1. Two points were taken before me. I was asked to hold that the lower appellate Court was wrong in not allowing the defendant to press the plea of adverse possession. I do not think it was wrong in view of the plea deliberately and definitely and, I have no doubt truly taken in the written statement.
2. There is no need for me to add anything to what the lower appellate Court has said. The other point is whether the defendants, representatives of the original mortgagee, and who for the present purpose may be treated as mortgagees, were entitled on the plaintiff mortgagor redeeming a usufructuary mortgage to compensation for the trees of a guava grove, trees said to be 75 in number and to have been planted 10 or 11 years previously, or whether they were entitled to remove the trees and to have time given them for removing them. I have taken the description of the grove from the defendant's written statement. The plaintiff in a misguided effort to improve his own case apparently admitted that the trees had been planted only seven or eight years ago. Obviously the younger the trees the more easily they could be removed. The trial Court gave the defendant Rs. 450 as compensation.
3. The lower appellate Court held that the defendants were not entitled to any compensation and moreover were not entitled to remove the trees, relying on Nageshwar Rai v. Nand Lal : AIR1926All67 , a decision of two Judges of this Court. There the trees were slightly in excess of the number of trees in this case and were apparently large mangoes. It was held that it was 'impracticable' to remove all the roots of the mangoes, and therefore the mortgagee could not restore the land in the condition in which he received it if he was allowed to cut the trees. In the present case there were 75 trees ranging apparently somewhere between 7 and 11 years of age. I can see no justification for holding that the decision in Nageshwar Rai v. Nand Lal : AIR1926All67 was wrongly applied. It may be, if this question is to be decided as one of fact in each case, that another Judge would take a different view; and I am not wholly satisfied that in each particular case there could be satisfactory evidence as to whether it was possible or not possible to remove a number of trees with all their roots. I, therefore, can see no principle on which to determine whether in the particular case before me the decision to which I have referred should be applied, or the decision of the Full Bench in Raghunandan Rai v. Raghunandan Pande A.I.R. 1921 All, 353. There their Lordships without referring to any considerations of the number of the trees or the age of the trees broadly held that the mortgagee was not entitled to compensation but was entitled to remove the trees. They did not consider whether it was practicable to remove the roots of the trees, and in the later case where weight was given to that consideration no reference was made to the Full Bench decision. I see no reason in this particular case for holding that the lower appellate Court was wrong in applying the decision in Nageshwar Rai v. Nandlal : AIR1926All67 . It had the decision before it, and it is a question of fact whether the particular trees with their roots could or could not be removed.
4. At the same time I feel that it is unsatisfactory to leave the determination of cases of this description to be guided by a consideration of whether there is one tree more or less in a particular case, whether trees are one year more or less old, etc., and I would observe that it is at least doubtful whether the planting of trees can come under any circumstances within the phrase any accession' in Section 63, T.P. Act, except it may in those cases in which the planting of trees is, as it sometimes is, a step to preserve the property, e.g., to prevent erosion by water. The appeal is dismissed with costs.