1. This dispute relates to a claim by the plaintiff zemindar to the price of certain trees in the defendant’s grove which the defendant has sold. The value of the subject-matter is only Rs. 49, but the plaintiff avoided the operation of Section 102, C. P. C., by adding in his plaint a prayer for an injunction. It is established that the trees were not cut down by the defendant but that they fell down owing to a big flood which took place in this part of the Gorakhpur District. There are two wajib-ul-araiz in the village. The Wajib-ul-arz of 1833 merely affirms the right of tenants to groves and trees planted by them. The Wajib-ul-arz of 1860 contains, a special clause to this effect.
2. “A tenant has no power to sell and cut a tree without the permission of the owner of the soil.” The question is whether this applies to a tree which has fallen down owing to natural causes. In my opinion the Court below was right in construing it as referring to the cutting down of a standing tree. The ordinary custom is that trees which fall down themselves belong to the grove-holder and it is unlikely that the phrase “cut and sell” was intended to interfere with this right. The case of Kausalia v. Gulab Knar 21 A. 297 : A.W.N. (1899) 72 : 9 Ind. Dec. (n. s.) 898. which was cited both in this Court and in the Court below referred to trees growing on a tenancy holding and has no application to this case. In my opinion the view taken by the Court below is correct and I accordingly dismiss the appeal with costs.