Iqbal Ahmad, J.
1. The question that arises for consideration in the present appeal is whether the defendants, who have certain groves in mahal Bakar Ali and mahal Gobardhan Das in village Pachenda Kalan, have a transferable right in the trees of those groves, and on the answer to that question depends the decision of this appeal. The difficulty in answering the question is occasioned not so much by the apparent conflict in the reported decisions of this Court concerning the rights of persons who have planted groves on their occupancy or non occupancy holdings or on lands let to them with the object of planting a grove, as by the fact that the question at issue in the present appeal has on previous occasions been the subject of decisions by Courts in litigations between the zamindar and the holders of the groves in the two mahals, and the decisions have by no means been uniform. In particular there is irreconcilable conflict between a decision of the Board of Revenue and a decision of this Court as regards the rights of the holders of groves in the two mahals, and reference to these decisions will be made in the course of this judgment.
2. A reference to the reported decisions of this Court shows that a distinction has always been drawn between the rights of persons planting groves on land let out to thorn with the express object of planting groves and the rights of persons who have planted groves on their occupancy or non-occupancy holdings. In the former class of cases, it has always been held that in the absence of a custom or contract to the contrary, the person planting the grove has a transferable right in the trees, whereas in the latter class of cases the view that prevailed was that the trees partake of the nature of the holding on which they are planted and therefore in the absence of a custom or contract to the contrary, the tenant planting the groves has not a transferable right in the same. The former class of cases are illustrated by the decisions in Haidar Ali Khan v. Gangu (1906) A.W.N. 204, Mohammad Yasin v. Ilahi Bakhsh (1912) 34 All 545, Mohammad Ismail Khan v. Mithu Lal (1913) 11 A.L.J. 649 and Lal Baijnath Singh v. Chandrapal Singh (1923) 10 A.I.R. All 553. On the other hand in Janki v. Sheoadhar (1901) 23 All 211 and Daya Kishen v. Mohammad Wazir Ahmad (1915) 2 A.I.R. All 444, the view taken was that when a tenant, either occupancy or tenant-at-will, plants a grove on his holding, the property in the trees, in the absence of custom or contract to the contrary, attaches to the land and the tenant-has not a transferable right in the trees. It must however be mentioned that much uncertainty prevailed for considerable period about the law on the subject and it is impossible to assert that there has not been divergence of judicial opinion on the point and it was this apparent conflict in the case law that led a Bench of this Court, in Jalesar Sahu v. Raj Mangal (1921) 8 A.I.R. All 168, to lay down certain propositions for the guidance of the Courts-below in the decision of disputes concerning the rights of grove-holders or of persons who had planted groves on their occupancy or non-occupancy tenancy. Two of the propositions laid down by the Bench are relevant for the decision of this appeal and are as follows : 1. Where land is let for the purpose of planting a grove, the person planting the grove becomes a grove-holder pure and simple and his rights are transferable. 2. Where an occupancy or non-occupancy tenant plants grove on his holding he has not a transferable right in the trees.
3. These propositions however hold good only if there is no custom or contract to the contrary. In other words, a custom or contract at variance with these propositions prevails and has to be given effect to. It must however be noted that the burden of proving the alleged custom or contract lies on the person pleading the same. It follows that a custom at variance with the first proposition mentioned above has to be established by the zamindar whereas a custom or contract at variance with proposition No. 2 has to be pleaded and proved by the occupancy or non occupancy tenant concerned.
4. It is this question of burden of proof that presumably led the parties to the present litigation to put forward diametrically opposite cases as regards the nature of the land on which the groves in dispute in the two mahals exist. The plaintiff, who is the owner of the two mahals, alleged that the groves were planted by the tenants on their cultivatory holdings, whereas the contesting defendants denied this allegation of the plaintiff and maintained that the groves were not planted on cultivated plots. These allegations of the parties gave rise to issue 1 framed by the Court below which runs as follows : 'Whether the defendants are occupancy tenants or grove-holders of the land in suit?' In dealing with this issue, the Court below differentiated between the cases of defendants 1 and 2 on the one hand and defendants 4 to 39 on the other. It is a fact that defendants 1 and 2 are purchasers of groves under various sale-deeds executed between the years 1886 and 1902, whereas defendants 4 to 39 were originally occupancy tenants of the plots on which the groves stand, but in the last settlement, viz. in 1325 Fasli (1918), they were recorded as grove-holders of most of the plots covered by the groves. The learned Judge of the Court below held that both the sets of defendants were 'grove-holders' of the plots in suit.
5. After recording this finding the learned Judge proceeded to consider the question whether there was any custom in village Pachendn Kalan which prevented the occupancy tenants or grove-holders from cutting or selling the trees in their holdings. While dealing with, the part of the case, the learned Judge made reference to the entries in the wajib-ul-arzes of 1863 and 1872, on which reliance was placed on behalf of the plaintiff, appellant, and held that the conditions laid down in the two wajib-ul-arzes had reference only to the groves that existed at the time when the wajib-ul-arzes were prepared and observed that 'it cannot be contended that the same condition should be applied to the groves which were planted subsequently'. This observation of the learned Judge leads me to conclude that he proceeded on the assumption that the groves in dispute in the present litigation were planted subsequent to the year 1872. I am however not sure whether this assumption was well founded but in the view that I take, this fact appears to me to be immaterial for the decision of the appeal. The learned Judge in deciding the issue felt pressed by the various sales of groves that had taken place between the years 1886 and 1902 and was of the opinion that
the custom regarding the grove as recorded in the wajib-ul-ara of 1872 is sufficiently negatived by the instances of several transfers of the groves of the village under the various sale deeds.
6. He expressed his inability to follow a decision of this Court that was in favour of the plaintiff-appellant on the ground that 'no proof of the custom which subsequently developed in the village and entitled the grove-holders to sell and cut the trees, was brought to the notice of' the learned Judge who decided that case. He was of the opinion that there was 'overwhelming documentary evidence to prove that there is a custom which authorizes grove, holders to sell and cut the trees on their holdings' and he accordingly held that
there is no custom in village Pachenda Kalan which prevents grove-holders from cutting or selling the trees in their groves.
7. He further held that the decision of the Board of Revenue in an earlier litigation to which reference will presently be made operated as res judicata and was a bar to the present suit. He also gave effect to the plea of estoppel raised by defendants 1 and 2 and as a result of his findings, dismissed the plaintiff's suit.
8. The question whether or not the defendants are 'grove-holders' in the technical sense in which that word is used in judicial decisions and in the sense in which that word is defined by the Agra Tenancy Act (Act No. 3 of 1926) has formed the subject of some debate and discussion in this Court, but it appears to me that the question is more or less of academical interest as I am satisfied that the existence of a custom denying the right of transfer to holders of groves in village Paehenda Kalan is established from the evidence in the case. But I must observe that the contesting defendants failed to place any material upon the record from which it could be inferred that the sites of the groves in dispute were let out to them or to their predecessors-in-title by the zamindar for the purpose of planting groves, and such evidence as is on the record points to the conclusion that the sites of the groves were originally cultivatory holdings on which the tenants, without the permission, express or implied of the zamindar, planted groves. I recognize that if a tenant plants a grove on his holding and the grove is allowed to exist for an appreciable length of time, the continued existence of the grove on the holding, without protest by the zamindar, may by itself justify the inference that the grove was planted with the tacit permission of the zamindar, and as such, the occupancy holding lost its character as such. But for reasons to be stated hereafter such a presumption can not be raised in the present case.
9. The earliest document bearing on the question of custom is an extract from the wajib-ul-arz of the year 1863 which is as follows:
Paragraph 12 of groves and trees : There is a grove bearing No. 430, planted by me, Brij Lal the solo co-sharer, in this village. The trees in the grove belong to me. Groves, mentioned in the list of groves, other than the above, have been planted by the farmers, the detail of shares in respect of which is given in the list aforesaid. The planters of the groves have power to appropriate the fruits and to cut trees for agricultural implements.
10. It was further recited in the said paragraph that 'in future no farmer can plant a grove without' the consent of the zamindar. But this entry in the wajib-ul-arz was, under an order of the Board of Revenue dated 14th August 1872, expunged so far as occupancy tenants were concerned. To be more exact, the Board of Revenue ordered that the words 'prohibiting the occupancy tenants from planting groves' be expunged from the said paragraph. The rest of the paragraph was however left intact. In my opinion this wajib-ul-arz furnishes cogent evidence of a custom that entitled the 'planters of the groves' only to appropriate the fruits and to cut trees for agricultural implements and negatives a transferable right in the groves. The entry about the custom in this wajib-ul-arz is not open to the comment that it was made at the instance of the zamindar and without investigation by the authorities about the existence of the custom recorded therein. In the first place the settlement officer was by the rules framed by the Board of Revenue bound to incorporate in the wajib-ul-arz customs relating to the rights of tenants and such other customs as he on enquiry found to prevail in the village, and it must be presumed that he did discharge that duty. In the second place the order of the Board of Revenue dated 14th August 1872 is proof positive of the fact that the entry about the custom in the wajib-ul-arz was the subject of consideration by the Board and the only portion of that entry that was directed to be expunged, as probably the same was found to be incorrect, was the entry prohibiting the tenants from planting groves on their holdings without the consent of the zemindar. I may note in passing that the Board of Revenue appears to have passed the above order during the currency of the settlement following the settlement of 1863.
11. The next settlement of the village took place in or about the year 1873 and extracts from the wajib-ul-arz of that settlement are printed at p. 103 of the record. In this wajib-ul-arz two paragraphs were devoted to the custom that was recorded in only one paragraph in the settlement of 1863. Para. 3 of the wajib-ul-arz of 1873 dealt with the 'custom relating to the rights of the tenants in respect of the trees of spontaneous growth' and it was provided that the occupancy tenants have the right to cut such trees 'for making the implements of husbandry', but it was further provided that the trees of spontaneous growth on non-occupancy and barren lands can be cut down by the tenants only with the permission of the zamindar. Para. 4 of the wajib-ul-arz incorporated the 'custom relating to the rights of the tenants in respect of groves'. It was laid down in that paragraph that
in this village there are the groves entered in the statement showing groves which have been planted by the tenants. They have a right to appropriate the wood and the fruits thereof (unko ekhtiyar lakri wa phal ka hai). In future, the tenants can according to former custom plant the grove (ainda kashtakaran bagh hasba dastur sabiq laga sakte hain), but they cannot claim remission in the amount of rent within the period of the settlement on account of the shadow of the trees.
12. We are concerned in the present case with the custom recorded in para. 4 and, as I read that paragraph, it seems clear to me that it negatives a right of transfer so far as the groves are concerned. The custom embodied in the said paragraph merely entitled the holders of groves to the fruits of the groves and to dry wood. The use of the word 'lakri' shows that the holders of the groves had not the right to cut and sell the trees unless the trees dried up. Further this paragraph, in my opinion, subjected the rights of the tenants planting groves after the settlement to the custom recorded in that paragraph. This appears to me to be the natural meaning of the words 'hasba dastur sabiq' occurring in the said paragraph. The two wajib-ul-arzes mentioned above put it beyond doubt that till the year 1873 the custom that prevailed in the village did not give a transferable right to the persons who had planted groves in the village, and further that the groves to be planted in future were to be subject to the incidence of the custom as recorded in the two wajib-ul-arzes.
13. The next settlement of the village took place in or about the year 1891, but prior to that settlement there were four transfers of groves by the holders of those groves in favour of the ancestor of defendants 1 and 2. These sales were effected in the years 1887, 1889 and 1890 and the sale deeds are printed at pp. 33, 36, 39 and 42 of the record. It is further a fact that two of these sales do not appear to have been challenged by the zamindar, but it must also be noted in this connexion that it cannot be held that the zamindar had notice of these sales at the time when the sales were effected. Be that as it may, the mere fact that four groves were transferred could not in law justify a finding that the custom that prevailed in the village fell into disuse and ceased to exist. The dasturdehi of the settlement of 1891 is to be found at page 105 of the printed record and it is noted in this document that 'entries of customs, other than those given herein, shall be found in the wajib-ul-arz prepared at the time of the former settlement,' viz. the settlement of 1873. It would thus appear that in the settlement of 1891, the custom recorded in para. 4 of the wajib-ul-arz of 1873 was recognized as existing notwithstanding the sale of four groves mentioned above. The next settlement of the village took place in the years 1917 to 1918 and the period that elapsed between the years 1891 and 1917 was marked by a number of transfers of groves and frequent litigations concerning the rights of the holders of groves and I now proceed to deal with those transfers and litigations in chronological order.
14. On 25th August 1891, the predecessors in title of defendants 1 and 2 purchased a grove by means of a sale deed which is printed at page 45 of the record. Within three years of this sale deed, viz. in the year 1895, a suit was brought by the zamindar against certain purchasers of groves that were situated on an occupancy holding and the defence put forward by the purchasers was that the tenant, who had planted the groves, had the right to sell the trees. The question whether there was a custom in the village by virtue of which the holder of the grove had a transferable right in the same was a matter directly and specifically in issue in that suit, and it was held by the learned Munsif, who decided the case that
the trees planted upon an occupancy holding belong and attach to such holding and are not susceptible of transfer by the tenant.
15. The judgment is printed at page 48. I do not overlook the fact that the grove in dispute in that case was a grove that had been planted on an occupancy holding. But the fact remains that the custom as recorded in the wajib-ul-arz of the village was recognized and given effect to by the learned Munsif in that case.
16. Notwithstanding the decision by the Munsif just referred to, there were no less than six sale deeds of groves in between the years 1896 and 1902. These sale deeds are to be found at pages 51, 57, 59, 62, 64 and 66 of the record. It is worthy of note that even these sales were in favour of defendants 1 and 2 or their ancestors, and there is nothing on the record to suggest that the groves were planted on sites let out by the zamindar for the purpose of planting groves and most probably the groves sold were planted on tenancy holdings. No suit appears to have been bought by the zamindar to assail these sales, but it must be observed that the sales were within a comparatively short period of six years and, being only six in number, were insufficient in law to nullify the custom existing in the village. During this period of six years, there was one litigation in the year 1897 in which the issue whether the occupancy tenants have a right to transfer the trees standing in their fields according to the village custom, was raised and was decided adversely to the zamindar. The judgment is printed at p. 54 of the record and it shows that reliance was placed on behalf of the zamindar on two decisions that were in his favour, whereas the defendants produced a judgment of 1896 that appears to have been in their favour. The learned Munsif who decided the case was influenced a great deal by the statement of the Patwari whose evidence was in favour of the defendants, and he held, on the basis of his evidence, that 'there is a custom regarding the sale of the trees which may be standing on the barren occupancy land'. The evidence furnished by the transactions that took place between the years 1896 and 1902 is therefore, so far as it goes, in favour of the defendant-respondents.
17. There is no evidence one way or the other about any transaction relating to the issue under consideration between the years 1902 and 1910. In the year 1911, the present defendants 1 and 2 brought a suit against the zamindar for damages with respect to a tree in a grove that their ancestors had purchased in the year 1890 by means of the sale deed which is printed at p. 42 of the record. The zamindar contested the suit, and the suit was dismissed on the ground that the sale deed, which was the basis of the title of the plaintiffs of that suit, was not proved according to law. But the Court proceeded to observe in the course of its judgment that even if it be assumed that the plaintiffs of that suit were the purchasers 'of the grove from occupancy tenants they are not entitled to the wood of the trees unless any special custom or contract is proved that the occupancy tenants could sell even the wood of the trees.' In this connexion the Court further observed that the only right of a tenant planting a grove was to appropriate the fruit. This judgment does not furnish cogent evidence in support of the custom relied upon by the plaintiff appellant in the present litigation but it certainly furnishes an instance in which the assertion that the tenants, who planted groves on their holdings, have a transfer, able right in the same was negatived.
18. In the very next year, viz. in the year 1912, there were two litigations in both of which the decision was in favour of the zamindar, and it was held that the tenants who had planted groves on their holdings had not a transferable right in the same. One of the judgments is of the Additional District Judge of Meerut and is at p. 71 of the printed record. One of the issues framed by the learned Judge for decision in the appeal was whether the defendants succeeded in proving a local custom entitling tenants to cut trees on their land. In dealing with this issue, the learned Judge observed that the oral evidence of the alleged custom was worthless and emphasized the fact that according to the current wajib-ul-arz the tenants only right was 'to cub trees for implements of husbandry with the landholder's permission'. In this connexion he construed the word 'wood' (lakri) in the wajib-ul-arz as meaning no more than 'loppings or fallen timber,' and decided the issue in favour of the zamindar.
19. In the second litigation of 1912 again this cardinal issue for decision was whether in mauza Pachenda Kalan there was a custom entitling occupancy tenants to sell their trees. This issue was decided adversely to the zamindar by the Munsif (judgment at p. 72 of the record). But the judgment of the Munsif was reversed on appeal and he Appellate Court held that 'the defendants tenants have failed to prove the existence of a custom authorizing occupancy tenants to sell away trees planted by or growing on their holdings'. This litigation was about the sale deed to which I have already referred and which is printed at p. 36 of the record. It would appear from what has been stated above that between the years 1895 and 1912 there were 5 litigations in which the question of the existence of the custom set up in the present litigation was in issue and in 4 of those litigations the decision was in favour of the zamindar. It would further be noted that two of these litigations were concerning groves that were sold by means of the gale deeds printed at pp. 36 and 42 of the record and which sales were in favour of the ancestors of defendants 1 and 2.
20. I now come to the decision of the Board of Revenue to which reference has been made at the very inception of this judgment. It appears that the zamindar had brought a suit against defendants 1 and 2 for their ejectment from a number of groves that they had purchased in the village and his suit was decreed by the Court of first instance and by the Commissioner. The matter was taken by defendants 1 and 2 in revision to the Board of Revenue and their revision application was allowed and the zamindar's suit was dismissed. The decision of the Board is dated April 1913 and is printed at p. 79 of the record. The judgment shows that the Commissioner had cast the burden of proving the custom entitling the owners of groves to transfer the same on the defendants and had held that such a custom was not proved. The Board considered that there was 'no warrant either in the abstract principles of law applicable or in the standard rulings on the subject' for the Commissioner's view, and held that:
A person who plants a grove with the consent of the zamindars acquires substantial rights of a lasting and valuable nature.
21. The Board then went on to observe that:
It may be that the rights of a grove-holder are limited by custom or by contract but the burden of proof of the existence of such custom or contract is on the person who alleges that it exists.
22. Having decided that the burden of proof in the case was on the zamindar, the Board held that in accordance with the Commissioner's judgment there was 'no sufficient evidence of the existence of any custom limiting the grove-holder's natural right to transfer'. The fact that the defendants in that litigation were in possession of the groves for a period of about 23 years was also a circumstance that the Board took into consideration against the zamindar.
23. But for the fact that this Court took a diametrically opposite view in a case to be presently mentioned, I would not have departed from the view expressed by the Board without considerable hesitation. I however find that the decision of this Court furnishes a complete answer to the reasons contained in the judgment of the Board of Revenue, and in passing I may observe, with all respect to the members of the Board who decided; that case, that their decision proceeds on the assumption that the groves in dispute in that case were planted with the consent of the zamindar - an assumption which appears to mo to be unfounded. There is nothing in the judgment of the Board to suggest that the fact that the groves were planted with the zamindar's permission on the occupancy holdings was put forward or substantiated by the defendants of that case. Moreover the fact that the Board by its order dated 14th August 1872, had ordered the removal of the words 'prohibiting the occupancy tenants from planting groves' from the wajib-ul-arz of 1863 shows that the occupancy tenants had the right, without the zamindar's permission, to plant groves in their holdings. There could, therefore, be no question of the groves in dispute in the case before the Board having been planted with the consent of the zamindar. Again the groves in dispute in that case had undoubtedly been planted on occupancy holdings, and, therefore, the burden of proving that there was a custom authorizing the transfer of those groves lay on the defendants of that case and not on the plaintiff, as held by the Board of Revenue. Indeed it appears to me that the Board did not differentiate between the rights of persons who plant groves on land let out to them by the zamindar for the purpose of planting a grove and the eights of occupancy tenants who plant groves on their holdings.
24. There is yet another fact that deprives the judgment of the Board of much of its evidentiary value in the present litigation. There is nothing either in the judgment of the Board or on the record to show that extracts from the wajib-ul-arz and the various judgments to which reference has already been made were in evidence in the case decided by the Board. A perusal of the judgment rather suggests that these materials which are now before us did not form part of the record decided by the Board. The decision of the Board no doubt furnishes an instance of a litigation decided in favour of the owners of groves huh I, for the reasons given above, am unable to treat the decision as decisive in favour of, the defendant-respondents.
25. Before I part with that decision I must notice an argument that was founded on the same by the learned Counsel for the respondents. He contended that as the decision was inter partes it operated as res judicata in the present litigation. This contention, in my judgment, is without force. The suit that culminated in the application in revision before the Board was a suit for ejectment under the Agra Tenancy Act and the decision of the Board holding that the defendants of that case were not liable to ejectment no doubt bars the trial of the same issue between the parties. But the reasons assigned by the Board in support of its decision cannot operate as res judicata in the present suit, Moreover the present suit was not triable by the Court that tried the ejectment suit and that is an additional reason for holding that the judgment of the Board does not bar the trial of the present suit.
26. The next litigation commenced on 9th January 1914 and the trial Court decided the point now under consideration against the zamindars (vide decree at p. 80 of the record). But on appeal the decision of the trial Court was reversed and the decision of the Appellate Court was, on second appeal to this Court, confirmed by Tudball J. in the year 1915. The judgment of this Court is printed at p. 87 of the record. The learned Judge in the course of his judgment noticed extracts from the two wajib-ul-arzes of 1863 and 1872 and held that 'these documents clearly relate to the custom prevailing in the village.' He observed that:
If we read the two wajib-ul-arzes of 1863 and 1872 together and they were recorded within 9 years of each other, the natural meaning would be that the tenants were entitled, to enjoy the grove and to out any tree that was necessary for the purpose of making agricultural implements. It seems to me impossible to hold on the words of these wajib-ul-arzes that the tenants had the rights to sell the trees to other persons for other purposes.
27. The learned Judge further held that the burden lay on the defendants to prove the custom which enabled them to sell the trees and to have them cut. It is argued on behalf of the contesting respondents that the decision of this Court has no bearing on the present litigation as the issue decided by this Court did not relate to the rights of grove-holders pure and simple, but to the rights of occupancy tenants who had planted groves on their holdings. I am not impressed with this argument. The extract from the wajib-ul-arz of 1863 puts, it beyond doubt that the custom recorded therein governed the cases of 'planters of the grove' and was not confined in its operation to groves planted on occupancy holdings. It is true that the wajib-ul-arz mentions that the groves were 'planted by the farmers', but this does not mean that the groves were necessarily on tenancy holdings. The word 'farmers' (kashtkaran) is used in a loose sense to denote persons who are in occupation of land belonging to zamindar either as tenants or as grove-holders and I have no doubt that the custom mentioned in the wajib-ul-arzes of 1863 and 1872 was a custom that embraced the grove-holders as such as well as the tenants who planted groves on their holdings. Further if the custom was confined in its operation to groves on tenancy plots, I would have expected a mention of that fact in the wajib-ul-arz.
28. Again in a village in which there is a custom of the description that prevailed in village Pachenda Kalan, and in which village the indications are that the occupancy tenants have a right to plant groves on their holdings without the permission of the zamindar, the burden of proving the fact that a particular grove was planted on a plot that was not a tenancy plot of the planter of the grove but was let out to him by the zamindar with the object of planting a grove so as to invite the application of the rule of law as regards the right of transfer enjoyed by grove-holders pure and simple, lies on the person alleging the fact. In the present case no evidence worth the name on the point was adduced by the defendant-respondents and the case must therefore he approached on the assumption that the fact that the sites of the groves in dispute were let out by the zamindar for planting groves was not established. The long continuance of groves on the plots in dispute cannot, in the circumstances of the present case, give rise to the presumption that the groves were planted with the per mission of the zamindar, for the simple reason that the entry in the wajib-ul-arz that prohibited the planting of groves without the zamindar's permission was deleted.
29. The last litigation about the rights of owners of groves was in the year 1930 and in that case the decision was adverse to the zamindar. The judgment of the trial Court is printed at p. 95 and of the Appellate Court at p. 99 of the record. It appears from a perusal of the judgment of the trial Court in that case that the decision of this Court just referred to was not on the record of that case. Further the trial Court held in that case that the grove in dispute 'belonged to Neta as a grove-holder'. The trial Court held on the basis of certain sale deeds that were before it that the grove-holders had a right to transfer their groves and the decision of the trial Court, was, as already stated, affirmed on appeal. This is all the relevant documentary evidence on the record and, in my judgment, the evidence relied upon on behalf of the defendants is wholly insufficient to displace the proof afforded by the extracts from the two wajib-ul-arzes. There were no doubt 11 transfers of groves between the years 1886 and 1902, but in those years and in the subsequent years the zamindar cannot be said to have slept over his rights. He, on more occasions than one, successfully challenged the right of transfer claimed by the owners of groves in the village and in most cases he was successful The evidence to prove that a custom existing in a village fell into disuse must be cogent and convincing and where there appears to have been scramble going one as is apparent in the present case, the mere fact of 10 or 12 transfers or 2 or 3 judicial decisions running counter to the custom cannot be held sufficient to warrant a finding that the custom ceased to exist. The more so when the judicial decisions were not uniform and some of those decisions-recognized the continuance of the custom. In the view that I have taken, it is unnecessary to consider on whom the burden of proving that the groves were not transferable lay, as I am satisfied that a custom of the description set up by the zamindar in the present case was proved.
30. Before concluding this judgment I must notice one other argument that was advanced by the learned Counsel for the respondents. He argued that the custom recorded in the two wajib-ul-arzes must be deemed to have applied only to the then existing groves and it cannot be applicable to the groves planted after the year 1873. There are two answers to this contention. In the first place there is no satisfactory evidence to show that the groves in dispute were planted after the year 3873. In the second place the custom-recorded in the wajib-ul-arzes is general in its terms and there is nothing in those documents to suggest that groves to be planted in future were to remain uncontrolled by that custom.
31. The plea of estoppel that was raised by defendants 1 and 2 and was accepted by the trial Court was in my judgment without any merit. There was no duty cast on the plaintiff to tell defendants 1 and 2 not to purchase the groves and if they with eyes open purchased the groves, they did so at their own risk. In this connexion it was argued by the learned Counsel for the respondents that as defendants 1 and 2, after the purchases made by them were in possession of the groves in dispute for more than 12 years, they acquired a transferable right in the same. In my judgment this proposition is untenable. It is a well-recognised principle of law that no transferor can pass to his transferee rights greater than he has. The owners of the groves in this village had not a transferable right and therefore by selling the groves they could not confer transferable rights on the purchasers. The only consequence of the omission of the zamindar to assail the sales within the period of limitation is that he is deprived of the right to avoid the sales, but the vendee by remaining in possession for more than 12 years cannot enlarge upon the rights possessed by the vendor. The vendee by lapse of time becomes clothed with the rights of the vendor but he also suffers by the same disabilities under which the vendor laboured.
32. The learned Counsel for defendant 36 argued that there was no cause of action for the present suit against defendants other than defendants 1 to 3 and in this connexion he invited our attention to para. 14 of the plaint in which it was stated that 'other defendants are also intending to sell and cut the trees'. He argued that the mere fact that defendants had such an intention was not enough to give the plaintiff a cause of action for the present suit. In my judgment, the plaintiff did put sufficient material upon the record to justify his apprehension that persons holding groves in the village denied the rights claimed by him, and therefore the plaintiff was entitled to seek relief against all the defendants to the suit.
33. For the reasons given above, I hold that the rights of the case were with the plaintiff and not with the defendants. Accordingly I would allow this appeal, set aside the decree of the Court below and decree the plaintiff's suit in terms of relief (a) prayed for in the plaint. Further I shall pass a decree in the plaintiff's favour for a sum of Rs. 90 as against defendants on account of the price of trees. I would award the plaintiff his costs, here and in the Court below.
34. This is a first appeal from a decree of the Additional Civil Judge of Muzaffarnagar dated 29th May 1933. The plaintiff appellant Mubarak Husain, who is the zamindar of village Pachenda Kalan, mahal Baqar Ali and mahal Gurdhan Das, had instituted the present suit for a declaration against two parties. Defendants 1 and 2, Sagar Mal and Asaram, son of Ratan Lal, by caste Vaish, of Mustafabad, were persons entered in the village records as grove-holders in certain plots who had purchased the groves at different dates in the past from the original tenants and had recently sold certain trees in some of these plots to defendant 3, Surja Barhai, who had cut them down and appropriated the timber. The remaining defendants 4 to 39 were persons who either as occupancy tenants or as grove-holders were in possession of other groves in village Pachenda Kalan and the plaintiff's allegation was that these persons intended to sell and cut the trees and asserted that they had that right. He accordingly sought a declaration not only against defendants 1 and 2 but also against defendants 4 to 39 that they had no right to cut and sell the trees standing in the plots forming part of the holdings in suit. The plaintiff in para. 16 of his plaint stated that the cause of action arose at Pachenda. Kalan in the month of February 1931 when defendants 1 to 3 cut down and sold the trees and defendants 4 to 39 intended to cut and sell them. Defendants 1 and 2 were the main contesting defendants and filed a lengthy written statement. They contended that they were grove-holders in the plots in dispute and that they were entitled to cut and sell the trees and that there was no custom to the contrary estopping them as grove-holders from cutting and selling the trees in their groves. Like the plaintiffs they referred to previous litigation which it will be convenient to mention in its proper place. They pleaded that the claim was barred by res judicata and by estoppel. They further alleged that the plaintiff had no cause of action against defendants 4 to 39 and that each of the defendants was in a different capacity, that the claim as framed against them all jointly was bad for mis-joinder of parties and that the claim against defendants 4 to 39 should be struck off because there was no cause of action. It followed that whereas the actual monetary value of the claim so far as it related to the trees cut and removed by defendant 3 was only Rs. 90, the suit had been built up and framed in the manner shown above merely in order to enhance the valuation and thereby to avoid the effect of certain prior decisions. In this connexion I would note that the learned Civil Judge, who decided the suit against the plaintiff on other grounds, remarked that apparently the plaintiff had no cause of action against defendants 4 to 39, but that having regard to the scheme of the plaint he thought that the plaintiff was justified in seeking a declaration against defendants 4 to 39 as well.
35. Written statements were also filed by certain other defendants, viz. defendant 6, Makkhan Das, and seven defendants who were occupancy tenants. Makkhan Das, defendant 6, contended in the main that the plaintiff had no cause of action against him as he had had no such intention as was suggested by the plaintiff. He pointed out that in one of the two plots of which he was the tenant there were no longer any trees and therefore the plaintiff had no right of suit. With reference to the other he contested the plaintiff's claim that he had no right to appropriate the produce. The seven defendants who filed a joint written statement, viz. Nos. 12, 13, 17, 18, 20, 24 and 25, pleaded that they had no intention of selling the trees or cutting them, but they also pleaded that the allegation of the plaintiff that they had no right to appropriate the timber was in correct. These defendants like No. 6 claimed that they were occupancy tenants of the plots in suit in their possession. The predecessor of the learned Civil Judge who tried the suit framed a number of issues of which the most important are issues 1 to 3 which are as follows:
(1) Whether the defendants are occupancy tenants or grove-holders of the land in suit? (2) Is there any custom in village Paohenda Kalan which prevents the occupancy tenants or grove-holders from cutting or selling the trees in their holding? (3) What is the effect of the decree of the Board of Revenue alleged in para. 11 of the plaint, and Suit No. 822 of 1929 on the suit? Is the suit barred by the principle of res judicata?
36. On these Issues the learned Civil Judge held that the defendants were grove-holders of the plots in suit. On Issue 2 he held
that there is no custom in village Pachenda Kalan which prevented the grove-holders from cutting or selling the trees in their groves. Of course the case of occupancy tenants who have planted a few trees on their holding stands on a different footing and as all the defendants in this case are grove, holders I need not discuss the position of occupancy tenants in the village in respect of the trees in their holdings.
37. He therefore decided this issue also in favour of the defendants. The view of course rests on the footing that none of the cases in dispute were cases of a few trees standing on occupancy plots but all of them cases in which the occupancy plots had been planted up with trees so as to be converted into grove. On Issue 3 he held that the suit was partly barred by the principle of res judicata so far as the suit against defendants 1 and 2 was concerned and only with reference to some of the plots in dispute which formed the subject-matter of the decree of the Board of Revenue of 1913 in an ejectment suit.
38. In the course of arguments learned Counsel have taken us through the whole of the transactions relating to the plots in dispute, i.e. the plots belonging to defendants 1 and 2 and claimed to be held by them as grove-holders. They have also taken us through the whole of the different litigation which there had been in the past between the zamindar on the one hand and the tenants and the purchasers of grove on the other. They have also referred to certain documentary evidence in regard to the existence of custom in regard to groves in this village. They have further taken us through the history of the general law in regard to groves and shown to some extent how that law has tended to develop over the last 20 or 30 years. It is in the light of the history of the transactions and the growth of the general law that we have to arrive at a conclusion as to what was the true position of defendants 1 and 2 and what is the present position of the remaining defendants also in regard to the groves of which they are in possession in Pachenda Kalan.
39. It is not disputed that the plots of defendants 1 and 2 are all of them situated in mahal Baqar Ali. The first piece of evidence in point of time is the wajib-ul-arz of this village of the settlement of the year 1863 A.D. Para. 12 of the wajib-ul-arz mentions that the then zamindar Brij Lal is the owner of a single grove, the trees of which belong to him. It goes on to say that tenants own the groves planted by them and detailed in a separate list and that the planters of the grove are entitled to appropriate the fruits and to cut trees for agricultural implements. This is with reference specifically to groves. There is a further reference with regard to scattered trees wherein it is stated that the tenants can get the timber of trees standing in their fields for their agricultural implements. The remaining clauses relate to the rights of co-sharers in trees and not to those of tenants. The zamindar also inserted in this wajib-ul-arz the following clause: In future no tenant can plant a grove without my consent.' But this clause was cancelled by an order of the Board of Revenue conveyed in a letter dated 14th August 1872 directing the removal of the words 'prohibiting the occupancy tenants from planting groves', and it was doubtless by reason of this order that we find the wording of the wajib-ul-arz prepared in the next settlement of 1280 Fasli, i.e. 1873-74, framed in the manner which I shall now mention.
40. This wajib-ul-arz of 1280 Fasli contains two separate paragraphs. The first relates to the 'custom as regards the rights of tenants in respect of self-sown trees.' This provision runs as follows:
The trees which are in the possession of occupancy tenants and which are standing on the ridge of the field or inside the field are cut down by the occupancy tenants for making implements of husbandry, but the trees which are standing on non-occupancy and barren lands cannot be cut down by any person without the permission of the zamindar.
41. The next Clause (4) which sets forth 'custom relating to the rights of tenants in respect of groves' runs as follows:
In this village there are the groves entered in the statement showing groves which have been planted by tenants.
42. I may note that the only one of the plots now in dispute which is found in the list of groves prepared in this settlement is No. 1110 of the present settlement which corresponds to No. 1154 of the settlement of 1889 and 1186 of the settlement of 1279-1280 F.
They (the tenants) have a right to appropriate the wood and the fruits thereof. ('Ikhtyar lakri wo phal ka hai'). In future the tenants can according to former custom plant groves but they cannot claim remission in the amount of rent within the period of settlement on account of the shadow of the trees.
43. I may note here first, that the words 'according to former custom' appear to me to mean no more than 'as always in the past'. I take them to have been put in to make it clear that the clause which had been cancelled by the Board in 1872 was not accepted, and therefore the inference is that occupancy tenants had a right to plant grove without permission. Secondly, I note that the words 'appropriate the wood and fruits' have been interpreted in a number of cases in the past in judgments of the Courts including a judgment of this High Court of Tudball J. and are interpreted now by my learned brother as meaning that the tenants who have planted groves have a right only to the fruits and to what has been variously described as fallen timber, loppings and dry wood. This view has been based on a reading of the wajib-ul-arz of 1280 Fasli along with wajib-ul-arz of 1863. But with great respect to the opinion expressed by learned Judges on this point, I find it exceedingly difficult to accept that view for this reason. It is generally accepted and admits of no doubt that the rights of tenants who have planted groves must necessarily be greater in the trees of groves planted by them than their rights in scattered self-sown trees on their holdings; yet para. 3 of this wajib-ul-arz gives occupancy tenants an unfettered right to cut such self-sown trees, provided that the timber is required for agricultural implements.
44. It seems to be almost a contradiction in terms that the right of the tenants who have actually planted groves should be definitely more circumscribed than the right of an occupancy tenant in a self-sown tree. The right to appropriate fruits would scarcely be disputed in the case of any tree standing in a tenant's holding particularly if he has the right to cut the trees for agricultural implements. This interpretation then involves the result that para. 4 is supposed to give to grove-holders a more limited right to the timber of the trees which they have planted themselves than is given to them in self-sown trees. I should have supposed, if this had not been the subject of previous expressions of opinion that 'lakri' in the ordinary sense means 'timber' and that 'ikhtiar lakri' must necessarily mean control over the timber, i.e. power to dispose of it as the grove-holders please. In point of fact the interpretation put upon this wajib-ul-arz to which I have referred leads to the awkward position that whereas if the right to cut and sell the timber is conceded then there is a prospect that the grove would be cut and removed as soon as the trees begin to decline in their fruit-bearing capacity and to deteriorate as trees, whereas if the tenants are presumed to have only the power to take the fruit and the fallen wood, the grove will tend to go on deteriorating steadily until it perishes by the rotting and the falling of the trees after many years of unprofitableness, a state of affairs definitely not in the interests either of the zamindar or of the tenant. So much for the wajib-ul-arzes. There are also two dasturdehis prepared in the settlement of 1889 and 1918 (Exs. 11 and 12) but these do not add anything to the wajib-ul-arzes. The first of them contains the remark that entries of customs other than those given herein shall be found in the wajib-ul-arz prepared at the time of the former settlement. In the latter there is a note that:
As enquiries as regards customs in addition to those given in the dasturdehi have already been made at the time of the former settlement made in 1863 no enquiry as regards them has been made at the time of the present settlement. The customs recorded in the settlement volume of 1864 shall remain in force.
45. It looks rather as if the zamindar had kept the wajib-ul-arz of 1873 as much as possible in the background because he thought the entry in it was not in his favour.
46. We come now to a series of transfers and a series of litigations. I need not detail all the transfers except to note that there were transfers of groves in favour of defendant 1 and the father of defendant 2 in 1887, 1889, 1890, 1891, 1896, 1897, 1898, 1899, 1901 and 1902. During this period there were a number of litigations. The first of these, a suit decided on 2nd April 1895, was a suit against the heir of an occupancy tenant and a transferee of some trees planted by the former occupancy tenant. The Munsif held that the transfer of the trees or grove by the occupancy tenant was forbidden by law and the vendee acquired no interest. But this was not in a strict sense a suit against grove-holders and it did not relate to any of the plots in suit in the present case. It was in any case decided in the light of the general law as it was interpreted at that date.
47. The next was a suit in the Munsif's Court decided on 19th July 1897 in which the zamindar had claimed damages on account of the price of 'kikar' trees standing on the ridge of a plot within No. 99 and not now in suit. In that suit the Munsif concluded that there was a custom that occupancy tenants could cut the trees standing on their portion of occupancy land without the permission of the zamindar, and he decided that the entries laid down in the wajib-ul-arz had not been complied with and were contrary to the custom of the village and therefore the sale of the trees to a third person was lawful. In this as in the previous suit there does not appear to have been any appeal.
48. In 1911 a suit was instituted by defendants 1 and 2 as plaintiffs against the zamindar and a third party for the cutting, of a shisham tree situated in plot No. 1307, one of the plots now in suit as it corresponds with No. 1258. That suit was dismissed on the ground that the plaintiffs-bad failed to produce their original sale-deed and as they had not laid any foundation for proof of the sale deed by secondary evidence the copy of the sale deed was rejected and there remained no evidence of the title of the plaintiffs to the grove No. 1307. The Court went on to make certain remarks about the custom in regard to the title of the occupancy tenant in the wood of trees of their groves. In my opinion the remarks made in this paragraph are of the nature of obiter dicta, and no particular weight can therefore be attached to them. In any case the reasoning is by no means entirely sound. The learned Munsif says that defendant 1 is admittedly the zamindar of the grove and is therefore under the general law the proprietor of the trees. He goes on to say : 'He has therefore every right to the trees of the grove.' But that was not a correct statement. A zamindar had certainly no right under the general law as recognized at that date to cut down a tree in a tenant's grove and the Munsif is not correct in saying that the vendors of the plaintiffs could not have recovered any damages from defendant 1 who is a zamindar of the grove. This suit, was taken in appeal to the District Judge but the appeal was dismissed on 8th September 1911.
49. In the same year 1911 there was another Suit No. 1050 of 1911 in which certain, zamindars as plaintiffs sued an occupancy tenant defendant apparently for damages for cutting down and selling certain trees standing on a holding. That suit was decreed and in appeal the same learned Additional District Judge dismissed the appeal holding that the evidence did not establish so unusual a custom as one entitling tenants to cut trees even while the 1287 settlement was in force. He said that he could not construe the word 'wood' ('lakri') in this sentence of the wajib-ul-arz to mean more than loppings or fallen timber.
50. In 1912 there was another Suit No. 1326 of 1912, by the zamindars against the present defendants 1 and 2 and others before the same Munsif of Muzaffarnagar in which the zamindar claimed damages for the sale by defendants 1 and 2 of shisham trees and jamun trees on plot 1289 corresponding to the present plot in Suit No. 1240, to defendants 3 to 7. It appears from the judgment in that suit that the plaintiffs had brought a suit for the same damages and therein the Munsif had held that there was such a custom under which the occupancy tenants could sell their trees and he had consequently dismissed the claim. The plaintiff's, he says, preferred an appeal and they had withdrawn their case with liberty to bring a fresh suit. This was the same fresh suit. In this suit the Munsif after a discussion of the wajib-ul-arzes to which I have referred already and to a number of other judgments stated his conclusion in these terms:
I am therefore clearly of opinion that defendants 1 and 2 have sufficiently proved the existence of a custom under which tenants can cut and sell trees planted by them on their occupancy holdings.
51. This decision was taken in appeal to the District Judge and the appeal was decided by the Assistant Sessions Judge so called, i.e. one of the Subordinate Judges at Meerut, on 12th April 1913. The learned Subordinate Judge allowed the appeal holding that the defendants tenants had failed to prove the existence of a custom authorizing occupancy tenants to sell away trees planted by (them) or growing on their holdings, and that therefore they had no right to sell any of the disputed trees. This case was taken in appeal to the High Court and the appeal was dismissed on 17th June 1914 : vide Ex. 23.
52. In 1913 a Suit No. 752 of 1913 was instituted by the zamindars against certain tenants in respect of cutting trees of a grove in plot No. 1332 not in suit in the present case. That suit was dismissed on 19th June 1914, but in Civil Appeal No. 26 of 1914 on 16th April 1914, Mr. G.K. Darling, the then Additional District Judge of Meerut, decreed the suit and ordered damages to the plaintiffs : vide Ex. 27, p. 82 of the paper book and the decree Ex. 26. This judgment was taken in appeal to the High Court where it was decided as Second Appeal No. 778 of 1914 and Mr. Darling's decision upheld. The judgment of Tudball J. is Ex. 24 on the record at page 87 of the paper book, and great reliance has very naturally been placed on this decision on behalf of the appellants. The learned Judge discussed the wajib-ul-arzes of 1863 and 1872 about which he said that
if we read the two wajib-ul-arzes of 1863 and 1872 together, and they were recorded within nine years of each other, the natural meaning would be that the tenants were entitled to enjoy the grove and to cut any tree that was necessary for the purpose of making agricultural implements. It seems to me impossible to hold on the words of these wajib-ul-arzes that the tenant had the right to sell the trees to other persons for other purposes.
53. I have already given reasons for hesitating to accept this view. The learned Judge went on to say:
It is stated that the tenants had no right to plant trees except in accordance with the old custom and that with the permission of the zamindar.
54. It is clear that if this statement was made it was not a correct statement in view of the facts to which I have referred earlier. He went on to hold that
the burden lay on the defendants to prove the custom which enabled them to sell the trees and to have them cut as in the present instance and it is difficult to say that they had proved any customary right by the wajib-ul-arz of 1872 when the wajib-ul-arz of 1863 gave them only a restricted right.
55. That is to say, the learned Judge was definitely of opinion that standing by itself the wajib-ul-arz of 1872 was capable of the interpretation which I am inclined to give to it. He went on to say that prima facie the tenant is not entitled to cut and remove the trees without the consent of the landlord. Finally he remarked that he thought the decree of the Court below to be a correct decree which must be maintained although there was a good deal in the judgment with which he could not agree. In these circumstances it is not necessary to refer to the arguments contained in the judgment of the learned Additional District Judge.
56. The contest between the zamindar and the tenants in the Courts was resumed in 1925 when another zamindar instituted a suit against a grove-holder describing him as an occupancy tenant for the wrongful cutting and misappropriation of some jamun and shisham trees standing in plot No. 1088. The defendant put forward the plea that he was a grove-holder and was the owner of the trees and further pleaded that according to the custom occupancy tenants were entitled to cut and remove the trees on their holdings. The learned Munsif held that the trees were planted on the occupancy holding and that the defendant was not a grove-holder. But it appears that the trees in dispute were not trees of a grove at all bat trees standing on the boundaries of the disputed plot. In this connoxion the learned Munsif remarked:
It is now well-settled law that the planting of a grove in an occupancy holding alters the nature of the holding and after the grove has been planted, the land ceases to be an occupancy holding and becomes a grove. It is this change which clothes the grove-holder with all the rights of a grove-holder. In this case the nature of the holding has not been found to have been changed and the holding still retains the character of an agricultural holding.
57. On this view the plaintiff's suit was bound to succeed and it was duly decreed. The judgment is not really relevant to the present case at all.
58. In 1929 the present plaintiff instituted a suit for damages against defendant 1 and others with reference to trees in plot No. 1110 now in suit, which is the only plot in suit which was a grove mentioned in the list of groves of the 1872 settlement. Defendant 1 had purchased the trees from former occupancy tenant under a sale deed of 27th June 1898 from the very same Neta who was a defendant in Suit No. 168 of 1891 which I have mentioned earlier. In his judgment in this suit the learned Munsif did not refer to the High Court judgment of 1915. He mentioned that there had been a suit for ejectment instituted about the year 1911 against the defendants in respect of the plot in dispute along with other plots and that in that suit the Board of Revenue (in a judgment to which I shall refer shortly) had held that the defendants wore grove-holders in respect of the plots in dispute and were not liable to be ejected as tenants. He went on to discuss the law and he adopted the proposition based on some rulings of this Court, to which I shall refer later, that a grove-holder acquires a transferable interest in the trees and in the absence of a custom or contract to the contrary the trees become his property. He wont on to hold that there was no proof of any custom by which grove-holders are only entitled to eat the fruits and cut the wood for making agricultural implements, i.e., no custom limiting the rights ordinarily possessed by grove-holders in the trees which go to make up their grove. That suit went in appeal to the Subordinate Judge of Muzaffarnagar and was decided on 16th December 1930 : vide the judgment Ex. Y at page 99 of the paper-book.
59. The learned Subordinate Judge interpreted the wajib-ul-arz of 1872 as giving the grove-holder a right to take the fruits and the wood which he interpreted as an absolute right to the timber and fruits. He went on to say that the plaintiff did not prove by any evidence that there is a custom in Pachenda Kalan under which the grove-holder can only take the fruit and the wood of the trees and cannot sell them, and he remarked that such a custom would be against the Common law and the burden lay heavily on the plaintiff to prove the existence of such a custom. This is more or less the line of argument which has been adopted by the learned Subordinate Judge in the judgment which is before us in appeal now.
60. The only other judgment to which I need refer is the judgment of the Board of Revenue of 10th April 1913, Ex. U at page 79 of the paper-book. It seems that the zamindar, the father of the present plaintiff-appellant, had sought to eject defendants 1 and 2 from a number of plots, at least 10, in Pachenda Kalan presumably on the view that by taking transfer of the groves from the occupancy tenants who had planted them after the settlement of 1871 they had acquired no right to occupy the plots. The suit for ejectment had been successful in the trial Court and in the Court of the Commissioner of the Meerut Division. In revision the Board of Revenue on 10th April 1913 dismissed the application as regards two plots with which we are not concerned but held that the defendants were grove-holders in respect of plots Nos. 1154 (1110), 1290 (1241), 1294 (1245), 1295 (1246), 1304 (1255), 1307 (1258), 1311 (1262) and 1344, a plot not in suit in the present case. The judgment of the Board of Revenue amounts to this that the original owners of the groves were grove-holders and entitled to transfer their rights and the present grove-holders are also grove, holders and not liable to ejectment as trespassers or non-occupancy tenants. In the judgment it is mentioned that the Commissioner considered that the question to be decided was whether the defendants (i.e. the present defendants 1 and 2 of this suit) had proved that a custom existed by which the tenants who were the original owners of those groves had a right to transfer them and in that connexion the Commissioner had held that the burden of proving such a custom lay on the persons who alleged that they had acquired groves by purchase. It must be obvious I think that if this was the point which the Commissioner had to decide he must have had in front of him the wajib-ul-arzes which we have before us in the present case, as those would have been the first string to the bow of the litigants on either side. It seems to me that it is impossible to hold that this judgment is not evidence that defendants 1 and 2 have the status of grove-holders in respect of the groves in dispute in the present case. The decision arrived at was within the capacity of the Court which reached that decision and could not be set aside by any other Court and what is much more to the point, there never has been any attempt to obtain from any other Court a declaration that the defendants are not grove-holders in respect of the plots in suit.
61. I now turn to the discussion of the development of the law in regard to grove-holders. Learned Counsel for the appellant and for the respondents between them have taken us over the whole of the ground beginning from 1901 up to the present day and I would glance shortly at the rulings quoted. The first ruling referred to is Janki v. Sheoadhar (1901) 23 All 211, a case of a mortgage of trees planted by an occupancy tenant on his occupancy holding. The learned Judges quoted as a principle of the Common law applicable to cases of this kind in these Provinces that:
when a tenant either occupancy or tenant-at-will plants trees on his holding the property in those trees, in the absence of custom or contract to the contrary, attaches to the land and the tenant has no power of selling or otherwise transferring those trees.
62. In Haidar Ali Khan v. Gangu (1906) A.W.N. 204 a single Judge of this Court held that where land has been let to a tenant for the special purpose of planting a grove thereon, the trees in the absence of any custom or contract to the contrary are the property of the tenant. Reference was made in that ruling to the case just quoted above which was distinguished on the view that in that case the tenant had planted trees upon a holding leased to him for purposes of cultivation and in such a case the property in such trees, in the absence of a custom or contract to the contrary, attached to the land and the tenant has no power to sell or otherwise transfer the trees. It appears to me that of recent years the distinction drawn between rights in a grove planted on land specifically let for the purpose of planting a grove and groves planted in occupancy land in which the tenant has got permission to plant a grove or groves-planted in occupancy land in cases where the tenant has by custom a right to plant trees without permission has tended to fade into the background.
63. Mohammad Yasin v. Ilahi Bakhsh (1912) 34 All 545, a Division Bench held that in a case where the wajib-ul-arz gives the persons who had planted and were in possession of a grove the rights of an owner ('ikhtiar malikana') so much so that if any trees fell down they could plant fresh trees without permission and if the land became denuded of all trees the planter of the grove would have the first right to cultivate the land, those provisions-implied a right of transfer in the possessor of the grove land. That was of course a special case but it was contested on the view that in spite of these provisions the grove-holder was not entitled to transfer the grove as such, though be might sell the timber.
64. In 1915 in Daya Kishen v. Mohammad Wazir Ahmad (1915) 2 A.I.R. All 444, in Letters-Patent appeal it was held that planting a grove by an occupancy tenant on his holding with the permission of the zamindar does not change the nature of the holding from an occupancy tenancy to a grove land and the tenant has no right to sell the trees so planted nor can the trees be sold in execution of a decree against the tenant. The learned single Judge, with whose opinion, the Division Bench agreed, remarked:
I do not think that it can be said that the permission by a zamindar to his occupancy or non-occupancy tenant to plant trees on his holding cancels the original lease and is a fresh one for the purpose of planting trees.... The character of the grove in question then is that it was planted by the occupancy tenant on his holding. He or his successors have therefore no right of transfer in the trees.
65. The next case which has been referred is Jalesar Sahu v. Raj Mangal (1921) 8 A.I.R. All 168, in which a Division-Bench sought to reconcile the previous decisions in regard to the effect of the conversion of a holding by an occupancy tenant into grove. The learned Judges laid down four propositions which they sought to be established. The first was that where land was let for the purpose of planting a grove the tenant or licensee becomes a grove-holder pure and simple and his rights are-transferable. Second, if the holding is an occupancy or non-occupancy holding then the permission to plant trees is not transferable nor are the trees themselves, and consequently as proposition three, a tenant cannot make a valid transfer of trees upon an occupancy holding independently of the holding and therefore not at all because the holding itself is not transferable. The fourth proposition which they laid down began with the words 'the holding may cease to be an occupancy tenancy by the surrender of it by the tenant' and they went on to discuss how this surrender could be effected. With great respect I am not sure that this discussion is entirely satisfactory. But what is more important is that I do not think that the view expressed in propositions 2, 3, and 4 has been followed in subsequent decisions, although in view of the way in which proposition 4 was expressed there has never been any express dissent from any portion of this decision.
66. In 1923, in Lal Baijnath Singh v. Chandrapal Singh (1923) 10 A.I.R. All 553, a single Judge of this Court held that under the general law a person who plants a grove with the permission of the zamindar acquires a transferable interest in the trees unless a custom exists to the contrary. The view taken in Jalesar Sahu v. Raj Mangal (1921) 8 A.I.R. All 168 was followed in this case but it was expressed in this form that:
In that case it was held that the planting of a grove with the permission of a zamindar even on occupancy land had the effect of changing the status of a tenant into a grove-holder and that the latter had a transferable right in the trees.
67. In another case decided in the same year Man Singh v. Madho Singh (1924) 11 A.I.R. All 430, it was stated that the main point about which the parties are at issue relates to the right of a person who had planted a grove on what was originally an occupancy holding to cut the trees or appropriate the fallen wood thereof. It was remarked that an occupancy tenant has no right to convert a portion of the occupancy holding into a grove, but if he does so, the power of the landholder to eject him can only be exercised within one year from the date of the conversion. Further on it was remarked that the general rule applicable to stray trees growing on an occupancy holding does not apply to groves planted by tenants with the implied or express acquiescence of the zamindar, and the learned Judge further said:
Where land has been let to a tenant for the special purpose of planting a grove thereon or where a grove planted by a tenant has been allowed to exist unchallenged by the zamindar, the person who plants the grove acquires a transferable interest therein and in the absence of a custom to the contrary the trees become his property.
68. Reference was made to the case in Jalesar Sahu v. Raj Mangal (1921) 8 A.I.R. All 168 which I have mentioned above. In this decision we find that the position of the occupancy tenant who successfully plants a grove without the consent of the zamindar and is therefore considered to have planted it with the implied consent of the zamindar, the position of an occupancy tenant who plants it with the express consent of the zamindar, and the position of a tenant who plants a grove on land which has been let to him for the special purpose for planting a grove thereon have been equalized. I would only remark that for myself I find it difficult to distinguish the position of a tenant who plants a grove on an occupancy holding because there is a recognized custom in the village entitling tenants to plant groves without permission from cases where a tenant either on the one hand obtains permission or on the other plants behind the back of the zamindar and gets an implied permission due to the failure of the zamindar to seek ejectment within one year.
69. In 1930 in Sheomangal v. Jagan Lohar : AIR1930All377 , a single Judge of this Court held in the following terms:
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 or mortgage or Otherwise.... This being so, unless the landlord can establish a local custom or a condition subject to which the grant was made which disentitles the grove-holder to transfer his grove, the plaintiff's claim (for recovery of possession of a grove) is unanswerable and was rightly decreed by the Courts below whose view is supported by Lal Baijnath Singh v. Chandrapal Singh (1923) 10 A.I.R. All 553 and Jalesar Sahu v. Raj Mangal (1921) 8 A.I.R. All 168.
which I have already mentioned. To my mind on a consideration of the whole of the above series of rulings of this Court the conclusion is unavoidable that the transferors of defendants 1 and 2 who planted groves in Pachenda Kalan after the 1871 settlement in accordance with the pre-existing practice whereby they were entitled to plant groves in occupancy holding without the permission of the zamindar became grove-holders under the general law in force in this Province. They had their rights in those groves including the trees of the groves not merely as personal rights but also as transferable rights, and their transferees cannot be deprived of the benefit of those rights. Following that principle, the transferees were themselves held by the Board of Revenue in 1913 to be not liable to ejectment, and it follows that in the absence of any custom to the contrary limiting their rights of transfer defendants 1 and 2 grove-holders were certainly entitled to transfer the trees purchased by them long ago and ever since possessed by them.
70. It seems to me therefore that the learned Subordinate Judge as also the Munsif and the Subordinate Judge in the previous suit No. 822 of 1929 have approached the problem from the right point of view. The learned Civil Judge has rightly held in this suit that the question for decision is not whether the original transferors of defendants 1 and 2 had by custom a right of transfer, but whether by custom the right of transfer which they had under the general law is subject to restrictions arising out of the custom said to be proved by the wajib-ul-arzes of 1863 and 1871. In my judgment, the interpretation placed on those wajib-ul-arzes by the lower Court following the interpretation of the Courts in 1929 and 1930 is correct, and in any case whether these wajib-ul-arzes be taken as evidence of a custom limiting the rights of grove-holders or not, they do not suffice by themselves to establish a custom limiting those rights. In my view, therefore, the plaintiff's suit was rightly dismissed, and this appeal should also fail and be dismissed with costs.
71. Before leaving this case I would remark that I feel some doubt in my mind whether the lower Court was right in allowing the case to proceed at all in the light of the finding ultimately reached by it that the plaintiff had no cause of action against defendants 4 to 39. If it had taken up that point at the beginning, it would have had to hold that the suit did not lie in the Court of the Civil Judge but in the Court of the Munsif where the suit would have been barred by the principle of res judieata, in view of the decisions of 1929 and 1930. I think that that point should have been considered at the outset and incidentally had that been done, it might have saved a great expenditure of time and money.
Iqbal Ahmad and Yorke, JJ.
72. In view of the fact that we have been unable to agree as to the decision of this case, we direct that the appeal be referred to a third Judge under Clause 27, Letters Patent on the following point:
Whether in village Pachenda Kalan there is a custom disentitling the persons in possession of groves as occupancy tenants or grove-holders from cutting and selling trees standing in the plots forming part of their holdings
73. This is a first appeal by a plaintiff whose suit was dismissed by the learned Civil Judge. On first appeal before a Bench of this Court the two learned Judges differed and therefore the case has been referred to me as a third Judge under Clause 27, Letters Patent on the following point:
Whether in village Pachenda Kalan there is a custom disentitling the persons in possession of groves as occupancy tenants or grove-holders from cutting and selling trees standing in the plots forming part of their holdings.
74. Mr. P.L. Banerji, learned Counsel for the defendants-respondents, took a preliminary objection that the case did not come under Clause 27, Letters Patent and that as the learned Judges had differed, the decision of the Court below should stand. This is a point which is more for the Bench which made the reference than for me, but as the point has been raised I might refer to certain rulings of this Court : Harakh Narain Singh v. Babban Reported in : AIR1933All473 and Nagendra Nath v. Nalindra Nath F.A. No. 50 of 1931. In these two cases it was held that w.here the Judges differed on a point of fact, then Section 98, Civil P.C. applies, but, if the difference is on a point of law then a reference is made to the third Judge under Clause 27, Letters Patent. Learned Counsel then argued that the point referred was a point of fact. I do not consider that it is a point of fact. The point is whether a certain custom exists. A custom is a law and the existence of a law binding the parties in my opinion is a point of law and not a point of fact. Accordingly therefore I think that the case has been rightly referred under Clause 27, Letters Patent.
75. It appears to me essential to determine in the first place how this question should be approached and I consider that a consideration of the statute law of the Province of Agra is the proper method of approach. In the earlier Bent Act (Act 12 of 1881), which was the first Act in force when legal decisions began to be given on this point in regard to this village in the local Courts, there was no reference to groves or the planting of trees by occupancy tenants. In Section 3(2) 'rent' was defined with reference to the holding, use or occupation of land and there was no reference to the rent of a grove. In Section 44, improvements did not include the planting of trees. In the next Act (Act 2 of 1901) in Section 4(3) 'rent' was defined as whatever is paid for land or on account of groves etc. In Section 4(12) an improvement included (c) the planting of trees. But in Section 88, it was laid down:
In the absence of any local custom to the contrary, no tenant except a permanent tenure holder or a fixed-rate tenant, shall be entitled without the written consent of a land-holder to plant trees.
76. The rights of grove-holders were not dealt with in that Act. Now in Act 3 of 1926, the Legislature introduced the law on the subject of grove-holders and made certain material changes in the law which had been held to exist by the Courts. In Section 3(15) grove-land was defined as any specific piece of land in a mahal having trees planted thereon in such numbers that when full thrown they will preclude the land or any considerable portion thereof being used primarily for any other purpose. In Section 110 an exproprietary or occupancy tenant may not plant trees 'unless there is a local custom entitling him to do so or he has obtained the written consent of his landholder'.
77. A Chapter 12 is introduced dealing solely with the rights of grove-holders. Section 196 defines a 'grove-holder' and it is admitted by learned Counsel for the appellant that the defendants will come within the definition of grove-holders under the words 'who has in accordance with local custom entitling him to do so...planted a grove on land held by him as tenant', or alternatively under the Proviso:
Provided that where the permission was granted prior to the commencement of this Act, the permission need not have been in writing and may have been either express or implied.
78. Section 198 allows the Court to presume that a person holding grove-land who has no proprietary right therein holds as a grove-holder. Section 197(b) states that subject to any custom or contract to the contrary,
the interest of a grove-holder shall be transferable by voluntary transfer or in execution of a decree of a Civil or Revenue Court or otherwise.
79. This section has introduced a change in the law from what had been ruled in various rulings by this Court and it is top be noted that the general law is that a grove-holder has a right of transfer and the burden of proof of a custom to the contrary lies on anyone who denies the rights of transfer to a grove-holder. The importance of this change cannot be exaggerated because in the three cases in which the plaintiff succeeded in regard to the transfers of groves in this village the Court, in each instance cast the burden of proof on the tenants to show that a custom, existed which gave them a right of transfer. Now the law is clearly laid down that the burden lies on the zamindar to prove that there is a custom against transfer. No doubt the particular three instances in, which the zamindar has successfully challenged these transfers by tenants do go to prove the custom which he sets up-although the grounds on which the transfers were disallowed were not the grounds which are now legal. This view of Section 197(b) has been accepted in two rulings, one Ram Chandar v. Tiwari Hub Lal : AIR1935All635 and a ruling which as far as I am aware is not reported S.A. No. 8 of Kunwar Bahadur v. Gulsher Khan Reported in : AIR1937All287 .
80. The question therefore is for me to examine the evidence on the record which has been laid before me by learned Counsel for the appellant with a view to ascertaining whether the plaintiff has discharged the burden of proof of the custom contrary to the right of transfer conferred on the defendant grove-holders by Section 197, Agra Tenancy Act of 1926. Learned Counsel relied greatly on certain wajib-ul-arzes. These wajib-ul-arzes are referred to as those of the settlement of 1863 and 1872. But I find from the Gazetteer of Muzaffarnagar district that this was really one settlement. On p. 138 of the edition of 1903 it is stated that the preparation for the new settlement began in 1860 and the final report was received in 1867. On p. 139 it is stated that the Secretary of State declared that a settlement in perpetuity might be made in all the estates in which the actual cultivation amounted to 80 per cent, of the culturable areas and this required a further examination of the settlement papers and Mr. A. Cadell was deputed to make inquiries. No recommendations were made for permanent settlement but eventually the settlement of the upland portions of the six parganas was disallowed in 1870 and a revision of the Government demand was ordered to be taken in hand (p. 140). On p. 141 it is stated that Mr. Cadell undertook the fresh assessment in 1870. The proceedings therefore were continuous and it is not a case of two settlements. Learned Counsel for the appellant relied on a wajib-ul-arz of 1863 shown on p. 101 and another version of it shown on p. 102. This wajib-ul-arz has not got a specific clause stating that the planters of groves have no power to transfer the groves or trees. The provision actually is:
The planters of the grove have power to appropriate the fruits and to out trees for agricultural implements. In future no farmer can plant a grove without my consent.
81. Now from this clause it is presumed that the deduction can be made that if persons who plant groves have power to appropriate the fruit and cut trees for agricultural implements, they have no power to sell the trees or groves, otherwise the particular rights in regard to fruits and agricultural implements would not be mentioned. That may be so, but there is a more serious defect in this wajib-ul-arz, considered as evidence in this case, i.e. that there is not shown that any inquiry was made from the tenants. The clause in question is in a declaration by Brij Lal, the sole cosharer in the village. Now the declaration by Brij Lal would naturally be in his own interest and it cannot be received as a record of a custom admitted by the tenants. Moreover in this very custom as enunciated by Brij Lal a portion was cut out as follows:
Under an order contained in letter No. 474 dated 14th August 1872 from the Board of Revenue to the Commissioner the words 'prohibiting the occupancy tenants from planting groves' which were written without verification be removed from this paragraph.
82. I consider that this means that this addendum by Brij Lal was not verified by him. I do not consider that there is any reference to verification by tenants. Had there been any such verification, learned Counsel for the appellant should have produced the portion of the wajib-ul-arz with the signatures of tenants given in addition to the signature of Brij Lal. As the custom is recorded it is in a statement by Brij Lal, the sole cosharer in the village, and it cannot amount to more than a declaration by the zamindar himself. It is to be noted that the note was made in 1872 which shows that the settlement was continuous from 1863 to 1872. On p. 103 there is a further wajib-ul-arz of this settlement for the year 1873-74 which deals in para, 3 with the custom in regard to trees of spontaneous growth which has no bearing on the matter before me, and in para. 4 with a custom relating to the rights of tenants in respect of grove which is similar to that reported by Brij Lal with the words in it which have been cut out by the Board of Revenue in their letter of an earlier date in 1872. On p. 104 there is an extract of a wajib-ul-arz also about self-grown trees.
83. The next settlement is shown by an extract on pp. 105 to 107 dated 4th June 1891. There is no reference in this to any custom in regard to groves and it is stated:
Entries of customs other than those given herein shall be found in the wajib-ul-arz prepared at the time of the former settlement. Ghulam Zamin and Muhammad Ishaq Husain cosharers heard the entries of the Dasturdehi today before the patwari of the village and admitted them in my presence. They have therefore been certified.
84. This is signed by the munsarim of the Court and the two cosharers mentioned and the patwari and the Deputy Collector. There is no signature by any tenant. It is to be noted that all that this indicates is that the Dasturdehi was read over to the two cosharers, but it is not stated that even to them was read over the entries of custom given in the former settlement which were not embodied in the current Dasturdehi. From pp. 107 to 109 there is a copy of a Dasturdehi of the settlement of 1917-18. There is no mention of any custom in regard to groves. At the end is a note:
As inquiries as regards custom in addition to those given in the Dasturdehi have already been made at the time of the former settlement made in 1863 no inquiry as regards them has been made at the time of the present settlement. The customs recorded in the settlement volume of 1861 shall remain in force.
85. There are two illegible signatures attached to this and above is a note stating that the Dasturdehi was heard and admitted before the Assistant Record Officer by Liaqat Husain thekadar in the presence of the village patwari, and it was these people or one of them who signed the document in the presence of the Assistant Record Officer. The evidential value therefore of the entries in the wajib-ul-arzes is very slight and except for the statement of the sole zamindar in 1863 there is no record at all of any custom in regard to groves and the custom in regard to groves is not definitely expressed as a custom by which the grove-holders are not allowed to cut and sell trees or groves but that has been deduced from the fact that their rights are entered for something else.
86. I now turn to the instances of the alleged custom. There are on the record altogether 13 sale deeds. 7 of these are as follows:
P. 28 : Sale deed of 14-8-1875;
P. 31 : ' ' ' 1-2-1886;
P. 33 : ' ' ' 28-6-1887;
P. 36 : ' ' ' 5-12-1887;
P. 39 : ' ' ' 80-12-1889;
P. 42 : ' ' ' 15-7-1890;
P. 45 : ' ' ' 25-8-1891.
87. These are sale deeds of trees or groves to the predecessors of defendants 1 and 2 by which they acquired their right to the land which is now in dispute. After that came six sale deeds of groves between the years 1896 and 1902 printed at pp. 51, 57, 59, 62, 64 and 66. Learned Counsel for the appellant has to admit that no suit was brought by the zamindar on any of these 13 transfers. Actually the zamindar has brought six suits which are as follows:
(1) P. 48, Suit No. 168 of 1895, decided in favour of the zamindar;
(2) P. 54, Suit No. 420 of 1897,decided in favour of the tenants;
(3) P. 72, Suit No. 1326 of 1912, decided in appeal in favour of the zamindar;
(4) P. 79, Petition No. 14 of 1911-12 to the Board of Revenue, decided in favour of the tenants. This was a revision of a suit of ejectment brought by the zamindar in the Revenue Court.
(5) P. 80, Suit No. 72 of 1913, decided in favour of the zamindar in appeal and upheld by Tudball J. in second appeal;
(6) P. 95, Suit No. 822 of 1929, decided in favour of the tenants by the Court and the Appellate Court.
88. There have therefore been three cases in which the zamindar succeeded and three cases in which the tenant succeeded. Besides these, on p, 68, there is a suit No. 185 of 1911 in which defendants 1 and 2 sued the zamindar for damages on the ground that the zamindar sold one shisham tree to a third party. That suit failed as the tenants had not produced their sale deed and it was also held that they will have to prove a special custom by which they were entitled to the removal of the trees. Now in all the suits in which the zamindar has succeeded, the Courts have held that the tenants failed because the Courts considered that the burden of proving a special custom entitling the tenants to the wood lay on the tenants. As I pointed out, the present statute law removes that burden from the tenants and places the burden on the landlord to prove that there is a custom against the right of transfer of the grove-holders. In addition to this documentary evidence there is certain oral evidence tendered by the parties. P.W. Panna Lal, the karinda of the plain, tiff, P.W. Liaqat Husain, the naib manager of another zamindar, P.W. Kabul Singh, the mukhtaram of a third zamindar, all came to support the allegation that the tenants have no right to cut or sell trees. B.W. Tota, a tenant, and P.W. Asa Ram Barhai also briefly gave evidence to that effect. But these witnesses professed ignorance when asked about transfers of groves by particular persons. Tota admits that his own father sold a grove. Clearly this evidence is of no weight. For the defence, the defendants Asa Ram and Surja gave evidence and also a witness Bharat Singh in regard to the alleged rights of grove-holders to transfer their groves.
89. To sum up, the evidence on which the plaintiff.appellant relies to prove the custom against transfer by grove-holders depends on a single statement made by the sole owner of the village in the year 1863 and on successes in litigation in regard to three sales by tenants. On the other hand 13 sales were not challenged and in three sales which were challenged the zamindar failed in his suits. Therefore out of 19 sales the zamindar has succeeded only in three instances. As the burden of proof is on the zamindar, I consider he has failed to discharge that burden and has failed to establish the custom which he sets up. My finding therefore is that there is no custom in village Pachenda Kalan disentitling persons in possession of groves as occu-pancy tenants or grove-holders from cutting and selling trees standing in the plots forming parts of their holdings. Let this finding be returned to the Bench concerned.