1. This appeal arises out of a suit brought by the plaintiff-respondents for recovery of possession of half of grove standing on plots 231 and 233. It is no longer in dispute that the grove was planted by one Paltan about 50 years before the institution of the suit. Paltan died, leaving two sons: Gajadhar (defendant 1) and Sudha. Sudha died childless some time afterwards, leaving his widow, who also died about seven years before the suit. Her husband's share reverted to his brother, Gajadhar (defendant 1). By a deed dated 14th July 1916, Gajadhar, defendant 1, sold half of the grove to the plaintiff, who brought the present suit for possession, which is alleged to be withheld by defendants 2 and 3 the zamindars. Defendant 2, the appellant in this Court, contested the suit on the ground that Gajadhar abandoned the village and for that reason lost title to the grove in question and that he had no right to make a transfer of his interests as a grove holder there being no custom in the village justifying a groveholder to transfer his grove.
2. The suit has been decreed by both the Courts below, who have held that Gajadhar did not abandon the grove, though he might have discontinued his residence in the village, and that a groveholder is entitled to transfer the grove, there being no local custom forbidding transfer of the interest of the groveholder. Defendant 2 has preferred the present second appeal.
3. It is contended, firstly, that a grove-holder does not possess such interest in the land granted to him by the zamindar for planting a grove as he can transfer by sale, mortgage or otherwise; and secondly, that a custom recorded in the wajibularz forbids alienation by a grove-holder of the whole or part of his grove.
4. As regards the general right of a grove-holder to transfer his grove, I have no hesitation in holding that, apart from any custom to the contrary, he has a right to transfer his grove by sale, mortgage or otherwise. That a grove is the property' of the groveholder cannot be disputed. He may not be the owner of the land; but his interest as a groveholder, including ownership of the trees and the right of enjoyment thereof, must be regarded as 'property' within the meaning of Section 6, T.P. Act. As such, it may bo transferred, except as provided by that Act or any other law for the time being in force: see Section 6, T.P. Act (4 of 1882.) The interest possessed by a grove-holder is not restricted in its enjoyment to the owner personally so as to make Clause (d) of that section applicable, nor is there anything in the nature of the tenure of a groveholder which makes the transfer of his interest opposed to such interest so as to make C1. (h) of that section applicable. This being so, unless the landlord can establish a local custom or a condition subject to which the grant was made, which disentitles the groveholder to transfer his grove, the plaintiff's claim is unanswerable and was rightly decreed by the Courts below, whoso view is supported by Baijnath Singh v. Chandrapal Singh A.I.R. 1923 All. 553 and Jalesar Sahu v. Raj Mangal A.I.R. 1921 All. 168.
5. The learned advocate for the appellant has relied upon a wajibularz, prepared in 1860, which provides that there were at that time only three groves which, for certain reasons stated, had become the property of the zamindars and that:
an inhabitant of the village planting a grove has no right of ownership of any kind, nor will he have the right to out or sell the trees without the consent of the zamindar.
6. It is argued that this clause merely entitles the groveholder to enjoy the produce of the grove and gives him no right of ownership in the trees themselves which he could convoy to another by alienation inter vivos. That this is the meaning of the clause quoted maybe conceded. The lower appellate Court has, however, held on a consideration of some circumstances, that the custom sought to be proved with the help of the wajibularz has not been established. It is pointed out that an earlier wajibularz prepared in 1833 does not record such a custom. It is emphasized by the lower appellate Court that a self-serving statement of this character, recorded at the instance of the zamindar and behind the back of groveholders is not of very great value in view of the total absence of instances which may illustrate the operation of the custom. In other words, the lower appellate Court has not given such weight to the evidence afforded by the entry in the wajibularz as may be sufficient to establish the custom in question. Having regard to certain circumstances and the nature of the entry itself, it is rightly contended before mo by the learned advocate for the respondents that I will not be justified in interfering with the finding of fact arrived at by the lower appellate Court and in greater weight than what was given to the entry in the wajibularz. It is true the lower appellate Court has observed at one place in its judgment that the wajibularz in question is no evidence of any 'subsisting custom,' because at the time it was recorded there were no groves in possession of groveholders. I do not think this remark vitiates the finding of the lower appellate Court based as it is on a consideration of the wajibularz of 1833, the absence of instances and that self-serving character of the entry in the wajibularz. On the whole, I am not prepared to interfere with the finding of the lower appellate Court. This appeal is accordingly dismissed with costs.