Judgment :- This second appeal is filed by the plaintiff in a suit for injunction restraining the defendant from committing trespass in the suit property and from cutting and removing a mango tree by auctioning the same. The suit was dismissed by the trial court and the decree was confirmed in appeal by the 1st appellate court. In this second appeal, the following substantial question of law was framed at the time of admission. “Did the courts below apply the correct principles to determine the ownership of a tree standing on the boundary between the two properties? I heard in detail the learned counsel on both sides on this question of law. 2. According to the plaintiff, the plaint schedule property was obtained under Ext.A1 partition deed dated 3-1-1957. There is a tree aged about 80 years on the south western portion of this property. The plaintiff is in possession and enjoyment of the mango tree. Defendant is Kanjikuzhi Panchayat. The defendant published Ext.A2 notice proclaiming sale of the tree in auction on the ground that it is standing on the puramboke land. According to the plaintiff, the defendant has right over the tree and even if there is any right, it is lost by adverse possession and limitation. The plaintiff therefore prayed for an injunction against the auctioning of the tree or cutting and removing the same at the instance of the defendant. 3. The defandant filed a written statement. According to the defendant the mango tree is standing in Sy.No.114/9, which is a puramboke property. The defendant has got every right to sell the mango tree as it is situated in the puramboke land. The tree was taken on Kuthakapattam by the plaintiff on 23/5/1962 and the period of arrangement expired. The puramboke vested in the Panchayat and along with the land the mango tree was also vested in the Panchayat. 4. The trial court issued a Commission to take a plan of the property owned by the plaintiff. Ext.C1 is the report and Ext.C2 is the plan. The Commissioner found that 5/9 portion of the disputed tree is in the plaintiff’s property and 4/9 portion is in the puramboke property. The plaintiff examined himself as PW.1 and one Michael Palio, a neighbour. The defendant examined Dws.1 to 3. Dw.2 is the Commissioner who inspected the property and submitted a plan and report. The Commissioner found that 5/9 portion of the disputed tree is in the plaintiff’s property and 4/9 portion is in the puramboke property. The plaintiff examined himself as PW.1 and one Michael Palio, a neighbour. The defendant examined Dws.1 to 3. Dw.2 is the Commissioner who inspected the property and submitted a plan and report. The trial court found that the plaintiff is possession of the mango tree. The trial court mainly relied on Ext.B1 Kuthakapattam register Form B which shows that there is a mango tree in the puramboke thodu in Sy.No.114/9 and the plaintiff is the lessee in respect of that tree. The trial court also relied on Ext. B9 application filed by the plaintiff before the Panchayat. In that the plaintiff has admitted that 1/3rd right of the mango tree belongs to the Government (trial court has noted it as 2/3rd right instead of 1/3rd right). Ext.B11 is the Kuthakapattam register which also shows that the plaintiff has taken lease of the mango tree. According to the trial court, having taken the tree on Kuthakapattam right, the plaintiff cannot claim to be the absolute owner. The trial court found that having executed a Kuthakapattam agreement, the plaintiff is not entitled to get any relief in the suit. It was also found that Ext.C2 plan does not strengthen the plaintiff’s case for the reason that the plaintiff has admitted that the mango tree is standing in the puramboke land. The trial court came to the conclusion that the trunk of the mango tree was expanded in the registered holding. The appellate court has confirmed the finding of the trial court. According to the appellate court, the Commissioner’s report cannot be relied on since the Commissioner has not located the survey stone said to have been present on the north eastern of the disputed property. The appellate court also found that since the plaintiff has taken the tree on Kuthakapattam, he is estopped from claiming right over it. 5. The learned counsel for the appellant submitted that the Commissioner has demarcated the plaint schedule property on the basis of Ext.A1 title deed and the survey records. The Commissioner has clearly stated that out of the total circumference of 70 inches, 55 inches is in the land belonging to the plaintiff and the balance is in the puramboke land. 5. The learned counsel for the appellant submitted that the Commissioner has demarcated the plaint schedule property on the basis of Ext.A1 title deed and the survey records. The Commissioner has clearly stated that out of the total circumference of 70 inches, 55 inches is in the land belonging to the plaintiff and the balance is in the puramboke land. On that basis, 5/9 of the tree is in the property of the plaintiff and the remaining is in the puramboke land. He has also stated that the property was identified with the help of the Taluk Surveyor. The Panchayat Assistant was also present at the time of his inspection. The survey records were also brought for the purpose of measurement. The property was measured with reference to the official records. When the property was measured as per the survey records and it was found that the disputed mango tree is partly in the property of the plaintiff and partly in the puramboke land, there was no reason for the courts below to doubt its correctness unless any material was brought to show that the Commissioner’s plan and report could not be relied on. Though it is stated by the appellate court that the Commissioner has not located the theodolite stone and the survey stone was found 10 inches away from the western side of the mango tree, the learned counsel for the appellant has submitted that the Commissioner has not taken into account the survey stone on the western side of the mango tree and if that stone was taken into account the entire tree would have been found to be in the possession of the plaintiff. When the Commissioner has had site inspection and was convinced regarding the possession of the tree with respect to the property in the possession of the plaintiff and the title deed and submitted that the tree is standing in the property of the plaintiff and in the puramboke land, I do not find any reason to doubt its correctness and to reject the plan and report on technical grounds. The Commissioner was examined as DW.2. It is seen that he is an experienced senior Advocate of the Cherthala Munsiff’s Court having 50 years of standing. The measurement was taken in the presence of the Taluk Surveyor as well as the Panchayat Assistant. The Commissioner was examined as DW.2. It is seen that he is an experienced senior Advocate of the Cherthala Munsiff’s Court having 50 years of standing. The measurement was taken in the presence of the Taluk Surveyor as well as the Panchayat Assistant. Therefore, there is no reason to doubt the correctness of the report of the Commissioner. 6. The learned counsel for the appellant submitted that on the basis of the report of the Commissioner, it can be seen that the mango tree stands in the property of the plaintiff as well as in the puramboke. In such cases, the question of ownership had come up for consideration before this court on earlier occasion also. In Mythiankunju v. Preethkunju (1971 KLT 826), Krishna Iyer,J., held as follows: The courts below have followed the directions in which the roots travelled and have reached conclusions somewhat divergent but sharing the common feature of excluding commonsense. When two trees stand on the boundary line the arboreal ownership cannot be fixed by chasing branches or notionally splitting the trunk or burrow into the course of the roots. Simple sense tallies with the plain law if the matter as has been neatly expressed in Hunt’s Boundaries and Fences. 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 conterminous owners belong to them in common; and the rule is at once reasonable and simple.” I am not prepared to be drawn into the delicate difference in the location of the two trees with reference to the dividing line. Viewed broadly, both of them are on the boundary and applying the law correctly they must belong to both equally. In Achuthan v. Sumitra (1987 (1) KLT 457), varghese Kalliath, J., held as follows: 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 Achuthan v. Sumitra (1987 (1) KLT 457), varghese Kalliath, J., held as follows: 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 grow 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. Coats, Littledale 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 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 a fact, where was the tree first planted? If it can be found with a reasonable amount of certainity, 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 neighbours’ property does not affect the ownership of the tree. However, if it cannot be so found, in as much as the tree must belong to some one, 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.” In this case, the Panchayat has no case of planting any mango tree on the puramboke land. 7. The learned counsel for the respondent however contended that in as much as the appellant has taken Kuthakapattam of the right to take the yield from the mango tree for some period, he cannot contend that the tree belongs to him. This is met by the counsel for the appellant by stating that mere admission will not confer title if the respondent had no title. He relied on the decision of this Court in Sarojini v. Santha Trading Co. (1969 KLT 412), wherein it is stated that a recital in confirmation of pre-existed rights in a person, who had no such right in fact, would not convey him any right. A mere recital that the property belongs to both the husband and the wife will not, therefore, convey any interest in the property of the wife to the husband. This proposition is taken not of in Kunhiyumma v. Rabiumma (1997 (2)KLJ 565). More over, there is nothing wrong in the plaintiff taking the right to take income from the tree of Kuthakapattam as some portion of the tree is standing in the puramboke land and the amount to be paid by the plaintiff was only Re.1 and Ps.60 for one year. In Ext.B9 representation, the petitioner has made it clear that 2/3rd of the tree belongs to him and only the remaining is in the puramboke land. It is also argued by the learned counsel for the appellant that for respondent to set up a plea of estoppel there must be sufficient pleadings and there was no pleadings in this case. The reasoning of the 1st appellant court is that since the coconut tree under the Kuthakapattom arrangement is in the puramboke as admitted by the plaintiff that admission is sufficient for the mango tree also. This reasoning is unsustainable as the admission with regard to the coconut tree cannot be extended to the mango tree also. The reasoning of the 1st appellant court is that since the coconut tree under the Kuthakapattom arrangement is in the puramboke as admitted by the plaintiff that admission is sufficient for the mango tree also. This reasoning is unsustainable as the admission with regard to the coconut tree cannot be extended to the mango tree also. The learned counsel for the appellant also brought to my notice the decision in Perumal v. State of Kerala (1989 (2) KLT 924) where a Division Bench of this Court held that no principle of estoppel can be pressed into service where both sides were under a mutual mistake. In Govindan v. Cochin Shipyard Ltd. (1983 KLT 1083), M.P. Menon, J., analysed the incidents of estoppel. It was held that it was primarily a rule of evidence. It was further held that to attract the rule of estoppel ordinarily (i) there must be an unequivocal representation by word or conduct by on party; (ii) the representation must induce the other to believer the existence of certain state of things; and (iii) the other must act or alter his previous position on the strength of such belief. It is also held that another class of equitable estoppel is propriety estoppel. This concerns with acquisition of rights in or over lands. Estoppel as a rule of evidence, and equitable estoppel as a rule of equity, have something in common: the philosophy behind both is that something inequitable, immoral or unjust must be discouraged. A consideration of what is fair, moral, equitable or just is the essence of both the approaches. Viewed from the above perspective, I have no doubt in my mind that the ownership of the mango tree must belongs to the plaintiff and the Panchayat in the proportion noted by the commissioner and the denial of the prayer of the plaintiff as a whole by the courts below was illegal. 8. In the light of the above discussion, the question of law formulated by this Court at the time of admission has to be answered in favour of the appellant and the findings of the courts below are set aside. The plaintiff had prayed for and injunction against the cutting and removing of the mango tree and putting it in to public auction. The plaintiff had prayed for and injunction against the cutting and removing of the mango tree and putting it in to public auction. It is found that the mango tree even at the time of filing of the suit in 1975 was 80 years old. Therefore, it may have to be cut and removed. In case the Panchayat proceeds with the auctioning of the right to cut and remove the mango tree by public auction, the Panchayat can do so provided 50% of the sale proceeds must be disbursed to the plaintiff within two weeks of the confirmation of sale of the mango tree in public auction. The second appeal is allowed as above and the judgment and decree of the courts below are set aside to the above extent. The parties shall bear their costs in the second appeal.