1. This is a first appeal from an order made by the Additional Subordinate Judge of Bulandshahr. The defendants who are appellants were sued by a zamindar. The sum claimed by the plaintiffs was Rs. 75, in the name of compensation as the price of 4 trees which it was alleged the defendants had wrongfully cut. The learned Munsif who heard the case in the first instance dismissed the suit, but in the lower appellate Court the Munsif's judgment was set aside and a remand, was made for the purpose of ascertaining the amount of compensation due. The defendants plead' in defence Sections 183, 184 and 185 of the Agra Tenancy Act of 1926, in particular they rely upon Section 185 which enacts that no suit shall lie under the provisions of Ch. 11 which relates to rent free grants except in certain specified cases. The defendants claim that they hold the grove in question as a rent free grant and that no suit lies against them because of the provisions of Section 185. Now to succeed in this defence it is ' essential for the defendants to prove that if they come within the four corners of this section, they have to establish all the ingredients necessary for the application of this section. In my opinion they have failed to discharge this onus.
2. In the first place it may be noted that Section 185 refers to suits under the provisions of Ch. 11. This suit was brought in the civil and not in the Revenue Court and upon that ground ground I am prepared to hold that Section 185 has no application. Assuming however for the sake of argument that Section 185 is applicable, the further question emerges: Have the defendants succeeded in proving all that the' section demands? The section demands in the first place that it should be established that the land in question was transferred to the defendants or their ancestors for valuable consideration, Counsel for the defendants has argued that inasmuch as this was a grant made in return of the services to be rendered it was made for valuable consideration within the meaning of the proviso of Section 185. It may be noted however that in their-written-statement the defendants denied that the grant was a service grant. Apart from that however the learned Additional Subordinate Judge has come to a definite finding of fact that the grant in question was not a service grant. He in the course of his judgment states that
there is not the slightest evidence nor even a suggestion in the present case that Tulshi (who was the ancestor of the defendants) had obtained the land in dispute for any valuable consideration.
3. In view of that finding and of the fact that the defendants adduced no evidence to prove that the original grant was a service grant I am of opinion that the defendants cannot claim to come within Section 185.A further provision of Section 185(c) is to be exempt from any suit the land held rent free by a holder whose title is 'based on a transfer of the land for valuable consideration must be made by the landlord or the rent free holder thereof before the 22nd December 1873 and at that date the right of the land lord to resume the land had been barred by Section 28 of Act 10 of 1859 by Article 130 of the Second Schedule of the Indian Limitation Act, 1871. Now the defendants have not attempted to prove that the landlord's right to resume the land was barred by either Section 20 of 1859 or by Section 130 of the Second Schedule of the Limitation Act.
4. One further question was argued before me in this appeal. To succeed in their defence the defendants must establish that their original grant under which they took the grove in question included the land. It is clear that under Section 3 of the Tenancy Act, 1926, land includes not only land held for agricultural purposes but land used as grove land or for pasturing. The 1926 Act however did not come into operation until the 7th of September of that year. Prior to that date the Act in force was the Act of 1901. Under the provisions of that Act land does not include grove land nor has it been shown that at any time prior to 1926 land was ever held by any Court to include grove land. Whatever therefore the defendants acquired in the year 1859 they certainly did not acquire land. Their rights which they asked the Court to enforce now are the rights which they acquired in the year 1859 and in my opinion the lower appellate Court was right in its conclusion that the Act of 1926 is not retrospective and that the incidents of a holding acquired before 1926 cannot be altered to the prejudice or to the advantage of the one party or the other by that Act.
5. Upon this branch of the case therefore I am of opinion for the several reasons given above that the defendants have failed to prove that they come within the provisions of Section 185 of the Agra Tenancy Act of 1926. That being so their appeal must fail. There is another ground however upon which 'counsel for the respondents relied, namely, that in the Wajibularz of 1870 it is clearly set forth that Tulsli who was the defendants' ancestor could cut trees only for purposes of necessity and with the permission of the zamindar and that he could not sell the wood. It was argued by counsel for the defendants that this Wajibularz is a unilateral document and that it could not affect the rights of the defendants who claimed to hold as a result of a grant to their ancestor made in the year 1859. In the case of Muhammad faiyaz Ali Khan v. Behari Lal v. (1917) 39 All 81, it was decided that
a statement in a Wajibularz made by a zamindar is not a statement narrating a tradition, but it is a statement by a person possessing an interest and an existing right in a village and is a prima facie evidence and that ha is entitled to the right recorded therein.
6. This ruling is a Full Bench decision and I am. of opinion that it applies to the present case. In the year 1870 the Wajibularz referred to above was drawn up; it is a statement made by a person possessing an interest and an existing right by a zemindar, and it is, therefore, according to this Full Bench ruling prima facie evidence that he was entitled to the rights recorded therein. It was open of course to the defendants if able and if so advised to rebut this prima facie evidence by leading other evidence to that effect that the right which the zamindar claimed was not one to which he was legally entitled. They have made, however no such attempt. I am of opinion therefore that it is established that the right of the defendants to cut trees in the grove in question was restricted to that extent: that they could only do so with the permission of the zamindar and for purposes of necessity.
7. Upon the whole matter and for the double reason that the defendants have failed to prove that they come within Section 185, of the Agra Tenancy Act 1926, and that the Wajibularz limits their right to cut the trees, this appeal in my opinion must fail. The appeal is therefore dismissed with costs