Dulhin Phulkuar vs Titan Singh and Others

James, J.—In the Record-of-Rights of mauja Bhojepur in Gaya district there is an entry to the effect that the raiyats of the village are jointly in possession of the trees standing on their own holdings and on waste land in the village. The proprietors instituted this suit for a declaration of title to the trees and for recovery of possession. The Subordinate Judge considering that the revenue officers had no authority under Ch. 10, Bengal Tenancy Act to record rights in trees other than those standing on the raiyats'' holdings decreed the suit in part; but on appeal the District Judge found that the defendants were entitled to the benefit of the presumption u/s 103-B, Ben. Ten, Act, which had not been rebutted, and so he allowed the appeal and dismissed the suit. The entry in the Record-of-Rights is of an unusual nature. The raiyats by their written statement attempted to explain it by saying that they had at one time held the milkiat of this village as peasant proprietors but that when they had transferred the milkiat they had remained on the land as raiyats, and had retained for themselves the rights of the trees of the village which they had formerly enjoyed when they were proprietors.

It has been found that the defendants failed to prove the specific contract by which at the time of the transfer of the milkiat the rights of the trees were reserved; but unless the entry in the Record-of-Rights was otherwise rebutted by evidence, it was not necessary for the defendants to justify it.

Mr. Sarjoo Prasad on behalf of the appellants argues that the presumption, u/s 103-B, Ben. Ten. Act, ought not to be applied in the present case because Section 102, Ben. Ten. Act, makes no mention of rights in trees, and he suggests further that although the rights in trees standing on a raiyat''s own land might be treated as an incident of his tenancy, such rights cannot be so regarded in respect of trees standing on waste land of the village. Now for the general argument, as Mr. P.R. Das points out on behalf of the respondents, it ought in the first place to have been proved as a fact that the Government Notification was in such a form as not to empower the revenue officer to record rights in trees.

The argument is based on the assumption that the notification which initiated the survey and settlement proceedings specified all the particulars contained in Section 102, Ben. Ten. Act, and no other; but the form of the notification ought to have been proved before any argument could be based on the assumption that the revenue officer was not empowered to record these rights, which are essentially rights of an agrarian character, being rights to hold free of rent what would otherwise be liable to be assessed to rent which u/s 193, Ben. Ten. Act, would be recoverable under the Act in the same way as agricultural rent.

On the assumption that the notification contained all the particulars specified in Section 102, Ben. Ten, Act and no other, Mr. Sarjoo Prasad argues that since under the general law the landlord is the proprietor of trees standing on the waste land of the village, the entry in the Record-of-Rights of a right at variance with this general law, cannot carry with it the statutory presumption u/s 103-B, Ben. Ten. Act, citing the decisions in Raghubir Misser and Others Vs. Bhajan Singh and Others, and Suresh Chandra v. Sitaram Singh AIR 1920 Pat 458. But in the later case of Bishun Pragash Narain Singh v. Seosaran Teli AIR 1922 Pat 497, which was followed in Shakrullah v. Budhraj Misser, AIR 1929 Pat 657, it was held that the provisions of Section 103-B, Ben. Ten. Act, applied to entries in the Record-of-Rights respecting trees as an incident of tenancy and that the presumption was not rebutted merely from the fact that the ordinary law would give the right in trees to the landlord.

Mr. Sarjoo Prasad suggests that in the cases cited the trees were standing on the tenant''s own land and that the entries relating to such trees are to be distinguished from entries relating to trees which do not stand on the raiyats'' holdings. But if the raiyat as an incident of his tenancy has a light to share in all the trees in the village, there appears to be no logical reason why the revenue officer should not record this incident if he is to record as incident of the tenancy the raiyats'' right in the timber on his own land. The learned District Judge rightly applied the presumption u/s 103-B in this case and as the evidence adduced on behalf of the plaintiff was in his view insufficient to rebut that presumption he rightly dismissed the suit. This appeal must be dismissed with costs.

Fazl Ali, J.

I agree.