The sale of land encompasses all attachments, including standing trees, unless expressly excluded; failure to seek a declaration renders an injunction suit unsustainable.

JUDGMENT :

G.R. Swaminathan, J.

Heard the learned counsel for the appellant. The respondents have been served. Though they have entered appearance through counsel, there is no representation on their behalf.

2. The appellant filed O.S.No.173 of 2005 on the file of the Principal District Munsif Court, Ambasamudram seeking the relief of permanent injunction. The case of the plaintiff is that the registered sale deed dated 16.09.2004 executed by him in favour of the defendants pertained to land alone and did not cover the standing trees. The plaintiff wanted the Court to restrain the defendants from interfering with his right to cut and remove the standing trees.

3. The defendants filed written statement controverting the plaint averments. According to them, the plaintiff sold the suit land with all the incidental rights and interests. Based on the divergent pleadings, the learned trial Court framed the necessary issues.

4. The plaintiff examined himself as P.W.1 and two other witnesses on his side. Ex.A1 to Ex.A13 were marked. The husband of the first defendant examined himself as D.W.1. One Arumugam was examined as D.W.2. Ex.B1 to Ex.B3 were marked. An advocate commissioner was appointed. His interim and final reports were marked as Court Exs.1 & 2. Valuation reports received from a private individual and the forest department were marked as Court Exs.3 & 4. After considering the evidence on record, the trial Court dismissed the suit on 06.04.2011. Questioning the same, the plaintiff filed A.S.No.48 of 2011 before the Sub Court, Ambasamudram. The first appellate Court dismissed the appeal on 13.12.2012. Challenging the same, this second appeal came to be filed.

5. Though the notice was ordered to the respondents, the second appeal has not been admitted. The learned counsel for the appellant reiterated all the contentions set out in the memorandum of grounds of appeal and called upon this Court to admit the second appeal, frame substantial questions of law, issue notice to the respondents again and thereafter take up the appeal for disposal.

6. I am not swayed by the submissions of the learned counsel for the appellant. Admittedly, the plaintiff had sold the suit land vide registered sale deed dated 16.09.2004. It is true that there were standing trees. The plaintiff would claim that the standing trees were not sold. It is a fact that the standing trees were not specifically excluded from the conveyance. The question that calls for consideration is whether in such circumstances, it should be taken that the plaintiff had sold the standing trees also along with the land.

7. The issue raised in this appeal is no longer res integra. The Hon'ble Supreme Court in the decision reported in (2001) 10 SCC 221 ( Suresh Chand Vs Kundan ) held as follows:

“3......

Section 3 of the Act defines the expressions “immovable property” and “attached to the earth”. They read as under:

“3. ***

‘immovable property’ does not include standing timber, growing crops or grass;

‘attached to the earth’ means—

(a) rooted in the earth, as in the case of trees and shrubs;

(b) embedded in the earth, as in the case of walls or buildings; or

(c) attached to what is so embedded for the permanent beneficial enjoyment of that to which it is attached;”

4. Section 8 of the Transfer of Property Act provides that:

“8. Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof.

Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer….”

5. Section 3(26) of the G