Judgment :- 1. A dispute over two mango trees constitutes the grand subject-matter of this appeal. The two mango trees are standing close to the boundry of the plaintiff and defendants' property. Plaintiff claimed that the two trees, exclusively belonged to him. Claiming title to these two trees, plaintiff filed a suit for declaration of his title over the trees and also for an injunction to restrain the defendants from plucking mangoes from the trees. Defendants contended that the trees are owned and possessed by them, since the trees stand in their property. 2. The trial court, on an appreciation of the evidence in the case, held that the plaintiff has failed to prove his title and possession over the two trees and dismissed the suit. Plaintiff filed an appeal. The lower appellate court confirmed the judgment and decree of the trial court. Now the plaintiff appeals. 3. From the brief sketch of facts set out above, it is plain that the dispute that was raised in the suit is essentially a dispute which has to be resolved on ascertaining definitely the truth of certain controversial facts. One of the crucial facts that has to be determined for a proper resolution of the controversy between the parties is to find out the exact sites of the trees in question. Naturally, the said investigation can be made more or less perfect and accurate by the issuance of a commission. The trial court issued a commission and the commissioner has filed a report giving the details regarding the sites of the trees. The commissioner's report and plan would show that the trees in question are standing in the property on the southern side of a boundary wall separating the properties of the plaintiff and defendants. Admittedly, the southern property belongs to the defendants. The trial court, chiefly relying on the commissioner's report and plan, held that the plaintiff is not entitled to the declaration and injunction prayed for in the suit. The appellate court also rested on the commissioner's report and plan, for holding that the plaintiff has not established a case meriting a decree for declaration and injunction. 4. The learned counsel for the appellant argued his case at great length. The appellate court also rested on the commissioner's report and plan, for holding that the plaintiff has not established a case meriting a decree for declaration and injunction. 4. The learned counsel for the appellant argued his case at great length. He submitted before me that the courts ought to have given more credence and importance to the survey measurements and if the courts had undertaken a careful scrutiny of the plan submitted by the commissioner with reference to the survey plan, it would have been possible for the courts to have come to a different conclusion and could have held that the sites of the trees was in the property of the plaintiff. The fact whether there was in existence a boundary wall separating the properties of the plaintiff and defendants as found by the commissioner was also seriously disputed by the counsel appearing for the appellant. He submitted that the wall mentioned by the commissioner is not really a boundary wall. He has read over to me the entire evidence in the case. But, I was not able to find out anything to support his case to say that the wall mentioned by the commissioner is not a separating boundary wall. Of course, the trees are standing close to and grazing the boundary wall. 5. What is the principle or law to determine the arboreal ownership when trees stand on the boundary line? The question is not free from difficulty. Hunt's 'Boundaries and Fences' is an authoritative book on the subject. The author states the law thus: "With respect to the ownership of trees standing on or near the boundaries of property, the rule generally adopted in the United States of America, is that trees whose trunks stand wholly upon the land of one owner belong exclusively to him, although their roots grow into the land of the adjoining owner, and that trees whose trunks stand partly on the land of two or more coterminous owners belong to them in common; and the rule is at once reasonable and simple." 6. In Waterman v. Soper, Holt C. J. said: "If A plants a tree upon the extreme limit of his land, and the tree growing extend its roots into the land of B, next adjoining, A and B are tenants in common of the tree. In Waterman v. Soper, Holt C. J. said: "If A plants a tree upon the extreme limit of his land, and the tree growing extend its roots into the land of B, next adjoining, A and B are tenants in common of the tree. But if all the root grows into the land of A., though the boughs overshadow the land of B., yet the branches follow the root and the property of the whole is in A." In Holder v. Coates. Little dale J. said: In a case where it was found that the body of the tree was in the defendant's land, but some of the roots grew into the land of the plaintiff "that he could not see on what grounds the jury could find for either party in respect of the question which had been raised as to the proportion of nourishment derived by the tree from the soil of the plaintiff and the defendant respectively, but that the safest course would be to consider from the circumstances and the evidence as to the situation of the trunk and of the roots, it could be ascertained where the tree was first sown or planted. and to find for the plaintiff or for the defendant accordingly." The principle that can be decocted from the observations quoted seems to be that the first true test to determine the ownership of a boundary tree lies in the question of fact, where was the tree first planted? If it can be found with a reasonable amount of certainty, as a fact that the tree was planted in one owner's land then the gradual growth of the trunk, roots and branches, which leads to trench upon the neighbour's property does not affect the ownership of the tree. However, if it cannot be so found, inasmuch as the tree must belong to someone, yet neither owner can reasonably be preferred to the other, the only practical and possible unravelling of the problem is to choose the not inexpiable, but pragmatic and simple rule that the tree whose trunk stands protanto on the land of two co-terminous owners, it belongs to them in common. I see just, good and equitable reasons eminently justifiable in law for taking such a decision to unriddle the issue. 7. I see just, good and equitable reasons eminently justifiable in law for taking such a decision to unriddle the issue. 7. If there was any doubt about the exact location of the two trees in question with reference to the dividing line between the properties of the plaintiff and defendants, I would have taken a broad view of the matter and would have applied the law holding that the trees belonged to both the plaintiff and defendants equally. But, in this case, both the courts have now concurrently held that the trees are standing in the property of the defendants though very near and grazing the boundary wall. This is a concurrent finding of fact. Though confirmation by the first appellate court, of a crucial fact found by the trial court insulates the verdict with no inerrability, but. since absolute objective certainty is impossible in the decision process in this imperfect world, there is plain and perfect justification on practical reasons to unopened the pylon when the first two judges concur in the factual conclusion at separate levels, particularly in the wake of the tight rule of prohibition of overseeing by this court in second appeal the conclusions on facts by the appellate court made more stringent by the amendment to S.100 of the Code of Civil Procedure. Court's prime concern is to avoid miscarriage and failure of justice. Miscarriage and failure of justice may take different forms; a re-evaluation of the evidence or a re-appreciation of the evidence at the third tier of the litigation and a finding of fact different from that of the courts below in second appeal, may constitute a plain injustice in law to one of the parties. 8. The learned counsel for the appellant referred me to the following decisions in support of his argument, Achuthan Unni v. Vally (1962 KLT 1010), Kannan v. Kannan (1964 KLT 228) and 1973 KLT SN Page 12.1964 KLT 228 and 1973 KLT SN Page 12 are cases which deal with the finality of the decision taken under the Survey and Boundaries Act. On the facts disclosed in the case, these cases have no relevance to resolve the dispute in the case. 1962 KLT 1010 does not provide good law since a Division Bench in 1966 KLT. 86 (Vally v. Achuthan Unni) reversed that decision. 9. On the facts disclosed in the case, these cases have no relevance to resolve the dispute in the case. 1962 KLT 1010 does not provide good law since a Division Bench in 1966 KLT. 86 (Vally v. Achuthan Unni) reversed that decision. 9. In the result, I find that the judgments of the courts below are correct. No substantial question of law arises on the facts of the case for my decision in this second appeal under S.100 CPC. The second appeal is only to be dismissed. I do so. 1n the circumstances of the case, I make no order as to costs.