1. This is a plaintiff's appeal. His suit was decreed by the Court of first instance, but dismissed by the lower appellate Court. The facts which have given rise to this appeal may be briefly stated. The plaintiff brought a suit for ejectment of two defendants Bhikam Singh and Ram Chandar Singh from plot No. 321 on the allegation that the defendants were non-occupancy tenants of the said plot. It was further distinctly mentioned in the plaint that the defendants held the land claimed as grove-holders and as the grove had been cut down therefore the defendants as non-occupancy tenants were liable to be ejected. Ram Chander pleaded that the possession of the defendants was that of a proprietor. Bhikam Singh pleaded that the land in dispute was muafi given in charity to the contesting defendant which was purchased at a sale by public auction by Nand Lai Singh, the maternal grandfather of the contesting defendant, and after the death of Nand Lal Singh, the contesting defendant became the owner as an heir of his maternal grandfather, Nand Lal Singh and has up to this time been the owner thereof. It was also alleged that the defendant had legally acquired a right of ownership to the said muafi given in charity and therefore the provisions of Section 86, Act 3 of 1926 did not apply to the case.
2. At a later stage Ram Chandar stated that he had been ejected by the other defendant, namely Bhikam Singh, and Ram Chandar was therefore exempted. The controversy therefore remains with the plaintiff on the one side who alleged the defendant to have been a grove-holder, but who had become a non-occupancy tenant as the grove had been cut down and the defendant Bhikam Singh who alleged himself to be a proprietor. It was clear that the plaintiff was trying to obtain the benefit of Section 197, Clause (a), Agra Tenancy Act. The defendant Bhikam Singh nowhere alleged in his written statement that the land was not a grove, but he must be deemed to have alleged that he was a rent free grantee to whom Section 186, Tenancy Act, applied and who thus had become the proprietor. The revenue Court sent an issue on the question of proprietary title to the civil Court, and the civil Court after taking such evidence as was produced before it came to the conclusion that the defendant was not a proprietor. At this stage it is necessary to mention that the defendant himself was not present before the civil Court, but his father was, who put in some documentary and oral evidence. The civil Court came to the conclusion that the defendant was not proprietor. On receipt of this finding the revenue Court held that the defendants were non-occupancy tenants and were liable to be ejected. It started its judgment by saying that the suit was for the ejectment of grove-holders which grove had been cut and removed and it observed that Bhikam Singh was not a muafi khidmati holder of the land in dispute. The defendant appealed and it was nowhere pleaded that the land was not a grove, but it was once more alleged that the defendant had become a proprietor. The learned District Judge on appeal confirmed the finding of the trial Court that the provisions of section 186, Agra Tenancy Act, did not apply, but he went on to observe that it did not follow therefrom that the provisions of Section 184, Agra Tenancy Act, also did not apply and from two extracts of the patwari's papers it appeared that the land was held rent free and therefore the only remedy open to the plaintiff was either to have the rent fixed on the land under section 187, or to sue for an ejectment under Section 188, Agra Tenancy Act. An attempt was made before the lower appellate Court to produce some additional evidence in appeal. On this point the learned Judge says that the defendant's father appeared in the civil Court below and
put in some documentary evidence and also an oral statement on oath. It is not open to the defendant to argue now that as he himself was not present the evidence that ought to have been produced could not be produced and I cannot allow him at this late stage to produce further evidence in the case. His application for admission of further evidence has therefore been rejected by me.
3. It would therefore appear that no attempt was made for the admission of some further evidence after the documentary evidence filed by the plaintiff's father and the oral statement given in the trial Court and the learned District Judge therefore was of the opinion that fresh evidence should not be admitted in appeal. I have mentioned this aspect of the case in some detail because even before me the respondents' counsel suggested that the case should be sent back for production of fresh evidence and for the determination of one issue which I shall mention presently, but I am of the opinion that under the circumstances of the case the defendant should not be given this indulgence, the indulgence of being allowed to tender further evidence.
4. The position now is, the learned Counsel argues, that the defendant must be deemed to be a non-occupancy tenant and the decree of the Court of first instance was correct. His contention is that the defendant having been held to be a person to whom the provisions of Sections 185 and 186 did not apply can be nothing but a grove-holder. A grove-holder is denned in Section 196, and even a rent free grantee may be a grove-holder provided the provisions of Section 185 or Section 186, did not apply and to whom land has been let or granted by a landlord for the purpose of planting a grove or who has planted a grove subsequently after permission by the landlord. There is a proviso that if the permission was granted prior to the commencement of the Act the permission need not have been in writing and may have been either express or implied. The result is that on the findings of the lower appellate Court which findings have not been challenged before me in appeal by the defendant, the defendant can at best be said to be a rent free grantee to whom the provisions of, section 185 or Section 186 did not apply to whom the land was either granted by a landlord for the purpose of planting a grove or who planted a grove with the implied permission of the landlord. It was contended by the respondent that I should remit an issue on this point, but I am not prepared to do so because on the materials on the record it is quite clear that the defendant can not be anything but a grove-holder as defined in Section 196. The plaintiff sped ideally stated in the plaint that the defendant was a grove-holder and the grove had been cut down. This fact was not expressly denied by the defendant in the written statement. He filed a sale certificate of the year 1901 which he alleged to be the basis of his title and in that sale certificate the land is stated to be a grove. The learned Assistant Collector held that the suit was for the ejectment of a grove-bolder the grove having been cut down and re moved, and this statement was not challenged in appeal before the lower appellate Court by the defendant. Further on the findings of the Courts be low it is clear that the defendant having been held to be a rent free grantee to whom the provisions of Section 185 or Section 186, did not apply, the defendant is a grove-holder and it is common ground that the land is not covered by trees now. The position therefore is that under Clause (h) of Section 197, when a person becomes a grove-holder in respect of land of which he is a rent free grantee, he shall hold such land as grove-holder in supersession of all subsisting rights and liabilities so far as they are inconsistent therewith, and under Clause (a) it will be presumed that a grove-holder holds the land in respect of which he is a grove-holder as a non-occupancy tenant when the land ceases to be a grove land. The rights and liabilities which the defendant might have acquired under Section 187 or Section 188, Tenancy Act, are inconsistent with the liability which the defendant has incurred by reason of the fact that the land has now ceased to be a grove and he necessarily will be presumed to be a non-occupancy tenant under Clause (a) of Section 197.
5. For the reasons given above, I allow this appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance. Leave to file an appeal by way of Letters Patent is granted.