ISMAIL KHAN Vs. MITHU LAL

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by one Haji Muhammad Ismail, who in his plaint describes himself as proprietor and lambardar of a certain mahal. He alleges in his plaint that one Lekhraj has been for more than twelve years cultivator of certain land assessed to certain rent; that three months ago Lekhraj died without leaving any heir, and that in consequence of this he, as zemindar, became proprietor of the land, trees and pucka well standing thereon. The defendants Nos. 1 and 2, according to him, allege that they have purchased the land, the trees and the well, under a sale deed executed by Lekhraj and are now obstructing plaintiff s possession. He prays that he may be declared to be in proprietary possession of the property, that the sale-deed be declared null and void as against himself and that a perpetual injunction issue restraining the defendants from offering any obstruction. The defendants Nos. 1 and 2 admit that the plaintiff is proprietor and lambardar of the mahal in question and that Lekhraj has been a cultivator of the land in dispute set out in the plaint. On the other hand, they say that the land was taken by Lekhraj assessed to rent for the purpose of planting a grove and constructing a well, that the grove and well were constructed with the permission of the zemindar and that for more than twelve years, Lekhraj has been exercising full proprietary powers in respect of the well and grove. The rights of Lekhraj were transferred to the defendants upon payment of consideration. THIS is how the plaintiff, now appellant, and the defendants Nos. 1 and 2, now respondents, state their case. The claim of the plaintiff was dismissed by the Court of first instance and the lower Appellate Court confirmed the decree of dismissal. The lower Appellate Court has found that the grove was planted by Lekhraj on the zemindar s land with his permission, and that Lekhraj continued to pay the rent assessed and afterwards rent at an enhanced rate to the zemindar. The reason given by the lower Appellate Court for confirming the decree of dismissal is (1) that the plaintiff could not have ejected Lekhraj, if he wanted to do so, and in support of this, it relies upon the case of Haider All Khan v. Gangu A.W.N. (1906) 204 and (2) that he could not have ejected the purchasers from Lekhraj, and for this it relies upon a case decided by the Board of Revenue, Badri Prasad v. Bhim Sen A.W.N. (1893) 1. There is also a finding that no custom or contract to the contrary has been proved.

(2.) THE plaintiff comes here in second appeal and puts forward the following pleas: (1) That the transfer of a grove-holder is not allowed by law in the absence of any custom or contract to the contrary; (2) that the cases relied on by the lower Appellate Court have no bearing upon this case; and (3) that the transferee is a trespasser in the eye of the law and is liable to ejectment. THE learned Counsel for the appellant referred me to the case of Kasim Mian v. Banda Husain 5 A. 661. THE circumstances of that case are of a peculiar nature. Certain occupancy-tenants, under the impression that they were tenants at fixed rates of the land, transferred a grove and the zemindars sued to have the sale set aside and to eject the vendee on the ground that the transfer of an occupancy-holding was illegal under Section 9 of Act XII of 1881. It was held in that case that the transfer of trees on a holding is no less invalid than the transfer of the holding itself; that the contract in both respects was equally void, the vendor having no transferable interest in either the land or the standing trees, and, therefore, the transfer had altogether to be declared null and viod. THE case before me is not one in which the vendors are occupancy-tenants and it is not one which falls under Act XII of 1881. THE relationship between the parties is not one which, as the law now stands, falls within the provisions of the Tenancy Act II of 1910. THE parties appear to have recognised this for the plaintiff selected the forum of litigation as the Civil Court and the defendant raised no objection. THE position seems to me to fall rather within Chapter V of Act IV of 1832. A lease is there defined as the transfer of a right to enjoy immoveable property made for a certain time or in perpetuity in consideration of money, etc., etc., to be rendered periodically to the transferor by the transferee. In the present case, such a transfer was made and the consideration was the money to be rendered periodically. If it be contended that there is no certain time shown to have been stipulated between the parties, the answer seems to me to rest upon the practice and custom of these provinces that a lease of grove land exists for such time as the trees stand on that land. No written instrument was necessary as the agreement had been made long before 1904. Even if the contract between the parties be not one which strictly falls within Chapter V of Act IV of 1882, it comes so nearly within it that the incidents given for the one may be fairly attached to the other. A lease falling within Chapter V of Act IV of 1882 is a contract whereby the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property and any transferee of such interest or part may again transfer it; see Clause (j) of Section 108, Such a lease also determines upon the happening of events set out in Section 111. THEre being no contract proved to the contrary, Lekhraj was empowered to transfer his interest absolutely and the relationship between the two contracting parties has not been put an end to by any of the events set out in Section 111. It was also contended on the part of the appellant that the land-holder is the owner of the trees in a grove and in support of this I was referred to Kasim Mian v. Banda Husain 5 A. 661 and also to the decision by their Lordships of the Privy Council in Ruttonjee Eduljee Shet v. THE Collector of Tanva 11 M.I.A. 295 : 10 W.R. (P.C.) 13. At page 313 their Lordships say that "the trees upon the land were part of the land and the right to cut down and sell those trees was incident to the proprietorship of the land." I cannot find that the land with reference to which this pronouncement of their Lordships was made in any way corresponds with what is known as grove land in these provinces. What I have said in this case is in no way intended to have any bearing on the right which landlords or tenants may or may not have in chance trees planted upon land. THE case of Kasim, Mian v. Banda Husain 5 A. 661 was, as I have already pointed out, the case of an occupancy-tenant. THE question is not an easy one to decide. But as mattters stand and as the circumstances of this case stand, it seems to me that the proper order is to dismiss this appeal with costs.