STATE OF GUJARAT v. SALEHBHAI MULLA MOHOMEDALI — 1975 DIGILAW 22 (GUJ)

B. K. MEHTA, S. H. SHETH, J. ( 1 ) THIS appeal is directed against the judgment and decree in Special Civil Suit No. 50 of 1965 decided by the Court of the Civil Judge Senior Division at Baroda. ( 2 ) THE facts of the case briefly stated are as under: Plaintiffs Nos. 2 to 4 were Dumaldars of village Nalej of former Chhota Udepur State. Therefore they were the owners of that village including the soil the trees the minerals mines and such other things. They are hereinafter referred to as the Jagirdars. The former Chhota Udepur State had no interest whatsoever in village Nalej. The Jagirdars were therefore entitled to take all income of the village including the levy from the inferior holders. On 9th January 1954 the Jagirdars sold for Rs. 6001. 00 to plaintiff No. 1 who is hereinafter referred to as the contractor all the teak trees standing on all kinds of lands including the waste Junglebhag and occupancy lands and received from him a sum of Rs. 101. 00 as earnest money. On 29th July 1954 the Jagirdars executed a further similar agreement in favour of the contractor and sold to him all Mahuda trees for a consideration of Rs. 5001. 00 and the former received from the latter a sum of Rs. 600/ as earnest money. On 14th February 1961 fresh agreements between the parties were registered. By those agreements the earlier unregistered agreements were ratified. These agreements showed that they related to 17 survey numbers and certain Kharaba (waste) lands. ( 3 ) ON 1st August 1954 the Bombay Merged Territories and Areas (Jagirs Abolition) Act 1953 (hereinafter referred to for the sake of brevity as the Jagir Abolition Act ) was applied to village Nalej. In the proceedings held under that Act Nalej was held to be a proprietary village. Therefore the Jagirdars ownership of trees in question was recognized and an award for compensation was made in favour of the Jagirdars. Compensation for trees was however not awarded to the Jagirdars because they had already been sold away by them to the contractor. ( 4 ) WITH the application of the Jagir Abolition Act to village Nalej the Government issued a notification under sec. 4 of the Indian Forest Act 1927 and constituted certain survey numbers of that village into a reserved forest. Thereafter another notification under sec. ( 4 ) WITH the application of the Jagir Abolition Act to village Nalej the Government issued a notification under sec. 4 of the Indian Forest Act 1927 and constituted certain survey numbers of that village into a reserved forest. Thereafter another notification under sec. 20 of the Indian Forest Act 1927 was issued by which only S No. 102 was constituted into a reserved forest. According to the plaintiffs these notifications did not affect the rights of the contractor who had become the full Owner of the trees in question He therefore made an application to the Collector of Baroda under Saurashtra Felling of Trees Act for permission to cut the trees in question. The Collector forwarded it to the Mamlatdar of Chhota Udepur who granted the necessary permission on 25th September 1961 The contractor started cutting the trees in question. However the prant Officer Chhota Udepur prevented the contractor from cutting the trees in question. The contractor made against this action of the prant Officer representations to the Divisional Forest Officer and to the Govern- ment. In reply he was told that the Jagirdars had no right to the trees standing in the reserved forest area and in the waste lands. Thereupon the contractors authorization to cut the trees in question and his transit passes to transport the produce were withheld. Next the Government invited tenders for the sale of the cut materials and sold them on 20th July 1962 for a sum of Rs. 15 786 The Government had also sold other trees covered by the contract between the Jagirdars and the contractor to other persons and realised from them some amounts. The plaintiffs therefore alleged that the Government was bound to render accounts of the sale proceeds received by them. The plaintiffs therefore served upon the defendants statutory notice and filed this suit in which they prayed for a declaration of the plaintiffs title to the trees in question and also for a declaration of the right of plaintiff No. 1 to cut the trees in question and to remove the cut materials. They also sought a declaration that the impugned action of the Government was illegal ultra vires unlawful and for a direction to the Government to issue to plaintiff No. 1 the necessary authorisation and transit passes for cutting and removing the trees in question. Next they prayed for recovery of Rs. 14 518. They also sought a declaration that the impugned action of the Government was illegal ultra vires unlawful and for a direction to the Government to issue to plaintiff No. 1 the necessary authorisation and transit passes for cutting and removing the trees in question. Next they prayed for recovery of Rs. 14 518. 18 from the defendants and for accounts from them of the sale proceeds of the other trees and for restraining the defendants from interfering with their rights. ( 5 ) IN defence it was contended by the State of Gujarat that the suit was bad for multifariousness that it was bad for misjoinder of parties and that the Civil Court had no jurisdiction to decide the questions arising in the suit. They also pleaded that the suit was barred by the Jagir Abolition Act. On merits they contended that the Jagirdars had no absolute right to the trees in question because the former Chhota Udepur State had exercised rights in respect of the trees in question. Next they contended that the agreements executed by the Jagirdars in favour of the contractor were bogus that the Government had a right to hold and dispose of the cut material and that the order issued by the Government was valid and legal. ( 6 ) THE learned Trial Judge raised as many as 20 issues and answered them partly in favour of the plaintiffs. He therefore granted to the plaintiffs a part of the relief claimed by them. The decree which he passed is in the following terms. IT is declared that the plaintiffs Nos. 2/1 to 4 to 4/1 to 4/5 were the full owner of the contract trees and plaintiff No. 1 has become the full owner of the suit contract trees. It is also declared that the plaintiff No. 1 is entitled to cut and remove the said trees from the said contracted areas of lands and the State o Gujarat its officers servants and agents be and are hereby ordered to issue necessary permit authorisation and transit passes to plaintiff No. 1 for removal of the same trees. The State is also ordered to pay Rs. 14518. The State is also ordered to pay Rs. 14518. 18 p. together with proportionate costs and together with 4 per cent interest on that amount from the date of decree till realisation to plaintiff No. 1 within three months in default of which the plaintiff No. 1 shall be entitled to recover the same by due process of law. The State of Gujarat its officers servants and agents be and are hereby perpetually restrainted from interfering with the rights of the ownership of the plaintiffs except in due course of law over the contract trees mentioned in the suit. Suit for accounts is dismissed. ( 7 ) IT is that part of the decree which has been passed in favour of the plaintiffs that is challenged by the State of Gujarat in this appeal. The plaintiffs have filed cross-objections against that part of the decree by which a part of their claim has been dismissed. ( 8 ) MR. Chhaya appearing on behalf of the State of Gujarat has raised before us the following four contentions:1. UNDER the Forest Rules of Chhota Udepur State Chhota Udepur State had exercised rights over three kinds of forests reserved protected and open. Those rights devolved upon the State of Gujarat. Therefore the State of Gujarat can exercise those rights and issue under sec. 4 of the Indian Forest Act 1927 the impugned notification. 2 Under the Forest Rules of Chhota Udepur State 21 kinds of trees including teak and Mahuda trees were reserved trees and they were prohibited from being cut. The interest which Chhota Udepur State had in those trees devolved upon the State of Gujarat and therefore under sec. 4 of the Indian Forest Act 1927 it was within the power and authority of the State of Gujarat to issue the impugned notification3. UNDER sec. 5 of the Jagir Abolition Act the soil vested in the Jagirdars and not the trees. Therefore the Jagirdars could not have sold away to the contractor the trees in question. Since the trees in question had vested in the State it was within the power and authority of the State to issue the impugned notification. 4 The agreements executed by the Jagirdars in favour of the contractor were not valid and therefore not enforceable at law. They did not confer any title upon the contractor. Since the trees in question had vested in the State it was within the power and authority of the State to issue the impugned notification. 4 The agreements executed by the Jagirdars in favour of the contractor were not valid and therefore not enforceable at law. They did not confer any title upon the contractor. Alternatively if the contractor had acquired any rights under the said agreements his remedy lay in claiming compensation in respect of his rights which were hit by the impugned notifications. [his Lordship after narrating the facts of the case and discussing the evidence on record upheld the first and second contentions raised by the appellant-state but rejected the third contention. His Lordship further observed that in light of the finding recorded on the second contention it was quite clear that the trees vested in the Jagirdars subject to such right or interest in them which the State had under the Forest Rules of Chhota Udepur State. His Lordship further observed:] ( 9 ) THE fouth and last contention raised by Mr. Chhaya challenges the validity of the two agreements Exs. 58 and 59. There are two aspects of this contention. The first aspect is that agreements Exs. 58 and 59 were compulsorily registrable and that since they were not registered they did not convey any title to the contractor in respect of the subject matter of the agreements. In order to examine the contention raised by Mr. Chhaya it is necessary to turn to those two agreements. The agreement Ex. 58 was executed on 9th January 1954. The material terms of that agreement are that teak trees situate in village Nalej were sold by the Jagirdars to the contractor for a sum of Rs. 6001. 00 and that the contractor was entitled to cut them and to remove the cut material. That agreement was to remain in force until 30th June 1959 that is to say it was to remain in operation for a period of about 5 years and 5 months. The agreement Ex. 59 was executed on 29th July 1954. By that agreement the Jagirdars sold to the contractor Mahuda trees situate in the survey numbers of village Nalej specified therein for a sum of Rs. 5001. 00. The agreement Ex. 59 was executed on 29th July 1954. By that agreement the Jagirdars sold to the contractor Mahuda trees situate in the survey numbers of village Nalej specified therein for a sum of Rs. 5001. 00. That agreement was to remain in force for a period of five years from the date of receipt of permission or authorisation from the Forest Department by the contractor to cut the trees and to remove them. The question whether such agreements are compulsorily registrable or not has been extensively dealt with by this Court in STATE OF GUJARAT V. IBRAHIM AKBARALI 14 GUJARAT LAW REPORTER 761. In that decision this Court has examined the definition of immovable property and immovable property given respectively in sub-sec. (6) and sub-sec. (9) of sec. 2 of the Registration Act 1908 This Court has also analysed the effect of the decision of the Supreme Court in SMT. SHANTABAI V. STATE OF BOMBAY A. I. R. 1958 SUPREME COURT 532 and considered the Full Bench decision of the Allahabad High Court in BAIJNATH V. RAMADHAR AND ANOTHER A. I. R. 1963 ALLAHABAD 214 the decision of a Division Bench of the High Court of Bombay in KRISHNARAO V. BABAJI AND ANOTHER I. L. R. (1900) 24 BOMBAY 31 and the decision of this Court in VORA LBRAHIM AKBARALI V. THE STATE OF GUJARAT AND ANOTHER IX G. L. R 939. Whether the trees sold by a person to another constitute standing timber and therefore movable property depended according to that decision upon two facts. Whether there was an early intention to cut and remove the trees and whether the parties intended that the trees which formed the subject matter of the transaction should receive sustenance from the soil so considerably that it could be said that what was transferred by the transferor to the transferee in such a case was interest in soil. The agreements between the Jagirdars and the contractor in that case provided for a period of three years during which the contractor was to cut and remove the trees. The agreements between the Jagirdars and the contractor in that case provided for a period of three years during which the contractor was to cut and remove the trees. This High Court has held in that decision that the period on three years during which the right to cut the trees was granted was not long enough to enable the trees to receive so much of nourishment from soil as would render saplings and young trees fit for being cut at any time during that period This Court therefore held that the question of transfer of benefit arising from the nourishment supplied by the soil did not arise in that case. In the instant case the period during which the trees sold by the Jagirdars to the contractor would receive nourishment was five years. The question therefore is whether the period of five years would be such a long period as would enable the trees to receive sustenance from the soil and further enable the young trees and saplings to be fit for being cut. So far as the intention of the parties is concerned we have the uncontroverted testimony of Ishakbhai Haji Fida Hussein at Ex. 55. He has stated in his evidence that all the trees which the contractor had purchased from the Jagirdars could have been cut within a period of 6 to 8 months. The agreements Exs. 58 and 59 read in light of the evidence of Ishakbhai clearly show that the trees which had been sold to the contractor had been intended to be cut earlier and to be removed. Taking into account the principle laid down by the Supreme Court in SMT. SHANTABAI V. STATE OF BOMBAY A. I. R. 1958 SUPREME COURT 592 we are of the opinion that unless the period during which such an agreement is to operate is sufficiently long period it cannot be said that what has been transferred by the Jagirdars to the contractor is an interest in soil and not the standing timber. In a case of this type the agreements or the circumstances of the case ought to show that the purchaser was to derive benefit from the further growth of the thing sold from further vegetation and from the nutriment to be afforded by the land. In a case of this type the agreements or the circumstances of the case ought to show that the purchaser was to derive benefit from the further growth of the thing sold from further vegetation and from the nutriment to be afforded by the land. Where the process of vegetation has been over or the parties agree that the thing sold shall be immediately withdrawn from the land the land is to be considered as a mere warehouse of the thing sold and the contract is for goods. These tests may be satisfied in a case where there is a long period of time during which the agreement is to operate as was the situation in Smt. Shantabais case (supra ). Taking into account the recitals contained in the aforesaid two agreements and reading them in the context of the evidence of Ishakbhai we are of the opinion that what was transferred was the standing timber and not an interest in soil. Therefore the two agreements were not compulsorily registrable. The first aspect of the fourth contention raised by Mr. Chhaya therefore fails and is rejected. ( 10 ) MR. Oza has however tried to meet this argument by raising a number of arguments. According to him in 1961 the Jagirdars had executed in favour of the contractor two ratifying agreements which were registered. Therefore according to him those ratifying agreements executed in 1961 related back to 1954 when the unregistered agreements Exs. 58 and 59 were executed In view of the finding which we have recorded it is not strictly necessary for us to answer this argument raised by Mr. Oza. However if an answer to the argument raised by Mr. Oza is required to be recorded we must reject Mr. Ozas argument and hold that since an agreement which is otherwise compulsorily registrable does not convey any title on account of its non-registration to the vendee a ratifying agreement subsequently executed cannot relate back to the original agreement. It can relate back only to the date of its own execution. ( 11 ) THE second argument which Mr. Oza has raised is that the title to the trees in question which the Jagirdars had purported to convey to the contractor by agreements Ex. 58 and 59 was accepted by the Government in its correspondence and that therefore the nonregistration of Exs. ( 11 ) THE second argument which Mr. Oza has raised is that the title to the trees in question which the Jagirdars had purported to convey to the contractor by agreements Ex. 58 and 59 was accepted by the Government in its correspondence and that therefore the nonregistration of Exs. 58 and 59 did not constitute any impediment in the way of the contractor. In other words according to Mr. Oza the acceptance of the plaintiffs title by the Government in correspondence overcomes any impediment which nonregistration of Exs. 58 and 59 creates. In support of his contention he has invited our attention to the decision of the High Court of Bombay in BURJORJI CURSETJI PANTHAKI V. MUNCHERJI KUVERJI I. L. R. (1881) 5 BOMBAY 143. The principle laid down in that decision is that the proof which a party is required to give in support of his document can be superseded by the admission made by the otherside in respect of that document. That is not the situation in the instant case. In the instant case the question is whether the agreements Exs. 58 and 59 if they were compulsorily registrable could convey title to the contractor in respect of the trees in question said by the Jagirdas. On the contrary it has been laid down by the High Court of Bombay in that decision that an unregistered document cannot create or assign the interest intended by the parties to be transferred. What really the State Government has been doing in the instant case is to challenge the erroneous assumption if any made by its officers. We are therefore unable to uphold the argument raised by Mr. Oza in that behalf. ( 12 ) THE second aspect of the fourth contention raised by Mr. Chhaya is that all the survey numbers to which agreements Exs. 58 and 59 related were waste lands and that therefore under sec. 8 of the Jagir Abolition Act they vested in the State. Sec. 8 of the Jagir Abolition Act uses two expressions all waste lands and all uncultivated lands (excluding lands used for building or other nonagricultural purposes ). Mr. Chhaya has expressly stated to us that in this case he does not rely upon the expression all uncultivated lands. He relies merely upon the expression all waste lands. Sec. 8 of the Jagir Abolition Act uses two expressions all waste lands and all uncultivated lands (excluding lands used for building or other nonagricultural purposes ). Mr. Chhaya has expressly stated to us that in this case he does not rely upon the expression all uncultivated lands. He relies merely upon the expression all waste lands. It may be noted at this stage that in respect of forest lands (with which we are concerned in this case also) reliance was placed on behalf of the State of Gujarat in First Appeal No. 459 of 1964 on the expression all uncultivated lands In other words whereas it was contended on behalf of the State of Gujarat in First Appeal No. 459 of 1964 that forest lands were uncultivated lands it is now contended on behalf of the State that all forest lands are waste lands. We may note here that for the reasons stated in that judg ment this Court negatived the contention raised on behalf of the State of Gujarat that forest lands were uncultivated lands within the meaning of that expression used in sec. 8 of the Jagir Abolition Act. We are now required to answer the question whether forest lands are waste lands. For the reasons which we state below we are of the opinion that forest lands are not waste lands. Therefore they have not vested by virtue of the provisions of sec. 8 of the Jagir Abolition Act in the State of Gujarat. Mr. Justice J. B. Mehta in Special Civil Application No. 570 of 1963 decided by him on 5th November 1968 has observed that a land can be said to be waste in it is so useless that it is incapable of any use. In the case of Ibrahim Akbarali (supra) this Court has accepted that view. The question therefore is that in order to style forest lands as waste lands can we say that they are so useless as to be incapable of any use ? In our opinion lands where timber trees grow which in their turn yield rich forest produce can never be said to be waste lands because they cannot be said to be so useless as to be incapable of any use. Lands such as rocky stony or saline lands may fall under the category of waste lands. In our opinion lands where timber trees grow which in their turn yield rich forest produce can never be said to be waste lands because they cannot be said to be so useless as to be incapable of any use. Lands such as rocky stony or saline lands may fall under the category of waste lands. Since in our opinion forest lands are not waste lands within the meaning of the Jagir Abolition Act they have not by virtue of sec. 8 of the Jagir Abolition Act vested in the State. The fourth contention which Mr. Chhaya has raised before us therefore fails and is rejected in both its aspects. Appeal allowed : Suit dismissed : .