The entire specific piece of land consisting of trees planted before 24-1-1971 is grove land and fresh plantation in a small portion cannot change the nature of the grove.

R. M. Sahai, J.

1. IN this petition directed against order of Additional District Judge dismissing the appeal filed by the petitioner against the order of the Prescribed Authority declaring 11.48 acres irrigated land as surplus. The learned counsel for petitioner has raised three points that the courts below committed an error in treating plot nos. 73 and 76 as unirrigated, that khata no. 113 was not petitioner's exclusive khata and lastly that the entire plot no. 156 was grove.

2. IN support of the argument regarding plot nos. 73 and 76 the learned counsel for the petitioner has filed the revenue extracts of 1378 F., 1379 F. and 1380 F. and has urged that on these two plots no source of irrigation having been shown it could not be treated as irrigated - The argument appears to be plausible but after considering the findings recorded by the Additional District Judge it has to be rejected as devoid of any merit. It has been found by him that the petitioner made interpolations in the khasra extracts and the Additional District Judge summoned the original and after comparing the two he was satisfied that the entries in some of the columns had been arrested and in the original khasra the plot was shown to have been irrigated by canal.

The contention that the petitioner was not the sole tenant of khata no. 113 is equally devoid of merit as the Additional District Judge found that the consolidation operations intervened and in those proceedings the petitioner was found to be sole-tenant. It has not been shown that this finding is in any manner erroneous in law.

3. AS regards grove in plot no. 156 its 10.21 acres has been found to be grove and 5.92 irrigated land. From the facts found it is clear that there is no subdivision and the entire plot is one unit at the spot. But on local inspection the Prescribed Authority found on attempt on part of petitioner to plant grove in 5.92 within last one year or so. He further found the height of trees to be 3 to 6 ft.

4. SUB-section (8) of Section 3 of the U. P. Imposition of Ceiling on Land Holdings Act defines grove land.

According to this definition there must be trees on any specific piece of land in a holding, the trees must be planted before 24th January 1971 and the number of trees should be such that they preclude or when fully grown will preclude the land or any considerable portion thereof from being used primarily for any other purpose. The trees which do not constitute grove within the meaning of this definition are guava, papaya, banana or vine trees. There is no finding either by the Prescribed Authority or the Additional District Judge that the trees standing on the plot in dispute were of the category mentioned above. There is no finding that any portion of the land which constituted grove was cultivated. The question in these circumstances is whether the Prescribed Authority was justified in bifurcating the specific piece of land on the basis of fresh plantation and old plantation.

5. THE words 'considerable portion thereof' are significant. If considerable portion due to planting of trees cannot primarily be used for any other purpose the entire land will be grove. In other words even if smaller area is cultivable or denuded of trees the character of the land does not cease. THE emphasis of the learned counsel for the State on words 'specific piece of land' does not carry conviction. It cannot be read in insolation. THE definition of grove in the U. P. Tenancy Act was more or less similar. It was adopted in Z. A. Act as well. It reads as under :

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This definition came for consideration both before High Court and the Board of Revenue. In Shiv Sahai v. Har Nandan, 1963 RD 119 it was held by this court: "THE learned Judge was influenced by the fact that there had been some cultivation on the land. But the definition of grove land in the Act does not exclude cultivation altogether but merely that the number of trees should be large enough to prevent the land fr