HAJI MUHAMMAD ISMAIL KHAN Vs. MITHU LAL

JUDGEMENT

(1.) This appeal arises out of a suit in which the plaintiff sought a declaration of his title to a certain plot of land with the trees thereon and a pucca well. The defendants admitted the plaintiff s title as zemindar and it is quite clear that the issue between the parties was, whether or not the plaintiff was entitled to oust the defendants from the possession of the grove and well. The facts are very clearly stated by the learned Judge of this Court from whose judgment this Letters Patent Appeal has been preferred. I will nevertheless state then very shortly. The zemindar agreed with one Lekhraj that he should plant the plot in question with fruit trees and should pay a yearly rent which was subsequently slightly enhanced. Lekhraj, in pursuance of the agreement, planted the grove and made the pucca well in question. Subsequently, he sold the grove and well to the defendants and died without leaving heirs. The plaintiff claims that under these circumstances, the defendants have no rights and that he is entitled to take possession and enjoy the grove and well planted and made by Lekhraj.

(2.) It seems to me that this claim is not well founded. Prima facie, every one is entitled to transfer any property or right he may possess. I think that Lekhraj had rights as the result of his having planted the grove and made the well in pursuance of his agreement with the zemindars. Indeed it was admitted that Lekhraj could not himself have been dispossessed, nor could his heirs if he had left them. No doubt this prima facie right of transfer may be restricted by custom or by Act of the Legislature. As for example, tenants of certain class of holdings are prohibited by the Tenancy Act from transferring their holdings. There is, in my opinion, however, nothing in the Tenancy Act to prevent a person possessed of such rights as Lekhraj had from transferring such rights. Of course, if I thought that the rights of Lekhraj were those of an occupancy or non-occupancy tenant, or that such rights were appurtenant to an occupancy or non-occupancy holding, I would hold that he had no right to transfer. It was, however, never alleged in the plaint nor apparently contended in either of the lower Courts below or in the second appeal to this Court that Lekhraj was an occupancy or non-occupancy tenant of the grove and well, or that such rights as he possessed were appurtenant to such a tenancy. Furthermore, I do not consider that such a contention could have been successfully put forward. Assuming that Lekhraj was a tenant of the land, his right to use it was limited to growing and maintaining the trees. He could not use the land for ordinary purposes of agriculture. His position was in fact that of a "grove-holder"--a position well known and recognised.

(3.) I would dismiss the appeal and affirm the decision of the three Courts by which the case has been already decided. Banerji, J.