JUDGMENT

Bajpai, J. - This is a plaintiff's appeal. His suit was decreed by the Court of first instance, but dismissed by the lower appellate Court. The facts which have given rise to this appeal may be briefly stated. The plaintiff brought a suit for ejectment of two defendants Bhikam Singh and Ram Chandar Singh from plot No. 321 on the allegation that the defendants were non-occupancy tenants of the said plot. It was further distinctly mentioned in the plaint that the defendants held the land claimed as grove-holders and as the grove had been cut down therefore the defendants as non-occupancy tenants were liable to be ejected. Ram Chander pleaded that the possession of the defendants was that of a proprietor. Bhikam Singh pleaded that the land in dispute was muafi given in charity to the contesting defendant which was purchased at a sale by public auction by Nand Lai Singh, the maternal grandfather of the contesting defendant, and after the death of Nand Lal Singh, the contesting defendant became the owner as an heir of his maternal grandfather, Nand Lal Singh and has up to this time been the owner thereof. It was also alleged that the defendant had legally acquired a right of ownership to the said muafi given in charity and therefore the provisions of Section 86, Act 3 of 1926 did not apply to the case.

2. At a later stage Ram Chandar stated that he had been ejected by the other defendant, namely Bhikam Singh, and Ram Chandar was therefore exempted. The controversy therefore remains with the plaintiff on the one side who alleged the defendant to have been a grove-holder, but who had become a non-occupancy tenant as the grove had been cut down and the defendant Bhikam Singh who alleged himself to be a proprietor. It was clear that the plaintiff was trying to obtain the benefit of Section 197, Clause (a), Agra Tenancy Act. The defendant Bhikam Singh nowhere alleged in his written statement that the land was not a grove, but he must be deemed to have alleged that he was a rent free grantee to whom Section 186, Tenancy Act, applied and who thus had become the proprietor. The revenue Court sent an issue on the question of proprietary title to the civil Court, and the civil Court after taking such evidence as was produced before it came to the conclusion that the defendant was not a proprietor. At this stage it is necessary to mention that the defendant himself was not present before the civil Court, but his father was, who put in some documentary and oral evidence. The civil Court came to the conclusion that the defendant was not proprietor. On receipt of this finding the revenue Court held that the defendants were non-occupancy tenants and were liable to be ejected. It started its judgment by saying that the suit was for the ejectment of grove-holders which grove had been cut and removed and it observed that Bhikam Singh was not a muafi khidmati holder of the land in dispute. The defendant appealed and it was nowhere pleaded that the land was not a grove, but it was once more alleged that the defendant had become a proprietor. The learned District Judge on appeal confirmed the finding of the trial Court that the provisions of section 186, Agra Tenancy Act, did not apply, but he went on to observe that it did not follow therefrom that the provisions of Section 184, Agra Tenancy Act, also did not apply and from two extracts of the patwari's papers it appeared that the land was held rent free and therefore the only remedy open to the plaintiff was either to have the rent fixed on the land u/s 187, or to sue for an ejectment u/s 188, Agra Tenancy Act. An attempt was made before the lower appellate Court to produce some additional evidence in appeal. On this point the learned Judge says that the defendant's father appeared in the civil Court below and

put in some documentary evidence and also an oral statement on oath. It is not open to the defendant to argue now that as he himself was not present the evidence that ought to have been p