The judgment established the principle that the adjacent owner retains ownership of the soil under a highway, and the rights to trees on a highway depend on whether they were planted by the local authority or spontaneously grown.

Varadachariar, J.

1. This is an appeal by the plaintiff in which though the pecuniary interests directly involved are small, some interesting questions arise for decision. There is a puntha or public pathway (marked S. No. 260) in Surya Rowpetta, a part of the plaintiffs Zamindari. The defendant is the Municipal Council of Cocanada, in whom this puntha is now vested. Up to 1919 it would appear to have vested in the Taluk Board of Cocanada by whom it was transferred to the defendant municipality, in 1919 or 1920. The point for decision is, what are the rights of the plaintiff and the defendant in respect of the palmyra trees growing on this bit of land. Neither the plaint nor the written statement suggests that these trees were planted by the plaintiff or the defendant or the Taluk Board. P.W. 3 says : "I do not know who planted them". Presumably they were spontaneous growths and I deal with the matter on this assumption.

2. One contention on behalf of the plaintiff and one on behalf of the defendant may easily be put aside. The plaintiff claimed that the written statement admitted his original title to the land. I agree with the Courts below that this is not a reasonable construction of the allegation in the written statement. On behalf of the defendant, undue stress has been laid on the description of the land as poramboke in the Record-of-Rights and the Settlement Register. Being a public pathway it was rightly classed as poramboke; but this description or classification throws little light on the question of title and much less on the right to the trees.

3. The written statement alleged that this piece of land had been acquired by the Government long ago for public purposes and the Taluk Board had been exercising ownership therein. No attempt has been made to prove any such acquisition. The case must therefore be dealt with on the footing that the Taluk Board and the defendant Council have only such rights as vest in them under the Statute, by reason of the land being used as a public way.

4. The two issues framed in the case are by no means calculated to bring out the real points in controversy. The first issue was, whether the plaintiff has subsisting title to the suit land. This language suggests that the question was raised in terms of Article 142 of the Limitation Act. But as the question of limitation is raised by the second issue, the first issue must be taken to relate to the loss of the plaintiffs rights, if any, by some other means. But the judgments of both the Courts have mainly discussed the question, whether the plaintiff at any time had a right to the land or the trees.

5. The second issue was whether the plaintiff had been in possession for twelve years before suit. The word for must apparently be a mistake for "within" and that is how both the lower Courts have discussed it. The suit is not one for possession on the footing of dispossession but one for declaration and damages. In such a case it is difficult to see the justification for an issue in terms of Article 142. Assuming, as a limitation issue ex hypothesi must, that the plaintiff had title at some anterior time, it would be for the defendant to establish its extinction, except when the suit falls under Article 142. Further, I do not think that in view of the pleadings, it was open to the Courts below to find that the plaintiff has not had enjoyment of the trees in question, within twelve years of the suit. The allegations in the written statement refer to the enjoyment of the land and issue I specifically refers to the land and when issue 2 follows, without specific reference to the trees as distinguished from the land, it is not clear whether the enjoyment of the trees by the plaintiff within twelve years was meant to be put in issue. The plaint specifically alleges in para. 4 that for fasli 1331 the trees were leased by the plaintiff to Veerasami and then it proceeds:

The plaintiff understands that the defendant has been leasing out the trees f