1. This is a short appeal against the judgment of a learned single Judge of this Court.
2. The plaintiffs who have recently purchased the entire village brought a suit out of which this appeal has arisen, for recovery of damages and an injunction on the ground that on a piece of banjar land there stood a large number of trees, namely mahua, mango, nim etc, and the defendants without any right have cut down a nim tree and have misappropriated the produce of the mahua trees. The claim was for recovery of Rs. 10 as the price of the nim tree and Rs. 50 as the price of mahua flowers.
3. The defence was that the trees constituted a grove of the defendants which was planted by their ancestors about 100 years ago, and that the defendants had been in enjoyment of the grove for 100 years. They denied that they had cut the nim tree.
4. The Court of first instance decreed the suit, but the lower appellate Court Judge modified the decree. He held that the defendants did cut a nim tree which was a wild one. He valued the damages at Rs. 3 and decreed the claim to that extent only. As regards the other trees the learned Judge held that they had been planted by the defendants' ancestors, and that they had been in enjoyment of these trees and were the owners of these trees. In the result the learned Judge dismissed the suit so far as it was for the value of the mahua flowers and for injunction.
5. The learned single Judge of this Court accepted the argument of the appellants, that granting that the trees had been planted by the defendants, they had not proved that they had planted them with the consent of the zamindar, and that therefore the title to the trees had not passed to the defendants.
6. In Letters Patent appeal it is argued on behalf of the defendants that their plea of planting the trees with the consent of the zamindar was involved in their plea that the trees constituted their grove. We consider that this argument is sound. As has been laid down more than once by this Court, a grove is constituted by a person without any title to the land obtaining the permission of the zamindar to plant trees on the zamindar's land. A grove therefore which is owned not by the zamindar, but by a person other than the zamindar, can come into existence only when it is planted with the zamindar's consent. This plea therefore that the trees were the grove of the defendants, involved in it a plea that the trees had been planted with the zamindar's consent.
7. In the result we allow the appeal, set aside the judgment of this Court, and restore the decree of the lower appellate Court.
8. The appellants will have their costs at both the hearings of this Court.