1. This is a second appeal by a plaintiff whose suit for a declaration was dismissed by the lower appellate Court. The plaintiff purchased a certain zamindari share of 3 gandas odd which had be longed to the defendants in a certain patti by auction-sale on the 23rd October 1914 and obtained possession of that share. The plaintiff sues for a declaration that along with that share he purchased the grove of the defendant situated in plot No. 817. The sale certificate does not mention any grove but the contention is that because this grove was the zamindari grove of the defendants it would pass to the plaintiff. It was also not shown by the plaintiff that the grove was mortgaged in the mortgage deed on which the decree was obtained by the plaintiff. The defence was that the grove in question was a tenant's grove and had been the grove of the ancestor of the defendants from 1840 and this fact was established to the satisfaction of the lower appellate Court from the khasra of 1840 and other evidence. Some time prior to 1871, the ancestor of defendants 1, 3-5 acquired a share in this patti along with some other persons. The evidence for the defence was that the grove did not as a matter of fact merge in the zamindari share purchased and has all along been treated as a tenant's grove in the possession of the defendants.
2. The sole point which was argued in second appeal is that by virtue of the purchase it must be held that there had been a merger of this particular grove in 1871 with the share purchased by the ancestor of certain defendants. Nothing was shown from the Tenancy Act of 1869 as to why there should be such a merger. The tenure of a grove-holder has always been in this Province such that the grove-holder has a right to hold the] land as grove as long as the trees are standing on it. No authority is shown for the proposition that the purchase of a share in the patti will change the nature of the grove from a tenant's grove to a co-sharer's grove. Such a change would involve the consideration of the profits of the grove at the time of division of profits among the co-sharers. No authority is shown for the proposition that such a result ever occurs. Under the present law as embodied in Ch. 12 of the Agra Tenancy Act of 1926 there is no provision for any such merger. It is a reasonable deduction therefore that such a merger has never been a part of the tenancy law of this Province.
3. As pointed out by the lower Court, there would be also a difficulty arising from the fact that the ancestor of defendants did not acquire the whole zamindari rights in the patti but only acquired a right in a fraction of the patti. I consider that no ground has been made out for interference. Accordingly I dismiss this second appeal with costs. Leave is granted for Letters Patent appeal.