1. This appeal arises out of a suit brought by the appellant for possession of some plots of land which were made over of the respondent under a document, dated April 14th, 1883, and described as an ijazat nama waste lagane bagh ke.''' It appears that there has been other litigation between the parties in the Revenue Court. The appellant sued for ejectment of the respondent on the ground that he had allowed a certain person to hold possession as shihmi for a longer period than is permitted by the Tenancy Act, The respondent pleaded (hat he was the proprietor of the land. That question was not decided, for the Court dismissed that suit 01; the ground that the so-called shilemi was merely a servant of the respondent. Next the appellant brought a suit for recovery of rent from the respondent. The Assistant Collector held that the respondent was a proprietor and not a tenant. The Collector on appeal confirmed the dismissal of the suit, on the ground that the relationship of landlord and tenant was not proved to exist between the parties. There, was a second appeal to the DistrictJudge who held that the respondent was either a proprietor or a rent-free-holder, and in either case was not liable to pay a rent. The appellant then brought the present suit.
2. His case is that the land was granted to the respondent under the document mentioned above for the purpose of planting a grove and that though many years have elapsed, the respondent has planted no trees. The appellant, therefore, claims to be entitled to recover the land from the respondent whom he describes as a mere licensee. The Munsif held that the document in question did not confer on the respondent proprietary rights in the land but that it was a grant, permanent in its nature, made for the purpose of planting trees, that the respondent had planted a large number of trees, though not as many as he might have planted, and that the condition of the grant had, therefore, been sufficiently complied with. Accordingly lie dismissed the suit. On appeal the District Judge held that the document of April 1883 did not evidence a mere license and that the grant was not revocable at will. The learned Judge was of opinion that the document conferred an interest in the land on the respondent, that the position of the respondent is analogous to that of a lessee, and that, therefore, the suit is not maintainable in the Civil Court. The document of April 14fch, 1883, has been read out to me, and I am inclined to think that the intention of the parties to it was that the respondent should have the right of an ordinary grove-holder. The document provides that the respondent shall plant trees on the land, may cut down those trees and re-place them as often as he pleases, and may appropriate to his own use the produce of the trees, grass and any other produce of the land, that if any revenue is assessed on the land the respondent is to pay it and that, if the respondent or his successor wishes to sell the grove, the grantor will have a right of pre-emption. It is quite clear to me that this document evidences something much more than a license revocable at will. I have myself little doubt that the intention was that the respondents should not be entitled to retain the land unless he planted a grove on it, and it appears to me that it is not a grant to which the provisions of Chapter X of the Tenancy Act are applicable. The document fixes no time within which the grove is to be planted and it does not provide for resumption of the land in case the respondent does not plant the grove. In these circumstances it appears to me that the appellant is not entitled to recover possession merely because it is proved that the respondent has not planted a grove on the land, and I, therefore, see no reason for sending the case back to the lower Appellate Court for a finding on the question whether a grove has been planted or not. ft seems to me that the document evidences the creation of an interest in the land in favour of the respondent subject to the condition that he shall plant a grove. But as no time is specified for the performance oil the condition, the condition cannot be said to have been broken until the respondent renders the preformance of the condition impossible either permanently or for an indefinite period (see section 3H of the Transfer of Property Act). The appellant alleges that the land is under cultivation. If so, a grove may yet be planted on the land. In my opinion the appellant has made out no cause of action for recovery of the land in question. 1, therefore, dismiss this appeal with costs.