Judgment :- 1. This revision petition has been adjourned for hearing by a Division Bench under S.3 of the Kerala High Court Act 1958. The claim involved is small - only a sum of Rs. 100/-, representing the value of two mango trees belonging to the plaintiff jenmi alleged to have been cut by the defendant-tenant. The claim was decreed by the trial court for Rs. 50/- being half the value of the trees assessed by the Commissioner, on the ground that the jenmi is entitled to a share in the value of the trees under the Kerala Land Reforms Act 1/1964. On appeal, the Subordinate Judge dismissed the plaintiff's suit, following the decision by a single judge of this Court in Kunhi Abdulla v. Govindan Nair (1968 KLT 563). The plaintiff has preferred this revision petition. 2. In Ahammad v. Kunhi Pathumma & Others (1967 KLT 546) a learned judge of this court observed: "There is difference between a case where the trees cut are fruit-bearing trees for which the tenant is paying rent and a case where the trees cut are timber trees which do not yield any income towards the annual rent. In the former the tenant may have a right to cut the trees as long as he is not asking for reduction in rent. On the other hand, if the trees are timber trees and if the landlord is entitled to cut and remove them at any time even during the subsistence of the lease, the tenant cannot cut and appropriate them, because they belong to the landlord and for them the tenant is not paying any rent. Viewed in this light the position appears to be different in the case of timber trees. In the case before me most of the trees cut were timber trees probably with the exception of a few jack and mango trees. The tenancy agreement discloses that the tenant is given some remuneration for looking after the trees belonging to the landlord. In view of these circumstances, I am inclined to hold that the decision of the lower courts is right." The above observations, in so far as they relate to fruit-bearing trees, were clearly obiter, as the trees cut in that case were timber trees, in respect of which the tenant was not to pay any rent and which the landlord was entitled to cut and remove. The principle enunciated in this case was directly applied by the same learned judge to a case of fruit-bearing trees, in Lekshmy Amma v. Kalliani Amma (1967 KLT 589). The suit there was for damages in respect of 7 coconut trees, cut by a kuzhikanam tenant who was entitled to fixity of tenure, and for removing earth from a portion of the holding. The learned judge noticed the decisions in Baroda Prasad Banerjee v. Bhupendranath Mukherji (AIR. 1924 Cal. 56), Latifh Bibi's case (26-Indian Cases 271), and in Antony Ouseph v. Neelakantan Namboodiri (1955 KLT 549), and observed: "Of course, the tenant is bound to surrender the property to the landlord (when he surrenders) in the same state or condition in which he took it at the time of the lease. Therefore, if for some reason the landlord is to recover possession and he recovers possession and if the holding is not then in the same condition as it was when the tenancy was created, the landlord is entitled to claim damages for restoring the property to its original state. Only then is the landlord entitled to claim damages for cutting and removing fruit-bearing trees or even removing earth from the holding. I may make it clear that the position may probably be different if the damage caused is of a permanent nature. However, I do not finally pronounce upon that question in this case." Reference was also made to the unreported decision of another learned judge of this Court in Cheeru v. Omana (SA. 297/1963) where the same line of reasoning was stated to have been adopted. 3. Then came the decision in Kunhi Abdulla v. Govindan Nair (1968 KLT 563), in which the same learned judge who decided the two prior reported decisions of this Court, applied the principle laid down in the earlier of them to a case of cutting and removal of a jack tree and a teak tree. The former contributed to the rent, and the latter did not. It was held that in respect of the former, so long as the tenant paid the rent lawfully due or so long as the lease was not surrendered, the landlord is not entitled to claim damages; and that in respect of the latter, the tenant was liable. 4. The former contributed to the rent, and the latter did not. It was held that in respect of the former, so long as the tenant paid the rent lawfully due or so long as the lease was not surrendered, the landlord is not entitled to claim damages; and that in respect of the latter, the tenant was liable. 4. In Cheriyammu Haji v. Mohammed (1969 KLT 28) a Division Bench of this Court ruled that a tenant of agricultural holding has no right to excavate soil from the property for any purpose other than agricultural operations in the land. In Viswanatha Iyer v. Kunju Ezhuthassan & Others (1968 KLT 732), a learned judge of this Court held that in the absence of specific provision in the lease-deed, the tenant of agricultural land has no right to excavate land for minerals or for taking earth for brick manufacture, and if he does so, the landlord is entitled to claim both injunction as well as the damages against him, even during the subsistence of the lease. The tenants in the Division Bench case were kanam kuzhikanam tenants. There is nothing to show that they were such, or otherwise entitled to fixity of tenure in the case in 1968 KLT 732. It would thus be seen that in respect of a tenant's rights to excavate the land, a different view from what was indicated in 1967 KLT 589 has been taken by a Division Bench and also by another learned Judge. It was in view of these considerations that this revision was ordered to be placed before a Division Bench. 5. It appears to us that certain vital aspects were not brought to the notice of the learned judge who decided Ahamed v. Kunhi Pathumma (1967, KLT. 546), Lakshmy Amma v. Kalliani Amma (1967 KLT. 589) and Kunhi Abdulla v Govindan Nair (1968 KLT. 563). Had these aspects been brought to the learned judge's notice, we should think the decision should have been otherwise. The customary law of Malabar recognised a kanam tenant's right to cut down only trees planted by himself (see Sundara Iyer's Malabar Law page 297; See also the decision of the Full Bench in Vasudevan v. Valia Chathu Achen (ILR. (24) Madras 447). The customary law of Malabar recognised a kanam tenant's right to cut down only trees planted by himself (see Sundara Iyer's Malabar Law page 297; See also the decision of the Full Bench in Vasudevan v. Valia Chathu Achen (ILR. (24) Madras 447). S.53 (3) of what we may call, the pristine Malabar Tenancy Act 1930, enacts that nothing in the Act shall affect the right of a jenmi to cut and remove the trees or enjoy the usufructs of trees and pepper vines belonging to him, subject to the proviso that the tenant shall be entitled to a proportionate reduction of michavaram, if by the exercise of such right, his profits are decreased. The position envisaged by the section is quite different from that envisaged by the learned judge in the decisions referred to supra, of the tenant having a right to cut even the landlord's trees which contributed to the rent, so long as he continued to pay the rent contracted for. After the amendments effected in 1954, and in the re-edited text of the Act, S.53 (3) continued in the same form, as S.56 (3). The present case is admittedly governed by the provisions of the Malabar Tenancy Act. We need not therefore proceed to consider the provisions "of S.52 of the Kerala Act 1/1964 as amended by Act 35/1969, or express any opinion as to the position after the said Act, except perhaps to note that the definition of a 'timber tree' has been supplied by the amending Act 35/1969. The jenmi having therefore a definite right to cut the trees belonging to him, neither on principle nor on authority do we feel justified in postponing his right of action for damages in respect of his trees wrongly cut by the tenant, till date of recovery of possession, merely because the agreed rent continues to be paid. The right to recover damages for wrongful cutting of the trees and the right to recover possession of the holding together with arrears of rent, damages, and other things, (See the provisions of the Compensation for Tenants' Improvements Act)' are cumulative - (See Antony v. Neelakantan-1955 KLT. 549, and the cases noticed therein). To hold that the former right should necessarily be postponed till exercise of the latter, would be to render the same illusory, if not to destroy it altogether. 549, and the cases noticed therein). To hold that the former right should necessarily be postponed till exercise of the latter, would be to render the same illusory, if not to destroy it altogether. For, by the time recovery of possession can be had of lands from a tenant entitled to fixity of tenure, all traces of antecedent damage might well have been obliterated, and the best evidence would hardly be available. The Full Bench decision in Vasudevan v. Valiya Chathu Achen recognised that the principle of S.108 (h) and (o) of the Transfer of Property Act was applicable to agricultural tenancies (Kanom in that case), as rules of justice and equity. According to these, a tenant has no right to sell or fell timber belonging to the landlord. The decision in Baroda Prasad Bannerjee v. Bhupendranath Mukerji (AIR. 1924 Cal. 56) followed by the learned judge, was concerned with excavation of the land carried on by a tenant, and runs counter to the Division Bench ruling noticed earlier. The unreported decision in Cheeru v. Omana (S. A. 297/63) was explained by the Division Bench of this Court as affording no guidance on this question (see 1969 KLT. 28 at 38). We may also notice that even in the Calcutta Case (AIR. 1924 Cal. 56), there occurs the following pertinent observation: "There is no actual damage found in these cases, for which the landlord is entitled to any relief." For these reasons, we are unable to accept as correct the principle of the decisions in 1967 KLT. 546, 1967 KLT. 589 and 1968 KLT. 563. The questions as to whether the tree in question is a fruit-bearing tree or a timber tree, whether it contributes to the rent fixed under contract of tenancy or otherwise, and whether the tenant continues to pay the rent fixed, are not material. The test is essentially whether the landlord had, and the tenant did not have, the right to cut the tree. The test in the instant case, must be answered in favour of the landlord and against the tenant. We therefore allow this revision petition, set aside the judgment and decree of the lower appellate court and restore that of the trial court, with costs throughout. Allowed.