1. This is a second appeal by a defendant; against concurring decrees of the two lower Courts. The plaintiff brought a, suit on the allegation that a certain plot was his occupancy tenancy and he had planted a grove on that plot and in 1923 the defendant, apparently in execution of a wimple money decree, had the trees of the grove put up to sale and purchased the trees but did not remove them. The plaintiff sued for an injunction requiring the defendant to vacate the land. The trial Court decreed that the defendant should remove the trees within two months and failing that the plaintiff should be entitled to get them removed by execution and also granted Rs. 8 damages and three-fourths costs. The defendant appealed and the lower Appellate Court dismissed the appeal. The point raised for defence was that the nature of the occupancy holding was hanged by the planting of trees and therefore the trees became transferable and the action-purchase entitled the defendant to hold the land as long as the trees remained on it that is to hold it as grove land. The Courts below have held that the defendant has no such right. The defendant produced the dakhalnama Ex. 5 which stated that what was sold was 'darakhtan ek qita bagh amba waghairah.' This shows that what was sold was only the trees and not the grove land.
2. Learned counsel argued that because it was mentioned that there were some mangoes as well as other trees, and mangoes are fruit trees, therefore the dakhalnama implied that there was a right to hold the grove and use the fruit. But mangoes are capable of sale as timber trees and the word 'darakhtan' in the dakhalnama implies that it was only the wood of the trees which was sold. Reference was made by learned Counsel to certain rulings, one of which was Ram Chander v. Tewari Hub Lal : AIR1935All635 . In that ruling an occupancy tenant had mortgaged a plot of his holding in 1913 and it was found that a grove existed on the plot at that date and that the tenant had planted the grove with the implied permission of the zamindar. It was held that the zamindars must have consented to the alteration of the tenure of that number from an occupancy tenure to a grove tenure and accordingly the number became capable of being mortgaged and could be sold in execution of a mortgage decree. The ruling states that although certain earlier rulings, namely Daya Kishen v. Mohammad Wazir Ahmad (1915) 2 A.I.R. All. 444 and Ram Dial v. Naarpat Singh (1911) 33 All. 136, had laid down that the planting of a grove by an occupancy tenant with the permission of the zamindar did not change the nature of his holding from occupancy tenancy to grove land, this dictum had not been followed in Jalesar Sahu v. Rajmangal (1921) 8 A.I.R. All. 168, and two other single Judge rulings, and therefore the Bench did not desire to go back to the earlier rulings. We find on examination in Jalesar Sahu v. Rajmangal (1921) 8 A.I.R. All. 168, that the headnote both in the A.L.J. and in the corresponding report in Jalesar Sahu v. Rajmangal (1921) 8 A.I.R. All. 168 is misleading because it omits to say that there was a finding of fact that from the time permission was given by the zamindar to plant a grove the relations between the zamindar and the tenant ware governed by a fresh contract and the occupancy rights remained in abeyance during the special contract. The case therefore was an exception to the four propositions of law which were laid down on page 608 of Jalesar Sahu v. Rajmangal (1921) 8 A.I.R. All. 168 in this ruling. The second of these propositions was:
If the holding or right to occupy derived from the landlord is an occupancy or non-occupancy tenancy within the meaning of these terms as used in the Agra Tenancy Act, then the permission to plant trees is not transferable, nor are the trees themselves.
3. The ruling therefore follows the previous doctrine and does not set up a different doctrine. In the present case we consider that there is no reason to differ from these previous; rulings. The case before us is of course governed by the law prior to the present Tenancy Act, Act 3 of 1926. We may note that the case of a mortgage before that Act of a grove standing on occupancy land where there is a suit brought to enforce that mortgage after Act 3 of 1926 stands on a different footing from the present case because in the case of a mortgage the plaintiff may apply Section 43, T.P. Act, and claim that as the transferable interest has now been acquired by the occupancy tenant in his grove under Section 197-B, Act 3 of 1926, therefore he should have the benefit of the fact that the interest has become transferable and should be allowed to obtain a mortgage decree. This view was taken by the same Bench, which decided the case in Ram Chander v. Tewari Hub Lal : AIR1935All635 in a later case which was not reported so far as we are aware, namely Second Appeal No. 8 of 1934, decided on 6th November 1936, kunwar Bahadur v. Gilsher Khan, Since reported in : AIR1937All287 .
4. Apart from mortgage cases, we see no reason to differ from the rulings under Act 2 of 1901 in regard to groves which are planted by occupancy tenants and we follow those rulings in holding that the grove is not transferable. In the present case in the execution proceedings of apparently a simple money decree there has been this auction sale of trees of the grove between the parties to the present suit. The question is what rights has the purchaser at auction sale acquired. We consider that he should, acquire no rights other than the rights in the timber of the trees and accordingly the decision of the Courts below was correct. One point remains and that is chat the period of two months granted by the trial Court in its decree has expired. We allow a further period. We dismiss this second appeal with costs except that we allow the defendant to remove the trees in dispute within a period of two months from She date of our decree, failing which the plaintiff shall be entitled to get the trees removed by execution.