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Judgment
Devadoss, J.—This matter once came up in Second Appeal No. 1311 of 1918. The learned Judges who heard it remanded the case to the
lower Court on the ground that the District Judge had not considered whether any custom was established which took the case out of the
operation of Section 12 of the Estates Land Act. The District Judge has re-heard the appeal and dismissed it. The representatives of the first
defendant have preferred this second appeal. It is proved that there is a custom prevalent in certain mittas of the Salem District for the trees to be
enjoyed separately from the land. It is not unusual for pattas for the trees to stand in the name of one person and patta for the land to stand in the
name of another. The holding with regard to the trees seems to have no relation to the holding as regards the land. In this case, the landlord when
he gave a patta to the plaintiff reserved the right to the trees as it clear from Ex. I. The trees on the land had been purchased by the mittadar and
were enjoyed by him. The learned District Judge assumes that by such purchases and by such enjoyment the tree holding became a home-farm. It
is difficult to follow the reasoning of the Judge. A holding to which the incident of the right of occupancy is attached does not become a home-farm
land merely by the fact that the landlord buys it at a Court auction or at a private sale. If it is a raiyati land, it can never become home-farm by the
landlord buying it in Court auction or otherwise. In this case the trees were held as a separate holding and what applies to land must also apply ""to
trees which in the Salem District are held separate from the land. The custom, therefore, that the trees are held differently from the land has been
satisfactorily proved and such being the case when the landlord let the plaintiff into possession of the plaint land and reserved to himself the right of
holding the trees, it is difficult to see how he could claim the trees as a part of the land. No doubt in ordinary cases unless there be a custom or
contract to the contrary, the occupancy tenant would be entitled to the trees in his holding. Where a custom by which the trees on the land could
be held apart from the land itself is proved the provisions of Section 12 of the Estates Land Act do not apply. That being so the plaintiff is not
entitled to the declaration which he claims. The appeal is allowed and the suit is dismissed with costs throughout.