CHUNNI LAL Vs. BIRI SINGH

JUDGEMENT

(1.) THIS appeal arises out of a suit in which the plaintiff claimed possession of certain plots of land. It appears that more than twelve years before the institution of the suit the plaintiff or his predecessors in title obtained a simple money decree against the defendants or their predecessors in title. In execution of this decree the plots of land were put up for sale and purchased by the decree-holder. It has been found that the plots of land formed a portion of the ex-proprietary holding of the judgment-debtor, and both the courts below have held, and we agree with them, that, having regard to the provisions of the Tenancy Act, the interest of the ex-proprietary tenant could not be sold in execution of the decree. It is then said that the plaintiff is at least entitled to the trees. From the description of the plots of land or some of them it would appear that trees were growing on the plots of land, but it will be clearly seen from the sale certificate and from the whole nature of the present suit that the plaintiff was claiming not the trees but the plots. Of course he hoped that the trees would pass to him with the land. The plaintiff alleged that he had been in possession of the tree3 and gathering and receiving the fruits. An issue was referred on this point and the court below has held that the plaintiff was not in possession even of the trees. It is admitted that the dakhalnama giving the plaintiff formal possession of the subject matter (if any) of his purchase was within twelve years of the institution of the suit and it is now contended that the plaintiff is at least entitled to possession of the trees, In support of this contention the provisions of the wajib-ul-arz are referred to. THIS, no doubt, records the tenant s right to sell the trees growing on the holdings planted by themselves or of spontaneous growth, but we do not think that the wajib-ul-arz is sufficient to prove that the tenants had the right of selling trees as growing trees and to hold the land for perhaps fifty years or more. In addition to this, as we have already pointed out, we think that what was really sold to the plaintiff was the plot of land and that it was the land he really claimed in the present suit. Not only is there the statutory provision to prevent his being successful in the present suit, but it would, appear that he slept upon such weak rights as he had for more than twelve years from the date of his purchase and almost twelve years from the date of receiving formal possession. We think that the view taken by the court below was correct and should be affirmed. We accordingly dismiss this appeal with costs.