Kanhaiya Lal, J.
1. The dispute in this appeal relates to Plot No. 364 khasra measuring 72 in Mouza Iknaur and the question for consideration is whether the plaintiff is entitled to treat the said land as having been held by the defendants without the consent of the plaintiff within the meaning of Section 34 of the U.P. Act II of 1901.
2. The land in question appears to have formed a part of a large grove, of which a portion still exists on Plot No. 365 khasra and the rest has been denuded of trees. The allegation of the defendants was that they held the said grove land as a muafi tenure free from any liability for the payment of rent for over two generations and that they are not liable to ejectment. There is a finding that the land was held under a grove tenure but no finding as to when the portion in dispute was denuded of trees and brought under cultivation, and how long the defendants have been in occupation of the same and in what capacity. In 1833 Grove No. 389 old khasra measuring 5 bighas 15 biswas was recorded in the name of Bishan Nath as a muafidar. There was also a reference to the grove in the wajib-ul-arz of that year. In the jamabandi of 1873 Fasli Grove No. 246 measuring 2 bighas 11 biswas was entered in the name of Kishori, son of Sobha Ram, and Mata Din, but it is not clear whether that plot was the same or formed a part of the old No. 389 khasra, and what became of the rest of the land, if it did so. In the khasra for 1317 Fasli Grove No. 246 measuring 2 bighas 11 biswas was again recorded in the name of Kuraru, Mehta and Gauri Shankar, sons of Kishori and Mehta Din and Chhotey Lal, sons of Munni. But it is not stated what happened to the rest of the land which was included in No. 389 old khasra. The evidence of the patwari shows that old No. 246/1 khasra measuring 72 is now represented by No. 364 and old No. 246/2 measuring 74 is now represented by No. 365, and that at the settlement of 1319 Pasli Plot No. 364 khasra was recorded as an occupancy holding under the cultivation of the defendants without any rent being assessed thereon. It cannot be said in these circumstances that the defendants were in occupation of Plot No. 364 khasra initially without the consent of the landlords and as held in Katnta Prasad v. Panna Lal (1913) 35 All. 123 and Sheogopal Pande v. Baldeo Singh (1911) 8 A.L.J. 1087, Section 34 of the U.P. Tenancy Act has no application. That section refers to suits brought against persons, whose occupation began without the consent of the landlord. But that is not so here.
3. The learned Counsel for the plaintiff respondent, however, contends that the word 'land' as defined in the U.P. Tenancy Act means land let for agricultural purposes and his argument is that this land was never left for agricultural purposes and must, therefore, be deemed in law to have been occupied, i.e., brought under cultivation without the consent of the plaintiff. The complaint in other words is that the land, so held under a grove tenure and, therefore, not liable to rent, can, by reason of its having been brought under cultivation, become now liable for the payment of rent. But before that matter can be decided it is necessary to ascertain when it was so brought under cultivation and what was the nature of the tenure under which it was held before that date. The lower appellate Court is, therefore, directed to determine after taking such additional evidence as the parties may adduce. (1) When was the land in dispute brought under cultivation; (2) how long has it been held by the defendants or their predecessors in-title and in what capacity and on what terms?
4. Three months are allowed for the return of the findings. Ten days will be allowed for filing objections after the receipt of the findings.
[On return of findings by lower appellate Court the fallowing judgment was delivered:]
The finding of the lower appellate Court on the issue remitted is in favour of the plaintiff-respondent. To that finding no objection has been taken. The appeal is, therefore, dismissed with costs including fees in this Court on the higher scale.