MUBARAK HUSAIN Vs. SAGAR MAL

JUDGEMENT

(1.) The question that arises for consideration in the present appeal is whether the defendants, who have certain groves in mahal Bakar Ali and mahal Gobardhan Das in village Pachenda Kalan, have a transferable right in the trees of those groves, and on the answer to that question depends the decision of this appeal. The difficulty in answering the question is occasioned not so much by the apparent conflict in the reported decisions of this Court concerning the rights of persons who have planted groves on their occupancy or non occupancy holdings or on lands let to them with the object of planting a grove, as by the fact that the question at issue in the present appeal has on previous occasions been the subject of decisions by Courts in litigations between the zamindar and the holders of the groves in the two mahals, and the decisions have by no means been uniform. In particular there is irreconcilable conflict between a decision of the Board of Revenue and a decision of this Court as regards the rights of the holders of groves in the two mahals, and reference to these decisions will be made in the course of this judgment.

(2.) A reference to the reported decisions of this Court shows that a distinction has always been drawn between the rights of persons planting groves on land let out to thorn with the express object of planting groves and the rights of persons who have planted groves on their occupancy or non-occupancy holdings. In the former class of cases, it has always been held that in the absence of a custom or contract to the contrary, the person planting the grove has a transferable right in the trees, whereas in the latter class of cases the view that prevailed was that the trees partake of the nature of the holding on which they are planted and therefore in the absence of a custom or contract to the contrary, the tenant planting the groves has not a transferable right in the same. The former class of cases are illustrated by the decisions in Haidar Ali Khan V/s. Gangu (1906) A.W.N. 204, Mohammad Yasin V/s. Ilahi Bakhsh (1912) 34 All 545, Mohammad Ismail Khan V/s. Mithu Lal (1913) 11 A.L.J. 649 and Lal Baijnath Singh V/s. Chandrapal Singh (1923) 10 A.I.R. All 553. On the other hand in Janki V/s. Sheoadhar (1901) 23 All 211 and Daya Kishen v. Mohammad Wazir Ahmad (1915) 2 A.I.R. All 444, the view taken was that when a tenant, either occupancy or tenant-at-will, plants a grove on his holding, the property in the trees, in the absence of custom or contract to the contrary, attaches to the land and the tenant-has not a transferable right in the trees. It must however be mentioned that much uncertainty prevailed for considerable period about the law on the subject and it is impossible to assert that there has not been divergence of judicial opinion on the point and it was this apparent conflict in the case law that led a Bench of this Court, in Jalesar Sahu V/s. Raj Mangal (1921) 8 A.I.R. All 168, to lay down certain propositions for the guidance of the Courts-below in the decision of disputes concerning the rights of grove- holders or of persons who had planted groves on their occupancy or non- occupancy tenancy. Two of the propositions laid down by the Bench are relevant for the decision of this appeal and are as follows : 1. Where land is let for the purpose of planting a grove, the person planting the grove becomes a grove- holder pure and simple and his rights are transferable. 2. Where an occupancy or non-occupancy tenant plants grove on his holding he has not a transferable right in the trees.

(3.) These propositions however hold good only if there is no custom or contract to the contrary. In other words, a custom or contract at variance with these propositions prevails and has to be given effect to. It must however be noted that the burden of proving the alleged custom or contract lies on the person pleading the same. It follows that a custom at variance with the first proposition mentioned above has to be established by the zamindar whereas a custom or contract at variance with proposition No. 2 has to be pleaded and proved by the occupancy or non occupancy tenant concerned.