HAJI MOULVI WAZIR AHMAD Vs. DAYA KISHUN

JUDGEMENT

(1.) This appeal arises out of a suit brought by a zemindar for a perpetual injunction restraining the defendant from cutting down trees of a grave or otherwise interfering with his (zemindar s) possession over it. It was alleged in the plaint that Moulvi Wazir Ahmad, the plaintiff, was the zemindar of the village of Shitabnagar, and that Bhopal and others were his tenants in respect of plots, among others, numbered 74, 81 and 89. There was a mango grove on the said plots which was in the possession of Bhopal and others merely as his tenants, whose sole right the grove was that of taking fruits. They had no right of transfer in respect of the trees of the grove nor could the said trees be sold in execution of a decree against thorn. One Daya Krishna in execution of Ids decree against them had some of the trees of the said grove put up to auction and purchased them himself on the 28th of June 1911. The said sale was void at law and put an end to the rights of the tenants in the grove and the plaintiff became entitled to its possession. He entered on possession but, Daya Krishna, the purchaser, with the help of two others attempted to cut down the trees purchased by him and was prevented by the plaintiff. The plaintiff, therefore, sued for perpetual injunction restraining Daya Krishna and his friends from cutting down any trees of the grove in question or otherwise interfering with the plaintiff s possession over the said grove. The claim was resisted on various grounds. The pleas with which we are concerned in this appeal were that the plots Nos. 74, 81 and 89 were granted to Debi Singh, ancestor of Bhopal and others, by the zemindar of the village for planting a grove and Debi Singh accordingly planted a grove and his descendants had a proprietary right in the grove which they could transfer either privately or which could be sold in execution of a decree against them. Moreover, under a custom obtaining in the village and also under the terms of the Wajib-ul-arz tenants have a transferable right in the trees in their possession. The learned Munsif held that the land of the grove in suit had not been granted to Debi Singh for planting a grove, but was his occupancy holding over which he had planted a grove. He further held that the custom set up for the do Fence was not proved and that the terms of the Wajib-ul-arz were not applicable to the present case. The claim was accordingly decreed. Daya Kishen, the auction-purchaser of the trees, preferred an appeal. The only point urged on his behalf before the learned Subordinate Judge was that under the terms of the Wajib-ul-arz of the Tillage of Shitabnagar tenants had a transferable right in the trees planted by them. In order to dispose of the question raised in the appeal the learned Subordinate Judge framed a fresh issue and remitted it for trial to the first Court. The finding of the first Court on the fresh issue did not support the contention of the appellant that under the terms of the Wajib-ul-arz a tenant had a right of transfer in the trees planted by him on his holding. The learned Subordinate Judge accepted the finding of the first Court, but for other reasons held that the tenants of the grove in suit had a right of transfer in the trees. He accordingly accepted the appeal and dismissed the claim of the plaintiff. The latter has c mo up in second appeal to this Court. He contend that an occupancy or non-occupancy tenant who plants trees. On his holding has no right of transfer in the trees in the absence of a custom or contract to the contrary. The following cases are relied upon in support of this contention: Kasim Mian v. Banda Husain 51 A. 616 : A.W.N. (1883) 169; Imdad Khatun v. Bhagirath 10 A. 159 : A.W.N. (1888) 32; Kausalia v. Gulab Kuar 21 A. 297 : A.W.N. (1899) 72; Janki v. Sheodhar 23 A. 211 : A.W.N. (1901) 52; Wahida Khatun v. Bulaqi Das 3 A.L.J. 385 : A.W.N. (1901) 52.

(2.) For the respondent the reply is that the finding of the lower Appellate Court is that the land of the grove in suit was given to Debi Singh on a fixed rent for the purpose of planting a grove and, therefore, the principle laid down in the cases relied upon by the appellant does not apply. It is said that when a zemindar grants land on rent to a person to plant a grove, that person has a right of transfer in the trees, in support of his argument the respondent refers to the following cases-

(3.) Muhammad Ismail Khan v. Mithu Lal 17 Ind. Cas. 656 : 11 A.L.J. 649; Habibullah v. Kalyan Das 25 Ind. Cas. 169 : 12 A.L.J. 1080.