1. In this case the plaintiffs-appellants sued to recover possession of the plaint plot, which is an open site, and also to recover Rs. 50 by way of damages for trees cut down and removed by the defendant, the allegation being that the plaint property was of the plaintiffs' exclusive ownership and enjoyment and that the defendant had not the least right over the trees that he had cut. The trial Court found in favour of the plaintiffs' claim for ownership and granted them the decree as sought. On appeal, the Assistant Judge held that the plaintiffs had not satisfied certain mortgage deeds executed in favour of the grandfather of the defendant about the plaint property and that, therefore, the plaintiffs were not entitled to the site as owners. He also held that these particular trees had been planted by the defendant as mortgagee, and that he had a right to plant and remove the trees. Accordingly, he reversed the lower Court's decree and dismissed the plaintiffs' suit with costs.
2. This appeal has been admitted only on the question whether the mortgagee defendant can cut down trees which he has planted after entering into possession. This question resolves itself into whether the appellants are entitled to damages for the act of the defendant in cutting down trees, and the appellants can only be so entitled if the mortgagee has committed a tort by his act. The plaint, as already mentioned, is on the basis of the plaintiffs being owners of the land and the defendant having no right over it whatever. In such a case, of course, the defendant's cutting the trees, even if he had planted them, would be a tort. But, it has been held that the defendant was in lawful occupation of the ground as mortgagee when he planted and when he cut the trees, and the point is whether he can be said to have committed a tort in cutting them. The mortgagee in possession can no doubt, commit waste, which is a species of tort, by cutting down trees on mortgaged property, cf Section 76(c) of the Transfer of Property Act, and Raghu Nath Das v. Ashraf Husain Khan  2 All. 252. But this would ordinarily be in respect of trees already on the property when it was mortgaged, and I know of no authority for extending it to the case of trees planted by the mortgagee, unless, in the words of Section 76(c) of the Transfer of property Act, the act is 'destructive or permanently injurious to the property.' This, however, has not been made out in the present case. No evidence was adduced to that effect, and, as I have already mentioned, the claim for damages is put on an entirely different basis. Also, the analogous law in the case of a tenant planting and cutting trees is against the view put forward for the appellants, cf. Sitabai v. Sambhu Sonu  38 Bom. 716, and Section 108(h) of the Transfer of Property Act. The land is not agricultural, so no question of its utility being injured by tree-roots or stumps arises.
3. In my opinion, it is unnecessary to. decide whether, if the trees were still on the land and the mortgagor's representatives were suing for redemption, they could claim to take possession of the trees without compensation under Section 63 of the Transfer of Property Act. Even assuming they could do this, this does not involve the consequence that, in the eye of the law, the cutting down of the trees is a tort. I would, therefore, dismiss the appeal with costs.
4. I agree.