1. This appeal arises out of a suit brought by a zemindar for a perpetual injunction restraining the defendant from cutting down trees of a grave or otherwise interfering with his (zemindar's) possession over it. It was alleged in the plaint that Moulvi Wazir Ahmad, the plaintiff, was the zemindar of the village of Shitabnagar, and that Bhopal and others were his tenants in respect of plots, among others, numbered 74, 81 and 89. There was a mango grove on the said plots which was in the possession of Bhopal and others merely as his tenants, whose sole right the grove was that of taking fruits. They had no right of transfer in respect of the trees of the grove nor could the said trees be sold in execution of a decree against thorn. One Daya Krishna in execution of Ids decree against them had some of the trees of the said grove put up to auction and purchased them himself on the 28th of June 1911. The said sale was void at law and put an end to the rights of the tenants in the grove and the plaintiff became entitled to its possession. He entered on possession but, Daya Krishna, the purchaser, with the help of two others attempted to cut down the trees purchased by him and was prevented by the plaintiff. The plaintiff, therefore, sued for perpetual injunction restraining Daya Krishna and his friends from cutting down any trees of the grove in question or otherwise interfering with the plaintiff's possession over the said grove. The claim was resisted on various grounds. The pleas with which we are concerned in this appeal were that the plots Nos. 74, 81 and 89 were granted to Debi Singh, ancestor of Bhopal and others, by the zemindar of the village for planting a grove and Debi Singh accordingly planted a grove and his descendants had a proprietary right in the grove which they could transfer either privately or which could be sold in execution of a decree against them. Moreover, under a custom obtaining in the village and also under the terms of the Wajib-ul-arz tenants have a transferable right in the trees in their possession. The learned Munsif held that the land of the grove in suit had not been granted to Debi Singh for planting a grove, but was his occupancy holding over which he had planted a grove. He further held that the custom set up for the do Fence was not proved and that the terms of the Wajib-ul-arz were not applicable to the present case. The claim was accordingly decreed. Daya Kishen, the auction-purchaser of the trees, preferred an appeal. The only point urged on his behalf before the learned Subordinate Judge was that under the terms of the Wajib-ul-arz of the Tillage of Shitabnagar tenants had a transferable right in the trees planted by them. In order to dispose of the question raised in the appeal the learned Subordinate Judge framed a fresh issue and remitted it for trial to the first Court. The finding of the first Court on the fresh issue did not support the contention of the appellant that under the terms of the Wajib-ul-arz a tenant had a right of transfer in the trees planted by him on his holding. The learned Subordinate Judge accepted the finding of the first Court, but for other reasons held that the tenants of the grove in suit had a right of transfer in the trees. He accordingly accepted the appeal and dismissed the claim of the plaintiff. The latter has c mo up in second appeal to this Court. He contend that an occupancy or non-occupancy tenant who plants trees. On his holding has no right of transfer in the trees in the absence of a custom or contract to the contrary. The following cases are relied upon in support of this contention: Kasim Mian v. Banda Husain 51 A. 616 : A.W.N. (1883) 169; Imdad Khatun v. Bhagirath 10 A. 159 : A.W.N. (1888) 32; Kausalia v. Gulab Kuar 21 A. 297 : A.W.N. (1899) 72; Janki v. Sheodhar 23 A. 211 : A.W.N. (1901) 52; Wahida Khatun v. Bulaqi Das 3 A.L.J. 385 : A.W.N. (1901) 52.
2. For the respondent the reply is that the finding of the lower Appellate Court is that the land of the grove in suit was given to Debi Singh on a fixed rent for the purpose of planting a grove and, therefore, the principle laid down in the cases relied upon by the appellant does not apply. It is said that when a zemindar grants land on rent to a person to plant a grove, that person has a right of transfer in the trees, in support of his argument the respondent refers to the following cases-
3. Muhammad Ismail Khan v. Mithu Lal 17 Ind. Cas. 656 : 11 A.L.J. 649; Habibullah v. Kalyan Das 25 Ind. Cas. 169 : 12 A.L.J. 1080.
4. The case-law, no doubt, makes a distinction between the rights of a tenant, occupancy or non-occupancy, who plants trees on his holding and of a person who is given land at a specified rent solely for the purpose of planting a grove. The contention of the respondent must prevail if it has been found that the land of the grove in suit was granted to Debi Singh for the purpose of planting a grove, ft is true that the learned Subordinate Judge does say that he thinks that, the land of the grove in suit was let to Debi Singh on a fixed rent for the purpose of planting a grove. But there does not seem to be any evidence in support of this finding. The defendant-respondent produced evidence to prove that the plaintiff-appellant had granted the land of the grove in suit to Bhopal and others who had planted the grove. The first Court disbelieved that evidence. The learned Subordinate Judge did not accept it also, for he holds that the land was granted to Debi Singh. He menus presumably that the land was granted by the former zemindars, as the plaintiff-appellant was not the zemindar in the life-time of Debi Singh. In fact the learned Subordinate Judge, in an earlier part of his judgment, accepts, the finding of the first Court that the grove in question was planted with the permission of the former zemindar. The revenue papers show that the land of the grove was the occupancy holding of Debi Singh for a long time before any trees were planted by him on it. The reason for the finding seems to be that the learned Subordinate Judge thought that the permission of the former zemindars, which was assumed in the absence of any protest by them, to Debi Singh to plant a grove amounted to the grant of a fresh lease to him of the land for the purpose of planting a grove, if that were a valid reason the cases referred to above by the appellant were erroneously decided. But I do not think that it can be said that the permission by a zemindar to his occupancy, or non-occupancy tenant to plant trees on his holding cancels the original lease and is a fresh lease for the purpose of planting trees. The finding under discussion being unsupported by any evidence cannot be accepted. The character of the grove in question then is that it was planted by an occupancy tenant on his holding. He or his successors have, therefore, no right of transfer in the trees. They cannot be sold privately or in execution of a decree against Bhopal and others. But it is further contended for the respondent that as soon as the grove was planted by Debi. Singh the land lost its character as an occupancy holding and the zemindar could have ejected hi in. The zemindar having failed to do so Debi Singh became a trespasser and his possession became adverse to the zemindar. Debi Singh and his successors have been in adverse possession for more than twelve years prior to the sale of the trees, and hence the plaintiff-appellant cannot question the sale to Daya Kishen. No such plea was taken by the latter in his defence. But apart from that, the case of Daya Kishen was and the finding of the lower Court is that the trees were planted with the permission of the former zemindars. No question of adverse possession can, therefore, arise. The appeal prevails, the decree of the lower Appellate Court is set aside and that of the first Court is restored. Costs are allowed to the appellant throughout.