Kamla Kuar and Another vs Nathan and Others

Sir John Edge, Kt., C.J., and Knox, J.—This is a reference by the late Officiating Judge of Sah�ranpur. The plaintiffs were zamindars. The defendants were two occupancy tenants of the plaintiffs. The plaintiffs brought this suit alleging a right to the fallen wood of a pipal tree, which, as we gather from the reference, had grown within the occupancy-holding of the defendants. It is stated, and we must take it to be the fact, that the tree was not planted by the zam�nd�rs or by the tenants, and that it was a self-planted tree. The question which we are asked is, "does the burden of proving the right to fallen wood in the case of self-grown trees in an occupancy tenant''s holding fall on the landlord or on the tenant?" We have been referred to several authorities, but none of them appear to us to apply to a case like this. The case of Dhian Singh Vs. Deoki Nandan, does not apply. That was a case in which the landlord claimed a right to cut down and remove fruit bearing trees which were growing on his tenant''s holding. That, apart from special custom or contract, he clearly could not have a right to do. The other cases do not relate to self-grown wood. On behalf of the tenants Mr. Spankie has contended that they had the right not only to take the fallen wood of self-grown trees but to prevent such trees growing. We certainly think that a tenant would clearly be entitled to prevent the growth of any trees which were not growing at the time of the commencement of his tenancy, and the growth of which would interfere with the purpose for which the land was let to him, provided that there was no custom or contract to the contrary. However, that does not assist us to answer this question. We are not aware of any authority in India which enables us to decide that there is a right in the landlord or a right in the tenant by general custom to the fallen wood of self-grown trees. In our opinion a person who brings his suit, claiming that the fallen timber of self-grown trees within an occupancy-holding belongs to him must prove his right by showing a general custom of the district, a particular custom of the village, or a contract which gives him the right. In this case there was a w�jib-ul-arz. The learned Officiating District Judge did not consider that that w�jib-ul-arz could be treated as satisfactory evidence. We do not intend to decide whether it can or not, but we merely point put that it was a w�jib-ul-arz made as long ago as 1867, and that it should be a question possibly for the consideration of the District Judge what effect should be given to the w�jib-ul-arz if he found that it had been acted upon and the correctness of it had not been disputed until quite recently. We ought to say, as our opinion is invited on the point, that the law in England relating to fallen timber could not, in our opinion, be accepted as evidence of custom or representing what the law is in India on this point. The papers will be returned to the District Judge of Sah�ranpur with the answer which we have given.