1. The facts of the suit out of which this appeal has arisen are these. Dammer Singh planted certain trees upon his occupancy holding forty years before the date of the suit with the consent of the zemindars. He mortgaged the trees to Hardial Singh in 1908. Hardial Singh obtained a decree on his mortgage in 1918. In 1919 Dammer Singh was ejected. When Hardial Singh endeavoured to execute his decree by bringing the trees to sale the zemindars instituted the suit for a declaration that the trees could not be brought to sale. The suit has been decreed by both the Courts below. A copy of the wajib-ul-arz of the village was put in evidence. This wajib-ul-arz declared what the custom was in the village with regard to trees that -were not a portion of groves. It declared that such trees as are in possession of the persons who have planted them on the fields or on the ridges may be out and sold by the tenants of the fields. I understand the Courts, below to have agreed that the wajib-ul-arz contained a record of the custom on the subject but that they have interpreted the wajib-ul-arz to show that tenants have no right to transfer the trees standing upon their occupancy holdings, even if such trees had been planted by the consent of the zemindars. In other words, if the interpretation of the ioajib-ul-arz favours the tenants, the custom is established that they can transfer and the point is one of law. The learned District Judge has said: The custom in respect of the tenant's groves recorded in the wajib ul-arz of the old Settlement is also relied on by the appellant. I have read the provision which is to the effect that tenants are owners of trees planted by them with the consent of the zemindars and can cut down trees and sell timber of their own accord. It nowhere provides that tenants can transfer trees growing on their holding. The wajib-ul-arz relied on by the appellants is, in my opinion, of no help to him as I think the hypothecation of the trees on the holding by the tenant ceases to be enforceable after his ejectment in spite of the fact that a decree has been obtained before such ejectment.'
2. I do not accept this interpretation. It appears to me clear that, whatever may be the law with respect to trees planted by tenants without the consent of the zemindars in this village, trees planted upon holdings (whether they are or are not occupancy holdings would be of no consequence) with the consent of the zemindars are transferable by the tenants and, in these circumstances, the suit must fail. The decision quoted by the learned Counsel for the respondents and by the Courts below are against the success of the suit and not in favour of it. I shall take these decisions more less in order. In Ajudhia Nath v. Sital 3 A. 567 : A.W.N. (1881) 30 : 2 Ind. Dec. (N.S.) 310, it was laid down by a Bench that a tenant with a right of occupancy can only make a valid hypothecation of the trees on the land he holds for the term of his tenancy; with his ejectment from such land and cessation of his tenancy such a hypothecation ceases to be enforceable. That of course is the law in the absence of a custom. In the decision in Deoki Nandan v. Dhian Singh 8 A. 467 : A.W.N. (1882) 192 : 5 Ind. Dec. (N.S.) 181, the law was laid down in much the same way with regard to proprietary holdings.
3. The law as laid down in these two decisions does not really touch the point as to what will be the effect of a custom. But in the next decision Imdad Khatun v. Bhagirath 10 A. 159 : A.W.N. (1888) 32 : 6 Ind. Dec. (N.S.) 107, the Bench while laying down that the trees upon an occupancy holding whether planted by the tenant himself or not are not susceptible of transfer by the tenant, made a clear exception to that general rule in a case in which by a local custom the occupancy tenant had a transferable interest in the timber, and in Kausalia v. Gulab Kuar 21 A. 297 : A.W.N. (1899) 72 : 9 Ind. Dec. (N.S.) 898, the same rule as to custom was laid down. There has been no contrary view taken' in any of the subsequent cases. I need only quote the most recent case that I have been able to find Dya Kishan v. Muhammad Wazir Ahmed 80 Ind. Cas. 565 : 13 A.L.J. 833. There the point was decided against the tenant because although he set up a custom of transfer he was unable to prove it. In this case under the special custom of the village a tenant, whether he is or is not an occupancy tenant, has a right of transfer in trees which he has planted on his holding with the consent of the zemindar. This decision concludes the matter. Such being the case the suit must fail. I allow the appeal accordingly and direct that the suit stand dismissed and that the plaintiffs pay their own costs throughout and those of Hardial Singh, appellant. These costs will include fees in this Court on the higher scale.