Appeal No 128 of 1965
Appeal from the judgment and decree dated December 12 1963 of the Judicial Commissioner s court Himachal Pradesh in Civil Writ Petition No 19 of 1963
Vikram Chand Mahajan and RN Sachthey for the appellants
Rameshwar Nath and Mahinder Narain for respondents
The Judgment of the Court was delivered by Sikri J
This appeal by certificate granted by the Judicial Commissioner Himachal Pradesh is directed against his judgment allowing a petition filed by the respondents and issuing a writ of mandamus directing the Divisional Forest Officer
Sarahan Forest Division and the Chief Conservator of Forests Himachal Pradesh hereinafter referred to as the appellants to issue or get issued the necessary permission for felling the trees and the transit pass
in respect of certain khasra numbers
In order to appreciate
the points raised by the learned counsel for the appellants it is necessary to set out the relevant facts
Land measuring 27 bighas and 16 biswas comprised in khasra Nos 4521453 4531 40 100 and 440 and situated in village Kadiali Tehsil Theog District Mahasu belonged to Government and was under the tenancy of Moti Ram
He filed an application under section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act 1953 hereinafter referred to as the Act and was granted proprietary rights in the land by the Compensation Officer by order dated August 30 1957
Provisional compensation was assessed at Rs 6256 nP
The Compensation Officer held that as the applicant is a cultivating tenant over the aforesaid land he is entitled to acquire right title and interest of the said land owner on payment of Rs 6256 as compensation which should be deposited
 On September 9 1957 a certificate of ownership was granted to Moti Ram on his depositing Rs 6256
Moti Ram died and the land was mutated in favour of his wife Smt
Besroo and his daughter Smt
The respondents applied for permission to sell the trees on their land and the Divisional Forest Officer by order dated July 18 1958 permitted them to sell the trees from their land on certain conditions
On November 15 1958 the respondents deposited Rs 126713 nP as government fee but the Divisional Forest Officer failed to give clear orders for felling the trees and taking out the converted timber from the said and
The Chief Conservator Officer by letter dated July 12 1961 informed the respondents that the matter was being inquired from the Conservator of 114 Forests Simla Circle
Thereupon not hearing anything further the respondents flied a petition under article 226 of the Constitution
It was urged before the Judicial Commissioner on behalf of the Divisional Forest Officer that the respondents had No interest in the trees standing on their land as
the trees were not land  as defined in section 25 of the Act and that the Compensation Officer was not competent to grant and in fact did not grant proprietary rights in the trees to the deceased Moti Ram
The learned Judicial Commissioner following Vijay Kumari Thakur vs H P Administration 1 held that the appellants were estopped from contending that the respondents had no interest in the trees
He further held that the respondents were granted permission to sell the trees standing on their land and they had in fact entered into an agreement to sell to a third party and they had deposited Rs 126713 nP and had thus acted to their detriment
As stated already the learned Judicial Commissioner allowed the petition and issued a writ of mandamus
With certificate granted by the Judicial Commissioner the appellants have
flied this appeal
The learned counsel for the appellants contends that under section 11 of the Act the trees did not vest in the deceased Moti Ram
He says that what vested under section 11 of the Act was land and land  is defined in section 2  5  as follows section 23
Land means land which is not occupied as the site of any building in a town or village and is occupied or has
been let for agricultural purposes or for purposes subservient to agriculture or for pasture and includes a the sites of buildings and other structures on such land
b orchards c ghasnies He relies on a number of decisions of the Punjab Chief Court and the Lahore High Court interpreting a similar definition existing in the Punjab Alienation of Land Act XIII of 1900
In our opinion those cases are distinguishable inasmuch as they deal with the question whether trees could be sold or assigned under the Punjab Alienation of Land Act without infringing the prohibitions contained in that Act forbidding sale of land by agriculturists in favour of non agriculturists
For instance in Achhru Mal vs Maula Bakhsh2 under a deed of sale the vendee was entitled to cut and remove the trees within a period of ten years and the plaintiff brought a suit asking for a perpetual injunction 1 AIR 1961 H P 32
2 115 to issue to the defendants respondents to restrain them from preventing him from cutting and removing certain trees from the land belonging to the defendants respondents The lower courts held that the trees growing on agricultural land were land within the  meaning of the expression as defined in section 23 of the Punjab Alienation of Land Act and therefore their sale to the plaintiff was unlawful having regard to the provisions of that Act
The  Lahore High Court held that the sale did not infringe the provisions of that Act because the sale of trees was not a sale of land
The High Court was not concerned with the question whether on a transfer of land trees standing on it passed to the transferee or not
In Nasib Singh vs Amin Chand1 it was held that the suit for possession of certain mango shisham and jaman trees was not a suit between a landlord and his tenant under the Punjab Tenancy Act and consequently the Civil Court was competent to try the suit
There can
be no doubt that trees are capable of being transferred apart from land and if a person transfers trees or gives a right to a person to cut trees and remove them it cannot be said that he has transferred land
But we are concerned with a different question and the question is whether under section 11 of the Act trees are included within the expression right title and interest of the land owner in the land of the tenancy
It seems to us that this expression right title and interest of the land owner in  the  land is wide enough to include trees standing on the land
It is clear that under section 8 of the Transfer of Property Act unless a different intention is expressed or implied transfer of land would include trees standing on it
It seems to us that we should construe section 11 in the same manner
The learned counsel for the appellants contends that the trees standing on the land transferred to Moti Ram under section 11 of the Act are worth about Rs 76000 and it could not have been the  intention to transfer Rs 76000 worth of trees for Rs 6256
He says
that the trees are really forest trees and it was never the intention of the legislature to vest forest trees in the tenants acquiring land under section 11 of the Act
But no such contention seems to have been raised in the written statement filed by the appellants
It might have been different if it had been proved that the portion of the area transferred to Moti Ram was a natural forestsee Kaju Mal vs Salig Ram2
The learned counsel referring to section 84 of the Act points out that one of the consequences of vesting of land in the State Government under section 83 is that trees expressly vest in the State
He says that if it was the intention to vest trees in the tenant acquiring land 1 AIR 1942 Lah
152 2 1919 Punj
Rec 237
116 under section 11 of the Act it would have been similarly so expressed
We are unable to accede to this contention
Section 84ai reads as follows 84
When a notification under section 83 has been published in the Gazette notwithstanding anything contained in any contract or document or in any other law for the time being in force and save as otherwise provided in this Act the consequences as hereinafter setforth shall from the beginning of the date of vesting ensue in respect of the land to which the notification applies namely  a all rights title and interest of all the landowners i in every such land including cultivable or barren land ghasnis charands trees wells tanks ponds water channels ferries pathways hats bazars and melas  If the contention of the learned counsel were
correct even cultivable land which is expressly mentioned in section 84a i would not vest in the tenant under section 11 of the Act
Section 11 is drafted very simply and under sub s6 the tenant becomes the owner of the land comprised in the tenancy on and from the date of grant of the certificate and it is expressly provided that the right title and interest of the landowner in the said land shall determine
In the context the word owner is very comprehensive indeed and it implies that all rights title and interest of the landowner pass to the tenant
Further it seems to
us that it would lead to utter confusion if the contention of the learned counsel is accepted
There would be interminable disputes as to the rights of the erstwhile landowners to go on the lands of erstwhile tenants and cut trees or take the fruit
Moreover under section 15 of the Act we would following the same reasoning have to hold that the trees on the land of the landowner did not vest in the State
This could hardly have been the intention
For the aforesaid reasons we must uphold the judgment of the Judicial Commissioner although for different reasons
In the result the appeal fails and is dismissed with costs
RKPS Appeal dismissed


Summary:
Upon an application filed by a cultivating tenant M under section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act 1953 the Compensation Officer held that as such tenant he was entitled to acquire the right title and interest of the owner of the land in question
After payment by the tenant of a specified amount of compensation a certificate of ownership was granted to him and after his death the land was mutated in favour of his wife and daughter respondents in this appeal
The respondents applied to the Divisional Forest Officer for permission to sell the trees of their land and although that Officer granted permission for the sale he failed to give the necessary orders for felling the trees and taking out the converted timber from the land
The respondents filed a petition under article 226 of the Constitution for the issue of a writ of mandamus directing the Divisional Forest Officer to issue or get issued the necessary permission for felling the trees and moving the timber
The Judicial Commissioner following Vijay Kumari Thakur vs
HP Administration
AIR 1961 HP 32 held that the appellants were estopped from contending that the respondents had no interest in the trees and allowed the petition
In appeal to the Supreme Court it was contended on behalf of the appellants that under section 11 of the Act the trees did not vest in the deceased tenant but only the land  as defend in section 25 of the Act and that the Compensation Officer was not competent to grant and in fact did not grant proprietary rights in the trees to the deceased tenant
HELD  dismissing the appeal Under sub section
6 of section 11 the tenant becomes the owner of the land comprised in the tenancy on and from the date of gram of the certificate and it is expressly provided that the right title and interest of the landowner in the said land shall determine
In the context the word owner  is very comprehensive and implies that all rights title and interest of the land owner passed to the tenant
116E F Furthermore the expression right title and interest of the landowner in the land is wide enough to include trees standing on the land
Under section 8 of the Transfer of Property Act unless a different intention is expressed or implied transfer of land would include trees standing on it and section 11 of the Himachal Pradesh Act should be construed in the same manner
115 E Achhru Mal vs Maula Bakhsh and Nasib Singh vs Amin Chand AIR  distinguished
Kaju Mal vs Salig Ram 1919 Punj
Rec 237 referred to 113