JAGAI KURMI Vs. HARAKH RAJ SINGH

JUDGEMENT

(1.) This is a defendant's appeal and arises out of a suit brought against them by the plaintiff for possession over a mahua tree and to recover Rs. 10 as damages for fruits and branches of the tree alleged to have been wrongfully appropriated by the defendants. The plaintiff's case was that he was the zamindar and the tree in suit had been planted by him and he had been appropriating its fruits. The defendants contend that the tree was in their occupancy holding and that they and their prede-cessors-in-title had all along been appropriating its fruits. The trial Court found that the tree belonged to the plaintiff and gave a decree for possession but dismissed the suit for damages holding that the defendants were entitled to appropriate the fruits. In appeal the learned Additional Subordinate Judge found in favour of the plaintiff and held that the plaintiff had a right to appropriate the fruits and decreed the suit in full as the tree had been planted by the plaintiff.

(2.) As already stated, it is apparent from the findings of the Courts below that the tree was planted by the plaintiff himself before his land was let out to the defendants. It is a settled law that the timber of the trees standing on the holdings of tenants whether occupancy or ex-proprietary tenants belongs to the zamindar. In Nazir Khan V/s. Faiz Muhammad Khan , it was held that the timber of a tree belongs to the zamindar when the tree is growing on a tenant's land and that it makes no difference if the tenant happens to be an ex-proprietary tenant who himself has planted the tree. In Khan Chand V/s. Chandan, 24 Ind. Cas. 81 24 Ind. Cas. 81. It was observed by Justice Piggott : I take it to be established by a number of rulings of this Court , of which the cases of Lachman Das V/s. Mohan Singh 14 Ind. Cas. 582: 9 A.L.J. 672 and of Ganga Dei V/s. Badam 30 A. 131 : 5 A.L.J. 99; A.W.N. 1908, 51, may be taken as specimens, that the trees planted by tenants on their holdings will be the property of the zamindar and the tenants will have no transferable rights therein. This will be presumed in the absence of evidence to the contrary.

(3.) The defendants, therefore, had no right to appropriate the timber of the branched as the timber belonged to the plaintiff. The defendants are liable for damages for the branches of the tree appropriated by them. The plaintiff is, therefore, entitled to a decree for Rs. 6 for the price of the branches appropriated by the defendants.