1. This is a suit by a zamindar for possession of a plot of land by ejectment of the tenant in possession on the allegation that it had ceased to be a grove, in that on the whole area of 176 acres there were only left two mango trees. Both Courts have found that on the whole area there were only remaining two mangoes, three self-planted babul and some 8 berri (plum) trees, and, holding that the area had lost its character as a grove, have decreed the plaintiff's claim.
2. I have been pressed with the decision of two learned Judges of this Court upholding in Letters Patent Appeal a judgment of a single Judge, the case of Mahbub Ali Khan v. Chiddan (1). The judgment, as reported, was difficult to understand and there seemed clearly something wrong. I sent for the original judgment, and all ambiguity vanished when the original judgment showed that there was a clerical error in the report, live lines from the bottom of page 600, where the figures '35 biswas' should be '15 biswas.' A correction of the clerical error is vital in view of the remark in the judgment of the Division Bench reported at page 602, where it is said:
It is not correct to stay that because small portions of the plots have been brought under cultivation the lands have ceased to retain their character as groves;
and that was clearly the unexpressed basis of the judgment of Mr. Justice Mukerji after he had held that the contract was indivisible. I note also that the putting into italics of the passage at p. 601 is also a reporter's error
3. It has been held in some cases that the zamindar could eject the tenant from that portion of the grove which had ceased to be used as a grove. The decision of this Court to which I have referred, though it does not specifically mention those cases, is based on a principle which involves holding that such decisions are wrong.
4. In Mahbub Ali Khan v. Chiddan : AIR1926All519 , and in the two cases relied upon therein, Jwala Singh v. Saheldin Singh  9 O.C. 109, and Har Sahai v. Dhanpal  2 O.L.J. 589, it was held, firstly, that the contract was indivisible, and secondly, that, as the proportion which the land brought under cultivation bore to the land remaining covered with trees was not so great as to justify holding that the whole land had lost its character as a grove, the whole area must, therefore, be treated as still a grove.
5. I entirely agree with the proposition that the area given to the tenant as a grove must be treated as a whole; that the whole was the subject of a single contract and that contract must stand or fall as a whole. I do not find myself, however, in agreement with the view that if the proportion cultivated or left for a considerable period without replanting, bears only a small proportion to the whole, the whole must be treated as still a grove and the zamindar's suit dismissed. It appears to me that if in the circumstances of the case Mahbub Ali Khan v. Chiddan : AIR1926All519 , the tenant had originally asked the zamindar for a contract that he might use 25 biswas out of the 40 as a grove, and use the other 15 biswas as he pleased, the zamindar would presumably have refused. To hold, then, that the whole must still be treated as a grove appears to me to force upon the zamindar a new contract. In my opinion, if the agreement between the zamindar and the tenant was that the tenant should have the specified area for the purposes of a grove, and the tenant either does not use a definite ascertainable portion, even a small portion, of that area for the purposes of a grove, by neglecting to replant for a considerable period, or affirmatively uses a definite ascertainable portion, even a small portion, for some other purpose, e.g., ordinary cultivation, or building a house, he has committed a breach of his contract, and the only question is, what is the remedy of the zamindar. I am not satisfied that it is correct to hold that because the breach of the contract was comparatively a small one, therefore, the zamindar has no remedy at all and in effect will have a new contract forced on him.
6. If, then, it is correct to hold, in the circumstances of the case, that there has been a breach of the contract, we next have to see what are the zamindar'a remedies. The only sections of the Contract Act applicable are Sections 39 and 73. Section 39 reads:
When a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance.
7. The zamindar is then entitled, if there has been a breach of the contract in regard to a definite ascertainable portion of the area, to put an end to the contract, unless he has acquiesced in the continuance of the contract. In the present case there is no finding as to the exact area in regard to which a breach of the original contract has been committed. But it is unnecessary to remand the case for a finding as to whether there is or is not a definite area, for it is manifest from the paucity of the trees left that a breach of contract has been committed in regard to the groat bulk of the area.
8. The next question is whether the zamindar has acquiesced in the breach. It is his own case that for many years there has been no replanting, and to that extent he must be held undoubtedly to have acquiesced in what has occurred in the past, and to that extent he must be held to have deprived himself of the right to any damages under Section 73, even if he had asked for them, which he has not. But I do not think that fact debars him from now saying: 'I no longer acquiesce,' for no equities have arisen upon the basis of which his right could now be held to be barred. This appears to me sufficient for a decision of the case. The tenant has broken his contract and the zamindar is entitled to put an end to that contract. In the case breach has been committed in regard to the great bulk of the area, but, on the principle which I hold to be applicable, the result would be the same if the area in regard to which the breach was committed, was comparatively small, provided that it was definitely ascertainable.
9. Though the principle on which I would decide these cases is not wholly in accordance with the principle on which Mahbub Ali Khan v. Chiddan : AIR1926All519 and other cases have been decided, I do not think that it is necessary for me to refer this case to a Division Bench, for there is no doubt, but that their Lordships who decided the case of Mahbub Ali Khan v. Chiddan : AIR1926All519 would have arrived in this case at the result at which I have arrived.
10. The result is that the plaintiff's suit was in my opinion rightly decreed by the Court of first instance. The trial Court gave the plaintiff a decree subject to a reservation of the right of the tenant in the two mango trees remaining. It may be that as a result of the breach of his contract, in the view that I take of it, the defendant tenant would have no right to any such reservation in his favour in regard to the two mango trees, but I have no cross-objection before me and it is unnecessary for me to deal, with that.
11. The appeal is dismissed with costs.