M.M.KUMAR, J. - (1.) MORE than fifty ago a Division Bench of this Court comprising of the then Chief Justice A.N. Bhandari and Hon'ble Mr. Justice S.S. Dulat has laid down a proposition of law which holds the field even today when this Court is busy in celebrating its Golden Jubliee. The Division Bench in the case of Hakim Hari Ram v. Santa Ram, 1955 PLR 6, after making detailed reference to the judgments of the Privy Council has authoritatively laid down : ".... trees upon land are part of the land and that the right to cut down and sell those trees is incidental to the proprietorship of the land."
(2.) THE afore-mentioned question of law has again arisen in this appeal filed by defendants under Section 100 of the Code of Civil Procedure, 1908 (for brevity 'the Code'), challenging concurrent findings of fact recorded by both the Courts below holding that the plaintiff-respondent, who is owner of the land, is entitled to the trees planted on that land. Therefore, his suit for permanent injunction against the defendant-appellant has been decreed in his favour by both the Courts below. The stand taken by the defendant-appellant before the Courts below is that he was a tenant on the suit land and the "poplar", "safeda", "shisham" trees etc. were planted by him on the suit land and were also nourished by him. On the aforementioned basis, the right to cut and remove those trees from the suit land has also been asserted. It has been concurrently found that the plaintiff-respondent is the owner being co-sharer with his brother and the defendant-appellant has been merely a tenant over the suit property without any right to the trees. The dispute is confined only to trees which are standing on the suit land. The type of trees has been mentioned in the report of the Local Commissioner, which has not been objected to by the parties. Learned Lower Appellate Court came to the conclusion that a tenant has no right to cut the trees because standing trees would belong to a person who is the owner of the land in law because it draws its support and sustenance from the land and it would not belong to a person who might have planted the same. In this regard reliance has been firmly placed on the view of the Division Bench in the case of Hakim Hari Ram's case (supra).
(3.) MR . Jaivir Yadav, learned counsel for the defendant-appellant has argued that both the Courts below have fallen in grave error of law by accepting that all the appurtenants concerning the land would go to the owner and not to the tenant. In support of his submission, learned counsel has placed reliance on a judgment of the Supreme Court in the case of Ghulam Rasool and another v. State of Jammu and Kashmir and another, AIR 1983 SC 1188 and argued that the Supreme Court has allowed, the tenant, the cutting of the standing trees from the land recognising his right on the basis that he is a planter.;