1. This is a plaintiff's second appeal arising out of a suit for uprooting certrain trees newly planted by a grove-holder, and for a perpetual injunction restraining the grove-holder from planting new trees in future without the permission of the zamindar. The defendants pleaded inter alia that they had the right of planting new trees in place of those which had been cut or had fallen down without the zamindars' permission. The trial Court dismissed the suit and the lower appellate Court took the same view and 'dismissed the appeal. The facts proved are that the defendants are grove-holders, and that the grove in question was planted more than 50 years before the institution of the suit. The area of the grove is 1:64 acres and 33 old trees are still standing on it. The Courts therefore held that the land still retained its character of grove-land. It is further found that the defendants planted about 22 new trees in the month of July 1925. As the new trees were planted before the commencement of the Agra Tenancy Act, 1926, the defendants had a right under the law then in force to plant new trees, in place of those that had fallen down, or been cut down, so long as the land retained its character of grove-land. For the law on this point we refer to the ruling in Choke Lal v. Bekari Lal A.I.R. 1920 All 17. In that ruling the customary right of a grove-holder to plant fresh trees) was recognised, in the absence of a special custom or contract to the contrary. In the present case the plaintiffs have relied upon the provisions of the wajibularz prepared at the previous settlement, between 1870 and 1873. In this wajibularz a list of groves is set forth, giving particulars of the Khasra-numbers, the names of the owners, the area, and the number of trees. I After giving this list of groves we find the following entry:
As the Government has excluded from the jama the area of the groves and uncultivated area we, the persons in possession of the groves, declare of our own accord that we shall do of best in rearing and looking after the trees and that we shall plant fresh trees in place of damaged trees with the permission of the zamindar.
2. It appears therefore that the wajibularz does not even purport to record an existing custom in respect of groves but records a declaration or promise on part of the grove holders to the effect that they will plant fresh trees, in place of damaged trees, with the permission of the zamindar. The. plaintiffs have failed to establish that the grove now in suit is included among the groves mentioned in the wajibularz. In our opinion therefore the provisions in the wajibularz cannot be held to apply to the grove in suit since the wajibularz, at the most, only recorded a contract between the grove holders of certain groves and the zamindars of the village and those groves did not include the grove now in suit. We hold therefore, that the Courts below were perfectly right in dismissing the plaintiffs' claim for uprooting the new trees which the defendants had planted in July 1925, before the commencement of the present Tenancy Act. It has been strongly urged on behalf of the appellants that ever if they are not entitled to get the trees which were planted in July 1925 uprooted, they are entitled to a perpetual injunction restraining the grove-holders from planting any fresh trees in future without their permission. The appellants' argument is based on the provisions of the Agra Tenancy Act, 1926. It is argued, firstly, that the rights of groveholders have been defined in Section 197. This section mentions certain rights of groveholders, but is silent on the question whether a groveholder has a right to replant trees in place of trees which have fallen down or been cut down. It is argued therefore that by implication the legislature has denied the groveholder's right of planting new trees.
3. We are not prepared to accede to this contention. Section 197 does not purport to state the rights and liabilities of groveholders exhaustively. There is nothing to show that a groveholder has no right other than a right mentioned in that section. As we have already stated, the law which was in force before the commencement of the present Act recognized the groveholders' right of planting new trees, to replace, fallen trees, so long as the land retained its character of grove-land, provided there was no village custom or contract to the contrary. This right of maintaining a grove was a very important incident of the right of a groveholder. It must be presumed that the legislature knew the existing law and in our opinion the legislature cannot be held to have intended to take away this important groveholder's right with out express words to that effect. Merely because Section 197 is silent on the point whether a groveholder has a right to maintain his grove-land as a grove, by replanting trees whenever required, we are not prepared to hold that the legislature has by implication taken away that right. It is further argued that under Section 112 a non-occupancy tenant is prohibited from making any improvement except with the written consent of the land-holder. Now, a grove-holder is certainly a 'tenant' see Section 3(6). Agrove holder is moreover presumed to be a 'non-occupancy tenant': sec Section 197-A. Grove-land is now included in the definition of 'land': see Section 3(2). So it follows that grove-land is a 'holding' or part of a 'holding': see Section 3(8).
4. It is further pointed out that under Section 3(11) 'the planting of trees' is expressly mentioned as an 'improvement' with reference to a tenant's holding: see Section 3(11). So the appellants' learned Advocate claims to have proved (1) that a grove-holder is prohibited from making any improvement without the written consent of his land-holder and (2) that the planting of trees in grove-land is an 'improvement' with reference to the grove-land. He contends therefore that a grove-holder is prohibited from planting trees in his grove-land without the written consent of his land-holder. The first proposition must we think, be conceded. The second proposition is however open to doubt. The-question turns upon whether 'the planting of trees' mentioned as an improvement in Section 3(11)(c) means only making a new plantation of trees or whether it includes the replacing of fallen or useless trees in a grove for the purpose of maintaining the grove.
5. We think there is a substantial distinction between making a new plantation of trees and maintaining an old plantation. For the purpose of maintaining an old grove it is necessary to plant new trees which are dead or useless. But this sort, of replanting, for the purpose of keeping a grove in good condition and of preventing further deterioration, would not ordinarily be held to amount to an improvement, and we do not think that it is an 'improvement' within the meaning of the Act. All the works which are mentioned as improvements in Section 3(11) appear to be new works. 'The planting of trees' is coupled with 'the reclaiming, clearing, enclosing levelling or terracing of land.' The works of this latter nature are evidently intended to refer to new words. Moreover, it is expressly stated in Sub-clause (e) that 'mere repairs' are not to be included among improvements. We think that replacing trees which have fallen down in a grove by planting new trees amount only to 'repairs' and should not be held to amount to an 'improvement.' Filling up gaps among trees of an old grove is analogous to filling up gaps in an old embankment. In each case the work is of the nature of repairs, for the purpose of maintaining the grove or embankment in its original state, and it is not an 'improvement.' Our conclusions on this point are fortified by the general principle that the legislature cannot be deemed to have intended to take away a very important right incidental to grove-holding without enacting express provisions to this effect. In our opinion the right which a grove-holder had before the commencement of the present Tenancy Act, to maintain his grove by replacing fallen trees, has not been taken away by anything in that Act. We hold therefore that the appellants' contention cannot be accepted and the Courts below have come to a right decision. We accordingly dismiss the appeal with costs.