1. This appeal arises out of a suit brought by the respondent for possession of a plot of land No. 817/2 and 20 trees' standing on the plot. The first Court gave the respondent a decree for possession of the land but dismissed her claim to the trees. On appeal her claim to the trees also was allowed by the District Judge.
2. The facts are fully stated in the judgment of the lower Appellate Court. It will be sufficient to give a short summary of them here. Ahmad Hossein and Nuruddin owned land including No. 817, on which Ahmad Hossein planted a grove. Ahmad Hossein was succeeded by his daughter Tausif-unnissa who in January 1895 sold part of her zemindari to Wahiduddin husband, of the respondent. The sale-deed stated expressly that groves were included. In September 1898, as partition was effect-ed between Tausifunnissa and Wahiduddin by which No. 817 was allotted to the latter and Fakhruddin a son of Nuruddin already mentioned. In December 1899, Tausif-unnissa transferred her property including No. 817 to Taufikunnissa the present appellant. In 1908, there was another partition at which the plot was subdivided and No. 817/2 was allotted to the mahal of the respondent and Shan Ahmad the latter being appointed lambardar. All this time the appellant had remained in possession of the plot as a tenant. In 1909 Shafi Ahmad as lambardar sued her for possession of the trees. The Munsif, whose judgment is dated June 10th, 1909, dismissed that suit holding that the appellant was the owner of the trees. At about the same time Shafi Ahmad again as lambardar sued in the Revenue Court for the ejectment of the appellant. On August 3, 1899, an Assistant Collector allowed the claim as far as the land was concerned but excepted the trees from the operation of his order saying that it had been decided by a competent Court that the trees belonged to the appellant. In 1910 there was a partition between Shafi Ahmad and the respondent at which No. 817/2 was allotted to the respondent. The present suit was instituted by the latter in September 1910. It originally embraced a claim to possession of the whole plot on the allegation that although the appellant had been ejected by the Revenue Court, she had re-entered on the land. We are concerned now with the claim to the trees only.
3. In the Courts below and here, the appellant has urged that her title to the trees is res judicata under the decision in the Civil Suit of 1909. The final decision in that case is that of the High Court and it is clear, as the learned District Judge has pointed out, that the High Court did not decide the question of the title to the trees, It confirmed the dismissal of the suit on the ground that whether the trees belonged to the appellant or not she could not be deprived' of the enjoyment of them while she remained tenant of the land. In this Court it has been argued that question of title is res judicata under the decision of the Assistant Collector of August 3,1909. We were referred to Section 196 of the Tenancy Act and the decisions in Beni Pande v. Raja Kausal Kishori 29 A. 160 : 4 A.L.J. 53 : A.W.N. (1907) 6 and Bihari v. Sheobalak 29 A. 601 : A.W.N. (1907) 189 : 4 A.L.J. 545. In the first place, the Assistant Collector did not decide any question of title. He declined to do so saying that the question had already been decided by a competent Court. It is clear that he did not act under Section 199 (1)(6). He relied upon the decisions of the Munsif and Subordinate Judge in the Suit of 1909 which, as already explained, were not confirmed in their entirety by the High Court. He relied also upon a decision of the Revenue Court but the learned Advocate for the appellant has been unable to show us what that decision was or when it was pronounced. Next the dispute before the Assistant Collector did not relate to land as defined in the Tenancy Act and Section 199 is confined to questions of title to land. We must, therefore, hold that the question of the title to the trees is not res judicata.
4. It has not been suggested that the appellant has acquired title to the trees by long continued adverse possession. The appellant is, therefore, in no better position than was Tausifunnissa who transferred the plot to her. Ahmad Hossein, father of Tausifunnissa, held the land on which he planted the trees jointly with his co-sharer, Nuruddin, Tausifunnissa succeeded to his rights whatever they were. When at the partition between Tausifunnissa and Wahiduddin the plot was assigned to the latter the trees presumably went with the land and Wahiduddin became the owner of the trees. There is nothing to suggest that the trees did not pass to him except the fact that Tausifunnissa remained in possession of the plot It has been found, however, that Tausifunnissa and after her the appellant were tenants of the plot. In the Civil Suit of 1909 it seems to have been suggested that Tausifunnissa must be regarded as having been the owner of the trees because Wahiduddin witnessed the deed of gift of December 1899. This point has not been raised in the present case and cannot be taken up now. It is a fact that the appellant and Tausifunnissa before her have held possession of the trees for a large number of years but that may be explained on the ground that they were tenants of the plot. The appellant has failed to establish a title to the tree. The appeal is therefore, dismissed with costs.