BAQRIDI MIAN Vs. BHAGWAN DIN

JUDGEMENT

(1.) This is a Letters Patent appeal by defendants against, a judgment of a learned Single Judge of this Court by which the suit of the plaintiff has been decreed with costs in all Courts. The lower appellate Court had directed that the plaint should be returned to the plaintiff for presentation to the proper Court on the finding that the suit lay in the Revenue Court. The plaint, set out that in 1915 Mt. Aulia Bibi, who was then the zamindar and lambardar, gave permission to the plaintiff to plant trees on the plot No. 598, having taken Rupees 50 as nazrana. I may note that actually it has been held by the lower appellate Court, that this plot was a grove of the zamindars formerly and in 1915 a mere written permission was given to the plaintiff to plant the trees and there were only three old trees left on it, at the time. The plaint set out that the plaintiff planted the trees and was recorded in the khasra for the grove as in possession although it was entered still as grove of the zamindars. In 1336 F. the name of the plaintiff was expunged from being, in possession and the plaintiff made an application to the Revenue Court for rectification of the papers which was refused and the appeals of the plaintiff to the Collector and Commissioner were refused. The plaint sets out that after this decision of the Revenue Court the defendants obstructed the planting of trees by the plaintiff, and that the defendants are the zamindars. The plaintiff claims in para. 10 that he is still in possession of the trees planted by him as owner and that he is entitled to plant new trees on the plot aforesaid and to appropriate the produce of the trees planted by him, that the cause of action arose in October 1930, the date of the decision of the Commissioner against the plaintiff. The plaintiff originally asked for a declaration that the plaintiff was the absolute owner of the trees except, three mango trees standing on the land aforesaid and that he was entitled to plant trees; on the said land. The last portion that; "the plaintiff was entitled to plant trees on the said land" was struck of on 11 January 1932, nine months after the plaint, was filed. The second relief asked for was that a perpetual injunction should be issued to the defendants restraining them from offering obstruction to the planting of trees by the plaintiff on the land aforesaid and to the appropriating or the produce of the trees planted by the plaintiff. This relief was also amended by cancelling the words "to the planting of trees by the plaintiff on the land aforesaid." In the written statement the defence was taken that Mt. Auliat Bibi was formerly a cosharer and that there had been a partition and that after that partition the general attorney of Mt. Aulia, Bibi, one Abdul Abbas, had executed a fictitious lease in favour of the plaintiff, and that after the decision of the Revenue Court the plaintiff's claim was not maintainable. An, issue was framed (No. 4) : Whether the suit was cognizable by the civil Court? The first Court held that the suit was cognizable but dismissed the suit on the ground that the general attorney had no authority to give the plaintiff permission to plant the trees, and held that it was not proved that Mt. Aulia Bibi had given any such permission. The lower appellate Court reversed the finding on this point and held that Mt. Aulia Bibi had a right in 1915 to grant the permission and that a permission to the plaintiff was granted by the lambardar to plant the trees in 1915. The Court further found: I therefore hold that the plaintiff planted the trees and he remained fn possession till he was dispossessed by the defendants two years ago as has been stated by the patwari.

(2.) Further that the plaintiff had not sued for possession as a grove-holder and that he only wanted possession of the trees, and that he could not oust the jurisdiction of the Revenue Court by merely asking for possession of stray trees. The learned Single Judge of this Court stated: It does not appear that the land was let or granted to the plaintiff for the purpose of planting a grove...he was merely granted permission to plant trees on the payment of nazrana to the lambardar, and he does not claim any interest in the land under the trees. There is nothing to show that the lambardar intended to have a grove planted in that plot....

(3.) The learned Single Judge considered that this was not a case to which Ch. 12. Agra Tenancy Act, Act 3 of 1926, in regard to grove-holders would apply, and that it was a case of permission to plant trees and not to plant a grove. Accordingly he considered that the civil Court had jurisdiction. I do not consider that the learned Single Judge has correctly quoted the finding of fact of the lower appellate Court. The lower appellate Court found as a fact that the plaintiff was a grove-holder. The written theka is on the record and it clearly says that the plot in question was formerly the zamindar's grove and that permission, was given to the plaintiff to plant trees on it. I do not think that any distinction can be drawn between, a grant of land for planting trees on it and a grant of land for planting a grove, Section 196, Agra Tenancy Act, states as follows: A groveholder Is a person to whom land has been let or granted by a landlord or a permanent tenureholder for the purpose of planting a grove, or who has, in accordance with local custom entitling him to do so or with the written permission of the landlord or the permanent- tenureholder, planted a grove on land held by him as tenant (not being a permanent tenure-holder, a fixed rate tenant or a subtenant) or as a rent free grantee, not being a grantee to whom the previsions of Section 185 or Section 186 apply, of such landlord or permanent tenureholder, as the case may be. Provided that where the permission was granted prior to the commencement of this-Act, the permission need not have been in writing and may have been either express or implied.