ANROOP MISIR Vs. KEDAR PANDE

JUDGEMENT

(1.) The suit out of which this appeal has arisen was brought by two plaintiffs, Kedar Pandey and Shimbu Pandey, for a declaration that the trees standing on plots Nos. 446 and 573 were in the possession of the defendant subject to the proprietary rights of the plaintiffs, that the defendant was liable to deliver to the plaintiffs half of the produce as zemindari due and that the defendant had no proprietary right in the trees, that he had only the right of a person who had planted them, and that the plaintiffs were entitled to receive half of the fruit and timber from the defendant. Trees standing on a third plot were also included in the claim but so far as those trees are concerned, the claim was withdrawn in the Court of first instance.

(2.) It appears that the parties or their pre-decessors-in-title were co-sharers in the village in which the trees exist. A partition took place between them in the year 1857 under which two mahals were formed, one of 14 annas and the other of 2 annas. The plaintiffs are proprietors of the 14 annas mahal and the defendant owns a share in the 2-annas mahal. The two plots in question appertain to the plaintiffs 14-annas mahal.

(3.) It has been found by the Court below that the trees were planted by the defendant s father 24 or 25 years ago. The defendant contends that he is the owner of the trees, that he never delivered any share of the produce of the trees to the plaintiffs and that. the claim of the plaintiffs was time-barred. The lower Appellate Court holds that it must be presumed that the trees were planted by the defendant or his predecessor with the permission of the zemindar of the 14-annas mahal, and that they were planted subject to the customary right of the zemindars to receive one-half of the produce. This right is recognized in the wajib-ul-arz of the village. The Court was further of opinion that mere non-payment of rent or non-delivery of dues for a number of years unless coupled with a denial of the plaintiffs right could not extinguish such right, and that the claim was not time- barred. It accordingly made a decree declaring that the plaintiffs are the zemindars of the trees and entitled to receive from the defendants a half share of the produce.