Bidya Prasad Singh and Others vs Surkhur Mahton

James, J.—This appeal arises out of a suit which was instituted for a declaration that a certain tenant in Bosapali in Saran District was entitled to cut and appropriate the timber of trees which grew upon his holding. The suit was dismissed by the Munsif of Siwan, but his decision was reversed on appeal by the District Judge of Saran; and the decision of the District Judge was affirmed in second appeal by Ross, J.

The learned District Judge found that the plaintiff had proved the existence of a custom by which he was entitled to cut and appropriate the timber of his trees and this finding was affirmed in the High Court. Mr. Rajeshwari Prasad argues that the evidence adduced by the plaintiff was not sufficient to justify the finding that a custom of the kind described existed in this village; and he contends that the entry in the Record-of-Rights in favour of the raiyat should not be regarded as being in itself evidence of the existence of the custom, on the ground that it is a settled principle of law that the landlord is entitled to take the timber of trees cut by his tenants.

u/s 23, Ben. Ten. Act, a tenant is not entitled to cut trees in contravention of local custom; but whether the general rule is or is not that the landlord is entitled to the timber, there is nothing in law to prevent the existence of a custom by which the tenants are entitled to the timber of their trees. In the present case evidence which was believed by the learned District Judge was adduced on behalf of the plaintiff to prove that there was such a custom; and this evidence was confirmed by the entry in the Record-of-Rights relating to the plaintiff''s holding, and the entry in the village note regarding the custom in the village as a whole. The entry in the Record-of-Rights which was made u/s 102(h), Ben. Ten. Act, is evidence that as an incident of his tenancy the plaintiff is entitled to appropriate timber of his trees, and Section 103-B of the Act provides that this entry must be presumed to be correct until the contrary is shown. The evidence of custom contained in the village note is admissible u/s 35, Evidence Act; and the question of what weight is to be given to it is for the Court of fact to determine. The matter in appeal before Ross, J., was concluded by the findings of fact of the District Judge; and there is no justification for interference with the learned Judge''s order. The appeal is dismissed with costs.

Courtney-Terrell, C.J.

I agree.