Gaya Dutt Tiwari and Others vs Gopi Mahto and Others

Imam, J.—The petitioners sued the defendants opposite party for recovery of Rs. 85-12-6 as price of mango fruits. According to the petitioners they are 16 annas maliks of khewat No. 1/1 of village Inarpatpur in which plot Nos. 65 and 66 lie. These plots are recorded as gair mazrua am land. According to the petitioners, the defendants or their predecessors planted mango, jack fruit, mahua and other trees standing on these lands with their consent on the condition that they were to have a half share of the fruits thereof, that is to say, a half share of the fruits would belong to the landlords and the other half to the tenants. According to the petitioners, 29 mango trees were planted on these plots with the consent of the landlords on such conditions. In previous years to the suit, the defendants had given the price of the fruits to the petitioners but in 1349 and 1350 Fs. they did not divide the mangoes of the trees in spite of the demand of the petitioners. Hence the suit. According to the petitioners in 1349 Fs. the trees yielded 26,100 mangoes and in 1850 Fs. 30,000 mangoes.

Defendant 1, Gopi Mahto denied that the petitioners were the 16 annas maliks. He also denied that the trees were in plots 65 and 66. On the contrary, they are on his tenancy lands i.e. plots 70, 73 and 74. He also denied that the trees were planted with the consent and permission of the landlords. He further contended in the alternative that plots 65 and 66 were gair mazrua rasta and that he had a right to plant trees on those lands without the consent of the landlords. Defendants 2 and 3 Bhadayi Mahto and Birit Mahto admitted that they had planted the trees on plots 65 and 66 years ago with the consent of the plaintiffs. They denied that defendant 1 had any concern with the trees in suit. Their case, however, was that in the year in suit, the trees did not bear any fruit.

The Small Cause Court Judge found that the petitioners were the 16 annas maliks of khewat No. 1/1 in village Inarpatpur. The learned Judge also found on a pleader commissioner''s report that only 27 trees stand on plot No. 65 and that the other two stand on the boundary of plat Nos. 65 and 14, plot No. 14 belonging to the defendants. As to the amount of produce from these trees, he held that the petitioners had not proved how many mango fruits the trees in plot No. 65 bore in the years 1349 and 1350. He discussed the oral evidence and the documentary evidence on behalf of the petitioners in this connection. He also held, after having considered the evidence in the case, that the plaintiffs had not proved that the defendants had planted the trees on plot No. 65 with the permission of the landlords. On these findings, it is clear the learned Judge could have had no alternative but to dismiss the petitioners'' suit. Assuming everything in favour of the petitioners, if they were unable to prove what was the amount of the produce of these trees, their suit must be dismissed. This was not a case of giving a decree on any admission made by the defendants as to the number of mango fruits which the trees may have borne during the years 1349 and 1350. The onus was on the plaintiffs which according to the Court of fact they had not discharged. It was urged on behalf of the petitioners that even a decree for Re. 1 would satisfy the petitioners as they were contending for a principle, for even in the worst years, 27 trees must have at least produced Re. 1 worth of fruit. In view, however, of the decision of the Full Bench in Partap Narain v. Ramasray Pershad AIR 1938 Pat. 81, the onus was on the plaintiffs to prove what was the produce for the years in suit and they having failed to do so, must suffer and their suit must be dismissed.

An important question of law was, however, decided by the learned Small Cause Court Judge and were it not for the fact that his decision may act as res judicata in future, between the parties, it would have been quite unnecessary to deal with it in this revisional application when one is satisfied that in any event the petitioners'' suit must be dismissed having regard to their failure to prove what was the produce from these trees in the years in suit. As I have already stated, Plot No. 65 is recorded as gair mazrua am and the learned Subordinate Judge relying upon a Division Bench decision of this Court in Amiruddin v. Sonelal Jha AIR 1937 Pat. 669 held that the landlord had no control over such land and had no right to settle the same with others. This question as to what are the rights of the landlord in land entered as gair mazrua am in the record of rights is a difficult one and has been the subject of several decisions in this Court. The point is of importance both as to the rights of the landlord as well as the rights of the tenants in such land. In Ram Das Sah v. Damodar Prasad AIR 1923 Pat. 346 Ross J. held that the right of a tenant to keep khalians, to play Ramlilas, to put up marriage processions, or to tie cattle during rainy season on the gair mazrua am lands of the village is not in the nature of an easement, but rather a customary right which has been recognised in India, there being no unreasonableness or uncertainty about its elements. The tenants, however, can claim only a declaration of their rights and not recovery of possession as the landlord has the right of developing and settling the gair mazrua am lands, so long as he does not interfere with the rights which the tenants have acquired. In Muhammad Waliul Hag and Others Vs. Ludput Upadhya and Others, , a Division Bench of this Court, James J., observed:

The entry in the record of rights cannot be read as warranting any presumption that the zamindar more than any other person has a right of control over these lands. There are two terms of khatian for non-agricultural land or waste land. In one (gair-mazrua-malik), is entered land, waste or uncultivated or utilised for building or non-agricultural purposes, which is under the control of the zamindar. In the other (gair mazrua am or public waste), is land of that kind not under the control of the zamindari, and the only presumption in that connection which can properly be drawn from the entry in the record of rights is that this pool is not under the control of the zamindar.

In Amiruddin v. Sonelal Jha AIR 1937 Pat. 669, a decision of a Division Bench of this Court, Madan J. noticed the decision of Ross J. in Ram Das Sah v. Damodar Prasad AIR 1923 Pat. 346 and referred to the observations of James J. just quoted, and he held that it followed that Wahidunnissa had no right to settle the land which was the subject-matter of the present case and that the plaintiffs acquired no tenancy right by virtue of such settlement, which was repudiated by defendants first party, the successors in interest of Wahidunnissa. In the case in Mt. Safia Bibi v. Sahdeo Singh AIR 1942 Pat. 286 , a decision of a Division Bench of this Court, it was held, following the decision in Muhammad Waliul Hag and Others Vs. Ludput Upadhya and Others, and Amiruddin v. Sonelal Jha AIR 1937 Pat. 669 that in gair mazrua lands the proprietor has lost control and that he would appear to be in no better position than other villagers and to entitle him to maintain a suit for damages and for a declaration that the villagers were not entitled to take fish he would have to show that he had an exclusive right to the fishery.

In addition to these reported Cases, reference was made to several unreported cases. In civil Revn. No. 696 of 1941 decided on 15th April 1942, Manohar Lall J. did not discuss the question, but generally followed the decision in Muhammad Waliul Hag and Others Vs. Ludput Upadhya and Others, . In civil Revn. No. 539 of 1944 decided on 29th August 1045, Meredith J. did not deal with the point in detail, but an observation of his may at first sight appear to be unfavourable to the landlords. He observed:

Prima facie the trees being on gair mazrua am land one would expect the rights to lie with the villagers as a whole, but then there is the entry in the remarks column.

In Civil Revn. No. 957 of 1944 Mt. Misran v. Kishunpasi Reported in AIR 1947 Pat. 116 decided on 29th January 1946, Agarwala and Shearer JJ., dealt with this point. Agarwala J. after having referred to the various decisions of this Court particularly the observations of James J. in Muhammad Waliul Hag and Others Vs. Ludput Upadhya and Others, held as follows:

The right of a zamindar with respect to waste land within his zamindary is limited only by the statutory, contractual and customary rights of other persons. In villages where the inhabitants have no established rights to trees standing on gair mazrua am land they belong to the zamindar and he is entitled to deal with them in such manner as he chooses so long as he does not interfere with the customary rights of the villages.

But, in view of the decision in Muhammad Waliul Hag and Others Vs. Ludput Upadhya and Others, , and Amiruddin v. Sonelal Jha AIR 1937 Pat. 669 it is necessary to examine the matter a little further. Agarwala J. in civil Revision No. 957 Mt. Misran v. Kishunpasi Reported in AIR 1947 Pat. 116 was of the opinion that the observations of James J. in Muhammad Waliul Hag and Others Vs. Ludput Upadhya and Others, have been misunderstood. He was of the opinion that those observations must be taken in connexion with the facts of the case.

In Muhammad Waliul Hag and Others Vs. Ludput Upadhya and Others, there were certain kunds at Rajgir within the ambit of the zamindari of the Nawabs of Hussainabad. The suit was brought by five Mahomodans for a declaration that they had a right to bathe in the waters of the kund whenever they pleased. James J. dealt fully with the entry in the record of rights concerning these kunds and the rubkari of 1840 by means of which the estate in question was granted in life mukarrari to one Muhammad Yahis Khan. The rubkari described the sacred places of the Hindus and how far they were sources of profit to the zamindar and it was stated therein that the Brahman families who are the custodians of the kund have the right to receive offerings, and that these rights are ancestral so that persons who are not members of the families are excluded from the privilege. James J. could not find any indication in the document that by the settlement with the Nawabs of Hussainabad any right was conveyed to the zamindar to interfere with the kunds, which are places of worship for Hindus, and he thought that taking the rubkari as a whole, the learned District Judge was entitled to come to the conclusion that the permanent settlement with the zamindar conveyed to him no right of interference with the kund. He was, therefore, of the opinion that the entry in the record of rights could not be read as warranting any presumption that the zamindar more than any other person has a right of control over these lands. He then went on to make the observation that there are two terms of khatian for non-agricultural land or waste land. After having described gairmazrua malik land as under the control of the zamindar, he held that gairmazrua am land was not under the control of the zamindar. James J. was dealing essentially as to whether the plaintiffs had a right to bathe in these kunds. He showed clearly that these kunds were in the custody of Brahman families who had the right to receive offerings, and that these rights are ancestral and that persons who are not members of the family were excluded from the privilege. He then went on to make the general observation that gairmazrua am lands are not under the zamindar and that the only presumption which could properly be drawn from the entry in the record of rights was that the kund was not under the control of the zamindars. I do not think that James J. by these observations, which must, of course, be read in connexion with the facts of the particular case ever intended to lay down as a general proposition that in lands recorded as gairmazrua the landlord in all circumstances lost all rights.

In Amiruddin v. Sonelal Jha AIR 1937 Pat. 669 the entry in the record of rights showed that some gairmazrua am land was in the possession of Mahomedans for use as a graveyard. This entry, in my opinion, indicated that the Mahomedans had an established right to have their graveyards on such land. To that extent, at any rate, the landlord lost control over such land, i. e., that the landlord had not exclusive control over such land, there being an established right in certain villagers to have their graveyard on such land. The learned Judge did not decide that in all circumstances the landlord had no right of any kind in such land. Similarly, in Mt. Safia Bibi v. Sahdeo Singh AIR 1942 Pat. 286, the plaintiffs prayed for a declaration that the defendants had no right to catch and carry away fish from the said ditch and it was held that to entitle the plaintiff to maintain such a suit, it was necessary for him to show that he had the exclusive right to the fishery. Harries C.J. was not deciding as to what the rights were in a landlord with respect to lands recorded as gairmazrua am. The expression that "the zamindar lost control over such lands" must be understood with reference to the facts of the case. There could be no doubt on the facts in Mt. Safia Bibi v. Sahdeo Singh AIR 1942 Pat. 286 that in the pond on gairmazrua land all the villagers had the right to take fish and to that extent the landlord had lost control over it and it is impossible for him to maintain a suit for a declaration that the villagers had no right to take away the fish as the plaintiff could not show in the circumstances that he had the exclusive right to the fish. Both in the cases in Muhammad Waliul Hag and Others Vs. Ludput Upadhya and Others, and Mt. Safia Bibi v. Sahdeo Singh AIR 1942 Pat. 286 this Court was of opinion that the landlord was in no better position than other villagers. In my opinion, these three decisions do not deprive the landlord of such rights as he may possess in gairmazrua am lands generally.

I think that where lands are recorded as gairmazrua am, one may start with the presumption that the landlord is in no better position than the villagers with reference to them, but as to what his rights are actually, must depend upon custom, the circumstances and the evidence led in each case. In the present ease, there is an entry in the record of rights with reference to the trees in the possession of a certain tenant and that that tenant and the landlord share the trees half and half. Having regard to the decision of the Division Bench of this Court in civil Revision No. 957 of 1944, Mt. Misran v. Kishunpasi Reported in AIR 1947 Pat. 116 decided on 29-1-1946, I must conclude that by this it was recognised that although the particular tenant had planted the trees on gairmazrua am lands, the landlord was entitled to a half share in the fruits. This is not a case where the landlord is dealing with gairmazrua am land to the detriment of the established rights of the villagers generally in such lands. On the contrary, if the entry in the record of rights has any meaning it is this that although plot No. 65 is gairmazrua am land the trees were in possession of a certain tenant and that the landlord had a half share in the fruits thereof. To this extent, I am of opinion, that the decision of the learned Small Cause Court Judge was wrong; but I would dismiss the application on the ground that the plaintiffs had not proved what was the actual produce of the fruits of the trees in question during the years in suit. The application must be dismissed, but in the circumstances without costs.

Shearer, J.

I agree. Until Section 23A was inserted in the Bihar Tenancy Act the general rule was that, When an occupancy raiyat planted a tree on his holding, the tree belonged not to him but to the landlord. The landlord was not, however, at liberty to enter on the holding and cut the tree down. Unless and until the raiyat chose to cut it down or it fell in the ordinary course of nature the raiyat was entitled to make such use of the tree as he could and, more particularly, to appropriate any fruit it bore: vide. Nafar Chandra Pal v. Ramlal Pal 22 Cal. 742. The ground, presumably, on which the tree was regarded as belonging to the landlord was that the landlord is the proprietor of the soil and a tree is something which attaches itself to the soil and becomes part and parcel of the soil itself. When a raiyat plants a tree on waste land, it seems to me largely immaterial whether the waste land on which the tree is planted has been recorded in the gairmazrua am khatian or in the gairmazrua malik khatian. It is, no doubt, conceivable that the action of a raiyat in planting a tree on gairmazrua am land might infringe the rights of the village community in the land and in such a case he could no doubt be compelled to remove it: So far, however, as the rights of the landlord are concerned, it seems to me to make no difference whether the land on which the tree stands is waste land of the one category or of the other category. The maxim quicquid plantatur in solo solo cessit may not, perhaps, apply as fully in this country as it does in England. Much depends on local custom, and there may conceivably be a local custom under which a raiyat is entitled to plant trees on waste land and appropriate the fruit, and possibly also the wood when the tree is cut down or falls. The onus is, however, I think, very heavily on the raiyat to show the existence of such a custom. Ordinarily, and on general principle, the tree it seems to me, belongs to the landlord when it is cut down or falls. Ordinarily also, I am inclined to think, the landlord is entitled to a half share in the fruit. The entry in the record of rights in this particular case relates, in my opinion, to the fruit and not to the timber. My impression is that the settlement authorities only made entries regarding the timber when the general rule did not apply, and the timber, instead of belonging to the landlord, belonged to the raiyat or to the raiyat and the landlord jointly.