JUDGMENT : N.K. Balakrishnan, J. Defendants are the appellants. The suit was filed by the deceased plaintiff for a declaration that the rose wood tree in dispute belongs to him and for a consequential mandatory injunction to remove the number/mark affixed on that tree. Ext. C5 is the plan prepared by the District Superintendent of Survey and Land Records which was produced by the Advocate Commissioner along with Ext. C6 report. The plot shown in Ext. C5 is admittedly the property held by the deceased first plaintiff, whose legal representatives are plaintiffs 2 to 6. Koyilandy-Thamarassery road is situated along the northern boundary of the plaint A schedule property. The plaint schedule property was purchased by the deceased plaintiff as per Ext. A1 sale deed dated 29.10.1971. The plaintiff contended that even in Ext. A1 specific reference was made about the trees situated in the property. Ten coconut trees and this rose wood tree are made mention of in Ext. A1. The defendants on the other hand contended that this rose wood tree is situated in P.W.D. road puramboku and so the plaintiff has no right over the property. The defendants affixed the mark and number to indicate that this rose wood tree belongs to the Government. It was then the suit was filed for declaration and consequential relief as stated earlier. Before the trial court, PW 1 to PW 3 were examined and Exts. A1 to A17 were marked. The Engineer attached to PWD was examined as DW 1 and Exts. B1 and B2 the registers maintained by PWD showing the number and description were also marked. The Commissioner's report and plan were marked as Exts. C1 to C6. The learned Munsiff after meticulous examination of the entire evidence found that a major portion of the trunk of the tree falls in plot A purchased by the deceased first plaintiff as per Ext. A1. Since the defendants had no case that the said tree was planted by them and since it was all the more possible that due to natural growth a small portion of the trunk of the tree happened to protrude into the PWD road puramboku, it cannot be said that the tree belongs to the Government. A1. Since the defendants had no case that the said tree was planted by them and since it was all the more possible that due to natural growth a small portion of the trunk of the tree happened to protrude into the PWD road puramboku, it cannot be said that the tree belongs to the Government. It was found that it is all the more reasonable to accept that the tree was planted in plot A and during the natural growth a portion of the girth of the trunk happened to project into the PWD road puramboku. Hence, the trial court found that the plaintiffs are entitled to get the declaration and injunction sought for. 2. The defendants challenged the same in the appeal. The appellate court had a reappraisal of the evidence and agreed with the trial court and thus the appeal was dismissed. 3. In this second appeal, the substantial questions of law framed are: (1) Whether the courts below were justified in granting a declaration that the rose wood tree situated on the boundary belonged to the plaintiff? (2) Were the courts below justified in not placing reliance on the entries in Exts. B1 and B2, the register-showing the entries and description of the trees held by the Government? (3) When the tree is situated along boundary to whom the tree belongs? 4. The third plaintiff who was examined as PW 1 and the brother of the first plaintiff who was examined as PW 2 swore before court that the tree was all along in plot A shown in Ext. C5 plan. PW 3 is the Advocate Commissioner who prepared the report and plan. 5. The learned Government Pleader would submit referring to the entries in Exts. B1 and B2, that the Government had all along treated that this tree belongs to the Government and that was the reason why the entry regarding rose wood tree is made in Exts. B1 and B2, DW 1, the Engineer who was examined on the side of the defendants had no direct knowledge but he deposed regarding the entries made in Exts. B1 and B2. It is stated that the entries were there since 1970 but the learned counsel for the respondent would submit that it is not certain as to when this entry was actually made. B1 and B2. It is stated that the entries were there since 1970 but the learned counsel for the respondent would submit that it is not certain as to when this entry was actually made. Except noting that a rose wood tree of a girth of two metres was in existence at a point 23/6 nothing more is gatherable from that entry, the respondent points out. (It is stated that it is a point about 23.6 k.m. away from Koyilandy on the Koyilandy-Thamarassery road.) All the trees belonging to the Government are seen similarly entered in that register. Hence, being a register maintained by the PWD in the regular and usual course of official acts the entries in Exts. B1 and B2 cannot be of the doubted, the learned Government Pleader submits. 6. Going by the plaint description, the property is situated in Unnikulam Village. When the Advocate Commissioner inspected the property, this rose wood tree was seen. The tree was given the number 12 in Ext. B1. In the other register, the number assigned to the tree is 10. The difference in numbers might be because two trees might have been cut and removed during the interregnum. 7. The learned counsel for the respondents submits that the enlarged plan showing the lie and position of the rose wood tree along the boundary line shown in Ext. C5 plan, that too, prepared by the District Superintendent of Survey and Land Records, who is an officer of Government would make it undoubtedly clear that major portion of the trunk of the tree is actually existing in plot A. At the time of inspection by the Commissioner, the total girth of the rose wood tree was found to be 3.20 mtrs; of which, 1.95 metres falls in plot A. 1.25 mtrs is seen to be protruding into PWD road puramboku. This protrusion can in all probability be due to the natural growth of the tree extending its girth into road puramboku, the learned counsel for the plaintiffs/respondents submits. 8. This protrusion can in all probability be due to the natural growth of the tree extending its girth into road puramboku, the learned counsel for the plaintiffs/respondents submits. 8. In the authoritative Book on the subject "Hunts Boundaries and Fences" the principle of law to determine the arboreal ownership of the trees is referred to as: 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 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. 9. It is argued by the learned Government Pleader that the rose wood tree is a very old one and there is no evidence to show that it was the plaintiff or his predecessors who planted the rose wood tree. There is also no evidence to show that it was planted by the appellants. The rose wood tree is not usually planted by the owners of the property. It grows naturally in hilly tracks or forest areas. Only when the tree grew up it might have been noticed that it was a rose wood tree. In the absence of any evidence as to who planted the tree the other question would be as to where the situs of the tree is. In Achuthan v. Sumithra & Ors. ( 1987(1) KLT 457 ), the following observations made by Little Dale J. in Holder v. Coates have also been quoted: 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 so to find for the plaintiff or for the defendant accordingly. 10. 10. From the observations made above it can be discerned that the true test to determine the ownership of a boundary tree is actually a question of fact; namely, as to where was the tree was planted. If it can be found with reasonable certitude that the tree was planted in the plaintiffs property, then the argument that due to the gradual growth, roots, branches and a portion of the trunk might have protruded into the property of the Government can be accepted. But the learned Government Pleader would submit that there was no proper survey measurement and so the suit may be remanded so that the property can be again surveyed and found that the rose wood tree is actually situated in Government puramboku. This request is too belated. The defendants wanted to contend that the tree falls in the puramboku land. True that the suit is filed by the plaintiff contending that the tree belongs to the plaintiff But in the peculiar position of the situs of the tree both sides should have adduced proper evidence to rind whether the tree actually falls in the plaintiffs' property or whether it falls in the defendants' property. 11. As per the plan submitted by the Commissioner which was in fact prepared by the Superintendent of Surveys, out of the total girth of 3.20 metres, 1.95 metres falls in plot A; and 1.25 metres falls in the P.W.D. puramboku land. Naturally the roots also might have spread into the PWD puramboku land as well. Therefore, it would be more pragmatic to hold that the trunk of the tree stands protanto on the land of the plaintiff and also on the land belonging to the defendants, the learned Government Pleader submits, It is further argued that it is not a case where the bing rose wood tree fails entirely in the plaintiff's property nor is it a case where it only grazes the boundary wall so as to contend that in all possibility the entire trunk did fall in the plaintiffs' property only. 12. It was held in Achuthan v. Sumitra and other ( 1987(1) KLT 457 ) thus: 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? 12. It was held in Achuthan v. Sumitra and other ( 1987(1) KLT 457 ) thus: 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. 13. The learned counsel for the respondents has also relied upon the decision in Enose Justus Vs. Yohannan Thomas. The decision in Achuthan v. Sumithra was followed in Enose Justus case cited supra. There, the first commission report was prepared in the year 1981 after 15 years another Commissioner inspected the and filed a report in 1996. There the anjili tree was found to be standing in the property of the petitioner therein. But in 1996, after about 15 years it was found that the tree had considerably grown and so it could not be said that tree with its then size was standing to the property of the petitioner alone; 3/4 portion was then in the property of the respondents and only 1/4 portion was in the petitioner's property. Therefore, it was held that the more acceptable view is that the tree belongs to the owner of the land on which it was planted, even though the tree grew up and crossed the boundary of the nearby property owner because the tree has its roots there. But so far as the case on hand is concerned, even at the earliest point of time when the Commissioner inspected the property and filed the report, out of the total girth of 3.20 metres, 1.95 metres was found in the property of the plaintiff whereas 1.25 metres was found in the property of the Government puramboku. Therefore, the argument vehemently advanced by the learned counsel for the plaintiff/respondent that the tree should be held to nave been planted in the plaintiffs' property has to be accepted. As has been held earlier there is no evidence to show as to who planted the tree or where exactly the tree was planted. Therefore, the argument vehemently advanced by the learned counsel for the plaintiff/respondent that the tree should be held to nave been planted in the plaintiffs' property has to be accepted. As has been held earlier there is no evidence to show as to who planted the tree or where exactly the tree was planted. But at the same time it can be found that the tree was almost along the boundary line. 14. In this connection, the decision in Mythiankunju v. Pareethkimju ( 1971 KLT 826 ) also can be referred to. There it was held that when trees stand on the boundary line, the arboreal ownership cannot be fixed by chasing branches or notionally splitting the trunk or burrowing into the course of the roots. It was held in that case "viewed broadly, both the trees are on the boundary and applying the law correctly they must belong to both equally". It is also argued by the learned counsel for the respondents that the appellants/defendants had no contention before the courts below that the situs of the rose wood tree actually is in Government land and not on the boundary line. On the other hand the contention that was raised is that the tree is in the P.W.D. land. It is also pointed out that the property was purchased by the plaintiffs as per the assignment deed of 1971. It was long thereafter the defendants put the number on the rose wood tree. Several letters were sent to the defendants but no reply was sent stating that the tree is in the puramboku land or that the tree belongs to the P.W.D. It is further argued that had the tree belonged to P.W.D. there was no difficulty for them to send a prompt reply stating that the tree is situated in the P.W.D. puramboku land and that it belongs to the P.W.D. Even after repeated requests the defendants did not desist from numbering the tree. Hence, the suit had to be filed. 15. Hence, the suit had to be filed. 15. It is also argued by the learned counsel for the respondent/plaintiff that when there is an open space on the one side namely; on the P.W.D. puramboku land, as usual the tree would slant and grow towards the open space for getting more sunlight and also because it would be free for the roots to spread towards unoccupied portions and, therefore, it was because of gradual growth a small portion of the trunk happened to be in the Government puramboku land and not because the tree originally stood in the puramboku land. The lie and position of the tree would only suggest that the situs of the tree is in the property of the plaintiff and not in the Government puramboku land. 16. An argument has been advanced by the learned Government Pleader that this rose wood tree might have been shown reserved in the patta originally issued to the predecessors-in-interest of the plaintiff. There is no such case in the written statement. No document whatsoever was produced by the defendants to show that the predecessors-in-interest of the plaintiff were granted patta under the Land Assignment scheme or that this tree was reserved as per the land assignment order or patta issued to any such person. There is absolutely no case that this property was originally assigned under the land assignment scheme. Therefore, it cannot be contended that this tree was reserved by the Revenue Department. It is pointed out that the learned counsel for the respondents/ plaintiffs that when there is a concurrent finding of fact that the situs of the tree is in the plaintiffs' property unless it is shown that the finding is perverse or is grossly erroneous or that there was total non-consideration of any material evidence which would have tilted the balance, the court should not interfere with the concurrent finding of fact so entered by the courts below. 17. It is also submitted by the learned counsel for the respondents that on going through the judgment of the courts below it can be found that there was proper appreciation of the evidence adduced by the parties and that the correct law on the point, namely, that the tree belongs to the owner of the land where the trunk is situated was applied. 18. Sri. 18. Sri. Lakshmi Narayanan, the learned counsel for the respondent also referred to Halsbury's Laws of England, 4th Edition (2002), where the Author has observed thus: The ownership of a tree on a boundary is a question of fact in each case but such a tree will prima facie belong to the owner of the land on which it was planted. Where ownership is disputed, the topping and lopping of a tree is evidence of acts of ownership. It was also observed therein: Trees whose trunks stand wholly upon the land of one owner belong exclusively to him, although their roots grow into the land of another. Trees whose trunks stand partly on the land of two or more coterminous owners, belong to them in common. The learned counsel would further submit that the position of the tree as has been marked in the survey plan would positively suggest that the tree was planted or the tree grew in the plaint schedule property and that its trunk expanded slightly on to the adjoining property in which case there is clear authority for the proposition that the property owner is legally entitled to the said tree. The fact that even in the sale deed of 1971 this tree and the 10 coconut trees were specifically mentioned as the trees which stood in the property assigned in favour of the plaintiff would clearly indicate at that point of time the tree stood completely in the property of the plaintiff and not in the P.W.D. puramboku. As such I find no merit in the submission made by the learned Government Pleader that the case may be remanded for getting a survey plan after a fresh measurement nor is there any merit in the submission that the tree belongs to the P.W.D. Since the principles of law were correctly applied by the courts below, I find no ground to interfere with the concurrent finding of fact. Therefore, this appeal falls and is accordingly dismissed. No costs.