SUKH LAL Vs. RAM KALI

JUDGEMENT

(1.) This indeed is a case which must be said to be a still-born lis in view of the stringent provisions of S.100 of the Civil P.C. I have, therefore, little difficulty in disposing of this appeal summarily, holding (the point agitated to be fully, finally and conclusively concluded by concurrent findings of two Courts below.

(2.) Appellant's counsel Shri Arun Mishra has placed strong reliance on Sub-Sec. (2) of S.179 of the Madhya Pradesh Land Revenue Code, 1959, for short, the 'Code', to submit that impugned judgement and decree are not sustainable in law as the Courts below have ignored the provisions thereof. However, I do not see any merit in counsel's contention because the plea cannot evidently operate in vacuum, in the air. The trees must be rooted in the soil and even a right to the trees which is claimed by the appellant could be declared by the Courts below. Unfortunately for Shri Mishra, the roots are not to be seen on the soil, but in the air inasmuch as both Courts have concurrently held that plaintiff failed to prove that he had sown the trees. In other words, that he had sown the tree and it had taken roots in the soil. On that finding, nothing else remains to be determined, much less, the question of invoking or applying their mind to the provision of S.179(2) of the Code. It was wholly and solely plaintiff's burden to prove as a primary fact, crucial to the claim that he had sown and grown the trees and he had, therefore, right in those trees. Unfortunately, he miserably failed to do so.

(3.) These are my reasons to hold that the appeal is wholly meritless and it must be dismissed instantly with costs. Appeal dismissed.