1. This is a defendant's appeal arising out of a suit brought by a zemindar for recovery of possession of four mango trees which had been purchased by the defendant in execution of a mortgage-decree against the widow of Dubri Koeri, a tenant. The plaintiff's case was that his tenant had no transferable right in this grove-land. The main plea on behalf of the defendant was that his mortgagor had the rights of a grove-holder in this plot and that the trees were saleable. Both the Courts below have decreed the suit.
2. It appears that at the time of the Settlement in 1869, the ancestor of Dubri Koeri was recorded as an occupancy tenant of plot No. 293 which was shown as a culturable area. A portion of this plot seems to have been reserved for cultivation but on another portion some mango trees were planted. About the year 1899 this plot was divided into sub-divisions, namely, plot No. 293-1 and 293-2 and at the recent Settlement 293-1 was recorded as occupancy holding and 293-2 was described as a grove. Subsequently, this Sub-Division 293-2 came to be recorded as Parti Qadim (old waste land). At the time of the Settlement there were only four mango trees on this plot. It is really a mishomer to call plot No. 140 a grove. On the findings recorded by the lower Appellate Court, these trees were, planted presumably with the consent of. the zemindar on the occupancy holding by the tenant. The tenant can, therefore;' acquire no transferable right in the trees standing on the occupancy tenancy. This view is supported by the case of Daya Kishen v. Mohammad Wazir Ahmad 30 Ind. Cas. 565 : 13 A.L.J. 833. The learned Vakil for the appellant relies on a string of cases reported as Muhammad, Ismail Khan v. Mithu Lal 17 Ind. Cas. 656 : 11 A.L.J. 649, Habibullah v. Kalyan Das 25 Ind. Cas. 169 : 12 A.L.J. 1080 and Muhammad Yasin v. Ilahi Bakhsh 16 Ind. Cas. 455 : 34 A. 545 : 10 A.L.J. 73, but in all those cases land had been expressly granted by a zemindar to a tenant for the purpose of planting a grove. In those cases trees had not been planted on an occupancy land. They are, therefore, clearly distinguishable from the present case, which is really governed by the case first mentioned. The lower Appellate Court has found that the plaintiff zemindar himself has been in actual possession of these trees and also of the culturable area of the land for some time past. The mortgagee took the mortgage with his eyes open and he has himself to thank for the consequences. The result is, that this appeal fails and is hereby dismissed with costs.