RAM PADARATH Vs. JAGDAMBA PRASAD AND ANR.

JUDGEMENT

(1.) THIS is Defendant's appeal and arises from a suit which was filed by Respondents 1 and 2 for possession by up -rooting of trees said to have been wrongly planted on the disputed land by the Appellants in the year 1954. The Respondent's case was that the trees lie in plots Nos. 373 and 374 of which the Respondents are grove -holders and on coming into force of U.P. Zamindari Abolition and Land Reforms Act they acquired bhumidhari rights. It was alleged that Ram Padarath Appellant wrongly planted six mango trees in this grove of the Respondents in the year 1954 without their permission. On these allegations the Plaintiffs prayed for a decree for possession by removal of the trees. The defence was that Plaintiffs 1 and 2 had no right or title to the grove and that the disputed trees were not planted in the year 1954 but were planted more than 12 years ago and the Defendant had been in continuous possession over the land and the trees, and had thereby perfected title by adverse possession. There was also a plea that the suit was not filed within limitation. The trial court held that the Respondents 1 and 2 are bhumidhars of the disputed plots Nos. 373 and 374 which were their grove; that the trees were planted by the contesting Defendant more than 12 years ago and having done so he had perfected title to the land as well as the trees by adverse possession. The suit was in the result dismissed. The Respondents appealed and the lower appellate court took the view that dispossession of the Plaintiff -Respondents did not take place from mere plantation of trees in the grove and that adverse possession of the Appellant started in the trees when the mango trees in dispute started bearing fruits and upon the evidence it was found that trees started bearing fruits only 8 or 10 years ago and the suit was filed just after trees started bearing fruits. Finding of the trial court that the Defendant had acquired rights by adverse possession was reversed and the Plaintiff was granted a decree for possession over the land after removal of six mango trees standing thereon.

(2.) I have heard Sri Hargovind Dayal Srivastava appearing for the Appellant. The submission is that dispossession of the Plaintiff -Respondents from the land on which the trees in dispute lie took place more than 12 years ago when the trees were, on the finding of the court below, planted and the suit was liable to be dismissed, it having been filed beyond limitation because the matter was governed by Article 142 of the Limitation Act and not by Article 144 of the said Act as erroneously thought by the courts below. This submission, to my mind, is not legally tenable and appears to be fully answered by a decision of Cheif Court of Oudh in Abdul Rahim Sheikh v. Wazir Ali 1930 Oudh Weekly Notes 509. In that case also the Plaintiff filed a suit for possession of a portion of plot of which he was a landlord by demolition of 16 trees which were standing thereon. The trees were held by the courts below to have been planted more than 12 years ago and the Defendant raised the plea that the suit was filed beyond limitation, but this plea was rejected by the court holding that mere planting of trees on another person's land does not amount to dispossession as the Defendant planted trees without permission on Plaintiff's land and after doing so he asserted no possession either by using the trees, or by using the land and he has no right now to continue to enjoy the trees after the landlord has asserted his ownership over the land on which they are situated. Then comes the pertinent observation that there can be no question of adverse possession in such a case as the Plaintiff's possession was never discontinued. I am in respectful agreement with the view expressed in this case that mere planting of trees on another person's land without permission from such person did not amount dispossession of the rightful owner. The cause of action alleged in the plaint in substance was wrongful dispossession from a portion of the land on which the trees were planted and the Plaintiff claimed recovery of possession over that portion of the land by removal of the trees. This being the state of law, the contention that dispossession of the Plaintiff occurred when the trees were wrongfully planted by the Defendant cannot be accepted for on the finding of the courts below there was no evidence of exercise of possession either over the trees or over the land by the Appellant -Defendant at any stage since plantation of the trees, until they started bearing fruits 8 -10 years ago. The court, therefore, held that dispossession of the Plaintiff would at best be reckoned from the period the trees started bearing fruits in which case the plea that the Defendant had perfected title by adverse possession could not be sustained. I, therefore, hold that the case was not governed by Article 142 of the Limitation Act because dispossession of the Plaintiff from the land did not in fact start when the trees were planted but the case was governed by Article 144 of the Limitation Act. In Abdul Rahim Sheikh v. Wazir Ali (supra) the court observed that as there was no dispossession of the landlord by the planting of trees, I cannot accept the contention of the learned Counsel for the Defendant that Article 142 of the Limitation Act applies. The period in such a case can only arise from an assertion of adverse possession and the Article that applies is 144.