JUDGMENT
1. This suit arises under the following circumstances. The defendants are zemindars of the village. On July 27th, 1877. their ancestors gave a plot of land, 5 bighas 13 biswas in area, to Devi Das and Man Singh for the purpose of planting a grove. The condition was that the vendees were to remain in possession of these plots, plant a grove and pay half the income by way of rent to the zemindars. Devi Das and Man Singh accordingly proceeded to plant the grove in question. They constructed a pucoa well and a piyaoo (place where” water for drinking is kept and supplied) and built a boundary-wall, and remained in possession of the land during their life-time. Some of the zemindars transferred a portion of their zemindari right in this plot by way of two mortgages to Davi Das and Man Singh. Devi Das and Man Singh, therefore, are now mortgagee of a portion of this grove. Devi Das died eleven years ago and man Singh died about nine years before thesuit. They were succeeded by their widows,both of whom are said to have died two years before the institution of the suit. Disputes arose as to mutation of names after The death of the widows. The plaintiffs, who are the nephews of Devi Das and Man Singh, claim possession by right of inheritance and the defendants zemindars claim that the grove in question passed over to them by reason of the widows having died without any heirs, and that, therefore, they were entitled to succeed under the Tenancy Act. The Revenue Courts maintained the plaintiffs in possession to the extent of the mortgagee interest of Devi Das and Man Singh and they maintained the zemindars in possession of the remainder. The plaintiffs have, therefore, now brought a suit for the recovery of possession of so much of the grove as is not in their possession and for Rs. 115 on account of damages for fruit ‘ and ‘ wood appropriated by the defendants. The defence to the suit is that it is not maintainable in the Civil Court that Devi Das and Man Singh were agricultural tenants who had acquired rights of occupancy, that they have died without leaving any heir and the property, therefore, escheated to zemindars. party, were also some minor defences as to the money portion of the claim. The Court below has decreed the claim for possession of the property and for Rs. 15 on account of damages. It has held that the claim was maintainable in the Civil Courts, that Devi Das and Man Singh were not agricultural tenants and that the plaintiffs were their heirs. Dr. Sen has urged that the grove held by Man Singh and Devi Das must be deemed to have been held by them for agricultural purposes and that, therefore, they were tenants within the meaning of that term as used in the Agra Tenancy Act and as the plaintiffs did not share in the cultivation of the holding at the time of the tenants’ death they were not entitled to succession under Section 22 of the Tenancy Act. The first point, therefore, for consideration is whether Devi Das and Man Singh were agricultural tenants and whether they held the land for the purpose of agriculture within the meaning of the definition of that term in Section 4 of the Agra Tenancy Act. Under that Act the term land means ” land which is let or held for agricultural purposes.” What is an agricultural purpose within the meaning of this definition has often been the subject ofcontroversy and the rulings of the Revenue Courts have, by no means, been uniform. In an American case the term agriculture” is defined to be “the art or science of cultivating the ground specially in fields or large quantities including the preparation of the soil, the planting of seeds, the raising and harvesting of crops” [ Dillord v. Webb (1)], and using for an agricultural purpose” is defined in a recently “published American Dictionary of Words and Phrases Judicially Defined as the using of the soil for planting seeds and raising and har vesting of crops and the rearing, feeding arid management of the life stock.”
2. In this case it is clear that the land had not been given for the purpose of growing ordinary crops on the land. It had been given for the purpose of growing trees–both timber and fruit trees. The Board of Revenue in several cases has held that land given for the purpose of planting a grove was not granted for agricultural purposes. Those cases have been referred to in the judgment of the Court below. But in a more recent case the Board of Revenue has thrown doubt upon the point settled by the previous cases. In the Revenue Reports for the Provinces of Agra and Oudh, published by Munshi Banke Behary and Babu Nrit Behary Mathur, at page 70 of Part III, there is a judgment of Sir Leslie Porter and Mr. Darrah, holding that land on which stood a guava grove was land held for an agricultural purpose. In a more recent Cass decided by the Board of Revenue which is published in Part II. of the same reports there is another decision of that tribunal distinguishing the case already cited by me. Mr. Reynolds at page 38 observes in that case as follows : Now that ruling has given rise, I think, to a good deal of misconception and has been extended by the lower Courts beyond the original intention of the then members. It will be noticed that in that case a tenant of a guava grove was seeking to eject the sub-tenant to whom he had let it. A guava plantation is not a grove in the ordinary acceptation of the word, and the Board did not then and has not since fully considered the case when land is given to a tenant for the explicit purpose of planting a grove on it and the land maintains its character of grove land. Now the custom generally prevailing in these Provinces with regard to tenants’ groves was laid down in Select Decision No. 1 of 1892 and it was then clearly decided that the grove-holder is a tenant paying rent. This decision was crystallized in the definition of rent and tenant given in Section 4 (3) and (5) of the Tenancy Act. But groves are, in my opinion, equally clearly not ‘land’ as defined in section 4 (2). If they were land within that definition, there would be no need to differentiate them from, land (as the Act does) in the definition of rent’ immediately following. The reason of this differentiation is, I think, clear when one recollects that, as a rule, under the custom of the country when a mango grove is cut down the land, on which it was, reverts to the zemindar. The grove-holder only owns the trees and has no rights as a rule in the lands after the trees have been cut, though so long as the trees exist he has a right of way over the land to get to his trees and a right to use the land for the purpose of gathering the fruits and tending the trees.” Along with this view of the law expressed by the highest Revenue tribunal, I have to consider the recent decision of this Court on the point in the case of Hadi Hasan Khan, v. Pati Ram (2). Griffin and Chamier, JJ., after considering the cases on the subject, car no to the conclusion that land held as a grove whether on payment of rent or not is land held not for agricultural purposes, and the same view was given effect to by Knox, J., in a case which went up in appeal under the Letters Patent to their Lordships the Chief Justice and Mr. Justice Banerji. The case is that of Muhammed Ismail Khan v. Mithu Lal (3). The point arising in that case was whether the holder of a grove was competent to transfer his right to a third party. If land let for planting a grove, be deemed to be let for agricultural purposes the holder of the grove becomes an occupancy tenant after the lapse of twelve years and he cannot have transferred his right. Both the Chief Justice and Mr. Justice Knox were of opinion, that the holder of a grove must be deemed to have a right to transfer the game. Mr. Justice Banerji was, however, unable to come to the same conclusion. But his judgment in a similar case in which he had come to the same conclusion was taken up in appeal under the Letters Patent before the Chief Justice and Mr. Justice Tndball and their Lordships overruled the contention that the rights of a grove holder were not transferable. It is clear that the consensus of authority of cases decided in this Court as also those decided by the Board of Revenue is in favour of the view that land held as a grove is not held for agricultural purposes.” That being so, the provisions of the Agra Tenancy Act are not applicable. The Civil Court, therefore, had jurisdiction to entertain the case and the provisions of Section 22 of the Agra Tenancy Act were inapplicable. The plaintiffs, as has been ruled by the Court below, are the heirs of Devi Das and Man Singh under the Hindu Law and their claim has been rightly decreed by the Court below. I dismiss the appeal with costs.
