JUDGMENT

Almond, J C - A suit was brought by the Governor-General in Council against Section Sujan Singh Alhuwalia and S. Amar Singh, his agent, for a declaration to the effect that the trees standing in the compound of bungalow No. 7 in Abbottabad Cantonment are the property of the plaintiff and for the recovery of Rs. 80 being the value of the trees cut by the defendants from the said compound. The suit was resisted by both the defendants, and was decided in favour of the plaintiff by the District Judge, Hazara, to whom the case was transferred, except as to the amount of compensation to be paid for the trees. This was reduced to Rs. 40 and the plaintiff was given proportionate costs. Against that decree the defendants have appealed and pray that the suit of the plaintiff be dismissed with costs.

2. It is not necessary to refer to all the issues in the case as some of them were abandoned before the trial Judge and others though mentioned in the grounds of appeal, have not been argued before us. The issues which have been the subject of argument and to which it is necessary to refer for other reasons are as follows: (2) Is the present suit valid as against defendant 2 on account of his being the agent of defendant 1? (2a) It being admitted that the site and compound of bungalow No. 7 is in the limits of Abbottabad Cantonment, are the defendants and not the plaintiff owners of it, and so the plaintiff's suit is liable to be dismissed? (3) If issue (2a) is not proved, is defendant 1 a license-holder qua the site and land in compound of bungalow No. 7 under an old grant, and is he under terms thereof not entitled to cut the trees standing in the compound? (4) In case issue 3 is proved, has defendant 1, according to custom or conduct of the plaintiff become entitled to cut the standing trees? (6) Has defendant 1 cut the trees in question in compliance with the order of the Executive Officer of the Abbottabad Cantonment, and is the plaintiff, therefore, not entitled to recover the price thereof?

3. We proceed to discuss each of these issues in turn. Issue 2 was found by the trial Judge against the defendants. It appears, and it is in fact admitted, that Amar Singh, defendant 2, is and has always been recognized as the agent of Sardar Sujan Singh and it is stated by him that he got the trees cut down in accordance with the orders of the Executive Officer and that he appropriated the timber to the use of his principal and credited the proceeds thereof to his principal. In these circumstances, although we agree with the trial Judge that the decree far declaration should be maintained against both defendants, we do not think that defendant 2 should be held liable for the payment of the money part of the decree. Issue (2a) has not been 'argued before us and has only been referred in order to explain the meaning of issue 3.

4. As regards issue 3 it has been contended by learned Counsel for the appellants that it is not proved that defendant 1 is a license-holder under the Governor-General's Order No. 179 of 1836, which is relied upon by the plaintiff as the basis on which defendant 1 is in possession of the property. Learned Counsel for the appellants has pointed out that there is no evidence as to how the original person who occupied this land came into possession and he has also drawn attention to the fact that the Governor-General's Order No. 179 replaced earlier orders under which he urges the original occupier may have come into possession. It is a matter of history, however, that the Abbottabad Cantonment was not occupied before 1836. Lt.-Col. Chapman, Military Estates Officer, Rawalpindi, has produced in evidence the registers of this Cantonment in so far as they are available. The first which he has produced begins, according to him, from 1860, and the entry regarding bungalow No. 7 (it was then bungalow No. 3) shows that prior to 1869 it was occupied by Brigadier General Wilde, who, in that year, transferred it to one Lt. Jany.