TILAK SINGH Vs. RAM TAHAL SINGH

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiff-appellant against the defendants-respondent in respect of grove No. 341-6 in the village of Firozabad. The plaint sets forth that at a partition of the village between the co- sharers grove No. 341 was divided into six pattis and that patti No. 6 was awarded to the plaintiff along with the trees therein but that the defendants who were the co-sharers had claimed the trees therein and interfered with the plaintiff's possession of them. Accordingly the relief asked was perpetual injunction and damages.

(2.) Both the lower Courts have found that no removal of trees was proved against the defendants and against this finding of fact there is not and could not be any second appeal. The lower Courts also decided that the defendants were right in their plea that at the partition, although the land occupied by the grove was subdivided, yet the trees on the grove were assigned separately from the land on which they stood. It is the appellant's contention that this finding of the lower Courts was based on an incorrect interpretation of the partition proceedings.

(3.) The plaintiff-appellant relies upon a map prepared at the partition showing plot No. 341 as divided into six portions, and showing particular trees on each portion. There is a schedule also at the side of the map on this partition map showing the names of the co-sharers to which the pattis were respectively awarded along with the trees on those pattis. Apart from this the fard taqsim or partition proceeding declares in para. 6 that the baghs will be divided along with their trees, and in para. 9 it provides that it is only spontaneous or unclaimed trees that will be divided according to their value among the co-sharers. The lower Court, however, held that this evidence was rebutted by the fact of a certain paper called the khasra darakhtan which contained the names of the co-sharers, the original numbers and certain trees. They interpreted this document to be a khasra allotting individual trees to the co-sharers. This document is accompanied by another khasra not qualified by the word darakhtan in which the bagh in dispute is clearly divided into six pattis. The explanation of the appellant's Counsel as to the paper headed khasra darakhtan is that it merely shows the owners of the trees at the time of the partition and was merely used as a basis for sub-division of the groves.