Imdad Khatun and Others vs Bhagirath

Straight and Tyrrell, JJ.—For the purpose of determining this appeal, it must be taken to have been found as a fact that the first set of defendants are occupancy tenants of the land on which the trees stand, that such trees were planted by themselves or their ancestors, that only the trees were sold to the second defendant by the sale-deed of the 20th March 1884, and that by the decree of the 19th May 1885, obtained by him on confession of judgment against the first set of defendants, he has dispossessed them from their cultivatory holding. Now it has been ruled by this Court in Jagrani Bibi v. Ganeshi ILR 3 All 435 that a suit for possession of trees is a suit for possession of land within Section 29 of Act IX of 1871, and this principle has been more or less recognised in the Full Bench ruling that standing timber is Immovable property--Umed Ram v. Daulat Ram ILR All 564 by Mahmood, J., in Deoki Nandan v. Dhian Singh ILR All 472 and by another Pull Bench in Jugal v. Deoki Nandan ILR All 88. It was also held by Pearson and Oldfield, JJ., in Ajudhia Nath v. Sital ILR All 567 followed by Straight and Tyrrell, JJ. in Ram Narain v. Madho, Weekly Notes 1883 p 100 that an occupancy tenant can only make a valid hypothecation of the trees held by him for the term of his tenancy. With his ejectment from the land and the determination of his tenancy such an hypothecation ceases to be enforcible. Again in Jhagaru v. Shamshere Khan, Weekly Notes, 1881, p. 20, it was held that a tenant who while cultivating land had planted trees thereon was not entitled, after he had ceased to cultivate it, to sue for possession of the trees; and in Ram Baran Ram v. Salig Ram Singh ILR All 896 the same principle was recognised. Nor is there anything inconsistent with this view in a decision of this Bench as constituted in Kasim Mian v. Banda Husain ILR All 616. We think, upon a review of all these authorities, that the trees on an occupancy holding, even whether planted by the tenant himself or not, belong and attach to such occupancy holding, and like it are not susceptible of transfer by the occupancy holder: indeed this is what we take it to have been laid down by the Full Bench in Jugal v. Deoki Nandan ILR All 88. To recognise such a sale as that which is the subject of the present suit would be to sanction a transfer by an occupancy-tenant who on the facts stated here has in fact been ousted. We do not lose sight of the fact that by local custom having the force of law an occupany-tenant may have a saleable interest in the timber, fruit, and loppings of trees planted by him, but no such custom is pleaded or proved in the present case, and the fact remains that the first set of defendants have sold something to the defendant No. 2, which, as a part of their occupancy holding, they are by law forbidden from transferring. We think therefore that the plaintiffs were entitled to have the sale-deed of the 20th March 1884 avoided, to eject the defendant No. 2 from their land, and to have their proprietary possession of it restored. We accordingly decree the appeal with costs, and, reversing the decree of the Subordinate Judge, we direct that a decree be prepared declaring the above reliefs in favour of the plaintiffs with costs against all the defendants.