1. This is a defendant's appeal. The suit was brought against him under Section 180, U.P. Tenancy Act, to eject him as a trespasser from a plot No. 174/2/1 of an area of 12 acres. This plot was allotted at a partition in 1940 to the respondent, Ram Sahai, and the appellant does not claim any title in the land. The land was treated as banjar in the partition, being so recorded in the revenue papers, but it appears that there are actually a number of trees upon it and it is in respect of these trees that the appellant claimed an interest. The respondent's suit was dismissed by the Munsif on the view that there were a very large number of trees on the plot and that, therefore, the plot is a grove and must have been such at the time of partition. The Civil Judge in first appeal considered the effect of Sections 118 and 119, Land Revenue Act, on which the Munsif had relied, but did not think that they helped the appellant. Section 118 provides that if in making a partition it is necessary to include in the portion allotted to one cosharer the land occupied by a dwelling-house or other building in the possession of another cosharer, the latter shall be allowed to retain it with the buildings thereon, on condition of his paying for it a reasonable ground rent to the cosharer in whose portion it may be included. The next section provides that this rule may be applied to garden, orchards or any other lands of special value to the proprietor in occupation thereof in consequence of improvements made by him or of the particular use to which such lands are put. The Civil Judge observed that he was of opinion that the provisions of Section 119 cannot be applied to a grove with timber trees such as this plot is. There was nothing to show that this land had been used by the defendant for a definite particular purpose. He further said that as regards the question of compensation, it was difficult to believe that the land would have a letting value in its present condition overgrown with him trees, and it would not be safe to allow any compensation on that basis. No doubt the revenue authorities who carried out the partition did not consider the fact that the trees stood on the land and that these trees had been planted by the defendant, but he could not do what the revenue authorities should have done at the time of partition.
2. In my view the Civil Judge rightly allowed the appeal and granted the respondent a decree for the reason last given by him, namely that he could not do what the revenue authorities should have done at the time of the partition. Whether Section 119 is or is not applicable, it cannot be denied that the question was one for the revenue authorities to consider at the time of partition, and it is in fact conceded by the learned Counsel for the appellant that his client should have put forward his claim before the revenue authorities at that time. He has, however, referred me to some cases which, he argues support his client. One recent case is that in Mukund Ram v. Ajodhia Prasad : AIR1943All210 . It was held by a learned Single Judge of this Court in that case that a finding in a suit under Section 180 that the defendant had planted the grove on the land in suit with the plaintiff's permission more than 12 years before the institution of the suit is a finding of fact sufficient for the dismissal of the suit and is binding on the High Court in second appeal. The facts of the present case can, however, be distinguished in that since these trees were planted on the land by the appellant, there has been a partition between the parties in which the plot as a whole was allotted to the respondent. That entirely alters the position.
3. With regard to the question whether the appellant is barred by the provisions of Section 233 (k), Land Revenue Act, learned Counsel referred to Bindra Pandey v. Munna Pandey : AIR1939All721 where it was said by another learned Single Judge of this Court that a plaintiff may be debarred from instituting a suit in the civil Court by these provisions, but they do not apply to defendants who are in undisputed possession under a legal title. The present case may be distinguished by the fact that the appellant is admittedly not in undisputed possession under a legal title. He admits that title in the plot is now with the respondent. The case most relied upon, however, is the case cited by the Munsif in support of his view. It was the case in Sarup Lal v. Lala ('17) 4 A.I.R. 1917 All. 412. The headnote reads:
Where a partition has been effected under the provisions of the U.P. Land Revenue Act, 1901, and the site of the house of one cosharer has been allotted to the share of another cosharer, the presumption is that the owner of the house was to retain possession of the house.
That is to say, the Full Bench which decided this case rested its decision on a presumption as to what had been intended by the revenue Court which carried out the partition. That case would only be relevant if such an intention on the part of the revenue authorities could be presumed in the present case, namely an intention to allow the trees in question to the appellant. As, however, the land was recorded as banjar and not as a grove, there can be no question of any such presumption. It is quite clear, in my opinion, that it is not open to the civil Court to do what admittedly the revenue Court should have done at the time of partition, nor was it so held by the Full Bench in 39 all. 707. It was merely a question of determining what the revenue Court might be presumed to have done. I am quite clear, therefore, that the decision of the Civil Judge in the present case was right and I dismiss this appeal with costs. Leave to appeal under the Letters Patent is refused.