1. Two points arise for decision in the present case, namely (1) whether the trees planted by a person by his own effort and at his own costs on a plot of land belonging jointly to himself and to others can be regarded as the exclusive property of the co-sharer by whom they were planted or as the joint property of all the co-sharers of the land in which they were planted; and (2) whether the question as to the manner in which agricultural land should be partitioned among the several co-sharers can be determined by a Civil Court.
2. The parties to the litigation out of which this appeal has arisen are co-sharers in a plot of land situate in village Salaula of the Ambala District. They applied for the partition of the property, and while the partition proceedings were in progress before the Tahsildar of Naraingarh the defendants asked for the allotment of khasra Nos. 515 and 519 on the ground that their ancestors Mihala, Bhagwana and Jaura had planted a large number of mango trees in the said fields and consequently that the plaintiffs had no right in those trees. The Tahsildar was of the opinion that the question whether the trees belonged to the plaintiffs or the defendants was one 'as to title in the property of which the partition was sought' within the meaning of Clause (a) of Section 116; Land Revenue Act, 1887. He accordingly consigned the proceedings to the Record Room and directed the parties to have the dispute as to title determined by a Civil Court.
3. On 26-10-1945 the plaintiffs brought a suit for a declaration that khasra Nos. 515 and 519 and the trees standing thereon were the joint, property of the plaintiffs and the defendants. The trial Court held that the parties were co-sharers in the fields in question, that the trees standing in those fields were planted by Nihala, Khagwana and Jaura ancestors of the defendants and that as the trees were planted by the ancestors of the defendants, the defendants and not the plaintiffs were owners thereof. In view of this finding the trial Court granted a decree in favour of the defendants and this decree was confirmed by the learned District Judge in appeal. The plaintiffs have come in this Court in Second Appeal and the question for this Court is whether the Courts below have come to a correct determination in point of law.
4. The Courts below have held, and held as it seems to me on ample evidence, that the trees in question were planted by the ancestors of the defendants. This is a finding of fact which cannot be contested in second appeal.
5. The real point for determination in the present case is whether the trees in question belong to the plaintiffs or defendants or jointly to both the plaintiffs and defendants. It is a well known maxim that whatever is affixed to the soil becomes in contemplation of law a part of it and is subjected to the same rights of property as the soil itself. It follows as a corollary that if a person plants a tree in the land of another the owner of the soil becomes owner also of the tree. To put in a slightly different language, a standing tree belongs not to the person by whom it was planted but to the owner of the land from which it draws its support and sustenance.
6. This proposition has been supported by a long string of authorities. In -- 'Ruttonji Edulji Shet v. Collector of Tanna', 11 Moo Ind App 295 (PC) (A), their Lordships of the Privy Council laid down the proposition that trees upon land are part of the land and that the right to cut down and sell those trees is incident to the proprietorship of the land.
7. In -- 'Jagai Kurmi v. Harakh Raj Singh', 155 Ind Cas 116 (All) (B), it was held that the timber of trees planted by a zamindar before land is let out to tenants and standing on the holdings of tenants, whether occupancy or ex-proprietory tenants belongs to the zamindar.
8. In -- 'Khan Chand v. Mst. Chandun', AIR 1914 All 202 (2) (C), Piggott J. observed as follows:
'I take it to be established by a number of rulings of this Court........that the trees planted by tenants on their holdings will be the property of the zamindars and the tenants will have no transferable rights therein. At any rate this will be presumed in the absence of evidence to the contrary.'
The observations of Piggot J., were cited with approval in -- 'Nazir Khan v. Faiz Mohammad Khan', AIR 1930 All 433 (D), where Dalai J. reiterated the view that the timber of a tree belongs to the zamindar when the tree is growing on a tenant's land and that it makes no difference if the tenant happens to be an ex-proprietary tenant who himself has planted the tree.
9. In --'Bhoop Singh v. Sri Ram', AIR 1940 All 427 (E), a Division Bench of the Allahabad High Court expressed the view that in the case of sole proprietor he cannot have inferior rights as a grove-holder as well as full proprietary rights as a zamindar in the land in which he has planted a grove. His rights in the groves or trees planted by him merge completely in his zamindari rights. The trees pass to the purchaser with the auction sale of the zamindari.
10. In -- Singhai Karangalal v. Singhai Khushalchand', 160 Ind Cas 990 (Nag) (F) it was held that under the ordinary law the ownership in trees standing on tenancy lands is always with the landlord but the tenant is entitled to the natural annual produce of such trees. This is the general law though it may be controlled and varied by contract or custom.
11. In view of these decisions I have no hesitation in holding that although the trees in respect of which the present suit has been brought were actually planted by the ancestors of the defendants they belong not only to the defendants but also to the plaintiffs as the land on which they were planted was a joint holding belonging both to the plaintiffs and the defendants.
12. While granting a decree in favour of the plaintiffs the trial Court expressed the view that the trees belong exclusively to the defendants and that as the latter had long been in possession of the land on which the trees were standing they were entitled to retain possession of the orchard provided they made up the area of the other co-sharers from the other land belonging jointly to the parties. These observations have given rise to the second question which has arisen in the case, namely whether it is within the competence of a Civil Court to decide whether a person who has planted trees on a plot of land belonging to himself and others should be allotted the said plot of land in partition proceedings. The answer is in my opinion clearly in the negative.
13. In -- 'Devi Dial v. Ahmad Khan', 1908 Pun Re 4 (G), the plaintiff sued for a declaration that a certain orchard on a portion of the village 'shamilat' was planted by him alone and at his own expense and that he was in sole possession thereof A Division Bench of the Chief Court held that on the partition of a joint holding the question whether a co-sharer who had planted an orchard on a part of the village 'shamilat' by his own individual labour and at his own cost should or should not be allotted that area as his share is not a question of title within the meaning of Section 116 (a), Punjab Land Revenue Act, but is one relating to 'the mode of making the partition' within the purview of Section 116 (b), and as such is excluded from the cognizance of a civil Court. The view taken in the above case was endorsed and amplified in the case of -- 'Khuda Baksh v. Kaim Din', 1910 Pun LR 3 (H).
14. Two propositions clearly emerge from the cases cited above, namely (1) that if a person plants trees on the land belonging to another, the trees come to vest in the landlord and cannot be removed by the person by whom they were planted and (2) that when in the course of partition proceedings a question arises whether the land on which the trees are standing should be allotted to one co-sharer or another, the question falls within the ambit of the expression 'the mode of malting the partition' and must be decided by a revenue officer and not by a civil Court.
15. The evidence which has been produced in this case leaves no doubt in my mind that the plaintiffs are entitled to a half share in the land on which the trees are standing as well as to a half share in the trees in question. I would accordingly accept the appeal, set aside the orders of the Courts below and declare that the plaintiffs are entitled to the share in the trees and land as mentioned in the preceding sentence. There will be no order as to costs.
16. It is not within the competence of a civil Court to decide whether the land on which the trees are standing should be allotted to the plaintiffs or defendants. This question must obviously be determined by a revenue officer in exercise of the powers vested in him by Section 116, Punjab Land Revenue Act.
17. I agree.