JALESAR SAHU Vs. RAJ MANGAL

JUDGEMENT

(1.) This case has been referred to as by a single Judge of this Court because of the difficulty of reconciling certain decisions to which we will refer hereafter in detail, particularly the cases of Muhammad Yasin V/s. Ilahi Bakhsh 16 Ind. Cas. 455 : 34 A. 545 : 10 A.L.J. 73, and Muhammad Ismail Khan V/s. mithu Lal 17 Ind. Cas. 656 : 11 A.L.J. 649, on the one hand, and the case of Daya hishen v. Mohammad Wazir Ahmad 30 Ind. Cas. 565 : 13 A.L.J. 833, on the other hand. We have some to the conclusion that these cases are not, as they appear to be, irreconcilable, and that if the facts underlying each decision are clearly ascertained and stated, they present a complete and satisfactory Code upon this somewhat controversial question. We have also come to a clear view as to which side of the line the present case lies when its facts are understood, and we propose to lay down certain propositions which, we think, are established by the existing authorities in this Court on this troublesome question, with the hope that they may be of assistance in guiding the subordinate Courts in making up their mind as to the real issues of fact which they have got to determine in arriving at a correct or at any rate a clear conclusion. We can but express the fervent hope that this attempt will not further complicate the matter which is obviously sufficiently complicated already. We think that the following propositions are established by the decided cases of this Court: 1. When land is let for the purpose of planting a grove, the occupier or tenant or licensee, to whom the permission to make such use of it is granted by the Zemindar, becomes a grove-holder, pure and simple, and his rights are transferable vide Muhammad Yasin V/s. Ilahi Bakhsh 16 Ind. Cas. 455 : 34 A. 545 : 10 A.L.J. 73, and Muhammad Ismail Khan V/s. Mithu Lal 17 Ind. Cas. 656 : 11 A.L.J. 649,

(2.) If the holding or right to occupy derived from the landlord is an occupancy or non occupancy tenancy within the meaning of these terms as used in the Agra Tenancy Act, then the permission to plant trees is not transferable, nor are the trees themselves vide Daya Kishen V/s. Mohammad Wazir Ahmad 30 Ind. Cas. 565 : 13 A.L.J. 833, Rameshar Singh V/s. Madho Lal 52 Ind. Cas. 191 : 17 A.L.J. 971 : 42 A. 36.

(3.) A tenant cannot make a valid transfer of trees upon an occupancy holding independently of the holding, and, therefore, not at all because the holding itself is not transferable. This proposition is merely a Sub-branch of No. 2 stated above vide Kasim Mian V/s. Banda Husain 5 A. 616 : A.W.N. (1883) 169 : 3 Ind. Dec.(N.S.) 557, Imdad Khatun V/s. Bhagirath 10 A. 159 : A.W.N. (1888) 32 : 6 Ind. Dec.(N.S.) 107, Kausalia V/s. Gulab Kuar 21 A. 297 : A.W.N. (1899) 72 : 9 Ind. Dec.(N.S.) 898, Janki V/s. Sheoadhar 23 A. 211.