Darsan Das vs Lakshman Prasad and Others

Ray, J.—This is a plaintiff''s second appeal in a suit for recovery of damages being his half share of the price of timber, cut down and appropriated from a nakdi occupancy holding in possession of the defendants. The plaintiff based his claim on what he calls a well-established, local custom giving him right to half the price of timber of any tree standing on the tenancy lands in Subhankarpur (the village in which the disputed holding lies). The defendants resisted the suit on the ground that it being a cash paying holding, they are entitled to cut and appropriste the entire timber of the trees standing on the land. They admit having cut only 100 trees and sold them for Rs. 600. In short, the defendants seek to vindicate their right on the basis of the provisions of Section 23A, Bihar Tenancy Act. Beth the Courts below have dismissed the plaintiff''s suit. The trial Court recorded a finding in favour of the plaintiff''s alleged custom. The custom, however, according to. Section 23A is of no avail being inconsistent with the law promulgated therein.

Mr. Lalnarayan Sinha appearing for the appellant has based his case on the proviso to Section 23A of the Act and a decision of the civil Court upholding the landlord''s claim to half the price of the timber of trees cut down and appropristed by the tenants in nakdi holdings in this village in suits instituted by the plaintiffs against certain other tenants in relation to certain other holdings in the same locality. The proviso reads:

Provided that if there is a specific entry in the latest record of rights regarding any tree which was standing on any land specified in Clause (a) before the date of the final publication of such record of rights, the rights of the landlord and the raiyat in the timber of such tree shall be in accordance with such entry with any decision of a civil Court affecting such entry.

The question arises whether there is any specific entry in respect of the holding in question. The Khatisn of the disputed holding is on record. In, the remarks column of the khatisn, after mentioning the number and kind of trees, it is stated "bakabje raiyat." This phrase simply means possession of the raiyat. There is no definition of the respective rights of the landlord vis a vis the tenant with regard to the timber of the trees; but this phrase cannot be intended to have been inserted simply to indicate possession of the raiyat. Taken in that sense it would be merely a redundant entry. As the holding was in possession of the tenant, necessarily the trees standing on it should be in his possession. The law, as it stood at the time of the entry, would give the tenant untrammelled right to the produce of the land including that of the trees standing thereon. Some meaning bearing upon the rights of the parties to the timber must have been intended to'' be conveyed by the term. The entry, therefore, can be interpreted in the light of the village notes according to which the tenant is entitled to cut and appropriste the entire timber of the trees standing on nakdi holdings. It is clear, therefore, that "bakabje raiyat" in this entry means that the tenant is entitled to appropriste the timber and the landlord has no share in it.

Mr. Jha wanted to argue that this cannot be said to be a specific entry within the meaning of the proviso inasmuch as it docs not record the rights of the landlord and tenant in the timher. I, however, overrule this contention and hold that the present is a case of a specific entry in the record of rights. Village notes may not be record of rights by themselves, but they are autheritative rocords prepared by public servants in discharge of public duties and they certainly can be used for the purpose of interpretation of entries in the record of rights. In this view, I hold with Mr. Lalnarayan Sinha that the case is governed by the proviso. But to what effect? If the entry stands alone, it gives the entire timber to the tenants. So, reservation, if any, as against a statutory. provision giving the tenants the lull right to the timbers of the trees is in their favour. The appellant, however, contends that the civil Court decision, already referred to, affects the entry, his submission being not as was contended in the Court of appeal below that they were res judicata between the parties but that the judgments in these cases were evidence of a conclusive character as to the custom u/s 42, Evidence Act, and that thus all the entries in all nakdi holdings in the village are affected by these judgments which declare that the local custom should overrule the settlement entries. This contention no doubt carries great force but does not appear to be very convincing.

A specific entry in the record of rights may owe its origin to a contract as between the parties, particularly where the record is against the local custom. Notwithstanding a local custom to the contrary, landlords and tenants as between themselves during the subsistence of the tenancy or at its inception may agree to a particular mode of enjoyment of the trees on the holding and the right to timber thereof. Every specific entry in the record of rights has a presumptive value. "Bakabje raiyat" explained in the ''light of the village notes gives the full right in the timber to the tenants. This entry is to be presumed to be correct till rebutted Mere proof of local custom may or may not rebut it. In the cases m which the decisions have been arrived at, the tenant-defendants might not have set up a case of contract or arrangement as between the landlord and tenant contrary to the local custom. In this view of the matter, it cannot be said that these judgments even though they are adequate evidence of local custom do affect every specific entry in the village recorded in respect of the holdings other than the holdings in dispute in these cases. In answer to my observation to this, effect in course of the argument Mr. Kailash Ray giving the reply in the absence of Mr. Lalnarayan Sinha said that the tenants had not set up a contractual right in their defence. This argument is completely fallacious. The tenant relies upon Section 23Aof the Act which gives him the full right. It is for the landlord to show that there is a civil Court decision which affects the holding in relation to the respective rights of the landlord and tenant over the timber of the trees standing thereon. To meet this position, the plaintiff adduced in evidence the judgments declaring the local custom.

As I have already shown mere declaration of the local custom in a judgment of a suit or suits in relation to certain entries would not necessarily affect other entries which might have been based upon special contract. The tenant''s case is well established when he can show that there is no civil Court decision affecting the entry in question. In this contention emphasis is laid upon the word "specific." The word "specific" is used as an epithet to the word "entry." The civil Court decision might have affected entries in general by declaring a local custom but cannot be said to affect a specific entry. The plaintiff-landlord, therefore, has failed to discharge the burden that lay upon him.

Mr. Jha wanted to argue that a specific entry contemplated in the proviso must be an entry in favour of the landlord. This argument cannot hold good. At the time when the records of rights were published, the general law gave the landlords full right to the timber, and, therefore, if any entry was to be made, it was to indicate the tenant''s rights, if any.

In this view of the matter, I would dismiss the appeal with costs.