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 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 demarcat