JUDGMENT Bind Basni Prasad, J.
1. This is a defendant's appeal arising out of a suit for the possession of certain-trees situated on plots Nos. 1028, 1030 and 1040 in village Gopipur in the district of Jaunpur and for the recovery of Rs. 200 as damages on account of the defendants having taken the timber, the flowers and the fruits of certain trees.
2. The trial Court dismissed the claim. In appeal the learned Civil Judge decreed the claim for possession but dismissed that for damages on the ground that there was no satisfactory evidence that the defendants had cut the trees and taken away the fruits and flowers.
3. Two points have been urged on behalf of the defendants. Firstly, it is contended that, having regard to the provisions of Sub-section (2) of Section 81, U.P. Tenancy Act, 1939, the suit was not - cognizable by the civil Court. Section 81, U.P. Tenancy Act, provides as follows:
81.(1) Notwithstanding anything in this Act or any custom or contract to the contrary, scattered trees situated, on the holding of a tenant other than a subtenant or tenant of sir otherwise than on the boundary thereof and existing at the commencement of this Act, shall vest in such tenant, provided that such tenant has been continuously in possession of such holding from the beginning of the agricultural year, 1335 Fasli, (2) If any question arises between a lambardar and a tenant regarding the ownership of trees it shall, on the application of either party, be decided by the Assistant Collector in charge of the sub-division.
4. The context in which Sub-section (2) appears and the fact that the word "tenant" appears in it lead me to the inference that the application contemplated by it is maintainable only when a dispute about trees arises between a landholder and a tenant qua the trees situated on land in respect of which the tenancy right vests in the other party. A proceeding under that Sub-section (2) is in my opinion not contemplated when a dispute arises in regard to trees situated on land in respect of which there is no relationship of landlord and tenant between the parties. The plea of jurisdiction has, therefore, no force.
5. The second point taken is that the lower appellate Court was wrong in holding that the plaintiffs were the owners of the trees. This is a finding of fact, and it is assailed on the ground that the learned Civil Judge misinterpreted certain documents and admitted in evidence a sale certificate which was copy of a copy It is alleged that the sale certificate and the sale deed executed by Gaya Singh do not contain the number of the plots in which the trees conveyed by those documents were situated. In the sale deed the boundaries of the plots in which the trees are situated are given, but in the sale certificate the plots are not mentioned. The judgment of the lower appellate Court shows that Ramkishore Lal Patwari was produced and he proved the plaintiffs' case. There was thus oral evidence to connect the trees with those documents. I am not referred to any evidence to show that the defendants alleged that there were any other trees which were conveyed by these documents, besides the disputed ones. I see no force in this contention.
6. As regards the question that the sale certificate Ex. 5 is not admissible in evidence, it is to be noted that the original file in which the auction sale took place has been weeded out and it is Sot possible for the plaintiffs to obtain a certified copy of the sale certificate. Mata Badal was one of the servants of the plaintiffs and he is dead. He may have kept this copy. There is nothing on the record that he made this copy from any copy. It may be that it might have been copied from the original sale certificate on a perusal of the file in the office of the sale officer. I see no good reason to discard this document on the alleged ground that it is copy of a copy.
7. The appeal has no force and it is hereby dismissed with costs.