JUDGMENT
This is an appeal from the decree of the District Judge of East Tanjore dated 11th July, 1939 modifying in appeal the decree of the District Munsif of Negapatam dated 12th November, 1937 in O.S No. 39 of 1936. The suit was one instituted for a declaration of the plaintiff's title to a narrow strip of land in the Negapatam Municipality abutting on a tank belonging to the community of the defendants i.e the washermen of the locality. The land in question is a narrow strip of about 15 ft. abutting on the plaintiff's garden which she purchased in December, 1935. This strip was claimed by the plaintiff as part of her garden and included in S. No. 1499. The defendants on the other hand alleged that the strip of land constituted the bund of the tank and belonged to them along with the tank and was included in S. No. 1500. The plaintiff's claim to this strip was negatived by the first Court and also by the lower appellate Court but in the appeal which was preferred by the plaintiff the lower appellate Court while dismissing the suit for a declaration of the plaintiff's title to the strip in question granted as an equitable remedy, permission to the plaintiff to cut and remove the trees in the strip of land before a certain date. The defendants appeal so far as the equitable remedy granted by the lower appellate Court is concerned.
So far as the facts are concerned, there can be no doubt that the finding of the lower appellate Court cannot be questioned in second appeal and as a matter of fact though an attempt was made to question the propriety of the findings of fact by the lower appellate Court in the course of the hearing of this appeal on the ground that there was no evidence to support them, no such attack appears to have been made or intended in the grounds of second appeal. It is in my opinion not open to the appellants to question the finding of the lower appellate Court to the effect that the trees in the strip were planted by the plaintiff's predecessors-in-title and not by the present appellants i.e, the defendants, and further that the planting was under an implied license from the washermen. The first Court also observes that according to the Commissioner there is no fence separating the strip in dispute from the adjoining garden which belongs to the plaintiff and that the trees in the strip are more or less of the same age and description as the trees in the plaintiff's garden. The first Court was also of opinion that these circumstances would have afforded some corroborative evidence of the plaintiff's title and possession of the disputed site. In these circumstances it is impossible to contend that the finding of the lower appellate Court in favour of the plaintiff so far as the planting of the trees is concerned is not supported by any evidence in the case. On the finding of fact that the trees were planted by the plaintiff's predecessors-in-title and under an implied license it seems to me that no real objection can be made to the modification made by the lower appellate Court in favour of the plaintiff allowing her to cut and remove the trees before a certain date.
Several decisions have been brought to my notice by the Advocate for the respondent which show that the rule of English law that whatever is built upon land or grown upon land goes with the land does not apply strictly to India. It is enough in this connection to refer to the older decisions reported in the (1886) Bengal Law Reports (supplemental volume) page 595 (In the matter of the petition of Thakkoor Chunder Paramanick and others) and in Narayan Raghoji v. Bholagir Guru Mangir(1). In the latter case Couch C.J observed that the doctrine of the English Law as to buildings namely that they should belong to the owner of the land cannot be applied to cases arising in India and that the only doctrine that could be applied is the doctrine established in India that the party so building on another's land should be allowed to remove the materials. In the former case Sir Barnes Peacock, C.J after referring to the Hindu Law and the Mahomedan Law relating to the topic observed as follows:
“We think it clear that, according to the usages and customs of the country, buildings and other such improvements made on land do not by the mere accident of their attachment to the soil become the property of the owner of the soil; and we think that it should be laid down as a general rule that, if he who makes the improvement is not a mere trespasser but is in 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.”
It was argued that the position would be different in the case of trees because trees exhaust the soil and benefit is derived from the soil by the person planting the trees for which no return is made to the owner of the land. This contention appears however to have been negatived in Vasudevan Nambudripad v. Valiya Chathu Achan(2). The Full Bench observed in that case as follows:
“We do not think that any valid distinction in principle can be drawn between buildings erected by a tenant and trees planted by him, and it will be observed that the Transfer of Property Act places both in the same category as regards the tenant's right of removal. It is suggested that trees exhaust the ground, but we are not aware that there is any proof of this. Many soils would probably benefit by being opened up and aerated by the planting of trees. There might be more difficulty in restoring ground planted with trees to its original state than in restoring ground covered with buildings, but that is a matter for the tenant to deal with when he removes the trees. If he does it, as the law requires him to do, the landlord will not be injured, and it is difficult to see on what principle the tenant's right to remove trees could be forbidden.”
In this particular case the plaintiff has indeed an indisputable right to the removal of the trees because of the findings that the planting must have been done by her predecessors-in-title under an implied license from the defendant's community. It would be certainly inequitable to hold in such circumstances that the trees planted under a license nevertheless go with the land and the person who planted the trees is not to be allowed to remove them and restore the land in the condition in which it was before the trees were planted. The decree of the lower appellate Court will be modified so as to make it clear that the plaintiff after he removes the trees should restore the land to the condition in which it was before the trees were planted.
With this modification, the Second Appeal is dismissed with costs.
Leave to appeal is refused.
As the cutting of the trees was prohibited by an order made during the pendency of this Second Appeal, the time for the removal is extended to three months from this date.
Appeal dismissed.
N.R.R