1. The plaintiff in this case is the zemindar of a certain village and the defendants cultivating tenants residing in the same village. The suit was brought on the allegation that the defendants had cut down eight trees standing on their holding which was the property of the plaintiff. The latter accordingly claimed damages in respect of the said trees, and asked also for a declaration that a number of trees standing on a certain specified plot in possession of the defendants are the property of the plaintiff, and for the issue of a perpetual injunction against the defendants to prevent them from cutting down or in any way appropriating the same. The lower Appellate Court found that the trees alleged to have been cut down by the defendants stood in an old garden or orchard along with a number of fruit-bearing and other trees. He has found that this orchard was planted many years ago by the ancestor of the defendants. He has held the property in the trees to vest in the defendants and has accordingly dismissed the plaintiff's suit.
2. It has been contended in second appeal, first of all, that these findings of fact were not open to the learned Additional Subordinate Judge on the pleadings. I am not prepared to accept this contention, The written statement is loosely drafted, but it does not contain any express admission that the plot of land mentioned in the plaint is a tenant-holding of the defendants of any of the descriptions referred to in the Agra Tenancy Act (Local Act II of 1901). I do not think the defendants ever intended to admit that their relationship towards the plaintiff in respect of this plot of land was merely that of tenants of agricultural land of any of the descriptions given in the aforesaid Tenancy Act. The learned Munsif who tried the case in the first instance does in one place speak as if it were an admitted fact that the trees in question stood on an occupancy holding of the defendants : but I. think he is using that expression loosely. It is quite beyond question that it was never admitted on the part of the defendants that the trees were planted by them or their ancestors in an occupancy holding. They pleaded that the planting of the trees took place while their ancesters were zemindars of the village.
3. In the second place it is contended that the finding of the lower Appellate Court as to the ownership of these trees is vitiated by a misconception of the law on the subject. I take it to be established by a number of rulings of this Court, of which the cases of Lachman Das v. Mohan Singh 14 Ind. Cas. 582 : 9 A.L.J. 672. and of Ganga Dei v. Badam 30 A. 134 : 5 A.L.J. 99 : 3 M.L.T. 194 : A.W.N.(1908) 81. may be taken as specimens, that the trees planted by tenants on their holdings will be the property of the zemindars and the tenants will have no transferable right therein. At any rate this will be presumed in the absence of evidence to the contrary. On the other hand,' it has been clearly laid down in the case of Ismail Khan v. Mithu Lal 14 Ind. Cas. 799 : 9 A.L.J. 483. that, where a plot of land is let for purposes of planting a grove thereon, the presumption, in the absence of evidence to the contrary, will be that the trees so planted are the property of the grove-holder and that he will have a transferable right therein. The finding in the present case appears to be that this grove or orchard was planted by certain persons, ancestors of the defendants who were at the time proprietors of the village, with the consent of the general body of the proprietors : Prima facie the trees would remain, as found by the learned Judge of the lower Appellate Court, the property of the descendants of the persons who planted the grove. An ingenious argument to the contrary has been put forward on behalf of the appellant, based on a decision of a Full Bench of this Court in Jugal v. Deoki Nandan 9 A. 88.
4. That was a peculiar case, inasmuch as it was a purchaser of proprietary rights in a village who, by attaching and seeking to bring to- sale certain standing timber, was claiming that the tenants on whose land the timber stood had transferable rights therein. The said tenants, who were former zemindars of the village, pleaded that the trees in question stood on their ex-proprietary holding and their interests in the trees partook of the nature of their interests in the holding as such, and were, therefore, not transferable. The case had to be dealt with on the admitted fact that the trees stood in an ex-proprietary holding created by statute under the provisions of the former N.-W. P. Rent Act (Act XII of 1881), and on that basis it was decided. The tendency of recent decisions has been to doubt whether the interests of a grove-holder as such, in land granted to him for the purpose of planting the grove can be treated as forming a tenant-holding of any of the descriptions defined in the Agra Tenancy Act (Local Act II of 1901). I may refer to such recent cases as Muhammad Yasin v. Nahi Bakhsh 16 Ind. Cas. 455 : 34 A. 545 : 10 A.L.J. 73., Hadi Hasan Khan v. Pati Ram 19 Ind. Cas. 416 : 11 A.L.J. 236 : 35 A. 200. Muhammed Ismail Khan v. Mithu Lal 17 Ind. Cas. 656 : 11 A.L.J. 649. The pleadings in this case and the findings arrived at by the lower Appellate Court do not justifiy the conclusion that the plot of land in dispute is an ex-proprietary holding created by statute in favour of the defendants and that their interests in the trees standing thereon are clearly limited by the provisions of statue law applicable to ex-proprietary holdings. For these reasons I hold that this appeal cannot prevail. I dismiss it with costs.