1. The plaintiff zemindar sued for the price of certain trees sold by the defendants. These trees were situated on plot 249. There was also a prayer for an injunction that the defendants may be prevented from cutting down more trees.
2. In para. 1 of the plaint the plaintiff described himself as the owner and possessor of the plot while he described defendant 1 at first as an exproprietary tenant of the same plot on behalf of the plaintiff. Subsequently his pleader appears to have seen wisdom, and an amendment was made that defendant 1 was an exproprietary tenant of other plots.
3. The lower appellate Court held that the defendant was a tenant of the plaintiff of the plot in suit, and that under a custom recorded in the wajib-ul-arz a tenant was entitled to cut the tress standing on the land within his cultivating occupation. For these reasons the plaintiff's suit was dismissed, and he has come here in second appeal.
4. The argument here was that no exproprietary rights can accrue in grove land, which cannot be sir land. The plaintiff is purchaser of the zamindari property of the defendant, and a grove stood in this portion of plot 249. It was argued that as the plot was grove no sir rights could accrue therein. Reference was made to a Bench ruling of this Court in Bhagwan Din v. Peare Lal  42 All. 483. I am in agreement with that ruling so far that sir rights cannot accrue by cultivation in a grove because grove land cannot be cultivated. The learned Judges have, however, gone further and held that this Court has jurisdiction to examine the correctness of a settlement entry also, and even though an entry of sir may have been made in the Record-of-Bights framed prior to 1901 no sir rights could accrue, in a grove. With all respect I am unable to agree with this proposition. The question of cultivation arises only with respect to (b) of the definition of sir given in Section 2(12), Land Revenue Act of 1901. There is, however, Clause (a) in which it is stated that sir means land recorded as sir in the last Record-of-Rights framed before the commencement of the Act of 1901 and continuously so recorded since or which but for error or omission would have been so continuously recorded. My opinion is that where there is an entry even with respect to a grove the grove would be recognized as sir land. A Privy Council ruling in the case of Kesho Prasad Singh v. Sheo Pargash Ojha A.I.R. 1924 P.C. 247 was also quoted in support of the contention that a grove was not land held for agricultural purposes within the meaning of the Tenancy Act of 1901. As pointed out by me, this question will not arise where there is an entry in the Record-of-Rights and a continuation of that entry. It would, therefore, have been necessary to inquire by remitting an issue to the lower appellate Court whether plot 249 was recorded as sir in a Record-of-Rights framed before 1901 and continuously so recorded since. In the present case, however, the plaintiff has admitted the defendant to be a tenant of the land in suit. No copy of the proceedings by which rent of exproprietary tenancy was fixed is on the record. There is, however, a copy of a plaint filed by the plaintiff in a suit for the recovery of arrears of rent in which he declared Bahadur Singh, defendant to be a tenant of this very plot along with other plots and claimed rent as such in respect of this plot as well as in respect of other plots. There cannot be the slightest doubt, therefore, that the defendant is a tenant of the plaintiff. Such being the case, he is entitled according to the custom recorded in the wajib-ul-arz prepared at the time of Mr. Stoker's settlement, to cut the trees standing on plot 249. It is true that as a general rule in these provinces the zamindar is owner of trees standing on tenant's land. Such rule has been followed by this Court ever since 1883, the time of the ruling of Kasim Mian v. Bahde Husain  5 All. 616. In 1912 there was the case of Lachman Das, v. Mohan Singh  9 A.L.J. 672 and a more recent case in 1923 of Kamta Prasad v. Sheo Prasad A.I.R. 1923 All. 406. In all these cases, however, there was a provision that such rule would be enforced in the absence of custom or contract to the contrary. Tyrrell J., in delivering judgment in the case reported in 5 Allahabad observed:
And it may be that there are districts where the tenant has an exclusive and absolute property in the trees he has grown or inherited on his lands. But apart from such local and particular conditions, which would, of course, be made questions in issue in the case in which they might be alleged, the presumption of law and the general rule would be that the property in timber on a tenant's holding rests in the landlord in the same way as, and to no less an extent than, the property in the soil itself.
5. In the present case there is a custom to the contrary. I dismiss the appeal with costs.