JUDGMENT Dalal, J.
1. The defendants are admittedly ex-proprietary tenants of the and on which the tree grew. The plaintiff zamindar complained that the defendants lopped off branches of the tree and brought the wood to their own use. It was contended in appeal that the lower appellate Court had not considered the defendants' case that it was necessary for them to lop off the branches in order to protect other trees on the same plot of land and the crops of neighbouring fields. This matter has been considered by the lower appellate Court because that Court refused to grant the plaintiff an injunction to prevent the defendants from lopping off branches when necessary. The real question at issue is to whom the wood of these lopped off branches belonged. It is not dry wood which has fallen off by itself. The wood is living wood which is part of the timber of the tree. The lower appellate Court has rightly referred to the ruling of this Court in Lachman Das v. Mohan Singh [1912] 9 A.L.J. 672. There the whole previous law on the subject was referred to and it was held that the timber of a tree belonged to the zamindar when the tree was growing on a tenant's land and that it made no difference if the tenant happened to be an ex-proprietary tenant who himself had planted the tree. This decision was explained by Piggot, J. in Khan Chand v. Mt. Chandun [1914] 24 I C. 81. The observation of the learned Judge was:
I take it to be established by a number of rulings of this Court, of which the cases of Lachma Das v. Mohan Singh [1912] 9 A.L.J. 672 and of Ganga Dei v. Badam [1808] 30 All. 134, may be taken as specimens, that the trees planted by tenants on their holdings will be the property of the zimindar and the tenants will have no transferable rights therein. This will be presumed in the absence of evidence to the contrary.
2. As the timber belonged to the plaintiff and part of the timber was cub off by the defendants they ought to have made over the wood to the plaintiff and not appropriated it themselves. The lower appellate Court was, therefore, fully justified in decreeing in favour of the plaintiff the Value of the wood which was misappropriated by the defendants
3. I dismiss the appeal with costs.