The definition of grove land in Section 3(6) of the U.P. Tenancy Act, 1939, does not exclude cultivation altogether but merely requires that the number of trees be large enough to prevent the land from being used primarily for any other purpose.

( 1 ) THIS is a plaintiffs second appeal from the decision or the Additional Civil Judge, farrukhabad dismissing their suit for recovery of damages against the defendants. The dispute relates to the value of mango fruit alleged to have been illegally plucked from a grove by ttie defendants. The plaintiffs alleged that they and the first defendant were the joint grove-holder of the grove, the plaintiffs share being one half. They complained that in the year of the suit, there was a good crop of mango but the defendants misappropriated the whole of it which they were not entitled to do. The plaintiffs valued the crop at Rs. 220/- and claimed Rs. 110/- as the value of their share.

( 2 ) THE defendants contested the suit and raised a number of pleas in defence. They denied that the land was a grove and alleged that they have been cultivating it exclusively and had become sirdars after the abolition of zamindari. They also denied that they had plucked any mangoes from the trees standing on the land.

( 3 ) AS the plaintiffs had claimed to be bhumidhars and the defendants sirdars of the land, these two issues were remitted to the revenue Court which decided them against the defendants. The trial Court accepted the finding of the revenue Court and also held that the land was grove-land of which the plaintiffs were joint bhumidhars. It also held that the defendants had misappropriated the entire crop and awarded the plaintiffs a sum of Rs. 100/- as damages.

( 4 ) ON appeal the learned Judge reversed the linding of the trial Court that the land was a grove and held that it was not. He was also of the opinion that even if the defendants had plucked the mangoes from the trees standing on the land, the plaintiffs had failed to prove that the fruit was plucked from trees standing on their portion of the land. He allowed the appeal and dismissed the suit of the plaintiffs who have come to this Court in second appeal.

( 5 ) I have read the judgments of both the Courts below and the pleadings of the parties. I think the finding of the lower appellate Court that the land is not a grove cannot be upheld. The plaintiffs had alleged that 14 trees were standing on the land which has an area of 1. 92 bighas which is equal to less than 11/4 acres. The defendants on the other hand alleged that there were only 9 or 10 trees on the land. A Commissioner was appointed who reported that the plot contained 13 mango trees which were old and big in size. He also reported that they covered the major portion of the land. The learned Judge, however, rejected the report of the Commissioner on two grounds first, because, the defendants had filed an objection alleging that the Commissioners inspection was made behind their back and secondly there was nothing to show that the Commissioner had not inspected the wrong plot. I think both these reasons were invalid. The Commissioner, who was a member of the Bar, had stated in His report that he had made the inspection in presence of the parties, but the defendants alleged in their objection thar this statement was not true. The allegation was not supported by an affidavit. The learned Judge acted improperly in accepting the bare word of an interested litigant against that of a lawyer executing a commission on behalf of the Court. His whole approach was due to a lack of appreciation of the status and function of the bar which has been assigned an important role in the judicial process, in addition to being the main recruiting ground for the High Court and the Supreme Court bench. The statement of counsel is always given weight by the Court, so much so that this Court has frequently directed an inquiry into the conduct of a judicial officer on the basis of counsels statement. In rejecting the report of its own Commissioner on the bare word of a litigant the lower appellate Court departed from the well-established tradition of the Courts that the word of a member of the bar who has executed a commission on behal