Damodar Jha vs Baldeo Prasad

Jwala Prasad, J.—This is a civil revision arising out of a decision of the Subordinate Judge of Darbhanga, exercising powers of a Small Cause Court Judge, dated 11th January 1929. The defendant is the applicant before us. He is cosharer with the plaintiff in mouza Atihar and both the parties have separate takhtan. The defendant has certain lands in the plaintiff''s patti both nagdi and bhaoli.

The plaintiff instituted the suit out of which this revision has arisen to recover price of the bamboos said to have been cut and taken away by the defendant as tenant of the plaintiff without his permission from the plots of land mentioned in the plaint. In the plaint it was stated that the defendant cut away in 1333 three hundred and five bamboos and in 1334 four hundred and fifty bamboos from different plots of his. It was state that timber of the trees on the nagdi land exclusively belonged to the plaintiff, and half the timber of the trees cut from the bhaoli land belonged to him and the other half to the defendant; and that the defendant did not give the plaintiff his share of the timber cut in the aforesaid years and appropriated the entire timber to himself.

The defendant denied having cut the trees in question in the years in suit, stating that he had cut bamboos years ago and since then he had no occasion to cut and that most of the bamboo clumps had dried up. He admitted the plaintiff''s right to take half of the bamboos cut from the bhaoli plots, but denied the plaintiff''s right to appropriate the entire timber of the trees cut from the nagdi land.

A pleader commissioner was deputed to the land for the purpose of ascertaining what number of bamboos, if any were cut and taken away by the defendant, and he reported that 312 bamboos were cut in 1333 and 299 in 1334, out of which 89 in the former year, 74 in the latter year were cut from the bhaoli plots.

According to the report 163 bamboos were cut from the bhaoli lands and 438 from the nagdi. The Barahil witness for the plaintiff stated that 410 bamboos were cut in the years in suit from the bhaoli lands. He did not say how many bamboos were cut from the nagdi lands, but from the total of the bamboos stated by him to have been out, namely, 785 bamboos, it can be inferred that 375 were cut from the nagdi lands.

The Court below accepted the statement of the Barahil that 412 bamboos were cut from the bhaoli lands, in which the share of the plaintiff and the defendant was half and half, that is 205 each. He rejected the plaintiff''s case as well as the statement of his Barahil witness as to the total number of bamboos cut. The learned Subordinate Judge does not say so; but apparently he accepted the total quantity of bamboos cut as stated by the commissioner, namely 601, and deducting there from the bamboos cut from the bhaoli land, namely 410, as stated by the Barahil witness, he finds that 201 bamboos were cut from the nagdi lands a figure which. does not tally either with the statement made in the plaint or in the evidence of the plaintiff''s witness, or in the report of the commissioner, but it is less than any of those figures. Upon this finding that Court below holds that the plaintiffs entitled to the price of 205 bamboos cut from the bhaoli lands and 201 cut from the nakdi lands, namely 406 bamboos, and has allowed the plaintiff price for the same at the rate of four bamboos for a rupee, namely, Rs. 101-8-0 in all as the price of the bamboos cut by the defendant.

As regards the customary right claimed by the defendant that the landlord is not entitled to the timber of the trees standing on the nagdi lands, the learned Subordinate Judge rejected the plea, holding that the said right was not proved. The defendant being aggrieved by the decision of the Small Cause Court Judge has come to this Court in reivison and disputes the finding of the Court below on both the points, namely, as to the quantity of bamboos to which the plaintiff is entitled and the right of the plaintiff to appropriate the entire timber of the trees cut from the nagdi lands. This is a second time that the. case has come to this Court in revision and on the first occasion also the Subordinate Judge had given a decree to the plaintiff for Rs. 100 holding that about 400 bamboos were appropriated by the defendant which was the share of the plaintiff. At that time also the Subordinate Judge had held that the customary right of appropriating the entire timber of the trees standing on the nagdi lands set up by the defendant was not established.

The case was remanded, because the Subordinate Judge did not clearly show how he had arrived at the figure in respect of the number of bamboos cut by the defendants of which the plaintiff was entitled and also because he had not referred to, any evidence on which he ''found that the custom urged by the defendant was not proved. The decision of the Subordinate Judge on remand, though it is clearer than that on the first occasion, yet it is not clear enough on both these points as: it ought to have been. As to the first point he says:

there is clear evidence whether the total number of bamboos, 611, was taKen from nakdi land alone. On the evidence I am disposed to hold that it was taken both from nagdi and bhaoli lands. 80 defendant is entitled to a remission of 205 bamboos and his shara out of the total figure of 611 bamboos. So I find that defendant has taken 406 bamboos in excess of his share for which ha is liable to pay compensation 60 the plaintiff.

Working it out arithmetically one can find that the learned Subordinate Judge moans that, the bamboos out'' from the nagdi lands were 201 in number, by deducting 410 bamboos stated by the Barahil witness to have been out froth the bhaoli lands from the figure 611 as the total quantity of bamboos stated.in the commissioner''s report to have been out from the defendant''s holding. The commissioner''s report itself does not agree with the figure of the bamboos cut from the nagdi lands as found by the learned Subordinate Judge. The pleading and the proof offered by the plaintiff does not also give exactly that figure. But as the number 201 happens to be less than the number of bamboos stated by the commissioner to have been cut from the nagdi lands; as well as than that stated by the plaintiff and his witness, this figure may be accepted as being in favour of the defendant and in order to avoid further remand which would be harassing and ruinous to the parties.

As regards the second point, namely the finding of the Subordinate Judge upon the ''customary right pleaded" by the defendant'' of appropriating the entire timber which is standing on the tenant''s nagdi land as also up on the objection inasmuch as the finding'' is based entirely upon the admission of the defendant in his evidence that he had himself instituted a suit against a tenant of his, namely Hit Lal, for the price of timber in respect of the nakdi lands and got a decree. This solitary statement is to my mind not sufficient'' upon the question of the custom pleaded by the defendant one way or the other. The pleading and the judgment of that'' case was not filed in the Court below. After remand by this Court the learned Subordinate Judge fixed the: case for hearing, directing the parties to come ready with heir evidence and witnesses fixing. 14th December 1928. On that date the defendant filed a copy of the khatian in respect of the plots in question. After some adjournment the case was decided without any evidence being given by the parries on the evidence already on the record. The khatian filed by the defendant was returned to the pleader on 11th January 1929, without being tendered in evidence. The learned advocate on behalf of the defendant has urged that this document was not received in evidence by the Subordinate Judge and was rejected without any ground. There is no substance in this contention. It is not borne out by anything on the record. There is no endorsement either On the list of the documents and no mention of it in the order sheet.

It seems to me that the defendant for some reason or other took back this document without tendering it in evidence. After the appeal was filed in this Court the defendant put in a petition stating that the village note of the Survey and Settlement Record-of-Right shows that there is a custom in the village according to which the tenants appropriate the timber of the entire trees standing on the nagdi lands and that the landlord gets nothing. It was stated that the defendant had no knowledge of it and came to know of it only a few days after the appeal was filed in. this Court. The plaintiff wants'' to file the plaint and the judgment of the suit instituted by the plaintiff against his tenant Hit Lal for the price of timber in respect of the nagdi lands. The village note no doubt supports the defendant''s case that there is a custom in the village of the tenants appropriating the entire timber of the trees standing on their nagdi lands. Both parties therefore have not given as the evidence that they want to give on this point and in view of the importance of the question relating to the custom governing the rights of the tenants and the landlord in the entire village, I would leave the question open to be agitated and determined in a subsequent suit, if any, between the parties. This appears to me to be the better course than remanding the case for the-fresh evidence and decision, which, would involve the parties in heavy expense.

It may be mentioned that the learned advocate on behalf of the defendant also raised the question that the jurisdiction of the Small Cause Court Judge to try the suit is barred by Art. 35(ii), Prov. Sm. G.C. Act (Act 9 of 1887), and reliance has been placed upon the decision in the case of Ram Prasad Parmanik v. Sriaharan Mandal [1918] 41 I.C. 276. In that case Mukherjee, J., held that a suit for compensation for wrongfully cutting a tree grown, and misappropriating crops raised by the plaintiff on his land is excepted from the cognizance of a Oourt of Small Causes by Article 35, Sub-clause (ii), Schedule 2, Prov. Sm. C.C. Act, and that the jurisdiction in a Small Cause Court to try such a suit cannot be created by waiver or consent. There is a conflict of decisions on this point. The same Court (the Calcutta High Court) latterly in the case of Mirza Dilbar Hossain v. Sadaruddin Ghoudhury AIR 1923 Cal. 568 took a contrary view in a case similar in nature to that decided by Mukherjee J., vide also the case of Radha Ballabh Guha Vs. Panchkari Sil and Another, .

This is a case very similar to the present one, inasmuch as in the aforesaid two oases the plaintiff claimed compensation for the trees cut by the defendant standing on the plaintiff''s own land, whereas in the case of Radha Ballabh Guha Vs. Panchkari Sil and Another, , as well as in the present case, the defendant was the plaintiff''s tenant and the plaintiff in his plaint alleged that the defendant had as such tenant no right to cub and appropriate any tree without the permission of the plaintiff either under the local custom or under the law and he had wrongfully and illegally cut away the trees in question and was liable to pay compensation. I mention this distinction purposely. Article 35(ii), Prov. Sm. C.C. Act, bars the jurisdiction of the Small Cause Court to try a suit for compensation for an act which is, or save for the provisions of Chap. 4, I.P.C. would be, an offence punishable under Chap. 17 of the same Code.

Now when upon the case laid down in the plaint it is clear beyond any shadow of doubt that the defendant had committed an offence punishable under Chap. 17, I.P.C., the jurisdiction of the Small Cause Court to try such a suit is barred; but where upon the facts stated in the plaint the case against the defendant is wrongful or illegal but not necessarily penal so as to bring him within the purview of the Indian Penal Code, the jurisdiction of the Small Cause Court is not at all barred. In short and without referring to the other circumstances, if upon the plaint a question of a bona fide claim on behalf of the defendant is obvious, Art, 35 (ii) will have no application. Now that right of a landlord and tenant in respect of trees is often a disputed right depending in some cases upon the statutory provisions and in others upon custom.

The tenant has, as in this case, possession of the land upon which the trees stand and all the trees themselves, and is entitled as of right to appropriate the fruits thereof. It may be noted here that in the present case the Record-of-Rights entered the defendant as in possession of the trees and the fruits thereof: in some instances the entire and in others to the extent of half. A criminal case for misappropriation, theft or mischief could easily be defeated by the defendant urging that he had a right to appropriate the entire timber standing on his holding either under the law or custom, and in the written statement filed in this case the defendant dide raise such questions and claimed the right to appropriate the entire timber standing on the nagdi lands. Therefore Article 35(ii) did not bar the cognizance of the Small Cause Court in respect of the suit in question: vide also Raghubar Dayal and Others Vs. Mulwa and Others, and Shiv Gir v. Khazan Gir AIR 1922 Lah. 451 . A contrary view is to be found in the case of Deoki Rai Vs. Harakh Narain Lal . In the view that I have taken the contrary view expressed in the case of Deoki Rai Vs. Harakh Narain Lal and other cases need not be referred to in detail. It may be mentioned that this point was not taken at any stage either in the Court below or in this Court when the case wag remanded and it has for the first time been taken now. There is to my mind no substance in this contention and it must be overruled.

In the result I would affirm the decision of the Subordinate Judge in so far as it has decreed the plaintiff''s suit for Kg. 101-8-0 as price of the bamboos taken by the defendant, and would leave the question of the customary right of the parties in the trees standing on the tenant''s nagdi lands open. As the plaintiff has principally succeeded I would dismiss the application with costs.

Dhavle, J.

I agree.