K.P. Singh, J.
1. This appeal is directed against the judgment of the Additional Civil Judge, Ghazipur dated 20th April, 1961 in Civil Appeal No. 458 of 1960 Raja Tewari v. Ram Lal Tewari and others, whereby the judgment of the trial court in suit No. 62 of 1959 Raja Tewari, Plaintiff v. Ram Lal Tewari and others, Defendants stands confirmed.
2. The brief facts of the case giving rise to this appeal are that the plaintiff alleged to be sirdar in possession of the disputed plots Nos. 1050 and 1051. He alleged that in plot No. 1050 a Mahuwa tree had been planted by his great grand-father with the permission of the Zamindar and he continued in possession over the same all along, and that the defendants or their ancestors had no concern with the tree and they wrongly threatened to use the usufruct of the tree. The plaintiff further alleged that the defendants had filed a case against the uncle and brother of the plaintiff in the Panchayat Adalat and it was unlawfully decided by the Panchayat Adalat and as such the defendants became courageous and wrongfully tried to interfere with the possession of the plaintiff over the said Mahuwa tree and they did not abstain from disturbing the possession of the plaintiff, hence the suit for perpetual injunction against the defendants restraining them from interfering with the use of the usufruct of the Mahuwa tree situated in the disputed plot No. 1050. A further relief was also claimed that the defendants be restrained from cutting the tree and from giving any threatening to the plaintiff in respect of the tree as well as a prayer for possession was also made in case the plaintiff was found out of possession over it.
3. The contesting defendants denied the claim of the plaintiff and alleged that the plaintiff or his predecessors-in-interest were never in possession over plots Nos. 1050 and 1051 nor were they sirdars of the disputed plots. It was further contended that the Mahuwa tree was never planted by the great grandfather of the plaintiff or by the plaintiff's ancestors as alleged. It was admitted by the contesting defendants that a case was filed against the plaintiff's uncle and his brother in the Nyaya Panchayat and the case was rightly decided against the plaintiff. The defendants had put forward their claim that the disputed tree was planted by their predecessors-in-interest and they have continued in possession over the same by using usufruct thereof and that the suit was barred by limitation, principle of estoppel and acquiescence as well as non-joinder of necessary parties.
4. The trial court framed necessary issues arising out of the pleadings of the parties and found that the suit was not bad for non-joinder of necessary parties and that the plaintiff is sirdar in possession of the disputed plots, but the defendants are the owners in possession of the tree in suit and that the suit was barred by time. Hence the trial court found that there was no necessity to record findings on the question of estoppel and acquiescence, and lastly held that the plaintiff was not entitled to the reliefs claimed. Thus the suit was dismissed by its judgment dated 10-9-1960.
5. Aggrieved by the decision of the trial court the plaintiff preferred an appeal which was dismissed by the lower appellate court by its judgment dated 20th April, 1961.
6. The plaintiff has come up in Second Appeal and the learned counsel for the plaintiff-appellant urged two points before me; Firstly, it was contended that Rule 26-A framed under the provisions of U. P. Zamindari Abolition and Land Reforms Act has been declared as ultra vires by this Hon'ble Court and the judgments of the courts below have been based thereon hence the judgments should be set aside and the case should be remanded back for trial afresh. Secondly, it was contended that the plaintiff had acquired the tree under the provisions of Section 81 of the U. P. Tenancy Act and the judgment of the lower appellate court was characterised as wrong and illegal. He further emphasised that the lower appellate court misinterpreted the provisions of Section 81 of the U. P. Tenancy Act and drew wrong inference therefrom.
7. The learned counsel for the respondents in reply urged that the two courts below have recorded categorical findings of fact that the defendants-respondents were the owners in possession of the disputed Mahuwa tree and that the claim of the plaintiff was rightly held as barred by time.
8. Learned counsel for the plaintiff-appellant has cited a number of rulings such as (1908) ILR 30 All 134, (1912) 9 All LJ 672, AIR 1923 All 406 and : AIR1935All555 and urged that the plaintiff being tenant of plot No. 1050 wherein the disputed tree is situate, hence he is the owner in possession of the tree and is entitled to the reliefs claimed.
9. I have examined the above-mentioned cases and I do not agree with the contention of the learned counsel for the plaintiff-appellant.
10. In (1908) ILR 30 All 134 Ganga Dei v. Badan it has been held as below:--
'The presumption of law and the general rule in the absence of custom is that the property in timber on a tenant's holding vests in the zamindar that the tenant has no right to cut and remove such timber, but it appears to us to be clear that in the absence of a custom or a contract to the contrary a zamindar has no right to interfere with the enjoyment by his tenant of the tree upon his holding as long as the relationship of landlord and tenant subsists.'
11. In (1912) 9 All LJ 672 Lachman Das v. Mohan Singh it has been emphasised that in the absence of a custom to the contrary the property in timber growing on a tenant's holding vests in the zamindar and neither party has right to cut and remove the timber without the consent of the other.
12. Another case reported in AIR 1923 All 406 Kampta Prasad v. Sheo Prasad was also cited by the appellant's counsel and he emphasised at the following observations in the case (at p. 407 of AIR) :--
'When the land is let out to a tenant the lease confers upon the tenant the right to occupy the land which is let out and also to enjoy the fruits of the trees growing thereon and in the absence of any contract or custom to the contrary it is the right of the tenant to enjoy the occupation of the land and also to enjoy the fruits of the trees.'
13. Similarly in : AIR1935All555 Ram Charan v. Gajadhar the following observation has been made (at p. 556 of AIR) :--
'The Zamindar is the owner of the soil of a parti land and presumably the tree which is grown on that parti land and attached to the soil is transferable with a transfer of land and presumably therefore the tree goes with the land and must be regarded as pertaining to the land.'
14. According to the learned counsel for the appellant the plaintiff is entitled to the disputed tree as it has been found by the courts below that the disputed tree is situate in plot No. 1050 which is sirdari of the plaintiff. The rulings mentioned above deal with the case between the zamindar and a tenant of the land over which a tree stood.
15. In the present case the dispute is between a tenant of a plot and a person whose predecessor-in-interest planted a tree over the disputed land which was let out to the plaintiff after plantation of the tree by the ancestor of the defendants.
16. It is a well known principle that a transferor cannot transfer a better right to a transferee than he is possessed of. The defendants' ancestor had a right to enjoy the usufruct of the tree standing on the parti land which was not let out when the defendants' ancestor planted tree over it. Since the defendants' ancestor was enjoying the fruits of the tree, he could not be divested of his right to enjoy the fruits of the standing tree by the act of the zamindar in letting out the land to the ancestor of the plaintiff. So long as the tree stood on the disputed land, the ancestor of the defendants had a right to enjoy the usufruct even though the zamindar might be the owner of the timber.
17. Thus I am of the view that the defendants' ancestor's right to enjoy the usufruct of the standing tree continues though the plaintiff or his predecessor-in-interest might acquire tenancy right in the land over which the disputed tree is situate.
18. I have not been pointed out any case law wherein it has been laid down that a person, who acquires tenancy rights in a disputed land, divests the right of the planter to enjoy the usufruct of the tree planted by him. If the zamindar of a piece of land did not take action against the planter of a tree within reasonable time, the planter of the tree enjoys the right to appropriate the usufruct of the standing tree and the zamindar gets the right in timber only. When the zamindar cannot interfere with the enjoyment of the planter's right in a tree much less a tenant inducted by him can interfere with the right of the planter.
19. The learned counsel for the appellant while urging his first point brought to my notice a ruling reported in 1966 R. D. 367 Aman Singh v. Sheo Dhari. The aforesaid ruling laid down that Rule 26-A of the U. P. Zamindari Abolition and Land Reforms Act which defeated the rights of the owners of the trees and vested of the trees in the tenure-holder was obviously ultra vires and the Hon'ble Judges, who decided the reported case, were of the opinion that Rule 26-A could not affect the rights of the owners of the trees at the date of vesting.
20. In view of the aforesaid ruling it cannot be said that the plaintiff gets any right in the disputed tree situated on the sirdari plot of the plaintiff numbered as 1050. I think that the aforesaid ruling also does not decide the point involved in the present case directly. However, the finding of facts recorded by the courts below to the effect that the defendants' ancestor had planted the tree prior to the year 1290 (1920?) and since then the defendants and their predecessors-in interest continued enjoying the usufruct of the tree, it is difficult for me to accept the contention of the learned counsel for the plaintiff-appellant to the effect that the courts below had decided the case mostly relying upon Rule 26-A of the U. P. Z. A. and L. R. Act and the aforesaid rule was declared ultra vires. According to the reported ruling of this Hon'ble Court hence the case should be sent back. I think that the courts below have recorded an independent finding on the question of possession, hence the question of remanding the case does not arise in the circumstances of the present appeal.
21. So far as the contention of the learned counsel for the plaintiff-appellant with regard to acquiring right by the plaintiff under Section 81 of U. P. Tenancy Act is concerned. I have examined the plaint and I do not find that specific allegations attracting the essential ingredients of S. 81 of the U. P. Tenancy Act have been alleged in the plaint. However, even if the appellant is given the benefit of the U. P. Tenancy Act he cannot get the' relief claimed in the suit giving rise to the present appeal.
22. The learned counsel for the respondents placed reliance upon : AIR1948All191 Angan Chaubey v. Kedar Nath and contended that since the dispute in the present case is not between the tenants and the landlord, hence the plaintiff-appellant cannot get the benefit of Section 81 of the U. P. Tenancy Act. Section 81 of the U. P. Tenancy Act reads thus:--
'(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 sub-tenant 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 landholder and a tenant regarding the ownership of trees, it shall, on the application of either party, be decided by the Assistant Collector incharge of the sub-division.'
23. The lower appellate court has observed:--
'Section 81 governs only rights of the tenant and zamindar inter se. and it does not lay down that if a tree had been planted by a third person and that person has also been in possession over that tree then too, simply on account of provisions of S. 81 of the U. P. Tenancy Act 1939 the tenant in whose holding the tree was standing would automatically become its owner.'
24. A bare reading of Section 81 (1) of the U. P. Tenancy Act does throw doubt as to whether the aforesaid section deals only with the case between a tenant and landlord, but in the circumstances of the present case it is not necessary for me to express final opinion on the point as even if I assume that the plaintiff-appellant became entitled to the tree by virtue of Section 81 (1) of the U. P. Tenancy Act, he did not enjoy that right and the defendants-respondents and their predecessors-in-interest continued in possession all through, thus the right, if any, acquired by the plaintiff became extinguished long before the date of vesting when Act I of 1951 was enforced in this State. The right of the plaintiff to get possession over the area from the defendants became extinguished as he did not take any steps against the defendants-respondent within time for getting possession over the same. In my view the plaintiff was out of possession for more than several 12 years over the disputed tree on the date of the suit so he is not entitled to the reliefs claimed in the plaint.
25. For the reasons given above, I find no merits in this appeal and I confirm the judgments and decrees passed by the courts below and dismiss the appeal with costs.