NAHANCHAND DEVCHAND Vs. KEKHUSHRU EDALJI MODI

JUDGEMENT

(1.) In this case the plaintiff sued for a permanent injunction restraining the defendant from obstructing him in the enjoyment of the nineteen mango trees and one jambul tree specified in the plaint and preventing him from entering; the land in which the trees are situated and taking the produce of the trees and having the same watched every year; also to recover Rs. 30 as compensation for the loss of profits for the year 1903.

(2.) The facts shortly stated are as follows: Survey No. 248 at Mandwa stands in the names of Kesurdas. Karsan, Haribhai Naran, Baji Bhikha and Bhaiji Ota, who were Bhagdars; but it had been in the possession and enjoyment of one Khushal Bhikha as permanent tenant, paying the Govern-ment assessment and since his death is in the possession and enjoyment of his heirs. Khushal Bhikha had planted mango and jambul trees in the land and was in possession and enjoymen t of them. In 1873 Khushal mortgaged twelve of the mango trees to the plaintiffs deceased father under a registered san mortgage,. In 1878 he mortgaged the same trees with possession to the plaint -iffs father, whom he put in possession thereof. In 1881 he sold twenty-four mango trees, including the twelve mortgaged and one jambul tree to the plaintiff and his brother under a registered sale-deed. The plaintiff and his brother had been in possession and in enjoyment of the twelve trees from the day of the possessory mortgage and all the twenty-five trees from the date of the sale-deed by right of ownership. In a partition between the plaintiff and his brother in 1896 all the said trees had fallen to the plaintiff's share and the plaintiff had been in possession and enjoyment thereof. In 1881 and again in 1892 Khushal Bhikha had mortgaged to the plaintiff and his brother his permanent right of occupancy in the land and both the land and the trees are in the plaintiffs possession. The defendant has recently taken in mortgage Kala Kesurdas half share in the land from him and on the strength thereof in June 1903 he drove away the plaintiff's men who were watching the trees and thus obstructed the plaintiff in the enjoyment thereof. The plaintiff has suffered a loss of thirty rupees. The defendant continues his obstruction and is doing damage to the trees and only nineteen out of twenty-four mango trees now exist.

(3.) The defendant in his written statement inter alia said that Khushal Bhikha was not permanent tenant of the land and the trees were not planted by him. He does not admit the plaintiffs possession and enjoyment ;he knows nothing about the partition between the plaintiff and his brother; he denies that he obstructed plaintiffs men in June 1903; assuming that the trees were planted by Khushal, still according to the law and custom of the country they would belong to the owner of the land and not to the tenant; the land in question formed an unrecognized portion of a bhag; the documents on which the plaintiff relies are void and of no effect, having been passed in contravention of the provisions of Bombay Act V of 1862; assuming Khushal was permanent tenant he had executed a lease in favour of the plaintiff's father and thus denied the bhagdar's title and the perma-nent tenancy had come to an end; Kala Kesurdas and others had mortgaged to him their entire bhag including their share of Survey No. 248 with possession on the 23 April 1903 and all itheir rights had vested in him by virtue of the mortgage; none of the acts of Khushal were binding on the bhagdars or their mortgagee the defendant; the land and the trees standing thereon belonged to the bhagdars and now belong to the defendant as mortgagee.