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HIGH COURT OF BOMBAY
RAJADHYAKSHA, DIXIT, JJ.
Ganesh Subraya
Versus
Hanmant Vithoba
Second Appeal No. 398 of 1948,
Decided On : 05-03-1951
MULGENI LEASE - RIGHTS OF TENANTS - TREES ON LEASED LAND - TIMBER AND NON-TIMBER TREES - SPONTANEOUS GROWTH - INTERPRETATION OF S. 108 (O), T. P. ACT - DISTINCTION BETWEEN TIMBER AND NON-TIMBER TREES - RIGHTS OF TENANTS WITH RESPECT TO EACH CATEGORY - DECLARATION GRANTED.
Fact of the Case:
Plaintiffs, joint owners of Survey No. 128/1, leased their undivided share to the defendants' family under a mulgeni lease. A dispute arose when the defendants cut some trees on the land. The plaintiffs filed a suit seeking a declaration that the defendants had no right to cut the trees and an injunction restraining them from doing so.
Finding of the Court:
The trial court and the lower appellate court found that the defendants had no right to cut any trees on the land, whether timber or non-timber, as they were co-owners of the land and the plaintiffs' undivided share had been leased to them. The defendants appealed to the High Court.
Issues: 1. Whether the defendants, as mulgenidars, had the right to cut the trees on the leased land? 2. Whether there was a distinction between timber and non-timber trees with respect to the rights of the tenants?
Ratio Decidendi: 1. The rights of the defendants as mulgenidars were governed by the provisions of S. 108 (o), T. P. Act, which distinguished between timber and non-timber trees. The defendants were not entitled to fell or sell timber trees belonging to the lessor, but they could use the demised property and its products as a person of ordinary prudence would use them. 2. With respect to the trees which were standing at the time of the grant of the lease, the defendants were not entitled to fell or sell timber trees, but they were 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. 3. With respect to the spontaneous growth after the grant of the lease, a distinction had to be drawn between timber and non-timber trees. The defendants were not entitled to cut timber trees, but they were entitled to cut non-timber trees or put them to any other use as they pleased.
Final Decision: The High Court set aside the decree of the lower court and granted a declaration to the effect that: (1) The plaintiffs were entitled to all timber trees which were in existence at the time of the grant and the defendants were not entitled to cut them. The defendants were entitled to the produce of the non-timber trees in existence at the date of the grant, and the defendants were not entitled to cut them. (2) The plaintiffs were 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 were 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 were entitled to the timber trees and the defendants were not entitled to cut them. The defendants were entitled to non-timber trees which they may cut or put to any other use as they please.
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
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