1. The suit, out of which this appeal has arisen, was brought by the plaintiffs for recovery of portion of a grove which they alleged had been improperly sold by the tenants to the defendant-appellant, Ishar Dat. One of the tenants of the portion of the village in question, Dullam Bahelia, on the 4th of October, 1907, sold a portion of a grove, in which he and the other co-tenants had planted. The zamindars claimed to have this deed of sale set aside and also for possession of the portion of the grove which was sold. The defendant relies upon the wajib-ul-arz of the village prepared in the year 1862, as establishing the right of Dullam Bahelia, to sell his share of the grove in question, it having been planted by him and the co-tenants.
2. The Court of first instance decreed the plaintiffs' claim to the extent of the plaintiffs' share in the village. On appeal the lower appellate Court reversed the decree and dismissed the plaintiffs' suit. A second appeal was preferred to this Court and the learned Judge, before whom it came for disposal, reversed the decision of the Court below and restored the decree of the Court of first instance.
3. The provision of the wajib-ul-arz of 1862, which was relied upon by the defendant-appellant is set out in the judgment of the learned Judge of this Court. According to it there were at the date of the wajib-ul-arz three baghs in the village, the produce whereof was enjoyed by the zamindars, the planters. There were also eleven scattered mango trees planted by the ryots. The rights of the parties are then stated in these terms: 'The produce of them (i.e., the mango trees) is enjoyed by the tenants, and if any tenant in the future plant a bagh or dig a pond, it shall be done after asking our consent; but he shall not get thereby any title to own the soil. But as regards the sale of bagh or tree he indeed shall continue to have power (i.e., power to dispose of it).' The learned Judge of this Court was of opinion that the evidence did not establish a right on the part of tenants, by custom, to sell the baghs or trees which they themselves planted. It seems to us that whether or not the wajib-ul-arz of 1862 records a custom or a contract, if the tenants were permitted by their zamindars to plant baghs or trees upon the express terms that the tenants should be at liberty to sell the baghs or trees so planted, it is immaterial whether, the record is one of Custom or of contract. It is admitted that the baghs in question were planted by the tenants and amongst others by Dullam Bahelia, and in view of this we think that the lower appellate Court was right in dismissing the plaintiffs' claim. So long as the trees or baghs which have been sold are in existence, it is clear that the zamindars have no right to exclude the defendant-appellant or other owners of the baghs planted by them from enjoyment thereof For these reasons we think that the view taken by the learned Judge of this Court is erroneous. We allow the appeal, set aside the decree passed by him and restore the decree of the lower appellate Court with costs in all Courts.