1. This second appeal arises out of a suit brought by the plaintiff-appellant against the defendants-respondent in respect of grove No. 341-6 in the village of Firozabad. The plaint sets forth that at a partition of the village between the co-sharers grove No. 341 was divided into six pattis and that patti No. 6 was awarded to the plaintiff along with the trees therein but that the defendants who were the co-sharers had claimed the trees therein and interfered with the plaintiff's possession of them. Accordingly the relief asked was perpetual injunction and damages.
2. Both the lower Courts have found that no removal of trees was proved against the defendants and against this finding of fact there is not and could not be any second appeal. The lower Courts also decided that the defendants were right in their plea that at the partition, although the land occupied by the grove was subdivided, yet the trees on the grove were assigned separately from the land on which they stood. It is the appellant's contention that this finding of the lower Courts was based on an incorrect interpretation of the partition proceedings.
3. The plaintiff-appellant relies upon a map prepared at the partition showing plot No. 341 as divided into six portions, and showing particular trees on each portion. There is a schedule also at the side of the map on this partition map showing the names of the co-sharers to which the pattis were respectively awarded along with the trees on those pattis. Apart from this the fard taqsim or partition proceeding declares in para. 6 that the baghs will be divided along with their trees, and in para. 9 it provides that it is only spontaneous or unclaimed trees that will be divided according to their value among the co-sharers. The lower Court, however, held that this evidence was rebutted by the fact of a certain paper called the khasra darakhtan which contained the names of the co-sharers, the original numbers and certain trees. They interpreted this document to be a khasra allotting individual trees to the co-sharers. This document is accompanied by another khasra not qualified by the word darakhtan in which the bagh in dispute is clearly divided into six pattis. The explanation of the appellant's Counsel as to the paper headed khasra darakhtan is that it merely shows the owners of the trees at the time of the partition and was merely used as a basis for sub-division of the groves.
4. It purports to be a khatauni of the year 1317 F., which it is said corresponds to 1910, whereas the partition took place in 1911. It appears to me that this explanation of the paper called khasra darakhtan is the only one consistent with the map, the partition proceeding and the settlement khasra just mentioned. Again it is the only explanation which explains the difference of the year on this khasra darakhtan to the year of the partition. It may be also mentioned that under Section 119 of the Land Revenue Act, it does not appear to be contemplated by the Act that the partition officer should award trees as distinct from land of groves though it may well be chat co-sharers may remove certain trees from certain plots before the partition shall take effect and it has been held that in such a case even if the trees are not removed before the partition comes into effect the party to whom some trees are awarded may sue within 12 years to remove them.
5. This decision which is unreported elsewhere is to be found in Niamat Ullah v. Safuntunnissa Bibi A.I.R. 1924 All. 160. Whether this decision is correct or not it is not applicable to the present case. I find that there is no evidence to show that the co-sharers were allotted trees which fell in the portion of a bagh allotted to another co-sharer. On the contrary, the evidence appears to me to show that these groves were divided among the co-sharers along with the trees on the respective portion allotted to each co-sharer. Both the lower Courts have commented on the fact that when the amin visited the place he found that the trees on the plot in respect of which this suit was brought did not correspond with the trees shown on that plot in the partition proceedings. They have argued from this fact along with the admission of the plaintiff that he has not out any trees, that the trees were cut by the defendants and that this shows that, the partition proceedings were not understood by the parties as allotting the trees along with the grove land. We are not concerned in this case, however, with deciding how the parties understood the partition proceedings. The question is what was the legal result of the partition proceedings. The plaintiff bases his title on them and, in my opinion, he has proved his case. Accordingly I set aside the finding of the lower Courts on this matter and decree the plaintiff's suit so far as it asks for an injunction. The appellant will get his costs in this Court and half costs in the lower Courts.