Right of tenant to cut and remove trees.

The question in this Second Appeal is whether trees of spontaneous growth on leasehold property belong to the landholder or the tenant.

The facts that give rise to the aforesaid question may be stated. The plaintiff is the owner of the suit land which is a tank bed in an estate. He leased it for a period of five years to defendants 1 and 2 under a deed, dated 22nd August, 1939, for grazing purposes. During the period of tenancy, there was spontaneous growth of babul trees on the land. Nine of thern were cut by the defendants shortly before the filing of the suit. The question is who is the owner of the trees, whether it is. the landholder or the tenant?

Both the Courts found that the said babul trees were of spontaneous growth during the period of the tenancy and that the ownership of the said trees is in the landholder. On these findings a decree for an injunction was granted restraining the defendants from cutting the babul trees and also for recovery of the fuel of the trees cut by him. The defendants preferred the above Second Appeal.

The short question in the appeal is whether the landholder or the tenant is the.owner of trees of spontaneous growth during the period of the tenancy. At the outset, some ground may be cleared to enable me to focus on the point raised, Though the land is situated in an estate, tank bed is excluded from the definition of“ryoti land” under section 3 (16) of the Madras Estates Land Act and therefore the provisions of section 12 of that Act, regulating the ownership of the trees, do not apply. There is also no evidence, much less a finding, that the tenure is otherwise regulated by a contract between the parties or custom obtaining in the locality. Therefore, this is a simple case of conflicting rights between a landholder and a tenant not governed by any statute or custom.

In Woodfall on “Landlord and Tenant,” 25th edition, the following statement of law is found at page 810:

“The property in trees is vested in the owner of the inheritance of the land upon which they grow, for the property in trees, or of that which is likely to become timber, is in the landlord”.

In Ruttonji Edulji Shet v. The Collector of Tanna1, the Judicial Committee held that trees upon the land were part of the lands and the right to cut down and sell them was incidental to the proprietorship of the land. But, in the case of fixtures, there is a divergence of view between Roman Civil Law and English Law. Under the Roman Civil Law, a tenant was entitled to remove all fixtures which he had attached to the leasehold property, where it could be effected without material injury to the property. Under English Law, whatever is affixed to the soil becomes part of it, the rule being relaxed only in respect of certain kinds of tenants’ fixtures and not generally. See Bally gunge Bank Ltd., Calcutta v. Income-Tax Commissioner of Bengal2.

Section 108 clauses (h) (i) and (o) embodied the Roman Law in preference to English law. They read:

“Section 108 (h): The lessee may even after the determination of the lease 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.

(I) (a) When a lease of uncertain duration determines by any means except the fault of the lessee, he or his legal representative is entitled to all the crops planted or sown by the lessee and growing upon the property when the lease determines and to the free ingress and egress to gather and carry them.

(b) The lessee may use the property and its products if any as a person of ordinary prudence would use them if they were his own. But he must not use, or permit another to use the property for’ a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor or work mines or quarries not open when the lease was granted or commit any other act which is destructi