District Board Banaras v. Pt. Ghurhu Rai

Brij Mohan Lall, J.:— This and the connected second appeal no. 2127 of 1945 are defendants' appeal against the appellate decree of the learned Civil Judge of Banaras. The latter disposed of, by his judgment, three appeals pending before him thereby decreeing the plaintiff-respondent's suit in toto.

2. It appears that the U.P Government has sanctioned a scheme for planting trees by fife roadsides in district board areas. Some trees are planted by the district boards themselves while permission is given sometimes to private individuals also to plant trees on the roadsides. The scheme contemplates that persons desirous of planting trees should obtain written consent of the district board, should tend and look after the trees while they are young and protect them against frost and depredation by cattle during their growth. After the trees are grown up a Sanad is issued to the planters recognising their title to the said trees. Ghurahu Rai, plaintiff-respondent, obtained a Sanad of the aforesaid nature from the District Board of Banaras in 1905 in respect of 32 trees. In 1922 he again applied for a similar Sanad in respect of 24 more trees. He was asked to produce the written permission of the Board for planting those trees but he failed to do so and his application was rejected. He made a similar attempt in 1923 also which met the same fate. In 1934, however, he succeeded in obtaining a fresh Sanad in respect of 56 trees. This number included 32 trees of 1905. In other words, this Sanand was granted in respect of 24 new trees. At that time Mr. Tondarmal was the Chairman of the District Board. After he vacated the office his successor repudiated the Sanad and, we are informed, a resolution was also passed at a certain stage cancelling, the Sanad.

3. Some time after 1940 the District Board of Bamaras sanctioned the scheme to widen the Chandauli-Sakaldiha-Hasanpur Road on which the trees which form the subject matter of this litigation are situate. The widening of the road necessitated the cutting of the trees. The respondent claimed title to cut the trees. But Smt. Ram Dasi, the appellant in the connected appeal, appeared on the scene and laid claim to 8 Shesham and 2 mango tress. She is the zamindar through whose Zamindari the road in question passes. Her contention was that the trees which she claimed were not on the road itself but were within her Zamindari, and as such she owned them.

4. The Board also, which had for some time past been disputing the respondent's title based on the Sanad of 1934, denied the respondent's rights to cut title trees. Enquiries were made once by the Secretary and again by the Senior Vice Chairman. The respondent addressed a petition to the Commissioner and the latter sent, at one stage, a letter to the District Board from which it appears that he supported the respondent's claim. But what passed afterwards between the Board and the Commissioner does not appear from the record. There is, however, a copy of a communication addressed by the Additional District Magistrate communicating the Commissioner's decision, viz., that the respondent should get his title established by the court if he wanted to claim the trees. This communication is dated the 8th of December 1942 and was received by the respondent on the 13th of December 1942. The respondent addressed a notice to the District Board of Banaras on the 20th of February 1942 and the suit was instituted on 13th of August 1943. It may, however, be pointed out that the respondent had previously cut, with the Board's permission, as many as 17 trees from time to time. Thus there remained only 39 trees in respect of which his right was in dispute.

5. The reliefs which he sought were:

(a) declaration that he was the planter and the owner of the trees in question, and (b) an injunction restraining the District Board from interfering with his possession. It was also prayed that in case he was found to be out of possession, he might be awarded possession also. (c) Damages were claimed to the extent of Rs. 650 in respect of 21 trees, three of which had been out by the Board and the remaining 18 sold by auction by it.

6. Smt. Ram Dasi contended, as already stated, that she was the owner of 8 Sheesham and two mango trees and the said trees were not situate on the road itself. She did not admit that the respondent had planted those trees.

7. The Board denied the respondent's title to the trees in toto pleaded limitation and also contended that notice served by the respondent was invalid. Liability to pay damages was completely denied. The learned Munsil held that the Sheesham trees were movable property and the suit in respect of them was time barred under Sec. 192(3) of the District Boards Act. He decreed the suit in respect of the rest of the trees and awarded a sum of Rs. 325 as damages against the District Board only.

8. Against this decision three appeals were preferred, one by the plaintiff-respondent and one by each of the two defendants, viz., the District Board and Smt. Ram Dasi. All the three appeals were disposed of by the learned Civil Judge by one judgment. He was of the opinion that the entire property was immovable property and the suit was not barred by limitation. He awarded a sum of Rs. 650 as damages and recorded a finding that the trees had been planted by the respondents.

9. The present two appeals have been preferred, one by the District Board and the other by Smt. Ram Dasi.

10. These appeals came up before a Single Judge who remanded an issue about the title to the trees. According to the finding received it is now an established fact that all the trees were owned by the respondent.

11. The first point that arises for decision is whether the claim or any portion thereof is barred by limitation. Ordinarily a suit for declaration is governed by six years' rule of limitation under Art. 120 of the Schedule I of the Limitation Act. But in, the present case a special rule of limitation has been enacted by Sec. 192 of the U.P District Boards Act (X of 1922). Sub-secs. (1) and (3) of the said section, which alone are relevant for the purpose, are as follows:—

“(1) No suit shall be instituted against a Board or against a member, officer or servant of a board, in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two months next after notice in writing has been, in the case of a Board, left at his office, and, in the case of a member, officer or servant, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left……….

(3) No action such as is described in sub-section (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereof, be commenced otherwise than within six months next after the accrual of the cause of action.”

12. Since the legislature has laid down special rule of law for suits against the District Boards, the Special rule supersedes the general law and the period of limitation will be that prescribed by this section. In other words, a suit for declaration, if it is in respect of immovable property shall foe governed by Art. 120 of the Limitation Act. But if it is in respect of property other chan immovable property it will be governed by six months' rule of limitation. But to this period is to be added under Sec. 15(2) of the Limitation Act, the period of two months on account of the notice which is prescribed by statute to be given to the Board before a suit can be instituted against it. In other words, the suit should be instituted with in eight months of the accrual of the cause of action.

13. The respondent himself admits in his plaint that the cause of action for the suit for declaration arose on the 13th of December 1942 i.e the date on which he received the intimation of denial of his title by the Board. The suit should have been instituted within eight months i.e upto August 13, 1943. But the suit was actually instituted, as already stated, on the 18th of August 1943. It was thus obviously beyond eight months.

14. It is, therefore, necessary to see whether the property was movable or immovable. The definitions of the term “immovable property” as given in the Transfer of Property Act and the Registration Act are of no help in deter mining the meaning of that term as used in Sec. 192 of the District Boards Act. For the purpose of this section we have to refer to the U.P General Clauses Act (I of 1904). Sec. 4(29) of the Act says that movable property shall mean property of every description, except immovable property. Immovable property has been defined by Sec. 4(23) as follows:

“Immovable property shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth, but shall not include standing timber, growing crops or grass.”

15. On a perusal of the language of this section it will follow that the trees, being attached to earth are immovable property unless they fell within the description of standing timber.

16. Learned counsel for the appellant contends that timber includes trees which are not of fruit bearing nature e.g Sheesham trees or Nim trees. Nim Trees, it may be pointed out, do bear fruits but they are not of much value. The learned counsel cited the case of Nanhe Lal v. Ram Bharose A.I.R 1938 All. 115.. In that case it was held that a grove consisting of Sheesham and Nim trees did not constitute immovable property.

17. In the case of Sheikh Ibadullah…Plaintiff v. Lachmi Narain…Defendant . A.I.R 1926 All. 350., it was laid down that timber under Registration Act must for deemed to imply only such trees as are fit to be used in building and repairing houses. A Nim tree was treated to be a timber.

18. Similarly in the case of Ramman Lal v. Ram Gopal A.I.R 1916 Oudh 211. it was laid down that standing timber means tress the wood of which can used for building or repairing houses or for other industrial purposes, and implies an intention, sooner or later, to sever the trees from the soil.

19. In the case of Ram Kumar v. Krishna Gopal A.I.R 1946 Oudh 106. a Babul tree was held to be timber and was, therefore, treated as movable property.

20. The aforesaid decisions were, if we may say so with great respect, correct with respect to the facts of each case. But in our opinion the nature of the tree is not the criterion to determine as to whether it is a standing timber or not. A fruit bearing tree e.g a mango tree, will not come within the definition of timber if purchased by a person with the intention of maintaining it, allowing it to grow and using its fruits in future. But the same tree may become timber and, therefore, movable property, if the intention of the purchaser is to cut and remove it and to use its wood for making planks or to put it to any other use for building purposes. Therefore the real test for judging whether a tree is movable or immovable property is not the nature of the tree but the way in which it is intended to be dealt with. If the intention of the parties in respect of a particular transaction is that the tree, whether it be a Nim tree or a mango tree, is to be cut by the purchaser and removed, it will become timber. But if the intention is that it should, after the purchase, continue to grow and to yield fruit or shade, it may not be timber.

21. That this is the real criterion for judging whether a certain tree is, on a particular occasion, a timber or not is borne out by the case of Ashloke Singh v. Bodha Ganderia A.I.R 1926 Pat. 125.. In that case Ross J. adopted the same criterion as we have.

22. Having laid down the principle it is necessary for us to see whether the intention in the present case was to cut the trees and to remove them or to leave them standing. It is to be remembered that the dispute arose because the District Board decided to widen the road by cutting the trees. The intention of the parties was to cut and remove the trees; whether the cutting was done by the plaintiff or by Shrimati Ram Dasi or by the District Board. An important document which throws a flood of light on this question is the notice given by the learned counsel for the respondent to the District Board. In the concluding portion thereof the learned counsel says:—

“I am instructed to inform both of you that if sufficient amends are not tendered to my said client within the statutory period of two months and the title of my client to those trees is not admitted and he is not permitted to cut and remove the said trees he will file the abovementioned civil suit and both of you will be liable for all the costs and consequences.”

23. It is, therefore, obvious that the respondent was contemplating to cut and remove the trees.

24. The plaint itself gives rise to the same inference. In paragraph 6 of the plaint the respondent says that on the Secretary's report a former Chairman had allowed him “to cut and remove” the trees. In paragraph 8 he makes a grievance of the fact that the present Chairman of the Board persisted in refusing permission to the respondent “to cut and remove” the said trees. In paragraph 9 reference was made to the communication sent by the Commissioner to the District Board which contained a suggestion that the respondent be permitted to remove the trees. In paragraph 11 the respondent maintained that there had been a foul play in the matter and the order of the District Board refusing permission to him “for cutting and removing the trees” was the result of collusion.

25. In the circumstances we have no hesitation in holding that the intention of the parties was that the trees in question, whether fruit bearing or not, were to be cut and removed. The trees, therefore, were standing timber and were excluded from the definition of the immovable property. A suit for a declaration, of title to these trees was, therefore, governed by six months' rule of limitation laid in Art. 192(3) of the District Boards Act.

26. We have already pointed out that the suit was instituted more than eight months after the accrual of the cause of action. Therefore, even granting to the respondent the benefit of Sec. 15(2) of the Limitation Act, on account of the notice, the suit for a declaration was time barred when it was instituted.

27. We come next to the question whether the suit for compensation was within time. As already stated the trees in respect of which compensation was claimed were cut removed and auctioned on 20-2-1943; the suit was instituted on 18-8-1943 and was, therefore, within six months from the accrual of the cause of action. Therefore the claim for compensation was not beyond time.

28. It remains, however, to see whether the claim for compensation was barred because notice was either defective or not given at all. The notice dated the 20th of December 1942 to which reference has already been made contains a warning about the compensation in tbs following terms, viz.

“If the trees are cut and removed in the meantime he (respondent) will also sue for damages in respect of those trees that would be found to have been cut at the date of the proposed suit in respect of their price.”

29. It is conceded by the respondent that no notice was given after the actual cutting of the trees. The question is whether this notice amounted to sufficient compliance with the terms of Sec. 192(1) of the District Boards Act. If this notice is to be treated as a notice of claim for compensation it suffers from two defects. In the first place, it is a conditional notice and was given before the accrual of the cause of action. No tree had been cut till the date on which the notice was given. But the more serious defect from which it suffered was that the amount of compensation was not mentioned and, as a matter of fact, could not be mentioned at that time.

30. Learned counsel for the respondent placed reliance on the case of Chandulal Vadilal v. Bombay Province A.I.R 1943 Bom. 138.. That was a case under section 80 C.P.C and it was held that the circumstance that the actual amount claimed was not mentioned in the notice was immaterial. This decision is no authority fou the proposition that under Sec. 192(3) of the District Boards Act also it is not necessary to mention the amount of compensation claimed. These two propositions of law differ on a very material point. In a notice under Sec. 80 the notice giver has to state, inter alia, “the relief which he claims,” while in a notice under Sec. 192 the notice giver has to mention “the nature of the relief sought, the amount of compensation claimed………” The words, “the amount of compensation claimed” which find place in Sec. 192(1) of the District Boards Act have been omitted from the language of Sec. 80. Therefore the failure to Attention the exact amount of compensation claimed may be pardonable in a notice given under Sec. 80, but this omission cannot be Condoned in a notice which has been given under Sec. 192(1) of the District Boards Act. Since the statute expressly lays down that the amount of compensation claimed is to be mentioned in the notice this direction must be carried out. It is a mandatory direction the failure to comply, with which will vitiate the notice. We are, therefore, of the opinion that if this notice is to be treated as a notice in respect of compensation under Sec. 192(1) of the District Boards Act it was invalid.

31. As already pointed out no notice whatsoever was given in respect of the compensation after the accrual of the cause of action.

32. Learned counsel for the respondent, however, has contended that whether the notice was defective or whether there was no notice at all, the appellant cannot make a grievance of that fact because he, in either case, waived the notice. We find it stated in the judgment of the trial court that the plea of defect in notice was not pressed. In other words the District Board which alone was entitled to the notice gave up his defence based on the defective nature of the notice. It took no defence whatsoever to the effect that notice containing the actual amount of compensation was not given. Nor did it raise this plea in the memorandum of appeal which it preferred in the lower appellate court. The same remarks apply to the grounds taken in the memorandum of appeal preferred in this Court by the District Board. We have no doubt that, in the circumstances of the case, the Board waived its right based on the ground of notice.

33. The next question that arises is whether it could make such a waiver. The learned counsel for the District Board has cited the case of Govt. of Madras Province v. Vellayan Chettiar A.I.R 1944 Mad. 544.. In this case a Division Bench of Madras High Court took the view that a notice prescribed under Sec. 80 could not be waived. But this decision has ceased to be good law by reason of the pronouncement of their Lordships of the Privy Council in Vellayan v. Madras Province A.I.R 1947 P.C 197.. In that case their Lordships clearly laid down that notice required to be given under Sec. 80, C.P.C is for the protection of the authority concerned. If in a particular case he does not require that protection he can lawfully waive his right to the notice. After laying down this proposition their Lordships examined the fact of the case and held that waiver was not proved. In the circumstances their Lordships' pronouncement was in the nature of ain obiter dictum. But even an obiter dictum of the Privy Council is entitled to utmost respect.

34. In the case of Venkataswami v. Mahalakshmi A.I.R 1949 Mad. 747. the Madras High Court also held that a notice could be Waived and its previous view to the contrary was no longer good law.

35. In Manindra Chandra Nandi v. Secretary of State for India I.L.R XXXTV Cal. 257. it was laid down at page, 282 that

“A notice under Sec. 424, C.P.C (which corresponded to the present Sec. 80) is given for the benefit of the defendant, and it may be presumed that the intention of the legislature was chat the Secretary of State should have to opportunity of investigating the alleged cause of complaint and of making amends, if he thought fit, before he was impleaded in the suit. There is nothing to prevent the defendant from waiving the notice or from being estopped by his conduct from pleading the want of notice at the trial.”

36. The same view was taken in the case of Puran Chandra Sarkar v. Radharani Dassya A.I.R 1931 Cal. 175..

37. We are, therefore, of the opinion that it is open to a defendant for whose benefit a notice is prescribed by law to waive it. We have held above that in the circumstances of the present case the District Board has by its conduct waived the notice. In the circumstances the only ground on which the claim for compensation could fail disappears.

38. There remains, however, one more argument to consider viz. whether the claim to obtain a declaration having become time barred a claim for compensation can be decreed.

39. According to the finding recorded by the lower appellate court all the trees in question were planted by the respondent. As a result of this finding the respondent was entitled to claim several reliefs e.g declaration, compensation etc. If some of the reliefs become time barred there is no reason why the other reliefs should not be granted. For each relief there is separate period of limitation and the extinction of right to claim one relief does not necessarily involve the extinction of the right to claim another relief. The case is different where immovable property is involved and a right to claim possession becomes time barred. In that event the title to the property itself is extinguished by virtue of Sec. 28 of the Limitation Act. But in the case of movable property the right to sue itself is extinguished but the title does not cease to exist. In this view of the matter it is possible to decree the claim for compensation while holding that the claim for declaration is time barred.

40. The lower appellate Court has given a decree against Smt. Ram Dasi also. This was obviously due to an oversight. She has not appropriated the trees and is, therefore, not liable to pay any compensation. The claim for declaration was not time barred against her because she was not entitled to any notice under Sec. 192 of the District Boards Act. Against her the period of limitation for a declaratory suit was six years.

41. We see no reason to grant the relief for injunction because that will stand in the way of widening the road. The trees have to be cut in any event.

42. We, therefore, allow the District Board's appeal in part and dismiss the respondent's suit for declaration. We decree the claim for Rs. 650 for compensation and dismiss the rest of the claim. In view of the divided success of the parties we direct the District Board and the respondent to bear their own costs throughout.

43. As between Smt. Ram Dasi and the respondents the suit is to be decreed for a declaration of title to the trees but has to be dismissed in respect of compensation. As between them also we direct the parties to bear their own costs throughout.