Mt. Mahabali Dasin vs Manu Mandal and Others

Bucknill, J.—This is a second appeal from a judgment of the District Judge of Purnea, dated the 5th May 1921, by which he affirmed the decision of the Munsif of Araria, dated the 31st May 1920.

The matter in connection with which this litigation has, taken place is a very petty one and relates really to one jack fruit tree and one mango tree. The plaintiff, who is a widowed lady, apparently holds a tenure of some 37 acres of land at a place called Mauza Dak in Thana Forbesganj. In her plaint she claims that on certain parts of her property there were (1) a jack fruit tree and (2) a mango tree and that the defendants had wrongfully taken possession of these trees and had harvested and taken to themselves the fruit. Her suit, therefore, was brought for the following reliefs: (a) that it might be adjudicated that the land, upon which these two trees were situated belonged to her and that the defendants who had dispossessed her had no right or title thereto and that she might be placed in possession thereof after ousting the defendants therefrom; and (b) certain claims of a monetary character in connection with the value of the fruit of these trees of which, she maintained, she had been deprived. The possession with regard to the jack fruit tree was, as a matter of fact, extremely interesting and unusual. It seemed quite clear that the plaintiff and the defendants were interested in adjoining plots of land and that on the plaintiffs land there had grown up a jack fruit tree some thirty or forty cubits in length, and that some time or other this jack fruit tree had fallen down; it had fallen across and on to the defendants'' adjoining land; its roots do not, however, seem to have been destroyed by the fall, after it lay partially on the plaintiff''s and largely on the defendants'' land, its growth appears to have continued luxuriant, fresh roots seen to have thrown themselves down from that part of the tree which I lay on the defendants'' land, and, as was to be expected from the fact that the top of the tree, that is to say, that part where the foliage was, lay upon the defendants'' land, the fruit was also to be found at the proper season on that part of the property which belonged to the defendants.

Now, it may well be asked, what is the legal position of the parties with regard to this fallen tree? No doubt the fruit of the foliage derives substantial nourishment from the main trunk and the main roots which are on the plaintiffs property. No doubt, too they derive considerable nourishment from the new roots which have sprung down from the upper part of the tree lying as it does on the defendants'' land. But the apportionment of any claim as between the two joint owners to the fruit of the tree is, as was well exemplified in the case of Holder v. Coates [1827] 31 R.R. 724, a matter neither of practical nor of legal possibility and must substantially be purely a matter of arrangement.

On the other hand, the legal position is perfectly simple, if a tree standing on one person''s land falls down and part of it when fallen lies on another person''s property that person is entitled to call upon the owner of the property where the tree stands to remove that portion of the tree which has fallen on his (the latter''s) property, and if he does not do so he can remove it himself. Here, at all material times, there is no doubt that the defendants could have, had they so wished, cut the tree at the point where it crossed the boundary line. No doubt, they would not have any right to appropriate to themselves the timber which had thus fallen on their land, as, in law, that timber would still belong to the owner of the property; but there is no reason for doubting that, in ordinary circumstances, the owner of the tree would be responsible for any damage which has been occasioned to the owner of the adjacent property upon which the tree fell unless it could be shown that the fall was occasioned by circumstances which were entirely outside the owner''s control. Now, it has been suggested, and I think with certain amount of plausibility, that as the defendants must have, from the circumstances in which we hear of these tap roots descending on the ground from the upper part of the tree which lay upon the defendants'' land, allowed the plaintiff''s tree to remain so long on their land and to have continued there to grow and bear fruit, in equity the two parties might possibly be regarded as being strictly entitled to share in the fruit. I do not think that it is necessary to enter upon this aspect of the question because it does not here really arise. I venture, however, to doubt whether, under circumstances such as these, the Court would contemplate putting into operation any theory of equity with regard to a division of the fruit, such being, in my opinion, a matter purely for private arrangement.

The Munsif and the Subordinate Judge both held that the plaintiff had failed to show that she had land upon which at any rate the major part of this jack fruit tree was actually lying, and the suit was on that ground dismissed.

I have so far dealt with the jack fruit tree. With regard to the mango tree the position was in no way complicated. Both Courts came to the conclusion that the only mango tree about which there is any evidence stood not upon the plot which the plaint if said it stood upon but upon another plot, No. 279, which was included in the Qairmazrua khata of the zemindar. They both came to the conclusion that the plaintiff had made out no sort of claim to proprietorship, possessory right or right of any kind over this mango tree.

Lastly, it was suggested that as the Commissioner, who was appointed by the Munsif to try and ascertain with accuracy where this jack fruit tree really stood or, as it turned out, lay and where this mango the really stood, signally failed in his task, the District Judge should have followed his first intention and should have appointed another person as Commissioner clearly to place on record exactly how matters stood with regard to these two trees relative to the plots of the plaintiff and the defendants and the surrounding country. The District Judge, I think, however, very wisely came to the conclusion that in view of the evidence which was before him he was able to deal with the matter without putting the parties to the expense which would be incurred by the appointment of and investigation by a new Commissioner; and I have no doubt he was here right.

I think, therefore, that in this appeal there is really nothing which would justify interference on our part. There are findings of fact and whatever the law may be, those findings of fact would not be affected by any law which might exist with regard, in particular, to this fallen jack fruit tree. If the law is, with regard to this fallen jack fruit tree, as I apprehend it to be, in no case could the plaintiff have recovered the fruit. But her claim was not based on any question of rights over the tree fallen on the adjacent land but a claim to the land itself upon which that tree had fallen. In this she completely failed.

The appeal must, therefore, be dismissed with costs.

Kulwant Sahay, J.

I agree.