M.M. Kumar, J.
1. More than fifty years 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 Jubilee. The Division Bench in the case of Hakim Hari Ram v. Santa Ram (1955) 57 P.L.R. 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 tiled 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.
3. 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 (supra).
4. 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 Anr. v. State of Jammu and Kashmir and Anr. : AIR1983SC1188 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.
5. Mr. Ashwani Chopra, learned Senior Counsel for the plaintiff-respondent has argued that the legal position within these jurisdiction is well settled. He has reiterated the submissions which were made before the Courts below and have cited the same judgments in the cases of Panni Lal v. Med Singh 1987 P.L.J. (P&H;) 56 and a Division Bench Judgment of this Court in Hakim Hari Ram's case (supra).
6. After hearing learned Counsel for the parties and perusing the judgments of both the Courts below, I am of the considered view that this appeal is liable to be dismissed. The view taken by the Division Bench, 50 years ago, in the case of Hakim Hari Ram (supra) deserves to be reiterated in this Golden Jubilee Year. Chief Justice Bhandari, who delivered the judgment of the Division Bench has dealt with the same issue, which has been raised in the instant appeal and has opined as under:-
The real point for determination in the present case is whether the trees in question belong to the plaintiffs or defendants or jointly to both the plaintiffs and defendants. It is a well known maxim that whatever is affixed to the soil become in contemplation of law a part of it and is subjected to the same rights of property as the soil itself. It follows as a corollary that if a person plants a tree in the land of another the owner of the soil becomes owner also of the tree. To put in a slightly different language, a standing tree belongs not to the person by whom it was planted but to the owner of the land from which it draws its support and sustenance.
This proposition has been supported by a long string of authorities. In Ruttonji Edulji Shet v. The Collector of Tenna (1867) 11 M.I.A. 295, their Lordships of the Privy Council laid down the proposition that trees upon land are part of the land and that the right to cut down and sell those trees is incident to the proprietorship of the land.
In Jagal Kurmi v. Harakh Raj Singh 155 L.C. 116, it was held that the timber of trees planted by a zamindar before land is let out to tenants and standing on the holdings of tenants, whether occupancy or ex-proprietary tenants belongs to the zamindar.
After analysing various judgments on the issue, the learned Chief Justice has held that two propositions emerge from the case law namely:-
(i) that if a person plants tree on the land belonging to another, the trees come to vest in the landlord and could not be removed by the person by whom they are planted, and
(ii) that when in the course of partition proceedings, a question arises whether land on which the trees are standing should be allotted to one co-sharer or the another the question falls within the ambit of the expression 'the mode of making the partition' and must be decided by Revenue Officer and not by the Civil Court.
When the principle laid down by Chief Justice Bhandari in the Division Bench judgment of this Court in Hakim Hari Ram's case (supra) are applied to the facts of the present case then no doubt is left that the defendant-appellant being merely a tenant and not the owner is not entitled to claim the trees which are appurtenant to the land owned by the plaintiff-respondent. Therefore, the trees would also follow of the title and will belong to the plaintiff-respondent. Same view has been followed by this Court in Panni Lal's case (supra).
7. The judgment of the Supreme Court on which reliance has been placed by the learned Counsel for the appellant does not lay down any proposition of law that the tenant would be entitled to the trees as against the landlord. In that case, during course of arguments, it was suggested by their Lordships to the plaintiffs counsel that the plaintiff should give up possession of the property in favour of the State and he could remove the trees raised by him on the aforementioned property. The offer was accepted by the counsel of the plaintiff and on behalf of State of Jammu and Kashmir, who was the defendant-respondent no concession could be given. Consequently, the Supreme Court has allowed the planters of the tree to remove the tree and the State was not to raise any claim in respect thereto. A period of six months was granted to the planters for removing the standing trees with a further direction to deliver vacant possession to the State through its Public Officers. The aforementioned observations made by the Supreme Court in para No. 5 of its judgment, cannot be considered to have laid down any proposition of law that a planter of the trees is entitled to claim them as against the true owner. It appears that the Supreme Court, in order to do complete justice, has passed the aforementioned order, under Article 142 of the Constitution, without laying down any proposition of law which may be of universal application or laying any ratio decidendi or obiter dictum of binding nature. Therefore, I am of the view that no support can be taken from the aforementioned observations of the Supreme Court.
For the reasons aforementioned, this appeal fails and the same is dismissed.