1. This appeal arises out of one of the many cases of small valuation in which zemindars endeavour to exercise pressure upon their tenants by distorting the facts. The facts are these:--In the village of Govindpur in the Moradabad District was grove No. 183 in area either 2 bighas and 19 biswas or 2 bighas and 9 biswas. In one set of proceedings the first area is given and in another set of proceedings the second area is given, but there can be no doubt as to the identity of the grove. It is No. 183. This grove was originally granted to a man called Chhidda. He died some years ago. It was recorded as rent-free muafi. On Chhidda's death Sirajuddin and his other sons who are occupancy tenants in the village succeeded to the grove. They are still in possession. In 1913 Ahmad Husain, the present plaintiff-appellant, instituted proceedings in the Revenue Court against the sons of Chhidda for resumption of this grove which he describes as a rent-free grant. The Assistant Collector, decided, on the 17th February 1914, that the grant was a rent-free grant but that it was not resumable. He noted in his judgment that at that time there were cow-shed and other buildings for agricultural purposes upon the land, hut the land was still a grove. In appeal the Commissioner decided, on the 26th May 1914 that the Rent Court had no jurisdiction as the grove had not been granted nor was it held for agricultural purposes. He accordingly upheld the order of dismissal of the suit and referred the patties to the Civil Court. In 1920 Ahmad Husain instituted the suit out of which the present appeal has arisen against Sirajuddin on the allegation that Sirajuddin and his brothers had cut down some of the trees in the grove ana constructed buildings upon it in some of which buildings persons resided. He nowhere suggested that the land had ceased to possess the characteristics of a grove. He asserted that Sirajuddin and his brothers had agreed to pay him rent in respect of the buildings constructed and that they had not done so for three years. He claimed 12 rupees as arrears of rent or in the alternative 12. rupees as damages for use of the bouses, or any other relief which the Court might deem proper to grant. It is to be observed that he in no way challenged he title of defendant as a grove-holder of a rent free muafi grove and that he set up a specific agreement to pay rent, putting it, it is true, in the alternative, that if he could not prove his specific agreement he should be granted damages. He made no attempt to explain how be had a cause of action for damages. The Trial Court found that there was such an agreement to pay rent and decreed the suit. The lower Appellate Court found on the facts that there was no agreement to pay rent. It, therefore, dismissed the suit. The plaintiff appeals here. He takes two grounds that the defendant having been a rent free tenant of the grove had no right to convert the land into a site of houses for residential purposes and that he was entitled, to damages for use and occupation.
2. The finding of fact that that was no agreement to pay rent is final. The case then stands thus: The defendant has cut down a certain number of trees in the grove which he holds rent-free. The Revenue Courts have held that the special provisions of the Tenancy Act which permit zemindars to resume rent-free grants has no application in this case. There is nothing in the civil law which would permit the resumption of this grove. So the defendant is holding in perpetuity this grove without payment of rent. So long as the land has the characteristics of a grove he cannot be ejected. The plaintiff never suggested that the land has lost the characteristics of a grove. While it has the characteristics of a grove the defendant can do what he wishes upon it. There is no objection, if he chooses, to his constructing houses for agricultural purposes or for any other purposes upon it. If he wishes to construct a residential house upon it he has every right to do so. When the land loses its characteristics of a grove the case may be altered, but at present the plaintiff has not even suggested that the land has lost its characteristics as a grove. The learned Subordinate Judge rightly dismissed the suit. I dismiss this appeal with costs which include fees on the higher scale.