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HIGH COURT OF ALLAHBAD
BRIJ MOHAN LALL, NASIRULLAH BEG, JJ.
District Board
Versus
Churhu Rai
Second Appeals Nos. 257 of 1946 and 2127 of 1945
Decided On : 27-02-1956
DISTRICT BOARDS ACT - SECTION 192 - LIMITATION - NOTICE - WAIVER - COMPENSATION - DECLARATION - TREES - STANDING TIMBER - IMMOVABLE PROPERTY - DISTRICT BOARDS ACT - SECTION 4(23) - GENERAL CLAUSES ACT - SECTION 4(29) - TRANSFER OF PROPERTY ACT - REGISTRATION ACT - INTENTION OF PARTIES - CUTTING AND REMOVAL OF TREES - NOTICE DEFECTIVE - AMOUNT OF COMPENSATION NOT MENTIONED - WAIVER OF NOTICE BY DISTRICT BOARD - CLAIM FOR COMPENSATION NOT BARRED - CLAIM FOR DECLARATION TIME BARRED - RELIEF FOR INJUNCTION REFUSED - COSTS.
Fact of the Case:
Plaintiff-respondent Ghurahu Rai obtained a Sanad from the District Board of Banaras in 1905 in respect of 32 trees. In 1922, he again applied for a similar Sanad in respect of 24 more trees but was denied permission. In 1934, he succeeded in obtaining a fresh Sanad in respect of 56 trees, including the 32 trees of 1905. The District Board later repudiated the Sanad and passed a resolution cancelling it. The District Board sanctioned a scheme to widen the road on which the trees were situate, necessitating their cutting. The respondent claimed title to cut the trees, but Smt. Ram Dasi, the appellant in the connected appeal, claimed ownership of 8 Sheesham and 2 mango trees, contending they were not on the road itself. The District Board also denied the respondent's title to the trees. The respondent filed a suit for declaration of his title to the trees, injunction restraining the District Board from interfering with his possession, and damages for trees already cut and sold by the Board.
Finding of the Court:
The court held that the trees were standing timber and were excluded from the definition of immovable property. A suit for a declaration of title to these trees was, therefore, governed by the six-month rule of limitation laid down in Art. 192(3) of the District Boards Act. The suit was instituted more than eight months after the accrual of the cause of action and was, therefore, time-barred. The claim for compensation was within time as it was instituted within six months from the accrual of the cause of action. The notice given by the respondent to the District Board was defective as it was a conditional notice given before the accrual of the cause of action and did not mention the amount of compensation claimed. However, the District Board waived the notice by not pressing the plea of defect in notice in the trial court, not taking any defence based on the defective nature of the notice in the memorandum of appeal, and not raising this plea in the memorandum of appeal preferred in this Court. The claim for compensation was not barred by the absence of notice as the District Board had waived its right to the notice. The claim for a declaration was time-barred, but the claim for compensation could still be decreed as the right to sue for compensation was not extinguished, unlike the right to claim possession of immovable property, which is extinguished by virtue of S. 28 of the Limitation Act. The claim for injunction was refused as it would stand in the way of widening the road.
Issues: 1. Whether the suit for declaration was barred by limitation? 2. Whether the suit for compensation was barred by limitation? 3. Whether the notice given by the respondent to the District Board was defective? 4. Whether the District Board waived the notice? 5. Whether the claim for compensation was barred by the absence of notice? 6. Whether the claim for a declaration was time-barred, but the claim for compensation could still be decreed?
Ratio Decidendi: 1. The suit for declaration was barred by limitation as it was instituted more than eight months after the accrual of the cause of action and was, therefore, time-barred under Art. 192(3) of the District Boards Act. 2. The suit for compensation was within time as it was instituted within six months from the accrual of the cause of action. 3. The notice given by the respondent to the District Board was defective as it was a conditional notice given before the accrual of the cause of action and did not mention the amount of compensation claimed. 4. The District Board waived the notice by not pressing the plea of defect in notice in the trial court, not taking any defence based on the defective nature of the notice in the memorandum of appeal, and not raising this plea in the memorandum of appeal preferred in this Court. 5. The claim for compensation was not barred by the absence of notice as the District Board had waived its right to the notice. 6. The claim for a declaration was time-barred, but the claim for compensation could still be decreed as the right to sue for compensation was not extinguished, unlike the right to claim possession of immovable property, which is extinguished by virtue of S. 28 of the Limitation Act.
Final Decision: The District Board's appeal was allowed in part, and the respondent's suit for declaration was dismissed. The claim for Rs. 650/- for compensation was decreed, and the rest of the claim was dismissed. The parties were directed to bear their own costs throughout. As between Smt. Ram Dasi and the respondents, the suit was decreed for a declaration of title to the trees but dismissed in respect of compensation. The parties were also directed to bear their own costs throughout.
BRIJ MOHAN LALL, J. :- This and the connected second appeal No. 2127 of 1945 are defendantsappeals against the appellate decree of the learned Civil Judge of Banaras. The latter disposed of by his judgment, three appeals pending before him thereby decreeing the plaintiff-respondents suit in toto.
2. It appears that the U.P. Government has sanctioned a scheme for planting trees by the roadsides in district board areas. Some trees are planted by the district boards themselves while permission is given sometimes to private individuals also to plant trees on the roadsides. The scheme contemplates that persons desirous of planting trees should obtain written consent of the district board, should tend and look alter the trees while they are young and protect them against frost and depredation by cattle during, their growth. After the trees are grown up a Sanad is issued to the planters recognising their title to the said trees.
3. Ghurahu Rai, plaintiff-respondent, obtained a Sanad of the aforesaid nature from the District Board of Banaras in 1905 in respect of 32 trees. In 1922 he again applied for a similar Sanad in respect of 24 more trees. He was asked to producethe written permission of the Board for planting, those trees but he failed to do so and his application was rejected. He made a similar attempt in 1923 also which met the same fate.
In 1934, however, he succeeded in obtaining a fresh Sanad in respect of 56 trees. This number included 32 trees of 1905. In other words, this. Sanad was granted in respect of 24 new trees. At that time Mr. Tondarmal was the Chairman of the District Board. After he vacated the office his successor repudiated the Sanad and, we are informed, a resolution was also passed at a certain stage cancelling the Sanad.
4. Some time after 1940 the District Board of Banaras sanctioned the scheme to widen the Chandauli Sakaldiha, Hasanpur Road on which the trees which form the subject matter of this litigation are situate. The widening of the road necessitated the cutting of the trees. The respondent claimed title to cut the trees. But Smt. Ram Dasi, the appellant in the connected appeal, appeared on the scene and laid claim to 8 Sheesham and 2 mango trees. She is the zamindar through whose Zamindari the road in question passes. Her contention was that the trees which she claimed were not on the road itself but were within her Zamindari, and as such she owned them.
5. The Board also, which had for some time past been disputing the respondents title based on the Sanad of 1934, denied the respondents rights to cut the trees. Enquiries were made once by the Secretary and again by the Senior Vice Chairman. The respondent addressed a petition to the Commissioner and the latter sent, at one stage, a letter to the District Board from which it appears that he supported the respondents claim. But what, passed afterwards between the Board and the Commissioner does not appear from the record.
There is, however, a copy of a communication addressed by the Additional District Magistrate communicating the Commissioners decision, viz., that the respondent should get his title established by the court if he wanted to claim the trees. This communication is dated 8-12-1942 and was received by the respondent on 13-12-1942. The respondent addressed a notice to the District Board of Banaras on 20-2-1942 and the suit was instituted on 18-8-1943. It may, however, be pointed out that the respondent had previously cut, with the Boards, permission, as many as 17 trees from time to time.
Thus there remained only 39 trees in respect of which his right was in dispute.
6. The reliefs which he sought were : (a) declaration that he was the planter and the owner of the trees in question, and (b) an injunction restraining the District Board from Interfering with his possession. It was also prayed that in case he was found to be out of possession, he might be awarded possession also, (c) Damages were claimed to the extent of Rs. 650/- in r
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