1. This second appeal arises out of a suit brought by the plaintiff-appellant for possession of a certain grove on the ground that the defendant who had originally been grove-holder, had allowed it to lose its character as grove with the consequence that the right of occupation reverted to the zamindar. Both the lower Courts have dismissed the suit, holding that it was necessary to prove abandonment, and that the facts proved did not amount to-abandonment. The lower appellate Court, has also considered the question whether, assuming that the zamindar was entitled to resume the plot on the ground that it had been allowed to lose its character as grove land, the plot had as a fact lost that character.
2. In this second appeal two pleas are substantially taken, (a) that proof of abandonment was not essential, and (b) that the lower appellate Court's finding that the land had not lost the character of a grove was based upon a misconception of the law.
3. I hold that both the contentions are correct. It is well-established that a person, granted a specific area for the purpose of planting and maintaining a grove loses his right of occupation when he allows the land to cease to retain the character of a grove. Abandonment, actual or implied, is not necessary. I would refer to the case of Hazari Lal v. Nimar A.I.R. 1923 All. 295, where, however, both abandonment by the grove-holder and proof of cessation of retention of the character of a grove, by the land were held to be proved. Again in Harsahai v. Danpal Singh  2 O.L.J. 589,, Mr. Justice Kanhaiya Lal appears to me to have correctly stated the law, namely that a plot granted for the purpose of a grove retains the character of grove so long as a portion of it retains that character, and in like manner fails to retain that character when no portion of it can be regarded as retaining that character. I would also refer to the Select Decision of the Board of Revenue, No. 14 of 1912, in which Mr. D.C. Baillie (subsequently Sir Duncan Baillie) held that the right of a tenant to retain possession of grove land lasts only so long a he maintains it as a grove. Lastly I would refer to the provisions of the new Agra Tenancy Act of 1926, Section 3, definition of grove land, and Section 196 and 197. That Act was not in force when this suit was brought, but that Act was intended to define the law as to grove-holders pre-existing the Act.
4. As regards the second question, the lower appellate Court admits in its judgment that it was a fact that for some time preceding the suit there had only been four fruit-bearing trees left on an area of three bighas. It was also a fact that the revenue officials had decided a case as regards the entry in the papers of the details of tenure etc. in respect of this land between the parties, and the Collector in that order, directing that the entry of the defendant as grove holder should be replaced by an entry that the land was waste land, mentioned that these four fruit trees were on the boundaries of the field and had recently been planted. There can be no question that these four trees did not suffice to prove the retention of the character of grove by the holding consisting of three bighas. I have, been referred to the case of Azmatullah Khan v. Mangni Ram  A.W.N. 138. That decision only dealt with the right of a grove-holder to replant even after the grove had ceased to exist for a year. It is not relevant to this case, which has been brought by the zamindar at a time when the grove is not in existence. As a finding of fact I do not consider that the lower appeal late Court's finding can be upheld.
5. It has been objected by the respondent's counsel that in this second appeal I am not entitled to reverse a finding of fact. It is sufficient to say that in my opinion the finding of fact by the lower appellate Court was based on a misdirection of itself in respect of the law. The nature and quantum of evidence required to prove that what was once grove land has ceased to retain that character is a question of law. When a Court has misdirected itself on this point it is impossible to maintain its finding on the particular case as a finding of fact. The lower appellate Court has in effect held that a grove-holder can allow the trees in a grove to dwindle down to what is practically nil without losing his right as grove-holder.
6. It appears to me that the proper view of the law, as it existed before the passing of the Tenancy Act of 1926, was rightly expressed in the new Tenancy Act. According to that Act so long as any considerable portion of a plot granted for a grove is allowed to contain a sufficient number of trees to prevent that portion from being cultivated, assuming the trees to have reached their full size, the whole plot granted will retain the character of grove but not otherwise.
7. For the above reasons, I grant the appeal and decree the suit with costs throughout to the plaintiff.