1. On the facts found by the lower appellate Court this appeal must be decreed. The plaintiff zemindars sued for a declaration that the defendant-tenants were not entitled to cut the trees standing upon a particular plot of land within the zemindari of the plaintiffs. The findings of the lower appellate Court are that the land is occupancy land of the defendant's and that the grove was planted by the defendants without the permission of the plaintiffs.
2. On these findings that Court came to the conclusion that the principle enunciated in Man Singh v. Madho Singh A.I.R. 1924 All. 430 applied and the defendants were at liberty to cut the trees standing on the land.
3. We do not agree with the deduction drawn by the lower appellate Court from its findings. In the present case it has been definitely held by the revenue Court in 1889 that there was no novation of contract after the tenant planted the trees. In that year the trees were standing on the land and the plaintiffs applied for the possession of the trees. It was decided by the revenue Court then that the tenant was an occupancy tenant and the plaintiffs zemindars were not entitled to remove the trees so long as the tenure continued. In the case of Jalesar Sahu v. Raj Mangal A.I.R. 1921 All. 168 the law on the subject was explained by the present learned Acting Chief Justice and Mr. Justice Wallace in a detailed judgment. They laid down, after a consideration of all the rulings on the subject, that a tenant cannot make a valid transfer of trees upon an occupancy holding independently of the holding and, therefore, not at all, because the holding itself is not transferable. In that particular case the findings were that after the occupancy tenant planted a grove on the land with the consent of the zemindar there was a novation of contract and the occupancy holding remained in abeyance and the tenant became a grove-holder. Such is not the case here.
4. The plaintiffs' suit for a declaration must, therefore, succeed. The claim for damages has not been made out. We decree the appeal and the suit for declaration that the defendants were not entitled to cut the trees standing on the land in suit though they are entitled to enjoy the fruits thereof. An injunction in those terms is granted. The rest of the suit is dismissed. Parties shall receive and pay costs according to their success and failure. Costs in this Court will include fees on the higher scale.