JUDGMENT

Daniels, J. - The dispute in this case relates to a grove No. 168 in Mauza Ghatampur in the Allahabad District. The grove was planted by the ancestors of the second and third defendants with the permission of the zemindar on payment of nazrana and they occupied the land as grove-holders. They have transferred their rights in the grove by a sale-deed to the first defendant Chandarpal Singh. The plaintiff-appellant Lai Baijnath Singh thereupon instituted the present suit on the allegation that the transfer was unlawful and that it gave the zemindar a right to recover possession of the land. Both the Courts below have dismissed the suit. They held that under the general law a person who plants a grove with the permission of the zemindar acquires a transferable interest in the trees and that the plaintiff has failed to prove any custom disentitling the defendants from transferring their rights.

2. Two points arise in the appeal, (1) whether a custom forbidding grove-holders to transfer the trees is laid down in the wajb-ul-arz of the village, and, if so, whether it has been rebutted; (2) whether the general law has been rightly laid down by the Courts below.

3. At the time when the wajib-ul-arz was prepared the village was owned by a single zemindar. The wajb-ul-arz states that there are in this village certain groves of which a separate list is given. The clause continues:-- "Apart from eating the fruits and flowers, the planters have no kind of right of cutting down, selling or mortgaging without the permission of the zemindar. The zemindar has no right to a share in the produce, and no one can plant a grove in future without the permission of the zemindar, and when the land of the groves becomes vacant it will be under the zemindar's control." Read in connection with the previous sentence the natural reference of the word planters (nasiban) is to the planters of the groves which have just been enumerated. Having regard, moreover, to the form of the clause and to the prohibition which follows against planting fresh groves without permission, it seems highly doubtful whether this clause intended to lay down any general custom. At any rate, it appears to me that the natural construction of the clause relied on by the appellant is to limit it to the groves which are specifically referred to in the clause.

4. I find, therefore, that there is no evidence of any special custom governing the case. It becomes necessary to consider whether the Courts below have rightly laid down the general law prevailing in the Province. The appellant contends that when a grove is planted with the zemindar's permission the ordinary rule is that the grove-holder has no transferable interest in the trees. He has been unable to cite any reported case in support of this view, but he relies on two unreported decisions in Letters Patent Appeal No. 23 of 1909, [Jugdip Narain Singh v. Jokhan Ahir 5 Ind. Cas. 256] and a Single Judge decision in Second Appeal No. 118 of 1914, [Ram Sarup v. Jagan Nath 25 Ind. Cas. 152. The former decision was considered and distinguished in the case of Muhammad Yasin v. Ilahi Bakhsh 16 Ind. Cas. 455 : 34 A. 545 : 10 A.L.J. 73 relied on by the Court below. It was pointed out that in the unreported Letters Patent Appeal the wajib-ul-arz distinctly stated that the trees belonged to the zemindars. The Muhammad Yasin's case 16 Ind. Cas. 455 : 34 A. 545 : 10 A.L.J. 73 laid down the law as being that prima facie every man has a right to dispose of any property he possesses whether itbe a grove or anything else. It is, no doubt, open to comment that these remarks were obiter as the wajib-ulrarz in that particular case declared expressly that persons planting the groves should have rights of ownership in the trees. There are, however, other cases not depending on the terms of any special wajib-ul-arz which have laid down the law in the same sense. Two of these eases are referred to by the learned Judge, Haidar Ali Khan v. Gangu A.W.N.