Decided on December 05,1950



Panigrahi, J. - (1.) The defendants are the appellants in this second appeal. The suit was for a perpetual injunction against the defendants from interfering with the plaintiff's peaceful enjoyment of the suit lands and for the recovery of a sum of Rs. 30 being the cost of bamboos alleged to have been cut and removed by the defendants from the suit lands.
(2.) The dispute between the parties is about the ownership of certain bamboo clumps growing on a common ridge between the lands of the plaintiffs and Raghunath Patnaik and Ors. vs. Dullabha Behera (05.12.1950 -ORIHC) Page 2 of 5 those of the defendants. Survey Nos. 220/I and 220/2 admittedly belong to the plaintiff and adjoining it immediately to the north is Survey No. 210 belonging to the defendants. There are certain bamboo clumps all along the northern and northeastern portion of the ridge. The roots of these clumps have grown into the soil on either side of the boundary line and trees have sprung up on both sides. The question is whether or not the trees growing on the southern side of the ridge belong to the plaintiff. A commissioner was appointed to localise the boundary-line and he found that the bamboo clumps extended on either side of the boundary line and that the defendants cut and carried away some of the trees growing on the side of the plaintiff's lands.
(3.) The learned Munsif who tried the suit in the first instance held that the defendants' father had actually planted the bamboo clumps on his side of the ridge and that the roots of those trees had, in course of time, burrowed into the plaintiff's lands on the south and that as a result new trees sprang up on his side and that, as such, the plaintiff had no right to the trees. He also placed reliance on the evidence adduced on the side of the defendants that they had been cutting bamboos from that part of the ridge for over twenty years and that consequently the plaintiff's title, if any, had been barred. The learned Munsif further held that the ridge itself was put up by the defendants and that therefore the trees growing on either side of the boundary line along the ridge belonged to the defendants. The plaintiff's case that the defendants went upon his lands and cut sixty bamboos was admitted . On appeal the learned Subordinate Judge held that the defendants were not entitled to trespass on the plaintiff's land for the purpose of removing the bamboos even though the trees might have been a part of the clump planted by the defendants on their side of the ridge. In this view of the matter, he set aside the order of the learned Munsif and decreed the plaintiff's suit for injunction as well as for damages as claimed in the plaint.;

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