Patna High Court
Ramhit Sahu And Ors. vs Mahadeo Chaudhuri And Ors. on 9 February, 1920
Equivalent citations: 56IND. CAS.126, AIR 1920 PATNA 222(2)
JUDGMENT
1. This appeal arises out of a reference under the Land Acquisition Act. The District Judge who heard the referenda has awarded compensation, fixed by the Collector in respect of the trees, to the landlords-respondents. The tenants, who are appellants before up, contend that they were entitled to the said compensation inasmuch as the trees belonged to them. There is no substance in this contention. Under the Common Law the property in trees belongs to the landlord. Section 23 of the Bengal Tenancy Act relied upon by the appellants has nothing to do, for that section only declares the right of tenants, to out the trees, but that does not entitle them to the timber of the trees when out, unless a custom to the contrary is established, the onus whereof is upon the tenants. But upon the finding of the Court below there is no evidence of any custom supporting the tenants right to the trees. This contention must, therefore, be overruled.
2. The next contention of the appellants is that the award by the Collector in respect of the trees having been withdrawn by them from the Land Acquisition Department, the reference to the District Judge was incompetent and that the District Judge had no jurisdiction to entertain the reference.
3. The award in this case was made on the 27th March 1915 and the objection to the apportionment or to the allotment of the compensation in respect of the trees to the tenants was made by the landlords on the 30th April 1915. This was well within the time prescribed by Section 18 of the Act for an application by any person not accepting the award made by the Collector to refer the same for the determination of the Court. Reliance has been placed upon the case of Gobinda Ranee Dasee v. Brinda Ranee Dasee 35 C. 1104 : 12 C.W.N. 1039, in which a doubt, was expressed by the learned Judges who decided that case as to whether Section 18 or Section 30 of the Act can have any application after money has actually been paid under Section 31 (2). In that case one of the parties to the award was a Hindu widow and there was no dispute as to the amount of the compensation or to the interest of the persons in the amount awarded, or to any apportionment thereof, and the money awarded by the Collector was withdrawn according to the allotments made by him by the several persons entrusted therewith. Six months after the award, that is, long after the period prescribed for applying for a reference under Section 18, an application for reference was made by a daughter of the widow who was not a party in the acquisition proceedings. The object of the reference was to have a determination as to the limited interest of the widow and as to her not having any power to alienate the land referred to in Clause (2) of Section 31. That case does not appear to have any bearing on the present case.
4. It does not stand to reason why the right of the respondent to have a reference made to the Court should be affected by the appellants having taken out the money from the Collector, behind the back of the respondents. The proviso to Sub-section 2 of Section 31 clearly provides for such an emergency and makes the person who may have received the whole or any part of any compensation under the Act to pay the same to the person lawfully entitled thereto. The Court below is, therefore, right in the view that it has taken. The appeal is dismissed with costs.
5. We may, however, observe that Sub-section 2 of Section 31 requires that the Collector shall, when making reference under Section 18 and when the parties to the acquisition do not receive the amount tendered by him, deposit the amount of the compensation in the Court to which the reference is submitted. We fail to find out the circumstances under which the money ' was paid to the opposite party and why the Collector permitted the money to be withdrawn before the expiry of the term fixed by Section 18 for objecting to the award and applying for reference. The District Judge had also a right to demand the deposit of the money in Court when the reference was made and to insist upon its being done, and in our opinion he ought to have done so before disposing of the reference so that the money could be ready for payment forthwith in pursuance of the decree made by him.
6. As to the cross-appeal, we think that the decree of the Court below is wrong in so far as it has not awarded the additional compensation of 15 per cent. on the value assessed in respect of the trees. That amount has been specified in the schedule attached to the award under Section 11, pages 7--10 of the paper book. The decree of the Court below must, therefore, be amended and modified by awarding 15 per cent. of the compensation on the value of the trees. The cross-appeal is, therefore decreed with costs.