ANGAN CHAUBE Vs. KEDAR NATH

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for the possession of certain- trees situated on plots Nos. 1028, 1030 and 1040 in village Gopipur in the district of Jaunpur and for the recovery of Rs. 200 as damages on account of the defendants having taken the timber, the flowers and the fruits of certain trees.

(2.) The trial Court dismissed the claim. In appeal the learned Civil Judge decreed the claim for possession but dismissed that for damages on the ground that there was no satisfactory evidence that the defendants had cut the trees and taken away the fruits and flowers.

(3.) Two points have been urged on behalf of the defendants. Firstly, it is contended that, having regard to the provisions of Sub-section (2) of Section 81, U.P. Tenancy Act, 1939, the suit was not - cognizable by the civil Court. Section 81, U.P. Tenancy Act, provides as follows: 81.(1) Notwithstanding anything in this Act or any custom or contract to the contrary, scattered trees situated, on the holding of a tenant other than a subtenant or tenant of sir otherwise than on the boundary thereof and existing at the commencement of this Act, shall vest in such tenant, provided that such tenant has been continuously in possession of such holding from the beginning of the agricultural year, 1335 Fasli, (2) If any question arises between a lambardar and a tenant regarding the ownership of trees it shall, on the application of either party, be decided by the Assistant Collector in charge of the sub-division.