SHEO MANGAL SHUKUL Vs. JAGAN LOHAR

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff-respondents for recovery of possession of half of grove standing on plots 231 and 233. It is no longer in dispute that the grove was planted by one Paltan about 50 years before the institution of the suit. Paltan died, leaving two sons: Gajadhar (defendant 1) and Sudha. Sudha died childless some time afterwards, leaving his widow, who also died about seven years before the suit. Her husband's share reverted to his brother, Gajadhar (defendant 1). By a deed dated 14 July 1916, Gajadhar, defendant 1, sold half of the grove to the plaintiff, who brought the present suit for possession, which is alleged to be withheld by defendants 2 and 3 the zamindars. Defendant 2, the appellant in this Court, contested the suit on the ground that Gajadhar abandoned the village and for that reason lost title to the grove in question and that he had no right to make a transfer of his interests as a grove holder there being no custom in the village justifying a groveholder to transfer his grove.

(2.) The suit has been decreed by both the Courts below, who have held that Gajadhar did not abandon the grove, though he might have discontinued his residence in the village, and that a groveholder is entitled to transfer the grove, there being no local custom forbidding transfer of the interest of the groveholder. Defendant 2 has preferred the present second appeal.

(3.) It is contended, firstly, that a grove-holder does not possess such interest in the land granted to him by the zamindar for planting a grove as he can transfer by sale, mortgage or otherwise; and secondly, that a custom recorded in the wajibularz forbids alienation by a grove-holder of the whole or part of his grove.