T.K. Joseph J:
1. The appellant before us is the plaintiff in O.S. No. 468 of 1954 of the Munsiff''s Court, Pathanamthitta. He sued for declaration of title in respect of the trees standing in the property described in the plaint schedule, for recovery of damages for trees cut and appropriated by the first defendant and for an injunction restraining the defendants from cutting further trees. The suit was decreed by the trial court awarding the plaintiff a sum of Rs. 200/- as nominal damages and granting the other reliefs prayed for. On appeal by the first defendant the decree was reversed and the suit was dismissed. The facts necessary for the decision of the second appeal may be stated. The land in question belonged to Edavana Madhom in Chengannur. The Rubber Plantation Investment Trust Limited, a nominee of one Charles Brender who had entered into an agreement with Edavana Madhom took the land measuring 831 and odd acres on lease from Edavana Madhom on 20th June, 1911. Ext. A is the original lease deed in Malyalam and Ext. I an English translation thereof, both of which were registered on the same day. The lease was for a term of 99 years and was for the purpose of opening a rubber estate, as seen from the lease deed.
2. The plaintiff obtained an assignment of the alleged right of the lessor in respect of trees standing on the property. According to the plaintiff the first defendant is entitled only to timber used for construction of buildings, all other trees felled being the property of the lessor. This is denied by the first defendant, the contention being that the right reserved for the lessor was only to remove trees felled within a period of six months from the date of the, lease deed.
3. Provision was made in the lease deed in respect of trees which necessarily had to be cut for making the plantation. Clauses 4, 5, and 6 of Ext. 1 are relevant in this connection. These are extracted below:
4. That the Trust is permitted to fell from the demised premises as many trees as may be required and utilise the timber thereof free of cost for the buildings the Trust may cause to be erected on the premises.
5. That it shall also be lawful for the Trust to fell all other trees standing on the lands in clearing the said lands for cultivation but that the lessor shall alone be entitled to the timber thereof provided the same is removed by him within six calendar months from the date of these presents and provided also during that time the removal of the said timber is effected without in any wise causing any injury or damage to the plants or plantations in the premises. If however the removal of the timber hereinbefore mentioned is not effected or completed within the period hereinbefore stipulated it shall not hereafter be lawful for the lessor to claim removal of the same or the price or value thereof.
6. That the Trust shall not in any way be answerable to the lessor for the price or value of such of the trees or timber as may be burnt or destroyed in the clearings or uncleared portions.
Clause 4 does not arise for consideration as neither party has a case that timber was being cut for purpose of construction of buildings. There is an unambiguous provision in clause 5 that the lessor shall be entitled to the timber, provided the same is removed by him within six calendar months from the date of the deed. Clause 6 provides that the removal of timber should be effected without causing injury or damage to the plants or plantations in the premises. It is further stipulated that if the removal is not effected within six months it shall not be-lawful-for the lessor to claim the removal of the same or, the value thereof. Clause 6 stipulates that the lessee shall not be answerable for the value of trees burnt or destroyed in the clearings or uncleared portion. The document read as a whole shows that the intention was to open a rubber plantation for which trees had to be cut and the land cleared. The right of the lessor to remove trees was limited to the first six months after the lease. It seems that the parties did not want the lessor to remove trees after the plantation had come up. Clause 5 does not, in our opinion, give rise to any doubt regarding the duration of the permission for the lessor to remove trees. We are therefore in complete agreement with the view taken by the lower appellate court on this point.
4. It was urged on behalf of the appellant that the subsequent conduct of the parties could be looked into for ascertaining the intention of the parties and that the letters, Exts. C and D, sent by the Manager of the Estate to the lessor would indicate a consciousness on the part of the lessee that the former was entitled to the timber cut even after six months. The subsequent conduct becomes material only if there is ambiguity in the deed. The correct rule, if we may say so with respect, has been laid down by Mukherjee J., in Midnapore Zamindari Co. v Jogendra AIR 1921 Cal. 750 in these terms:
We do not overlook that while the true construction of an obscurely framed document may be determined by reference to the conduct of parties; (Hebert v Purchas), no such procedure is admissible when the terms of the instrument are unambiguous, for as Lord Halsbury said in North East Railway v Hastings no amount of acting by the parties can alter or qualify words which are plain and unambiguous. But, it is satisfactory to find that the natural construction of a document which governs the rights of the parties fits in with what has been previously accepted and recognized as the correct interpretation.
In our opinion, there is no ambiguity in the deed. There is also the fact that the Malyalam Plantations was only an assignee of the lessee so that the conduct, if any, evidenced by Exts. C and D cannot strictly be called the conduct of the parties to the contract. No other point arises in the second appeal. We therefore confirm the decree of the lower appellate court and dismiss the second appeal with costs.
