JUDGMENT Hon’ble S.U. Khan, J.—Heard learned counsel for the parties. 2. This Second Appeal was admitted on 9.2.1978 without framing any question of law. However, on 14.7.2011 when the hearing took place, before the start of the main arguments and just after statement of the points involved in the appeal by learned counsel for the appellant the Court was of the opinion that the following two substantial questions of law were involved in the appeal: 1. Whether the suit was barred by Section 49 of U.P. Consolidation of Land Holdings Act? 2. Whether planting of trees of Banjar land even if found proved would confer any right, title or interest over the trees? 3. Learned counsel for both the parties advanced the arguments on the above two points. 4. Shiv Dhari, respondent No. 1 instituted O.S. No. 236 of 1973 against Satya Bahadur and Hari Narain. Hari Narain was real brother of Shiv Dhari. There was one more defendant in the suit i.e. Radhey Shyam who was got deleted through order dated 10.4.1974. 5. It was stated in the plaint of the suit that Bamboo and Mango trees were planted by father of the plaintiff and proforma defendant Hari Narain over the land in dispute, which was banjar bearing plot No. 451. In para 3 of the plaint it was mentioned that in the village in question there was a custom that any person could plant trees over Banjar or Parti land and he would become owner of the trees. According to para 5 of the plaint defendant No. 1 was Zamindar of the village in question before Zamindari abolition. The relief claimed in the suit was for a permanent injunction seeking to restrain defendant No. 1 from interfering in the possession of the plaintiff over mango trees and Bamboo plants (Kathi Bans). 6. All Banjar and Parti land in villages vested in the State after imposition of U.P. Zamindari Abolition and Land Reforms Act and thereafter it vested in the Gaon Sabha. Neither the State nor the Gaon Sabha was made party in the suit. Defendant No. 1 claimed that he had planted the trees. The suit was dismissed on 12.3.1975 by Munsif Jaunpur. 7. Neither the State nor the Gaon Sabha was made party in the suit. Defendant No. 1 claimed that he had planted the trees. The suit was dismissed on 12.3.1975 by Munsif Jaunpur. 7. The trial Court held that the suit was barred by Section 49 of U.P. Consolidation of Holdings Act as by virtue of definition of land given in Section 3(5) of U.P.C.H. Act land includes trees, wells and other improvements existing in the land forming the holdings. 8. Against the said judgment and decree plaintiff filed Civil appeal No. 33 of 1975. Ist A.D.J. Jaunpur allowed the appeal through judgment and degree dated 16.8.1977 set aside the judgment and decree passed by the trial Court and decreed the suit of the plaintiff restraining the six legal representatives of defendant No. 1(who had died by then) from interfering in the plaintiff’s possession over the disputed Bamboo clamps and the mango trees hence this Second Appeal. 9. As far as first question of law is concerned, In my opinion it has rightly been decided by the lower appellate Court. If right to a tree completely independent of the land in which it is planted is claimed, then such right cannot be adjudicated by the consolidation Court. Right to the land as well as trees standing thereupon may be claimed before consolidation Courts but right only to the trees standing over an agricultural land cannot be claimed before consolidation Courts. 10. However, as far as second question is concerned in my opinion lower appellate Court has wrongly decided the same (trial Court did not touch the same). Even if it is assumed that plaintiff had planted some trees over Banjar land, he cannot become owner of the trees. The custom which was alleged in para 3 of the plaint was not found proved by the lower appellate Court. In fact there is absolutely no discussion regarding that in the judgement of the lower appellate Court. Even otherwise no such custom can be recognised by law as it will be an open invitation to trespass. If someone plants tree over a Banjar land without any agreement with the State or the Gaon Sabha or on the land of another person then it is either for the benefit of the general public or for the benefit of the person on whose land the trees are planted. If someone plants tree over a Banjar land without any agreement with the State or the Gaon Sabha or on the land of another person then it is either for the benefit of the general public or for the benefit of the person on whose land the trees are planted. Plaintiff (or his father) may have planted saplings. A sapling in order to develop into a full grown tree draws heavily upon the underground soil and overground air, sun and rain over which land owner and not the planter has got right. No evidence was led by the plaintiff that he or his father even watered the trees in non-rainy seasons. 11. In fact plaintiff wanted to occupy the land in dispute by intelligently drafting the prayer in the plaint. The trees are always in the possession of the person who is in possession of the land over which same are planted. It is inconceivable that one person may be owner and/or in possession of the land and another person may be owner and/ or in possession of the tree standing thereupon subject to the contract to the contrary. 12. Accordingly plaintiff could not claim possession of the trees or any other right in respect thereof even if his father had planted the same over another person’s land. 13. The Second Appeal is therefore allowed. Judgment and decree passed by the lower appellate Court is set aside. Judgment and decree passed by trial Court dismissing the suit is restored even though on different grounds. Cost easy throughout. —————