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Sheikh Nimat-ullah Vs. Musammat Salut-un-nissa Bibi - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in74Ind.Cas.768
AppellantSheikh Nimat-ullah
RespondentMusammat Salut-un-nissa Bibi
Cases ReferredSarup v. Lala
Excerpt:
u.p. land revenue act (iii of 1901), section 119 - partition of land and trees standing, thereon--trees allotted to one co-sharer and land to another--suit for removal of trees, whether competent--limitation. - .....this case is, whether the plaintiff is entitled to an order directing the defendant to remove the trees standing on old plot no. 97-13 corresponding with no. 123 new khasra of mouza simra tappa. the parties were co-sharers of the village; but by a partition effected in 1909 the said plot was awarded to the plaintiff and the trees standing thereon were awarded to the defendant. the entire plot no. 97 was apparently a waste land covered by trees. the partition record summoned shows that one of the co-sharers musammat amna claimed the entire plot as her separate maqbuza land; but the assistant collector held, that the plot in question was not her (sic) land and could not be allotted to her share with the trees standing thereon. that order was upheld on appeal by the collector. the result.....
Judgment:

Kanhaiya Lal, J.

1. The question for consideration in this case is, whether the plaintiff is entitled to an order directing the defendant to remove the trees standing on old plot No. 97-13 corresponding with No. 123 new khasra of Mouza Simra Tappa. The parties were co-sharers of the village; but by a partition effected in 1909 the said plot was awarded to the plaintiff and the trees standing thereon were awarded to the defendant. The entire plot No. 97 was apparently a waste land covered by trees. The partition record summoned shows that one of the co-sharers Musammat Amna claimed the entire plot as her separate maqbuza land; but the Assistant Collector held, that the plot in question was not her (sic) land and could not be allotted to her share with the trees standing thereon. That order was upheld on appeal by the Collector. The result thereof was that the land was divided separately from the trees; and some of the trees fell to the share of the defendant; while others fell to the shares of the other co-sharers. Section 118 of the U.P. Land Revenue Act has no application by analogy or otherwise, Section 119 might have been applicable, had it been alleged that the trees in question had been planted' and possessed by the defendant or his predecessor in-interest prior to the partition; but there is no allegation in the written statement, that that was so. On the other hand, it is admitted that the other co-sharers have caused the trees owned by them cut down since the partition, showing thereby that the land in question was Jungle land, and that the trees partitioned belonged to the co-sharers of the village. They were separately partitioned according, to their value and divided between the co-sharers, in proportion to their shares. Paragraph 9 of the tarz taqsim prepared at the time of the partition directed that the trees scattered about the village were to be divided in that manner between the co- sharers according to their value and shares. The decision in Sarup v. Lala 42 Ind. Cas. 589 : 15 A.L.J. 757 : 39 A. 707(F.B.), does not apply because that was a case of a house occupied by one co-sharer at the timed partition, the site whereof was allotted to another co-sharer and Section 118; of the U.P. Land Revenue Act applied. Where the trees are scattered trees standing op waste land, that consideration does, not arise; and if a co-sharer files a suit within twelve years from the date of the partition for the removal of the trees allotted to another co-sharer and standing on the land allotted to another co-sharer he is entitled to have the same removed, and the land vacated. The defendant has (to right to stay on the land against the will of the plaintiff. The appeal is, therefore, dismissed with costs.


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