Bishan Narain, J. - (1.) This second appeal arises out of a suit filed by the Indian Union for a declaration that the trees standing on the ground of Bungalow 14 (Survey No. 104) Ambala Cantonment are the absolute property of the Government and claimed a decree for Rs. 96/- as the price of two trees cut by defendant Hari Kishan Dass. The defendant in spite of this suit claimed 'inter alia' that he was the absolute owner of the trees standing on this ground. The trial Court decreed the suit and the defendant's appeal was dismissed by the District Judge Ambala. The defendant has filed this second appeal to this Court.
(2.) The facts material for the decision of this appeal are no longer in dispute. The land in suit is situated in Ambala Cantonment. It appears that on 12-9-1836 in supersession of previous orders an "Order No. 179" of the Governor General in Council was notified dealing with the applications to build on unoccupied lands in Cantonments It is common ground that the site as distinct from superstructure belongs to the Government and it is governed by this 1836 Order. The defendant's case is that his grandfather had purchased this bungalow with the ground in 1887-88 subject to the terms of this Order and admits that he had cut two of the trees from the ground and removed them. The allegations in the plaint by the Indian Union are that the two trees were cut and removed on or about 3010- 1947. The defendant's case is that these trees were not in existence at the time when the grant was made under 1836 Order. Clause 6 of this Order is in these terms: "No ground will be granted except on the following conditions which are to be subscribed by every grantee, as well as by those to whom his grant may subsequently be transferred. 1st : The Government to retain the power of resumption at any time on giving one month's notice and paying the value of such building as may have been authorised to be erected. 2nd : The ground, being in every case the property of Government cannot be sold by the grantee, but houses or other property thereon situated may be transferred by one military or medical officer to another without restriction, except in the case of reliefs, when, if required, the terms of sale or transfer are to be adjusted by a Committee of Arbitration. 3rd: If the ground has been built upon, the buildings are not to be disposed of to any person, of whatever description, who does not belong to the army until the consent of the Officer Commanding the Station shall have been previously obtained under his hand. 4th: When it is proposed, with the consent of the General Officer, to transfer possession to a native, should the value of the house, buildings or property to be so transferred exceed Rs. 5,000/- the sale must not be effected, until the sanction of Government shall have been obtained through His Excellency the Commander-in-Chief."
(3.) It is contended for the appellant that under paras 2 and 4 of this clause trees standing on the land at the time of the grant or of subsequent growth vested in the grantee and therefore the defendant had full right to cut the trees and remove them. The only question that required decision in this case is whether the Indian Union or the defendant is entitled to the trees standing on the ground granted by the former to the latter.;