1. This is a defendants' appeal arising out of a suit for recovery of price of fruits of certain trees alleged to have been taken away stealthily by the defendants-appellants. The plaintiff-respondent alleged that he was a zamindar of the village, that plot No. 212 belonged to him, that the adjoining plot No. 213 was a grove of which the defendants were the grove holders, that certain trees stood in plot No. 212 and belonged to the plaintiff and that the defendants had appropriated the fruits of the trees and so were liable to pay the price to the plaintiff.

2. The defence was that the trees were part of the grove standing in plot No. 213 and had been planted by the defendants and that they did not stand in plot No. 212 at all. The trial Court held that it could not be said with certainty in which plot the trees stood and that, therefore, the plaintiff had failed to prove his case. In the result it dismissed the suit. The lower appellate Court came to the conclusion that prior to the institution of the present suit, there had been a proceeding for demarcation of the two plots, Nos. 212 and 213, in the revenue Court, that it was held by the revenue Court that the land over which the trees in dispute stood formed part of plot No. 212 and not of 213 and that the said decision of the revenue Court was a decision which could not be challenged by the defendants in civil Court. It further held that the plaintiff had failed to prove that he planted the trees, and that, therefore, it may be taken that the defendants did plant them but since they paid nothing to the owner of the land for planting them, the trees went with the land and were the property of the plaintiff. In the result it decreed the suit. The defendants have come up in second appeal to this Court.

3. The respondent is unfortunately not represented in this Court. The decision of the revenue Court in demarcation proceedings was made under Section 41, Land Revenue Act. The defendants were grove holders. The boundaries of their grove were demarcated. A decision like this is under Section 44, Land Revenue Act, binding on all revenue Courts. The section does not say whether it is binding on the civil Courts as well. At the same time, the revenue Courts are the sole authority for determining tenancy rights including the extent of a tenant's holding. A grove holder is a tenant for such purposes. The revenue Court's finding, therefore, that the land on which the disputed trees stand does not form part of the grove, is conclusive on the point and cannot be challenged in a civil Court, vide Section 242, U.P. Tenancy Act. The result is that although under Section 44, Land Revenue Act, decisions under Section 41 of that Act are not specifically stated to be binding on the civil Court they become binding indirectly by reason of the provisions of Section 242, U.P. Tenancy Act. On this point I respectfully agree with the decision of Bennet J., in Sarbati v. Zaminpal reported in A.I.R. (20) 1933 ALL. 231. It must, therefore, be held that the defendants are not the tenants of the land over which the trees in dispute stand and that the trees do not form part of the defendants' grove.

4. Both the Courts below have found that the trees were planted by the defendants. The question then is whether the defendants are entitled to the fruits of the trees planted by them.

5. If the defendants-appellants could be held to be owners of the trees planted by them on the land of the plaintiff-respondent, they would fee the owners of the fruits If, however, they cannot be held to be the owners of the trees, the question would still remain whether they could be considered to be owners of the fruits. (There being no statutory law governing the matter, the question has to be answered upon general principles of equity, justice and good conscience. The English law, so far as it is applicable to the conditions of this country, has been held to supply the rules of equity, justice and good conscience; see Waghela Rajsanji v. Sheikh Masludin, 11 Bom. 551 at p. 561 (P.C.).

6. The principle of the English law as to fixtures is well described by the maxims, quicquid plantatur solo solo cedit (whatever is planted in the soil falls into or becomes part of the soil) and quicquid inaedifiaatur solo solo cedit (whatever is built in the soil falls into, or becomes part of the soil). The general rule of [the English law, therefore, is that any thing that is planted or built or permanently attached to the earth becomes part of the earth and, therefore, is the property of the owner of the land, and the person, who planted the trees or constructed the buildings, is not entitled to re. move them upon his eviction. There are numerous exceptions to this rule in favour of a tenant and in favour of trade fixtures. The exceptions vary according to the nature of the trees and of {the fixtures. It is not necessary to go into the fine distinctions which the English law makes in regard to this matter.

7. The rule of English law relating to fixtures, however, has been held not to apply in India as not being suitable to the conditions of this, country : see Chunder Poramanick v. Bamdhone Bhuttacharjee 6 W.R. 228 (F.B.), Ismail Kani Bowthan v. Nazaralt Sahib 27 Mad. 211 and Mofiz v. Rasiklal 37 Cal. 815. It was not followed even in America, where Story, J. in delivering the unanimous judgment of the Supreme Court of the United States, declined to give effect to the rule on the ground that in its unqualified form it was not suited to the circumstances of the country : Ness v. Pacard (1829) 2 Peters 137, quoted in Mofiz v. Rasiklal 37 Cal. 815 at p. 821.

8. In the Institutes of the Civil Law it is laid down that if a man build on his own land with the materials of another, the owner of the soil becomes, in law, the owner also of the building; quia omne quod solo inoedificatur solo cedit. In this case, indeed, the property in the materials used still continued in the original owner and although, by a law of the XII Tables, the object of which was to prevent destruction of buildings he was unable, unless the building were taken out, to reclaim the materials in specie; he was, nevertheless, entitled to recover double their value as compensation by the action de tigno juncto. On the other hand, if a person, built with his own materials on the land of another, (knowing full well that the land is not his own), the house likewise belongs to the owner of the soil; for in this case, the builder was presumed intentionally to have transferred his property in the materials to such owner. In like manner, if trees were planted, or seed sown, in the land of another, the owner of the soil became the owner also of the tree, the plant, or the seed, as soon as it had taken root. But where buildings were erected upon, or improvements made to property, by the party in possession bona fide and without notice of any adverse : title, compensation was, it seems, allowed for such buildings and improvements to the party , making them, as against the rightful owner; see Broom's Legal Maxims, 10th Edn. page 262.

9. The Hindu law on the subject may be found in Nareda's text quoted in Sacred Books of the East Series vol. 33, page 143, If a man has built a house on the ground of a , stranger and lives in it, paying rent for it he may take with him, when he leaves the house, the thatch, the timber, the bricks and other (building materials). But if he has been residing on the ground of a stranger, without paying rent against that man's wish, he shall by no means take with him, on leaving it, the thatch and the timber.

In other words, a tenant can remove the house that he has built upon the land leased out to him but not so a rank trespasser.

10. Under the Muhammadan law:

If a person hire unoccupied land for the purpose of building or planting, it is lawful since these are purposes to which land is applied. Afterwards, however upon the term of the lease expiring, it is incumbent on the lessee to remove the buildings or trees, and to restore the land to the lessor in such a state as may leave him no claim upon it.... It is incumbent on the lessee to remove his trees or houses from the land, unless the proprietor of the soil agrees to pay him an equivalent, in which the right of property in them devolves to him (still, however, this cannot be without the consent of the owner of the houses or trees except where the land is liable to sustain an injury from the removal, in which case the proprietor of the land is at liberty to give an equivalent, and appropriate the trees or houses without the lessee's consent) or Unless the proprietor of the land assents to the trees or houses remaining there, in which case they continue to appertain to the lessee, and the land to the landlord...(see Hamilton's Hedaya, Vol, 3, pages 325-362).

11. In Secy, of State for Foreign Affairs v. Charlesworth Pilling and Co. 26 Bom. 1, Lord Hobhouse laid down the Muhammadan law as follows:

If a person usurp land and plant trees in it, or erect a building upon it, he must in that case be directed to remove the trees, and clear the land, and to restore it to the proprietor. If the removal...be injurious to the land the proprietor of the land has the option of paying to the proprietor of the trees or the building, a compensation equal to their value, and thus possessing himself of them, because in this case there is an advantage to both and the injury to both is obviated.

In a Full Bench decision of the Calcutta High Court presided over by that great and learned Judge, Sir Barnes Peacock C.J., Chuvder Poramanich v. Ramdhone Bhattacharjee 6 W.R. 228 (F.B.) it was observed:

We think it should be laid down as a general rule that, if he who makes the improvement is not a mere trespasser, but is in a possession under any bona fide title or claim of title, he is entitled either to remove the materials restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building, if it is allowed to remain for the benefit of the owner of the soil-the option of taking the building or allowing the removal of the material remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate he may possess.

12. In Ismail Kani Rowthan v. Nazarali Sahib 27 Mad 211, Sir Bhashyam Ayyangar J. held that a tenant could remove the constructions made by him, but could not force the land-lord to pay compensation for them.

13. In Mofiz v. Rasik Lal 37 Cal. 815 Sir Aushntosh Mukerjee held that where a tenant planted trees on his homestead land, he was the owner of the trees and could cut and remove them.

14. In this Court, however, in a long series of cases it has been held that where a tenant plants trees on his holding, the property in the trees themselves vests in the landlord in the absence of a custom or contract to the contrary: See Kasim Mian v. Banda Husain 5 ALL. 616, Imdad Khitum v. Bhagirath 10 All. 159 and Janki v. Sheoadhar 23 ALL. 211. But it has been also held that although the ownership of the trees vests in the landlord the usufruct belongs to the tenant, vide Ganga Dei v. Badam 6 A.L.J. 99 and Ram Baksh v. Ram Sarup I.C. 151 (All.). It has been further held that if the trees planted by the tenant constituted a grove, and were planted with the permission, express or implied, of the landlord, the tenant became the owner of the trees having a transferable right therein. See lalesar Sahu v Raj Mangal A.I.R. (8) 1921 ALL. 168.

15. Daniels J. in Ramnath v. Mata Sahai A.I.R. (10) 1923 All. 417, extended the rule laid down in Jolesar Sahu's case A.I.R. (8) 1921 ALL. 168 (ubi supra) to trees planted on an abadi site. This view was in conformity with the view of Sir Ashutosh Mukerjee in Mofiz v. Rasiklal 37 Cal. 815.

16. In Gobardhan v. Debt Bux A.I.R. (16) 1929 ALL. 146, Boys J. refused to apply the rule laid down in Jalesar Sahu's case A.I.R. (8) 1921 ALL. 168, to trees planted by tenants with the permission of the zamindar on parti land. He laid down the principle that where the planter gives or gives-up something in return for the permission to plant the trees, the trees become ordinarily in the absence of other special considerations, the property of the person planting. But where he gives or gives up nothing, the property in the trees is in the zamindar. In this case, Boys J. appears to have assumed that although the property in the trees vested in the zamindar, the tenants were entitled to the fruits thereof. This appears from the following observation:

...I have to determine in this appeal whether the zamindar is entitled to the trees and the defendants-entitled only to the fruits, or whether, the defendants-are entitled to both

17. The U.P. Tenancy Act has now rendered practically obsolete almost all those cases in which it was held that where a tenant plants trees on his holding the landlord becomes the owner of the trees. This is the result of Sections 80 and 81, read with Section 160, U.P. Tenancy Act.

18. Section 51, T. P. Act, lays down a rule which applies to transferees in good faith making improvements on the land transferred to them, though they have to be evicted by reason of better title to the land vesting in somebody else. In such a case, Section 51 provides that the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market value thereof. This rule cannot obviously apply where a person is not a transferee, but is a trespasser: See Ganga Din v. Jagat Tewari A.I.R. (1) 1914 ALL. 89 and Secretary of State v. Dugappa A.I.R. (13) 1926 Mad. 921. But a person, who encroached by mistake on adjoining land and cleared it of Jungle believing it to be his own was held to be entitled to compensation when evicted; See Bhupendra Kumar v. Pyari Mohan A.I.R (5) 1918 Cal. 629.

19. It appears to me, therefore, that, if a trespasser not being a transferee, plants trees or makes improvements over the land of another believing in good faith that he is entitled to do so, either because he thinks that the land belongs to him or he thinks that the land is included in his holding over which be has a right to do the plantation or to make improvements, then so long as he is not evicted, he must be held to be entitled to enjoy the usufruct of the trees or the improvements, and the owner of the land cannot claim the price of the fruits or compensation for the use of the improvements. He may, no doubt, claim compensation for use and occupation of his land. He may also claim that the trees or other improvements be removed and the land be restored to him in the condition in which it was. I am inclined to the view that so long as a bona fide trespasser is not evicted, he remains the owner of the trees or the improvements, but as this point does not directly arise in the present case, I refrain from expressing a final opinion.

20. I do, however, hold that the defendants-appellants were, and are entitled to take the fruits of the trees planted by them so long as they are not evicted from the land in due course of law. The plaintiff's suit was, therefore, misconceived.

21. I, therefore, allow this appeal, set aside the order of the lower appellate Court, and restore that of the Munsif with costs throughout.