of a Division Bench of this Court in Madhav Anant v. Annappa Ganapayya, C. R. A. No. 120 of 1950 (Bom.). Referring to the observations of Gajendragadkar, J., Bhagwati, J., in delivering the judgment of the Bench stated :

"We see no reason to differ from the conclusion which the learned Judge has reached, and we are, therefore, of the opinion that this position does not avail the applicant."

In that case also, it was contended that the mulgenidar was not a tenant, firstly because he did not come within the definition of a tenant contained in S.24, Bombay Tenancy Act, 1939, and, secondly, because he was a sub-proprietor of the land and not a tenant. The learned Judges were not disposed to accept this submission and approved of the view taken by Gajendragadkar, J., in his judgment to which I have already made a reference.

11. The plaintiffs have asked, and the lower Court has granted, a prohibitory injunction restraining the defendants from cutting the trees in the suit property. The injunction which has been granted draws no distinction whatever between the various kinds of trees with respect to which the rights of the tenants are to be determined, and as such we think that the injunction which has been granted is much too wide in its terms. Secondly, we are extremely doubtful whether this is a case in which an injunction should be granted. There is no clear evidence before us that the defendants have cut any trees which they had no right to cut. The panchnama, Ex. 25, refers to the cutting down of some 66 trees, some of which are possibly timber trees. But the plaintiffs have put in a purshis which appears to show that only 16 trees were cut by the defendants. See Ex- 19. It is not altogether clear whether these 16 trees which, according to the plaintiffs have been out by the defendants, include any trees which should not have been cut by the defendants on the ground that they were timber trees. If the trees which have been cut by the defendants were those planted by them or if they were non-timber trees spontaneously grown on the land, then obviously there is no case for granting an injunction, and the defendants would be entitled to cut the trees. In the absence of any evidence on the point, which the plaintiffs were bound to adduce to support their prayer for an injunction, the plaintiffs' prayer for an injunction must be rejected and they will, therefore, be entitled only to declarations.

12. We, therefore, set aside the decree of the lower Court and grant a declaration to the following effect :

(1) The plaintiffs are entitled to all timber trees which were in existence at the time of the grant and the defendants are not entitled to out them. The defendants are entitled to the produce of the non-timber trees in existence at the date of the grant, and the defendants are not entitled to cut them.

(2) The plaintiffs are not entitled to any of the timber or non-timber trees planted by the defendants' mulgenidars after the date of the grant and the defendants are entitled to cut them and to put them to any other use as they please.

(3) With regard to the trees which have grown spontaneously after the date of the grant, the plaintiffs are entitled to the timber trees and the defendants are not entitled to cut them. The defendants are entitled to non-timber trees which they may cut or put to any other use as they please.

13. In view of the circumstance that each party has succeeded only partially, we direct that the parties should bear their own costs throughout.

Order Accordingly