SAGWA Vs. BHAGWAN DAS

JUDGEMENT

(1.) THE dispute in this appeal relates to a mango tree standing on the border or near the boundary of an occupancy plot No. 492 khasra occupied by the defendants. THE plaintiff is the zamindar of the village. THE tree recently dried up and fell down. THE plaintiff thereupon sought to appropriate the fallen wood. THE defendants interfered. THE plaintiff accordingly filed the present suit for an injunction to restrain the defendants from interfering with the appropriation by the plaintiff of the fallen wood of the said tree, or, if the wood ha.6 meanwhile been removed, for the recovery of Rs. 18 on account of the value of the same. THE Courts below decreed the claim, holding that according to the general custom the Zamindar was entitled to the wood of the said tree. A copy of the wajib-ul arz of the village was produced, which describes the rights of grove-holders but said nothing particular about the rights either of the zamindar or of the tenant to the fallen wood or dried timber of the stray trees standing on the occupancy holding. As pointed out in Harbans V/s. THE Raja of Benares (1901) 23 All. 126 the trees on a holding partake of the nature of the holding and in the absence of a contract or custom to the contrary a tenant has the same right in respect of them as he has in the holding. THE plaintiff does not allege that the tree in question had been planted by him. THE defendants asserted that they had planted-it, but they failed to prove their allegation. THE tree in question must therefore be deemed to have been a self-sown tree growing on the occupancy holding; and a tenant is as much entitled to the fruits or to the fallen wood of such a tree as he is to the produce of the land. In Nathan V/s. Kamla Kuar (1891) 13 All. 571 it was held that a zamindar Claiming a right to the fallen wood of self-sown trees, which had been growing on an occupancy holding, must prove some custom or contract, by which he is entitled to take such wood. THE plaintiff in this case failed to establish that he has any such right. This appeal is therefore allowed and the claim of the plaintiff is dismissed with costs here and hitherto.