1. This appeal must be allowed. The plaintiff and the Defendants Nos. 2 to were the holders of a grove bearing number 311. The zamindars, by a partition among themselves, divided the site of the grove, and a portion of it described in the patwari's papers as No. 311/2/2 was given to a co sharer. He leased out this portion of the land to the Defendant No. 1 who has since died and is now represented by his heirs. The plaintiff brought the suit, out of which this appeal has arisen, for recovery of possession from the lessee.
2. The Court of first instance decreed the suit. The lower appellate Court held that although Plot No. 311 was undoubtedly the grove of the plaintiff the trees had been, for a long time, falling down, and ultimately only 14 trees were left standing on the land, and that a portion of the grove having been leased out by the zamindar to the principal defendant, and the principal defendant having occupied the land for more than six months, the plaintiff's right to the land had become extinguished.
3. On this finding the learned Judge dismissed the suit.
4. The learned Judge's judgment goes counter to the Privy Council case of Kesho Prasad Singh v. Sheo Pargash Ojha A.I.R. 1924 P.C. 247. A grove is not a holding within the meaning of Section 79 of the Tenancy Act and, therefore, dispossession of the grove-holder by the zamindar of a portion of the grove for six months cannot take away the grove-holder's right.
5. It is nobody's case that the groveholder gave up his rights in that portion of the grove on which no tree any longer stands and a separate engagement came into existence between the grove-holder and the landlord. Ordinarily, a grove-holder does not lose his title as a grove-holder on a portion of the land which was once occupied by trees simply because the trees have fallen down. This was held by me, in Second Appeal No. 794 of 1923 Chedan v. Mahbub Ali following an Oudh case decided by Mr. Justice Kanhaiya Lal as Judicial Commissioner of Oudh, vide Har Sahai v. Dhanpal Singh (1916) 2 O.L.J. 589. The same principle follows from the case of Chkohey Lal v. Behari Lal (1920) 42 All. 634.
6. Assuming, therefore, that the principal defendant was in possession of the land in suit for nine years, the plaintiff-appellant's right had not been extinguished, the period being less than 12 years.
7. I allow the appeal, set aside the decree of the Court below and restore the decree of the Court of first instance. The respondents must pay the appellant's costs in this Court and in the Court below.