Shakrullah and Others vs Budhraj Missir

Wort, J.—This appeal by the plaintiff arises out of an action in which he claimed damages and an injunction against the defendant for cutting and appropriating timber on the plaintiff''s holding.

Both the Courts dismissed the plaintiff''s suit and the controversy in the case arises very largely out of the entry in the cadastral survey khatian and revisional survey khatian.

It is unfortunate that the issues in the Court below were somewhat confused and mishandled and the plaintiff undoubtedly is not without blame in regard to that matter. He appears to have called witnesses to prove that there was an alleged custom by which the landlords were entitled to the timber of the trees on the holding of tenants.

Now undoubtedly the position in law is a comparatively simple one. The general law undoubtedly, as established by a series of cases, is that the zamindar is entitled to the timber although the tenant may have the right to out it. One such case is to be found in Nafar Chandra Pal v. Ram Lal Pal [1895] 22 Cal. 742. That being the general law, it would have been incumbent upon the defendant to show either by custom in the village that he was entitled to appropriate the timber, or that one of the incidences of his particular tenancy was that by agreement he was entitled to appropriate the timber.

As I have already said the issues in the case were confused, and in the result the learned Subordinate Judge came to the conclusion that the plaintiff has failed to rebut the entry in the survey Record-of-Rights. The entry being translated is to the effect that the tenants had the entire right in the trees, that is, in the revisional survey khatian; and the learned Subordinate Judge states that the entry in the cadastral survey is not inconsistent with the entry in the revisional survey.

It is clear that the defendant in his written statement has thought it unnecessary to set out any case other than that these trees, the subject matter of the action, were planted by him or his ancestors and that he had been in the habit of cutting the timber and appropriating it-In no place in his written statement does) he either set out or allege a custom contrary to the general law or set out his right to appropriate the timber as an incidence of his tenancy.

The question really amounts to whether the defendant should be bound by his pleadings in the action. If he had relied upon custom, undoubtedly the entry in the Record-of-Rights would have been insufficient to establish that custom. The statement to which I have already referred is that the tenant had the entire right in the trees. To repeat myself that would have been insufficient to prove a custom either in the village or locality, and indeed it makes no reference to any custom whatsoever. But it seems to me that the entry is sufficiently explicit in the sense that it does state that this particular tenant has the entire right in the trees, and it would be a somewhat technical decision if we came to the conclusion that, although the entry was clear and specific so far as it went, we should decide against the defendant merely because of the fact that he had not established by this entry of the existence of a custom, whereas in fact he might also be entitled to succeed if he established the fact that his right to this timber was one of the incidences of his tenancy.

It is to be noted in this connexion that the learned Subordinate Judge states that when this entry was made, it was made in the presence of the parties and no objection was made thereto by the landlord. It seems to me in all the circumstances of the case, therefore, that we ought to hold that this was sufficient evidence of a particular incidence of this particular tenancy and therefore, so far as at any rate the defendant tenant was entitled to appropriate the timber as well as to cut it. There seems to me to be no argument as to the meaning of these words "the entire right in the trees." If that is the correct translation, and I am informed that it is, then there seems to be no doubt that the defendant tenant was entitled to appropriate the timber.

Now one case has been relied upon by the learned advocate for the respondent, the case of Bishun Pragash Narain Singh v. Sheosaran Teli AIR 1922 Pat. 497. There Sir Dawson Miller, sitting with Bucknill, J., decided that where there was an entry in the Record-of-Rights to the effect that the trees belonged to the tenant, it was not a sufficient rebuttal of the presumption which arose from that entry that the ordinary law gives the right to the landlord. That was not sufficient to rebut that entry.

However, the case does not give much assistance to us in this appeal for the reason that nowhere in the report of that case do we find what the entry was, whether it was an entry as to the incidence of the particular tenancy or whether it was an entry relating to a particular custom.

However in my judgment whether in this case which is before us the entry relates to a custom or the incidence of a tenancy, undoubtedly when once it is established that the onus does shift on to the shoulders of the plaintiff, it is for him to rebut it. In my judgment as I have already said, this entry sufficiently indicates the nature of the particular incidence of the tenancy, that is to say the right of the tenant to the timber in these trees, and therefore, this case, in my opinion, must be decided accordingly.

There was one other question which does not arise having regard to my decision and that is whether the plaintiff being the usufructuary mortgagee was entitled to maintain this action. In any event, whether he had the right to this timber as a usufructuary mortgagee, it is not a question as between the defendant and the plaintiff, the usufructuary mortgagee. If any one has a cause for complaint or can raise this question, it would be the mortgagor.

However, as I have already said, this point does not come up for determination having regard to decision, and it is sufficient therefore to say that the appeal fails and must be dismissed with costs.

James, J.

I agree.