1. This is a second appeal by the plaintiff a portion of whose suit has been dismissed. The plaintiff sued as the zamindar of a certain village in Jaunpur District, stating that the defendants were tenants and that in certain plots with which the defendants had no concern the defendants had planted a large number of Mahua and mango trees and bamboo clumps. The two plots in question Nos. 437/2/2 and 424/1 comprise about 9 1/2 acres. The plaint asked that the plaintiff might be put in possession of these plots by removal of the trees planted by the defendants. The defendants set up various pleas admitting that the trees existed on the land in dispute against the will of the plaintiff and claiming that the defendants were former zamindars and that the land in question was not sold when their zamindari was sold and that they had rights in the land in question and that the land constituted a grove. An issue was referred to the Revenue Court which found that the defendants were not grove-holders in the land in question, and this finding of the Revenue Court was upheld by the lower appellate Court. The Court of first instance applied Article 32, Limitation Act, to the case and granted the plaintiff a decree directing defendants 1 to 5 to remove the trees which were under two years old and restraining these defendants by an injunction from planting any new trees. The claim was dismissed in regard to trees which were more than two years old. The plaintiff appealed and the defendants filed cross-objections. The lower appellate Court dismissed the appeal of the plaintiff agreeing that the proper article to apply was Article 32.
2. The chief point argued in second appeal is that Article 32 which prescribes a period of two years limitation does not apply. That article is stated to deal with a suit 'against one who, having a right to use property for specific purposes perverts it to other purposes.' The defence is based largely on an admission by the pleader for the plaintiff in the present suit which is translated at p. 19 of the paper book. This statement sets out that the defendants and other residents of the village can graze their cattle on kot land (that is one of the numbers) during the rainy season and their cattle can lie on it and can walk on it and defendants and residents of other villages can use it to attend to the call of nature and as threshing floor and far preparation of cowdung cakes, for sugar mills and cattle troughs, etc. All these rights (haquq) have been allowed by the zamindar to the tenants and to the defendants by way of favour. It was further stated that the defendants had no right to plant any new trees without the permission of the zamindar.
3. For the defendants it is argued that the use of the word haquq implies that the defendants had rights in this land and therefore a right to use the property for specific purpose is within the meaning of Art 32, Schedule 1, Limitation Act. We do not consider that by the mere use of the word 'haquq' counsel for the plaintiff meant to make any such admission and even if this were considered an admission the case must be decided on the evidence. The Court below has not found that there was any right to use the property within the meaning of the use of the word right in Article 32. The way in which the Court finds that the defendants could use the property in our opinion amounts to a mere user by way of license in common with persons from other villages. Article 32 in our opinion deals with the case of a person having legal right to use certain property. Two cases have come before this Court dealing with similar matters. The first ruling is reported in Musharraf Ali v. Iftekhar Hussain (1888) 10 All. 634. In that case a zamindar brought a suit for injunction to have certain trees removed from waste land on which the defendants had planted them. It was held that such a suit was governed by Article 120 and not by Article 32. In Muhammad Shafi v. Bindeshri Saran Singh 1924 All 443, there was a case under similar circumstances where the difference lay that the plaintiff sued for possession as in the present case. As the plaintiff, sued for possession it was held that the period of limitation in a suit for possession under these circumstances was 12 years. Presumably Article 142, Limitation Act, was applied. Learned Counsel has relied on a ruling of the Oudh Chief Court, 93 I C 89 (3), where a plaintiff zamindar brought a suit to restrain the defendant from burying his dead in a portion of a ground used as a public grave-yard and for removal of trees eight years after they were planted and for possession of the site. It was held that the claim for removal of the trees was governed by Article 32 and was barred by time. We consider that this case was different because the land being a grave-yard the plaintiff was not entitled to sue for possession which was refused.
4. Some further argument was made that an inference drawn by the first Court that trees had been planted with the tacit permission of the zamindar so far as the trees over two years of age were concerned has not been set aside by the lower appellate Court. As regards this permission there was no pleading of consent; on the contrary, in para. 5 of the written statement the defendants definitely admitted that the trees had been planted and maintained against the will of the plaintiff. We consider therefore that no such inference could be drawn in this case contrary to the pleadings.
5. We consider that the case is governed by Article 142, Limitation Act. The finding of the lower appellate Court is that the trees are of a less age than 12 years. We accordingly allow this appeal and grant the plaintiff a decree for possession of the plots with the removal of all the trees with costs throughout.