1. The plaintiff-respondent brought the suit, out of which this appeal has arisen, for the ejectment of the defendants on the allegation that they were non-occupancy tenants of two plots of land, viz., Plots Nos. 977 and 1007, paying an annual rent of Rs. 4 and that they were liable to ejectment at any moment. Subsequently, the plaint was amended and the plots in suit were described as being portions of the plots mentioned above and bearing the sub-number of 2; that is to say, by amendment, the plots were described as 977 and 1007-2. This amendment has some significance and will be considered later on. The defence was that the plots in suit were groves and the suit was not cognizable by the revenue Court. There is a further plea that at any rate the defendants had held these plots for more than 12 years and had become occupancy tenants of the same.
2. The Court of first instance found that the plots in suit were portions of bigger plots which were grove lands belonging to the ancestors of the defendants. But the Court was of opinion that there was no bar to the defendants' ejectment from such portions of the grove lands as had come under cultivation. As to the question of occupancy rights, the learned Assistant Collector found that the defendants had not so far paid any rent and that therefore no right of occupancy had accrued in their favour. In appeal by the defendants, the learned District Judge upheld the Court of first instance. In its opinion a partial ejectment from grove land was permissible. The learned Judge did not discuss the question of accrual of occupancy rights. In this Court it has been contended that both the Courts below were wrong in ordering the ejectment of the defendants from what was really a portion of the grove lands. The question of occupancy rights was also raised in this Court.
3. It appears to me that on the finding of the Courts below that the plots in suit are portions of groves, the plaintiff's suit must fail. On behalf of the respondents the finding of the lower Courts had not been disputed. The whole matter is made clear by the statement filed by the patwari which was filed by the plaintiff with his plaint and which has been marked as Exhibit A by the Court of first instance. This statement clearly shows that Plot No. 977 has an area of two bighas and was described at the last settlement of 1305 F as a 'grove' no portion of which was under cultivation. The same statement shows that in the settlement year of 1305 F the Plot No. 1007 had an area of 1 bigha and 1 biswa and that no portion of it was under cultivation. It is abundantly clear, therefore that the Courts below were right in their conclusion that the lands in suit are portions of what were groves at the settlement. It is also clear that 35 biswas out of 2 bighas area and 5 biswas out of 1 bigha and 1 biswa area have been brought under cultivation and that the former plot was under cultivation for 13 years and the latter for 10 years, when the suit was brought.
3. It appears to me that it must be taken, in the absence of any evidence to the contrary, that the whole of the land on which the grove stood was held on one particular engagement. Unless an agreement to the contrary is proved, a portion of the land held under one engagement cannot be taken away so long as the remaining land cannot be taken away. It is entirely a question of contract. This view was also taken in Jwala Singh v. Saheb Din Singh (1906) 9 OC 109 decided by Mr. Chamier (now Sir Edward Chamier) and Har Sahai v. Dhanpal Singh AIR 1916 Oudh 158 decided by Mr. Kanhaiya Lal (now Mr. Justice Kanhaiya Lal),
4. The finding of the Court of first instance that no rent has so far been paid and the note of the patwari that the lands were held without any settlement as to rent clearly show that the respondents never agreed to pay any rent for the lands in suit. It cannot therefore be said, nor is there any finding to that effect, that by mutual agreement the lands in suit had ceased to be a part of the grove land. Under the circumstances the plaintiff's suit must fail entirely.
5. On the question of accrual of occupancy rights, it can only arise with respect to one of the plots, viz., Plot No. 1007/2. Everybody who cultivates land does not thereby become a tenant. The word 'tenant' is defined in Section 4, Clause 5 of the N.W.P. Tenancy Act, 1901, as follows
The person by whom rent is, or but for a contract, express or implied would be, payable.
6. The defendants therefore could not be tenants of the Plot No. 977/2 so long as it cannot be established that either they having been paying a rent or that they would be bound to pay a rent except for a contract. The finding of fact is that the whole of the Plot No. 977 was held under one engagement, viz., as grove land, and without any agreement to pay any rent. In the circumstances, I do not think that the defendants can claim a right of occupancy in Plot No. 977/2. This however is entirely a matter of academic interest, having regard to the fact that the plaintiff's suit must fail on the first ground.
7. The result is that the appeal succeeds and the plaintiff's suit is hereby dismissed with costs throughout.
Judgment in L.P. Appeal.
8. In our opinion the judgment of the learned Judge of this Court is quite correct. The landlord brought the suit in revenue Court to eject the defendants from two plots, Nos. 977 and 1007. It is quite clear that at the settlement of 1305 Fasli (corresponding to 1898) both these plots were recorded as groves; that is to say, that is the defendants were holding them on grove tenure. It now appears that portions of both plots have been brought under cultivation and indeed the defendants admitted in the second paragraph of their Written statement that portions of these two plots had been under cultivation for over 12 years and on the basis of this statement, they put forward another plea, namely, that they were not liable to be ejected on the ground that they had acquired occupancy rights.
9. This plea has been found by all the Courts not to be valid plea on the strength of which the defendants could resist ejectment. But it has been held by the learned Judge of this Court rightly, that under the law the plaintiff is not entitled to ejectment from plots 977 and 1007, so long as those plots retain the character of groves. The learned Judge of this Court holds that the mere bringing under cultivation portions of each of these plots does not result in the lands losing their character as groves. As pointed out, the contract, upon which the defendants were admitted to possession of these plots, was that they were entitled to use them for the purpose of groves, and therefore, as long as these plots retain the character of groves, the defendants are not liable to ejectment. It is not correct to say that because small portions of the plots have been brought under cultivation the lands have ceased to retain their character as groves. We agree with the judgment of the learned Judge of this Court, and dismiss this appeal with costs.