RAM CHANDAR Vs. TIWARI HUB LAL

JUDGEMENT

(1.) THIS is a second appeal by defendant 3 against concurring decrees of the two lower Courts which have granted the plaintiff-mortgagees a decree for sale on a mortgage of 21 June 1913, executed by one Lalla, who is defendant 1. The mortgage purported to be in regard to two of the former numbers, plots Nos. 50 and 51. We are concerned in the present suit only with plot No. 50 which is the present No. 85. It is found by the lower appellate Court that this number was one of seven numbers which formed the occupancy holding of defendant No. 1 and it was recorded as an occupancy holding in the papers of the settlement of 1872. The plot No. 50 is now occupied by 92 trees, of which 88 are mango trees standing in regular rows and the lower appellate Court has found that this plot is therefore grove-land and was a, grove at the time of the mortgage. The question which has been agitated in second appeal is that because the plot was originally part of an occupancy holding therefore the mortgage in 1913 was invalid and the mortgage cannot be enforced by a decree for sale. For the respondents the view is put forward that when the trees were planted on this plot, the plot changed its nature and ceased to be part of an occupancy holding and became grove-land and was therefore transferable by way of mortgage and can be sold in execution of a mortgage decree. There are a number of rulings to which reference has been made and learned Counsel for the appellant relies on the following rulings: Daya Kishen V/s. Mohamad Wazir Ahmad 1915 All. 444, a ruling of Ram Dial V/s. Narpat Singh (1911) 33 All. 136, a ruling of 1909. In the earlier of these rulings of 1909, there was no consideration as to whether the existence of the grove land had changed the nature of the holding, but it was merely held that where an occupancy tenant purported to mortgage a grove which was his occupancy holding, the grove could not be sold in execution of a decree on the mortgage. In Daya Kishan V/s. Mohamad Wazir Ahmad 1915 All. 444, it was held that the planting of a grove by an occupancy tenant on his holding with the permission of the zemindar does not change the nature of the holding from an occupancy tenancy to grove-land and the tenant has not got the right to sell the trees so planted, nor can the trees be sold in execution of a decree against the tenant. THIS ruling undoubtedly is in favour of the appellant, and if this ruling had been followed by this Court, we consider that it would be a strong reason to allow this appeal. But the ruling has not been followed by this Court. In Jalesar Sahu V/s. Raj Mangal 1921 All. 168, two learned Judges of this Court held the contrary, and this was followed by a learned Single Judge in Man Singh V/s. Madho Singh 1924 All. 430, and also by another learned Single Judge in Sultan Husain Khan V/s. Jwala 1924 All. 831. These later rulings ranging from 1921 to 1924 lay down that the planting of a grave may change the nature of the occupancy holding and render the grove capable of being mortgaged and of being sold in execution sale on a mortgage decree. That view of the character of the groves lias been adopted by the legislature in framing the Agra Tenancy Act, 3 of 1926 and in Secs.196 and 197(a) and (b) it is provided that where a tenant such as an occupancy tenant, plants trees on a part of all of his holding so that the portion planted "becomes a grove, that part becomes grove-land and is held under non-occupancy tenure and is transferable and the lease will expire when the land ceases to be grove-land. As the view of the later rulings has now been adopted by the legislature we do not think that we should go back to the earlier rulings of 1909 and 1915 on which learned Counsel relies, particularly as in one of these rulings, that of 1909 this aspect of the case was not considered as to whether the existence of the grove-land changed the nature of the holding. In the case before us the trees have been standing for a very long time on the holding and the lower appellate Court finds that these trees range in age from 30 to 50 years. On this view of the case we consider that when the zamindars gave implied permission as the lower appellate Court has held that the tenant should plant a grove on this particular number out of his occupancy holding, the zamindars must have consented to the alteration of the tenure dl that number from an occupancy tenure to a grove tenure. Accordingly that number became capable of mortgage and could be sold in execution of a mortgage decree.

(2.) THE decree of the lower appellate Court is correct and we dismiss this second appeal with costs.