1. In this suit it is clear that the plaintiff-appellant has not been fairly treated. In 1904 he purchased what were apparently full proprietary rights in the land in suit, which was called in the sale-deed a grove. There is no evidence to show that he has lost his rights either by voluntary transfer or by operation of law, or, in any other way. He was dispossessed by the defendant respondent in 1922, and when he tried to assert his rights in Court, the revenue Courts would not help him because they said he was not an occupancy tenant, and in the present proceedings the civil Courts have refused to come to his aid because they have held that he is suing as an occupancy tenant and is barred by Section 73, Tenancy Act.
2. It is necessary for the sake of clearness to re-state the facts somewhat fully. In 1904, the appellant bought the land in suit from the zamindar Mr. Gardner. The sale-deed is on the file. The land is described as a grove, being part of the zamindari of Mr. Gardner. The conveyance is stated to be:
an absolute sale of the whole of the said grove together with the site thereof and... trees standing thereon and all the rights and interests appertaining to the said grove.... I have put the vendee in proprietary possession of the grove sold in my place and I have severed all my connexions with it in favour of the vendee.... The said vendee should consider himself to be the permanent owner of the grove sold and remain in proprietary possession thereof and exercise all proprietary powers.
3. I have thought it necessary to quote from the deed at some length because the construction of the deed by the lower appellate Court is that the plaintiff appellant had occupancy rights in the plot in suit at the time after the sale, in spite of the facts that full proprietary rights had been transferred and that the land was undoubtedly at that time a grove. Although the fact was concealed in the sale-deed the whole of the vendor's zamindari was subject to a mortgage held by one Buldeo. The mortgagee brought a suit for sale in 1910 and made the present appellant a party to the suit, presumably on the ground that he was a subsequent transferee of a part of the mortgaged property. The appellant made objections to the sale in regard to the grove purchased by him, and in the decree which was obtained by the mortgagee this area was exempted from sale. The order of the Subordinate Judge was:
his occupancy rights in the area sought to be sold shall not be affected by the sale.
4. This decree was based on a compromise in which the plaintiff's rights are referred to in the vernacular as 'hoquq dakhilkari.'
5. Now, whether full proprietary rights were conveyed to the appellant by his vendor in the deed of 1904 or not, it is clear that those rights were subject to the mortgagee rights of Baldeo, and that they were modified by the compromise and decree of 1911 and that in order to discover what 'the appellant's interest in the land in suit was, it is necessary to compare the sale-deed and the decree, to which the vendor, vendee and mortgagee were all parties, in order to find out how the one was modified by the other. If the defendant was a grove-holder holding under the zamindari, it would apparently not have been necessary to make him a party to the mortgage suit, for the sale of the proprietor's right in the land would not have affected his rights if he had only been a grove-holder with the right of occupying the land under a contract to the proprietor to maintain a grove in it. It does not appear from the decree that the proprietary rights in this grove were surrendered by the mortgagee. The appellant was only concerned to retain his right to occupy the land for the maintenance of a grove, and this is evidently what the decree retained for him. The fact that the words used are 'occupancy rights' has evidently misled the lower Courts. 'Hoquq dakhilkari' is an expression that is used for occupancy rights of agricultural land as defined in the Tenancy Act, but it literally only means a right of possession. There is absolutely no doubt that the land in suit was grove when it was sold to the appellant and there is nothing to show that it had lost its character as a grove before 1911. It is obvious that between 1904 and 1911 the appellant would not have had time to acquire occupancy rights as defined in the Tenancy Act in the land in suit, even if he had cut down all the trees and cultivated the land as soon as it was sold to him, To construe the decree, therefore, as if the words 'occupancy rights' meant 'occupancy rights' as defined in the Tenancy Act is clearly wrong.
6. The decree given in favour of the mortgagee in 1911 was attached by a simple money decree-holder in satisfaction of whose decree the mortgaged property was sold by auction, and purchased by the defendant-respondent, who dispossessed the appellant in November 1922, and obtained mutation in the revenue Courts. The appellant objected in the mutation proceedings, but was held not to be entitled to have his name entered in the 'khewat.' This no doubt was because he had lost his proprietary rights, if he ever owned them, by the decree of 1911. In a further enquiry the revenue Courts decided that he was not an occupancy tenant, that is to say an occupancy tenant of agricultural land, as defined in the Tenancy Act. He, therefore, filed the present suit, which has not been disposed of on its merits at all.
7. The trial Court framed one issue.
Is the suit cognizable by this Court?
8. After noticing one or two documents in which the land in suit is described as 'ek kitah bag dakhil kari,' the Court decided that the land was occupancy holding and that the suit was, therefore, beyond the congnizance of a civil Court. The lower appellate Court refers to the facts that appellant had purchased zamindari rights in 1904 and that under the compromise decree of 1911 he retained hoquq dakhilkari; and after making some vague conjectures as to what the appellant must have been doing in the land before 1904, concludes that the present suit has been brought by an occupancy tenant for recovery of an 'occupancy holding' against his landholder, evidently using that expression in the technical sense of the Tenancy Act.
9. The findings are clearly wrong, and very little attempt has been made on behalf of the respondent to suggest that they are right. There was no direct evidence before the lower Courts to prove that the area had ever been cultivated, or to disprove the recitals in the documents and the statement of the appellant that the area had always been a grove. It is admitted that occupancy rights in the technical sense could not have been acquired in the grove. It has been suggested that the grove may have lost its character, and been cultivated by the appellant, and that his zamindar may at some time have presented to him the status of an occupancy tenant under the Tenancy Act. There is no evidence whatever for this, nor has it been shown to me that a zamindar can present to a tenant the status of an occupancy tenant as defined in the Act, though, no doubt, he may allow a tenant some of the privileges of an occupancy tenant if he wishes to do so. The only point that has been pressed strongly on behalf of the respondent is that the finding of the lower appellate Court is a finding of fact which cannot be interfered with in second appeal. I have considered the matter carefully. The finding appears to me to be based entirely on a misconstruction of the expression hoquq dakhilkari in various documents and a misapplication of the definition of an occupancy tenant in the Tenancy Act. The issue before the Courts was an issue of jurisdiction, pure and simple, and the merits of the case have not been weighed at all. Even now it is not possible to decide with absolute certainty whether the civil Court has jurisdiction or not, though the evidence that has been recorded so far certainly suggests that the appellant was a grove-holder when he was dispossessed and that he had, therefore, a right to apply to the civil Courts for relief. At any rate, it is clear that the evidence on the file was not sufficient to enable the lower Courts to decide that they had no jurisdiction to try this suit. I, therefore, frame the following issues under Order 41, Rule 25 and refer them for trial to the lower appellate Court:
1. Has the land in suit ever lost the character of a grove? If so when?
2. If not, by what right did the defendant dispossess the plaintiff after the auction sale of the proprietary right in 1921?
3. To what mesne profits or damages is the plaintiff entitled?
10. The parties will be allowed to produce any further evidence that may be necessary for the decision of these issues, and the findings should be returned in three months.