MURTAZA KHAN Vs. AJIT PRASAD

JUDGEMENT

(1.) This is a second appeal in which a Bench of this Court remanded an issue for finding by the lower appellate Court as to whether a certain plot in dispute was "land" as defined by the Agra Tenancy Act (2 of 1901) or not, and the finding of fact by the lower appellate Court is in the negative and is that the plot is a grove.

(2.) The appeal is by the defendants The plaintiff sued for possession of this plot as a grove and for recovery of damages on account of the produce appropriated by the defendants. It has been found that the defendants were zamindars and in possession of the grove in question and that they sold their zamindari and the grove in dispute to the plaintiff. The case for the defendants was that the grove was their sir and that by the sale they acquired exproprietary rights in it. In the Court of first instance, that of the Munsiff, at the instance of the defendants, the Munsif passed an order under Section 202, Agra Tenancy Act (2 of 1901), requiring the defendants to institute a suit within three months in the revenue Court for the determination of the question. The final decision of the revenue Court (the Commissioner) is to the effect that the land was sir and that by the sale defendants acquired exproprietary rights in it, and he directed that exproprietary rent should be assessed under Section 35, Land Revenue Act. The Munsiff accordingly dismissed the plaintiff's suit following the decision of the revenue Court.

(3.) The plaintiff appealed to the Court of the District Judge, and the lower appellate Court came to the decision that the Munsiff was wrong in making the reference under Section 202, Tenancy Act, because the land was a grove and not an agricultural holding. Accordingly, the lower appellate Court gave a decree to the plaintiff for possession of the disputed grove and for Rs. 30 on account of damages for the past three years.