JUDGMENT

Kanhaiya Lal, J. - The dispute in this appeal relates to a piece of muafi land occupied by a grove situated in Qasba Koil, close to the town of Aligarh. The land was originally granted by the predecessors of the plaintiff to Sirh Mal, the predecessor of the contesting defendant, for planting a grove, and the question for consideration is whether the descendants of Sirh Mal had a right to sell the grove to Chunna and Ram Lal, and are liable to ejectment in consequence. The allegation of the plaintiff was that there was a custom appertaining to the muafis granted by the zemindars by virtue of which the muafi holders or their descendants had no right to transfer the muafi by sale. The plaintiff questioned the right of the son and grandsons of Sirh Mal to transfer the grove, and he sued for the cancellation of the sale and for possession of the grove by the ejectment of the muafidars and their transferees.

2. The plaintiff relied in support of the custom on the wajib-ul-arz prepared in 1872 in which under the heading referring to "muafis granted by the zemindar for specific purposes," it was stated that so long as the muafidar or his descendants remained in possession, there will be no interference with them, and the muafidars shall have every right thereto except that of a transfer by sale. A list of the plots and groves then held as muafi was also given and among those plots and groves the grove in dispute was mentioned and described as an old grove (qadim baghicha) held by Sirh Mal. Both in the wajib-ul-arz and in the khasra it was stated that the land had been given for the purpose of planting a grove, and that fact is not disputed. The Courts below found that the entry in the wajib-ul-arz was sufficient proof of a custom forbidding the alienation and that the plaintiff was entitled to a decree for possession.

3. The entry aforesaid does not, however, purport to record any custom. There are other clauses which purport to record customs then in force in the village, and there are some others which describe the rights of other classes of muafidars and of ex-proprietors entitled to malikana rights. The entry relating to the muafidars holding groves in the village merely records the incidents of the tenure, as dictated by the zemindar or his agent at the time', and though, as stated by their Lordships of the Privy Council in Anant Singh v. Durga Singh [1910] 32 All. 363, there is no class of evidence more likely to vary in value, according to the circumstances, than the wajib-ul-arz, for entries at times are made therein connoting the views of individuals as to the practice they would wish to see prevailing, rather than the ascertainment of well-established custom, it would not be unreasonable to presume from the entry that the intention of the grantor when he gave the muafi land for planting the grove was that the enjoyment of the muafi land (as distinct from the right to the timber or the fruits of the grove) was to be restricted to the grantee and his descendants personally. The plaintiff does not, however, rely on any such incident or condition of the grant in the plaint. He does not even assert that forfeiture or resumption was one of the conditions of the grant or incidents of the custom set up. In fact in Ala Bux v. Radhay Lal [1915] 30 I. C. 805. it was held that a statement in the wajib-ul-arz by one of the interested parties that he had power to take away all muafis, would not be regarded as sufficient proof of a custom of resumption.

4. Where land is granted for platting a grove the person who plants the grove acquires according to the general law a transferable interest therein, and in the absence of a custom to the contrary, the trees become his property. As pointed out in Chokhe Lal v. Behari Lal [1920] 42 All. 631; Lal Baijnath Singh Vs. Thakur Chandrapal Singh and Others, AIR 1923 All 553 ; and Man Singh Vs. Madho Singh and Others, AIR 1924 All 430 the person who plants such a grove possesses all rights in r