1. This case has been referred to as by a single Judge of this Court because of the difficulty of reconciling certain decisions to which we will refer hereafter in detail, particularly the cases of Muhammad Yasin v. Ilahi Bakhsh 16 Ind. Cas. 455 : 34 A. 545 : 10 A.L.J. 73, and Muhammad Ismail Khan v. mithu Lal 17 Ind. Cas. 656 : 11 A.L.J. 649, on the one hand, and the case of Daya hishen v. Mohammad Wazir Ahmad 30 Ind. Cas. 565 : 13 A.L.J. 833, on the other hand. We have some to the conclusion that these cases are not, as they appear to be, irreconcilable, and that if the facts underlying each decision are clearly ascertained and stated, they present a complete and satisfactory Code upon this somewhat controversial question. We have also come to a clear view as to which side of the line the present case lies when its facts are understood, and we propose to lay down certain propositions which, we think, are established by the existing authorities in this Court on this troublesome question, with the hope that they may be of assistance in guiding the subordinate Courts in making up their mind as to the real issues of fact which they have got to determine in arriving at a correct or at any rate a clear conclusion. We can but express the fervent hope that this attempt will not further complicate the matter which is obviously sufficiently complicated already. We think that the following propositions are established by the decided cases of this Court:
1. When land is let for the purpose of planting a grove, the occupier or tenant or licensee, to whom the permission to make such use of it is granted by the Zemindar, becomes a grove-holder, pure and simple, and his rights are transferable vide Muhammad Yasin v. Ilahi Bakhsh 16 Ind. Cas. 455 : 34 A. 545 : 10 A.L.J. 73, and Muhammad Ismail Khan v. Mithu Lal 17 Ind. Cas. 656 : 11 A.L.J. 649,
2. If the holding or right to occupy derived from the landlord is an occupancy or non occupancy tenancy within the meaning of these terms as used in the Agra Tenancy Act, then the permission to plant trees is not transferable, nor are the trees themselves vide Daya Kishen v. Mohammad Wazir Ahmad 30 Ind. Cas. 565 : 13 A.L.J. 833, Rameshar Singh v. Madho Lal 52 Ind. Cas. 191 : 17 A.L.J. 971 : 42 A. 36.
3. 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. This proposition is merely a Sub-branch of No. 2 stated above vide Kasim Mian v. Banda Husain 5 A. 616 : A.W.N. (1883) 169 : 3 Ind. Dec.(N.S.) 557, Imdad Khatun v. Bhagirath 10 A. 159 : A.W.N. (1888) 32 : 6 Ind. Dec.(N.S.) 107, Kausalia v. Gulab Kuar 21 A. 297 : A.W.N. (1899) 72 : 9 Ind. Dec.(N.S.) 898, Janki v. Sheoadhar 23 A. 211.
4. The holding may ceases to be an occupancy tenancy by the surrender of it by the tenant. The extinction of an occupancy tenancy is expressly provided for by Section 18 of the Agra Tenancy Act, which by Sub-section (c) includes abandonment or surrender after service upon the land-holder of the notice of surrender, and Section 83, which must be read with Section 18 for this purpose, provides the conditions and machinery for effecting such surrender, but these provisions are not exhaustive. They merely contemplate and provide a right of surrender by one party to the tenancy against the will of the other. If he wishes to surrender and cannot obtain the land holder's consent, he can only surrender under these provisions; otherwise not at all. But a provision of this kind, expressly treating machinery enabling one person to perform an act so as to bind the other without his consent, does not destroy the ordinary rule of law that parties may themselves dispense with machinery and may by conduct, mutual consent or express agreement arrive at a result by common consent which a piece of legislation enables one of them to arrive at by his own omission alone.
2. This being, as we think, a correct statement of the law as it stands to-day applicable to the varying circumstances which arise between Zemindars and tenants in relation to groves, all that remains, so far as the case now for our decision is concerned, is to see what really are the facts found by the lower Appellate Court. It seems to us that either by express language or by necessary implication the judgment of the lower Appellate Court establishes the following facts:
(1) Permission was given by the Zemindar in 1885 to the tenant to plant a grove. The tenancy had been an occupancy one.
(2) The land from that moment seated to be an agricultural holding, though it may for a short period, while the trees were growing, have been utilised as such
(3) The relations between the Zemindar and the tenant were from that moment governed by a fresh contract.
(4) The planting of the grove by the tenant was not an agricultural purpose.
(5) The occupancy rights remained in abeyance during this special contract.
(6) The trees were trees of considerable size, thickly planted and eventually numbered 111 mangoes, 235 bamboos and 221 Kathe l trees,
(7) This planting or new purpose was not a mere adjunct to the existing occupancy holding or a mere improvement.
3. We think these findings of fact amount to a finding of law or raise the necessary inference of law that there was a complete and absolute determination, either by surrender or mutual cancellation, of the former existing occupancy tenancy and the creation by a new contract of a new arrangement altogether.
4. The only complaint against the learned Judge's judgment in our view is that he did not see the legal consenquence of his own findings of fact and that had he done so, he would have no doubt some to the conclusion, which we have come to, that this is governed by the case of Muhammad Yasin v. Ilahi Bakhsh 16 Ind. Cas. 455 : 34 A. 545 : 10 A.L.J. 73 already referred to. It remains, in order to enforce our view that the decisions are not irreconcilable, to draw attention to the two principal cases where the ruling appears to have gone the other way.
5. First with regard to the case of Daya Kishen v. Mohammad Wazir Ahmad 30 Ind. Cas. 565 : 13 A.L.J. 833 our brother Rafique, whose judgment was upheld in Letters Patent Appeal and who held that the planting of a grove by permission of the Zemindar on an occupancy tenancy does not necessarily change the nature of the holding or enable the tenant to transfer the trees so planted, pointed out in his judgment that it had been held in the lower Courts that the land and the grove in suit had not been granted for planting a grove, but was an occupancy holding upon which the tenant had planted the grove. The distinction may be a fine one in fact, but it is substantial in its results. Similarly in the case of Rameshar Singh v. Madho Lal 52 Ind. Cas. 191 : 17 A.L.J. 971 : 42 A. 36 in the statement of fact contained in the judgment of Mr. Justice Ryves which does not go very fully into this aspect of the case, it is at any rate made dear that this Maharaja of Darbhanga was in that case admitted as a tenant some 36 or 40 years after the planting of the grove and that he was receded as a non-occupancy tenant in the revenue papers. It was further pointed out that he himself was in a difficulty in making up his mind whether he should defend the suit as a grove-holder, pure and simple, to whom the provisions of the Agra Tenancy Acts could not apply at all, or whether he would net up an occupancy tenancy from which he could not be ejected on the grounds on which he was sought to he ejected, and further that the Revenue Court had held him to be a non-occupancy tenant. These findings, in our opinion, make it clear that that that case was on the other side of the line. The result is that the decision of these cases really depend a on the precise findings of fact, and that it is impossible to lay down any general Rules in second appeal except the propositions which we have attempted to lay down, the applicability of which depends on the finding with regard to the nature and purpose of a tenancy. In this connection we cannot do better the n quote a passage from Mr. Agarwala'a book on this somewhat difficult question of what is the legal status of a grove, The passage is paragraph 4 on page 4 of the 7th Edition: 'A grove is a piece of land covered by trees or bashes. The spaces between the trees may or may not be used for agricultural purposes. Sometimes they are and sometimes not. Where they are so used, a grove may lie 'land' as defined in the Act. That will depend on whether the thing let was the grove, to which cultivation is merely an appendage, or the land for agricultural purposes, the trees being merely an adjunct to it. But when no portion of a grove is used for agricultural purposes, a grove is certainly not 'land' within the meaning of the Act.'
6. The Courts below, as we have often occasion to Bay, should be careful to find the facts clearly and fully so as to cover all the matters in controversy before muddling themselves with so-called authorities, where the High Court Judges have done no more than lay down the principles applicable to the particular state of facts which come before them in appeal. When the learned Judge has satisfied himself what are the true facts of the case before him, it is time enough for him to see which, if any, of the reported authorities apply to the case.
7. This appeal must be allowed and the plaintiff will be entitled in regard to the plot now in appeal to the usual decree for foreclosure under Order XXXIV with costs here and below. We do not touch the existing decree in favour of the defendants with regard to the other plots. The appellant will have his costs in the lower Appellate Court and here on the higher scale (if any) and he must get his costs of the first Court in proportion to success and failure. The interest payable under the decree will be simple interest. The defendants will be at liberty to apply to this Bench as to any point arising on the drawing up of the decree.