1. The question involved in this second appeal is what is the character of the grove in suit and whether the same is saleable in execution of a mortgage decree obtained by the Respondent No. 1 against one Torias widow, the Defendant No. 2.
2. The plaintiff's case was that he was the zamindar and lambardar of the village, that Toria was an occupancy tenant of 8 and odd bighas of land within his zamindari, that the grove in question was a part of Toria's said occupancy holding, that Toria made a simple mortgage of the grove in favour of the respondent who obtained a decree for sale, that Toria died and his widow re-married, that the widow was ejected from the entire holding except the grove, and that the grove was excepted from the ejectment suit because the plaintiff was in possession of the same. The plaintiff asked for a declaration that in execution of the decree obtained by the respondent the grove was not liable to be sold.
3. The Court of first instance decreed the suit, but the learned District Judge on appeal has reversed the decree and dismissed the plaintiff's suit.
4. In this Court it is urged that the lower Court was wrong in law in coming to the conclusion that the grove was not saleable.
5. The learned District Judge has not found whether the grove was planted on a portion of an existing occupancy holding or whether the grove was planted on a piece of land expressly leased to Toria or his ancestor for the purpose of planting a grove. He said that there was no evidence on the point. The appellant's contention is that the learned Judge has overlooked the admission of the parties and the actual evidence that is there on the record. I have accordingly looked into these matters and have come to the conclusion that the grove was planted on a plot of what was already an occupancy holding of Toria or his ancestor. Briefly the reasons are these:
In paragraph 1 of the plaint the plaintiff stated that Toria was an occupancy tenant of 8 bighas and 17 biswas of land. This statement was admitted in paragraph 1 of the written statement. In paragraph 1 of the plaint the plaintiff expressly stated that during the subsistence of the occupancy tenancy Toria planted mango trees on the plot in question. The respondent stated as to this paragraph of the plaint that it was not admitted 'as set forth.' He added that on the other hand the grove was planted by the ancestors of Toria. Although the respondent stated that the statement in paragraph 2 of the plaint was not admitted as set forth he made no statement in the 'additional statements' contained in the written statement to show that the land was taken by Toria's ancestor for the express purpose of planting a grove. Indeed, this was not a part of the respondent's case at all. The respondent was examined in the Court below, and he stated that the grove in question stood in the occupancy holding of Toria. In addition to these pleadings and statement of the respondent there is the evidence of the patwari and other documentary evidence to show that the grove has all along been treated as a portion of the occupancy holding.
6. Then the fact is that the grove was planted on a portion of an occupancy holding.
7. The learned District Judge thought that, although he did not find that the land had been obtained for the express purpose of planting a grove, he had sufficient material before him to find that the grove had been planted in such circumstances as to entitle the tenant Toria to mortgage the trees. On behalf of the respondent it has been contended that this is a finding of fact. But I cannot agree with this contention. If the learned District Judge had not stated the admitted facts from which he drew his inference, the matter might have been different. If, from admitted facts, his logical inference, which is an inference of law and not of mere fact, be wrong it cannot be claimed for his finding the immunity from scrutiny by this Court. The learned Judge drew the inference that the trees had been planted with the permission of the zamindar from the fact that the wajib-ul-arz of the year 1268 contains certain provisions. I shall consider the provisions later on; but I am not at all disposed to differ from him in this that the grove must have been planted with the zamindar's express or implied permission. The very fact that the grove was allowed to stand and the zamindar did not contest the right of the tenant to plant the trees would go to show that he was agreeable to the planting of the trees. Then the learned Judge infers from the entries in the wajib-ul-arz that there was a grant of a permission to the planter of trees to transfer the grove. The wajib-ul-arz relating to the trees planted by tenants is to the following effect. It states what particular groves planted by tenants stood at its date in the village. Against the list of these trees occurs the remark that the rents paid for those groves were entered in the jamabandi and the planters had a right either to cut or to sell the trees. Then comes a statement that in future tenants would be entitled to plant trees only with the permission of the zamindars. Now, it is nobody's case that the grove in question finds mention in the wajib-ul-arz of 1268 F. The statement, therefore, contained in the wajib-ul-arz that particular tenants had a right to sell or cut their trees do not apply to any of the trees in suit. The provision that tenants would be entitled in future to plant trees with the zamindar's permission does not, by any stretch of reasoning, amount to a grant by the zamindars of a right to occupancy tenants to sell trees standing on the occupancy holding. Under the present law (Tenancy Act, 1901) trees are mere improvements. But an occupancy tenant cannot plant trees without the consent of the zamindar. Under the old law also trees could be planted on occupancy holdings by the tenants with the permission of the zamindars. But I am not aware of any rule of law by which the tenant could sell the trees which ho planted with the permission of the zamindars on his occupancy holding. The provisions of the wajib-ul-arz, therefore, do not justify an inference that the implied permission of the zamindar to plant trees gave, by itself, to Toria a right to mortgage them. The next matter on which the learned Judge has relied is the fact that in the ejectment suit brought against Toria's widow the grove was not included. But the plaint did not mention the grove and the statement was made that the grove was in the occupation of the zamindar himself. It was not the case that the grove was omitted from the suit for ejectment simply because it had ceased to be a part of the occupancy holding. It is clear, therefore, that the learned Judge had no material whatsoever from which to draw the inference that the character of occupancy hold-mg had changed by mutual agreement between Toria and the landholder and what was once part of an occupancy holding had become a separate tenure, viz., a grove-holder's tenure.
8. The finding being that the grove was planted on an occupancy holding, the character of the holding would continue. This was hold by a single Judge of this Court and his decision was upheld by two other learned Judges of this Court see the wise of Daya Kishen v. Muhammad Wozir Ahmad (1915) 13 A.L.J. 833. The learned District Judge has relied on the case of Jalesar Sahu v. Raj Mangal A.I.R. 1921 All. 168. In that case Walsh, J. summarized the existing law, and on tin facts found came to the conclusion that the original occupancy holding had been con verted into something else, viz., a grove holder's tenure. The learned District Judge thought that the materials before him were sufficient to justify him to come to a conclusion that the character of the original holding had been changed. But he came to that conclusion on facts from Which the inference he wanted to draw could not be drawn.
9. If the grove stands on an occupancy holding, and is a part of it, it follows that Toria bad no right to make a simple-mortgage of it. The mortgage was indeed made before the passing of the Tenancy Act of 1901. But the mortgage is a simple one. If the mortgage had been with possession the mortgagee would have been entitled to continue in possession till the mortgage was redeemed. But those considerations do not arise here. The result is that the plaintiff-appellant must have his declaration that Toria had no right to make the mortgage, and the grove is not saleable in execution of the decree which the respondent obtained against the Defendant No. 2.
10. I allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance. The appellant will have his costs throughout, and the costs will include counsel's fees in this Court on the higher scale.