1. This is a judgment-debtor's objection against an order of the lower Court in execution. The decree-holder made an application asking that a garden, area 13 bighas 3 biswas of land, containing all sorts of fruit-bearing and timber trees with flower beds and house, should be sold in auction sale in execution of his decree. There was Government notification in the Gazette, dated 26th March 1932, which stated that agricultural land as defined by the Agra Tenancy Act should be sold only through the Collector and the sale of such property has been stayed. The present application is for sale through the civil Court amin. The question before us is whether the area in question can be considered agricultural land or not. The Court below has considered that it is not a grove but that it comes under the definition of 'garden.' Unfortunately the Court below has applied an erroneous criterion to draw the distinction between a garden and a grove. The Court considered that the distinction was whether it stood on the zamindar's own land or on the land of the person who did no own the trees. The distinction is not correct. The definition of grove is given in the Agra Tenancy Act, Act III of 1926, Section 3(15), as follows:
'Grove-land' means any specific piece of land in a mahal having trees planted thereon in such numbers that when full grown they will preclude the land or any considerable portion thereof being used primarily for any other purpose, and the trees on such land constitute a grove.
Explanation I.-The word 'trees' does not include tea plants, rose bushes, betel plants, plantains and papitas, or any mere shrubs, bushes, plants or climbers.
Explanation II.-The word 'trees' includes fruit bearing trees, such as mango or jack fruit, which occupy the land for a long period, but does not include trees, such as guavas or peaches, which occupy the land for comparatively short period.
2. It is therefore necessary that the Court below should ascertain whether this piece of ground does come within this definition of 'grove-land' or not. If the ground comes within the definition of 'grove-land,' then under Section 3(2) the land is agricultural land and cannot be sold through civil Court amin. If on the other hand the land is not agricultural land but is a garden, then it may be sold through civil Court amin. It will be noted that a distinction is drawn in regard to the kind of fruit trees. Certain fruit trees such as guavas, peaches, plantains, papitas, etc, are trees which do not constitute a grove, but on the other hand mangoes, jack fruit, etc., which occupy the land for a long period do constitute a grove. It has been held in Ram Adhin v. Lachhmi Narain 1935 ALJ 989, that land which has a grove on it and is in possession of the proprietor himself who planted the . trees is agricultural land within the meaning of the Government Notification in question published in the U.P. Gazette of 26th July 1932.
3. Learned Counsel has invited attention to the fact that in the application the word 'house' is used. The Court has said nothing about the house in its order. This point may also be raised before the Court below.
4. We, therefore, allow this execution first appeal and remand the case to the Court below to decide the objection of the judgment-debtor in view of the direction given in this judgment. Costs hitherto incurred will abide the result.