JUDGMENT
1. This was a suit under Section 158 of the Tenancy Act for a declaration that the plaintiffs had acquired under-proprietary rights under that section on the ground that the land in suit had been held rent-free for over 50 years and by two successors of the original grantee. The suit has been decreed by both the Courts below. The land is admittedly covered by a grove and the contention of the appellant is that Chapter X of the Agra Tenancy Act in which Section 158 occurs does not apply to groves.
2. The land in suit is said to have been granted to the predecessor of the plaintiffs under a written danpatra about 100 years ago. Both the Courts have found that the grant is genuine. The terms on the grant are re-produced in paragraph 1 of the plaint. They give the grantee the right either to use the land for cultivation or to plant it with a grove. The grantee did in fact plant a grove on it. Both in the plaint and the written statement the land is described as grove, and the finding of the Court below is that the land is admittedly grove land and has been held as such from the time; of the last revision of records, which was between 30 and 40 years ago.
3. Land as defined in Section 4 of the Tenancy Act is limited to land which is lei or held for agricultural purposes, and it has been held in several decisions of this Court that this definition docs not include areas occupied by groves. It is unnecessary to refer to the earlier decisions as the question has been finally set at real by the Full Bench decision in Kesho Prasad Singh v. Sheo Pargash Ojha 64 Ind. Cas. 248 : 19 A.L.J. 749 : 44 A. 19 : 3 P.L.R. (A.) 117 : (1922) A.I.R. (A.) 301 (F.B.).
4. The learned District Judge gets out of this difficulty very summarily. He says that the land was not let to be turned into a grove but was let for agricultural purposes and, therefore, it is "land." It is difficult to see how the learned Judge could say this m face of the express terms of the title-deed which is the basis of the plaintiffs claim and of the plaintiffs own admission in paragraph 1 of the plaint. But even if it had been correct it would not dispose of the case. As soon as the zemindar allowed the grantee to convert the land into grove it would cease to be land held for agricultural purposes within the meaning of the definition. But assuming that we hold that on the pleadings and the plaintiffs As soon as the zemindar allowed the grantee to convert the land into grove it would cease to be land held for agricultural purposes within the meaning of the definition. title-deed it was not open to the District Judge to come to this finding, the respondents are prepared to support the decree on the ground that the restricted definition of "land" contained in the present law was not to be found in the Real Act of 1881. Under that Act "land" included groves. They rely on Section 30 of that Act and contend that they had acquired under proprietary right under Clause (d) before the present Tenancy Act came into force. This is a new case put forward for, the first time in second appeal and the answer to it is that in order to succeed under Section 30(d) of the Rent Act of 1081 it was necessary for the plaintiffs to show that the land had been held rent-free and by at least two successors to the original grantee for 50 years prior to the 22nd December 1873. It has not been found by either Courts that this was the case and we have not been referred to any evidence on which such a finding could be based. We think, therefore, that the appeal must succeed and it is not necessary to go in to the further point urged by the appellant that even on the finding of the Court below the land is not really held rent-free. It is no doubt shown in the papers as grove not assessed to rent (bila lagani) but it is also found by the Court below that according to the wajib-ul-am all groves not assess. ed to rent pay half their produce to the proprietor. There is on the record a judgment of this Court in Civil Revision No. 31 of 1912 between the defendant and the father of the plaintiffs upholding a decree in favour of the former for a claim to produce of the grove by way of rent.
5. We allow the appeal and setting aside the decree of the Court below dismiss the suit with costs in all Courts.