1. This is a defendant's appeal arising out of a suit for redemption. The only point in dispute that remains for our consideration is as regards the grove which was planted by the mortgagee on the land during the continuance of the mortgage. The Courts below have held that no consent of the mortgagor for the planting of this grove was established and a learned Judge of this Court has declined to go behind that finding of fact. We agree that in second appeal that finding cannot be challenged.
2. The only other point that has been argued is that the mortgagee is entitled; to cut away the timber and clear the ground of all trees. It is contended that the case falls under the second portion of Section 63 of the Transfer of Property Act and that this is a case where there has been an accession to the mortgaged property which is partly capable of separate possession or enjoyment without detriment to the principal property. This argument is based on the contention that a grove is capable of two uses. It may be used as a grove and the produce of it may be appropriated, or the trees may be cut down and its timber may be appropriated. It is therefore argued, that inasmuch as the mortgagee can cut down the trees and appropriate the timber independently of the land, he is entitled to do so under the second portion of Section 63. A learned Judge of this Court has not acceded to this contention on the ground that the cutting of the trees would be detrimenal to the principal property within the meaning of that section and also that the enjoyment for which the appellant contends would not be an enjoyment of the accession as it now exists, but of the trees in a mutilated condition.
3. It is true that from the point of view of the mortgagee the grove may be capable of enjoyment in these two ways and if the option were to rest with him entirely he may say that he would cut away the trees and appropriate the timber; but from the point of view of the mortgagor, the grove as it stands cannot be enjoyed separately from the land. The accession to the mortgaged property is the grove as it stands, and not only the timber. If this accession is not capable of separate possession or enjoyment the mortgagor would be entitled to have it, unless the mortgagee establishes that this grove was planted for the preservation of the principal property from destruction, forfeiture on sale or was made with the consent of the mortgagor. These exceptions have not been established in this case. Furthermore we are of opinion that even if the trees of the grove after they were cut down are to be treated as an accession capable of separate possession or enjoyment, they cannot be so possessed or enjoyed without detriment to the principal property. About 110 large mango trees over thirty years of age stand on an area of 1 bigha 8 biswas of land. If the mortgagee were merely to cut away the trunks of the trees, the land would not be restored to its former condition. Unless the whole place is dug up so that all the roots are completely removed, which does not appear to be practicable there would remain a permanent detriment to the land owing to the existence of the deep roots. If it is not practicable to remove all the roots the accession cannot be separately possessed and enjoyed without detriment to the principal property.
4. We therefore hold on both these grounds that the mortgagor is entitled to have the grove without paying any compensation inasmuch as it was planted without his consent. The appeal is accordingly dismissed with costs including fees on the higher scale.