1. This second appeal arises out of a suit brought by the plaintiff-appellant for possession of certain land of which his possession has been disturbed by the defendant-respondents and for removal of an earthen boundary (khain) erected by the defendants. Both the lower Courts have dismissed the suit. The Munsif found that the plaintiff had not been in established possession of any but a very small portion of the land claimed, and that the defendants had been in possession of the rest. He found that the real owners were the zamindars, who were no parties to the suit. He found that the disputed khain was an old one and marked the boundary between the land as occupied by the parties. He consequently dismissed the suit. In the appeal the Subordinate Judge treated the case as a case based on title.
2. In this second appeal the appellant's counsel has rightly pleaded that the Subordinate Judge misunderstood the case and that his judgment is in the circumstances worth nothing. No doubt a person with established possession can bring a suit on the basis only of prior possession against a person interfering with that possession. We have, therefore, to fall back on the findings of the Munsif in order to decide this appeal. The Munsif's findings appear to be based on a proper consideration of the evidence and to be definite. No reason has been shown to me for disagreeing with his decision that the plaintiff's established possession only extended up to the khain or boundary, and it does not even appear to be alleged that the defendants have disturbed the plaintiff's possession up to that point. As to beyond that point the only evidence on which the appellant can rely is that the zamindar said he had planted some trees. This evidence has been disbelieved by the Munsif who held that all the trees were planted by the defendants, Even if it were true that the trees, or any of them, were planted by the plaintiff, it would not prove that the whole area claimed had passed into the exclusive possession of the plaintiff, and nothing short of this would support a plea on the ground of prior possession. Planting by residents in the abadi of trees on vacant land near their houses cannot, in my opinion, be alone any evidence of the establishment of exclusive possession of the vacant land. Where the land belongs to the zamindar, he may well have no objection to the planting of a tree. It will afford shade not only to the person who plants it but to others. Whether the person who plants the tree has a right to the tree is a question of village custom, or, failing, that of the attitude of the zamindar. But as against other residents in the abadi it cannot be deemed to establish exclusive possession.
3. Although, therefore, the lower appellate Court took a wrong view of the case and misdirected itself, its conclusion which was the conclusion of the trial Court, that the plaintiff had not made out his case appears to me to have been justified. Accordingly I dismiss this appeal with costs.