JUDGMENT

1. The plaintiffs are occupancy tenants of the defendant zemindar and combined together to bring a declaratory suit on the basis of a common right which they claimed, that the zemindar was not entitled to cut kikar trees standing on their occupancy land. They did not claim ownership of the trees. What they claimed was that so long as their occupation of the land lasted and they were not ejected from the land, the zemindar was not entitled to come on to their occupancy land and get the trees cut. The declaration desired was in these terms.

2. "A decree may be passed by the Court and it may be declared that the defendant zemindar had no right to sell any trees standing on the boundary walls appertaining to or situate in the plaintiffs' occupancy holding or to get it cut so long as the relation of zemindar and tenant subsisted between them, without the permission and consent of the occupancy tenants." A perpetual injunction was desired in the same terms.

3. The defence was that it was the recognised right of the zemindar to cut trees growing on land held by the zemindar's tenants as of occupancy holdings. The question, therefore, is whether such a right existed. The lower Appellate Court was not correct in stating in his judgment that the defendant zemindar in his written statement pleaded any local usage authorising him to cut or sell trees on occupancy holdings without the consent of the tenants. The defence was based on general law and not on any exception to that law under a custom recorded in the wajib-ul-arz or to be proved orally.

4. I do not think that a zemindar has any such right as is claimed on his behalf in this appeal. It is true that the zemindar himself and not the tenants is owner of trees growing on occupancy land but the right claimed by the zemindar in this case in somewhat different. The right is not put forward to fallen branches or to wood or trees cut down by the tenant. What is claimed is the zemindar's right to go on to the tenant's land and cut down the trees growing on land let to the tenant, wherever the zemindar liked. The Bench ruling of this Court in Kausalia v. Gulab Kuar 21 A. 297 : A.W.N. (1899) 72 : 9 Ind. Dec. (n. s.) 898. is not in point. There the general law is enunciated so far that property in trees growing on a tenant's holding was vested in the zemindar and that a tenant was not entitled in the absence of a special custom, the burden of proving which was on him, to cut down and sell such trees. No corresponding right of the zemindar to cut down such trees without the tenant's permission or consent was enunciated there. In a later ruling of Ganga Dei v. Badam 30 A. 134 : 5 A.L.J. 99 : 3 M.L.T. 194 : A.W.N. (1908) 51., the question in issue in the present appeal came up for consideration. There it was held that so long as the tenancy lasted the zemindar though owner of the tree standing on the occupancy land was not entitled to have it cut and removed because the tree also must be considered to be included in the occupancy holding and the enjoyment thereof was vested m the tenant so long as the tenancy lasted. Their Lordships observed.

"But it appears to us to be clear that in the absence of custom or of a contract to the contrary a zemindar has no right to interfere with the enjoyment by his tenant of the trees upon his holding as long as the relation of landlord and tenant subsists. A tenant has a right to enjoy all the benefits of the growing timber on his land during his occupancy. If the zemindar desires to have the privilege during a tenancy of entering upon his tenants, holding and cutting down and removing timber he must procure a special stipulation from his tenant in that behalf.

"In the case of Sheik Abdool Rohoman v. Dalaram Bashee W.R. 1864. 367. the learned Judges laid down that while a zemindar has a right in the trees which the Court should maintain, the tenant has a right to enjoy all the benefits that the growing timber may afford him during his occupancy, but has no