1. The defendant is the appellant before this Court. The history of the case briefly is this:
2. One Jaisri was an occupancy tenant of the plaintiff-respondents. The latter obtained a decree for arrears of rent against Jaisri in respect of a holding which comprised the plot 1710. The arrears of rent not having been paid, an application was made for ejectment of Jaisri from his holding. Opportunities were granted from time to time to Jaisri to pay up, but ultimately he failed to pay and on 21st October 1918 Jaisri was formally ejected from his holding. On plot 1710 there stood 9 trees. This plot had been, attached in execution of a simple money decree obtained by the defendant against Jaisri. The defendant brought this plot to sale on 24th July 1918 and purchased it himself. He obtained possession through the execution Court on 4th May 1919, i.e., much after the plaintiffs had been put in possession of the land.
3. The plaintiffs came to Court on the allegation that the defendant had unlawfully appropriated the fruits of the trees standing on plot 1710 and they accordingly sued for a declaration of title and recovery of damages, namely the value of the fruits.
4. The suit has been decreed by both the Courts hence the defendant's appeal. The defendant contends in this Court that Jaisri was a grove-holder of plot 1710' and not a mere occupancy tenant and that Jaisri's title could pass in execution of the decree held by the defendant.
5. There are two answers to this contention. The first of these is that this is entirely a new case set up by the defendant for the first time in this Court. The grove-holder's rights are clearly understood. In the plaint, para 2, the plaintiffs very dearly stated that the seven plots which comprised the holding of Jaisri were held as one holding for a consolidated rent of Rs. 20. The defendant did not meet this statement fairly. He contended himself with saying that he admitted only so much of the statement in, para. 2 of the plaint as described plot 1710 as the property of Jaisri Singh and that so many trees stood on the land. The plaintiffs had stated that Jaisri was an occupancy tenant of the land. As to that the defendant said nothing. In the additional statement in the written statement the defendant said that plot 1710 was covered with trees and was not fit for cultivation. In the next paragraph,, namely in para. 10 he said that the trees of the grove were liable to be sold. A grove-holder is entitled not only to the trees but to hold the land on which the trees stand and to maintain the trees so long as they exist. The fact that in para. 10 of the written statement the defendant mentioned the trees alone as saleable and did not state that the grove as such was liable to be sold shows that this defence of Jaisri having been a grove holder, was not present in his mind.
6. In the Court of first instance no issue was raised as to whether Jaisri was a grove-holder or a mere occupancy tenant. In deciding issue 1, the learned Munsif no doubt stated that he was not satisfied that the trees were not transferable, but his remarks were only by the way. There having been no issue, there was no clear finding. In his grounds of appeal to the lower appellate Court, in ground 4 the appellant did state that proceedings under Section 59, (ejectment proceedings under the Tenancy Act) were not applicable be a grove, but from the judgment of the lower appellate Court it appears that no question of grove was discussed before it. It seems to me that it is now too late in the day to raise the question, namely whether Jaisri was an occupancy tenant of the grove or was a grove-holder.
7. The second reply to the appellant's contention is this. The defendant is a purchaser pendente lite. As the learned Judges of the Courts below have pointed out, the ejectment proceeding were pending before a Court of competent jurisdiction and during the pendency of those proceedings, the defendant made his purchase, The question that Jaisri was a grove-holder and he could not be ejected in execution of the decree for arrears of rent, was a question which could be raised in those proceedings, on behalf of Jaisri and also on behalf of the defendant himself, after he had made the purchase. But no such question was ever raised. The ejectment proceedings being binding on Jaisri, the title if any that could accrue to the defendant could accrue only subject to the result of the ejectment proceedings-In this view the appellant has no case. The principle of Section 52, T.P. Act, would apply if that section did not in terms apply.
8. The appeal fails and is hereby dismissed with costs.