1. A preliminary objection is taken that no second appeal lies and that objection seems to be valid.
2. It appears that the decree-holder, the appellant in this case, obtained a decree from the Court of Small Causes against the respondent. The decree was transferred to the Court of Muusif, Allahabad, in order to enable the decree-holder to attach immovable property. He sought the attachment of certain groves, hold by baa judgment-debtor, in an area to which the Bundelkhand Land Alienation Act applies. The judgment-debtor objected, that under Section 16 of the above mentioned. Act the groves were not saleable in execution of a decree. The decree-holder then made a statement to the effect that he wanted to sell not the groves as they stood but only the trees. Evidently he meant that the purchaser would be required to cut the trees and take the timber or wood away. The question, therefore, that arose in the case was whether the trees were, apart from the land or as apart of the groves situated in an area to which the Bundelkhand Land Alienation Act applies, saleable, the judgment-debtor being a member of the agricultural tribe.
3. The learned Munsif allowed the objection of the judgment-debtor and held that the trees were not saleable. The learned District Judge affirmed this decision on appeal. The decree-holder has come in second appeal.
4. There can be no doubt that, on the authority of this Court, a second appeal is barred under Section 102 of the Civil Procedure Code.
5. The decree-holder has asked this Court to take up the matter under Section 25 of the Small Cause Court Act. It is contended by the learned Counsel for the respondent that Section 25 has no application in a case like this. In my opinion this contention of the respondent has no force. The order has been passed 'in a case decided by the Court of Small Causes' and therefore, it is an order which is subject to a revision by the High Court.
6. Coming to the merits of the case, the question stands thus : - 'whether the trees, as apart from the land on which they stand, are 'land' within the definition of Section 2 of U.P. Act II of 1903, Bundelkhand Land Alienation Act.' The definition of 'land' is the following:
The expression 'land' moans land which is not occupied as the site of any building in a town or village and is occupied or lot for agricultural purposes or for purposes subservient to agriculture or for pasture, and includes, etc., etc.
7. Now, the question is, 'whether the trees are 'land' and, if so, whether the trees are 'land let for agricultural purposes or for purposes subservient to agriculture'? It will be noticed that groves are a well known thing and abroad in villages. It cannot for a moment be believed that the legislature could possibly lose sight of the existence of such an article as a grove or even trees as apart from the land on which they stand. I am driven to the conclusion that they never meant that groves of trees should be included within the term 'land held for agricultural purposes or for purposes subservient to agriculture.' In numerous cases decided under the U.P. Tenancy Act 1901, the words land for agricultural purposes' have been interpreted as not including groves or trees : Kesho Prasad v. Sheo Pragash Ojha A.I.R. 1922 All. 301, affirmed by the Privy Council in Kesho Prasad v. Sheo Prasad Ojha A.I.R. 1922 P.C. 247.
8. I am of opinion that Section 16 of the Bundelkhand Land Alienation Act is no bar to the selling by the appellant of the trees appertaining or belonging to the groves held by the respondent.
9. I set aside the orders of the Courts below, disallowing the application for attachment made by the decree-holder, and direct that the decree-holder's application for execution, as amended by the Vakil's statement dated the 14th July, 1923, be restored to its original number and be disposed of according to law. The respondent must pay the costs of the appellant in this Court and in the Courts below.