JUDGMENT Stuart, J.
1. This appeal raises a question of importance to the zemindars and the tenants of the village of Vaira Firozepur in the Bulandshahr District, The suit was brought by one of the zemindars against 12 occupancy tenants for damages on the allegation that they had without right cut and removed 11 trees of spontaneous growth standing upon their occupancy holdings. It is to be noted that the plaint laid stress on the fact that they had misappropriated these trees and alleged that their acts were contrary to law and justice. The suit was for damages for Rs. 100. It was originally filed in the Court of the Judge of Small Causes at Bulandshahr but was transferred to and decided by an Honorary Munsif.
2. The Honorary Munsif found that in the village in question certain tenants (the defendants belonging to that class of tenants) had a right to cut trees of spontaneous growth standing on their fields and dismissed the suit. The plaintiff appealed and his appeal was heard by a Subordinate Judge. The Subordinate Judge decided that the defendants had nO right to out the trees and awarded damages for Rs. 100. A second appeal is filed in this Court.
3. A preliminary objection is taken that no second appeal lies. The objection is on the ground that the suit was a suit cognizable by a Court of Small Causes, and that the value and the amount of subject-matter did not exceed Rs. 100. I decide against this objection. Since the amendment of Article 35(2), Sch. 2, Act 9 of 1887 Small Cause Courts are not competent to decide suits for compensation for acts which are, or save for the provisions of Ch. 4, I.P.C., would be offences punishable under Ch. 17 of the said Code.
4. It is clear from the plaint itself in which it is asserted that the acts of the defendants were contrary to law and justice and amounted to a misappropriation that according to the allegations therein the cutting of these trees constituted a criminal offence punishable under Ch. 17-presumably an offence of theft. So a second appeal lies against the decision.
5. The decision of the appeal involves discussion of several points. While it is recognized by what is rather loosely called 'the common law of this province' that trees of spontaneous growth standing on fields in the cultivation of tenants are in the absence of special custom or contract the property of the zamindars, there is in this particular case evidence that in this village trees of spontaneous growth standing upon the holdings of occupancy tenants, (as the appellants are) are the property of the occupancy tenants and it is to be seen whether the finding of the learned Subordinate Judge to the contrary is a finding which can be upheld.
6. The words "occupancy tenants or raiyats having rights of occupancy" were not used as far as I am aware-until the enactment of Act 10 of 1859 which for the first time recognized (and in many instances created) the right of an agricultural tenant who had cultivated the same plot of land for more than twelve consecutive years to resist an ejectment so long as he paid his rent. This Act applied to Bangal, and the present Province of Agra which was then known as the North-West Provinces and was included in Bengal.
7. While this Act was in force the Settlement of Mr. Currie took place in the year 1866 in the Bulaudshahr District and in this villa,ga the following entry was made in the wajib-ul-arz.
8. Such trees as are of spontaneous growth whether they are or are not standing upon the fields of tenants or the borders of such fields are ours (i.e., the zamindars') property. They may be cut with our permission in order that their wood may be used for the manufacture and repair of the tenants' agricultural implements or the repair of their houses, but they are not to be cut without our permission.
9. This passage shows satisfactorily enough that up to 1866 trees of spontaneous growth standing pon such fields were the property of the zamindars of this village. No attempt was made to distinguish the persons who under the Act 10 of 1859 would be described as "raiyats having the right of occupancy and other agricultural tenants," from other tenants.
10. In 1873 the first Rent Act was passed which had application to the "North-West Provinces" only, and under it the rights of occupancy tenants were further defined and not defined exactly in the same manner as they had been defined in Act 10 of 1859. In 1873 for the first time there came into existence in the North-West Province an ''occupancy tenant" as distinguished from a "raiyat having the right of occupancy" as previously recognized both in Bengal and the North-West Provinces. In 1889 Mr. Stoker made the next Settlement of Bulandshahr and in the Settlement there appear in the wajib-ul-arz of this village the following words: "Trees of spontaneous growth which stand on the fields on the borders of the field of occupancy tenants may be cut by such tenants at their will but those standing in the inhabited area can only be out with the permission of the zamindars."
11. Since the Settlement of 1889 there have been no fresh entries in the wajib-ul-arz and the entry of 1889 is the last entry made. The record has now attained the comparatively respectable age of thirty-six years-something over a generation.
12. The learned Honorary Munsif arrived at the conclusion that the entry of this Settlement of 1889 must be taken to bind the case. The patwari of the village and two lambardars further gave evidence that to the best of their knowledge and belief occupancy tenants such as the defendants had a right to cut the trees of spontaneous growth upon their holdings.
13. The learned Subordinate Judge refused to accept the oral evidence of these persons and his decision on that point cannot be interfered with in second appeal. But he went further. He held that the entry in the Settlement of 1866 bound the case and that the entry in the Settlement of 1889 was of no effect. Ha took the position that in order to oust the zamindars' rights the re must be a custom existing from time immemorial.
14. If the existence of a custom existing from times immemorial were necessary for the purpose it is obvious that occupancy tenants could have no rights at all, for so far from existing from times immemorial they only came into existence in this Province in 1873.
15. Apart from the question of custom there is the question of contract.
16. It is not correct in the first instance to say that in the United Provinces it is necessary to prove a custom from times immemorial to establish such a right as the right assorted. The leading case upon that point which has always been recognized as the main authority in this Court is the case of Kuar Sen v. Mamman (1895)17 All 87 in which Banerji, J., stated at p. 92:
17. We cannot in these provinces apply the principle of the English Common Law that a custom if not proved if it is shown not to have been immemorial. To apply such a principle as we have been urged by the Counsel for the appellant to do would be to destroy many customary rights of modern growth in villages and other places. The Statute Law of India does not prescribe any period of enjoyment during which in order to establish a local custom, it must be proved that a right claimed to have been enjoyed as by local custom was enjoyed. And in our opinion, it would be inexpedient and fraught with the risk of disturbing perfectly reasonable and advantageous local usages regarded and observed by all concerned as customs to attempt to prescribe any such period.
18. Applying these principles, it would appear that in deciding whether there is a custom by which occupancy tenants of this village are permitted to cut and use trees of spontaneous growth on their own holdings we should look at the first wajibularz that was made after such tanants came into existence and when we find that for over thirty-six years this record of custom has held the field then it would be right to apply it.
19. It has bean pressed by the respondents' learned Counsel that it is not open to this Court to disturb a finding of the lower appellate Court to the effect that no custom exists. He is not quite right in his law upon that point. Where a lower appellate Court has refused to accept oral evidence as sufficient to establish the existence of a custom its refusal cannot be reversed in second appeal but when It comes to the question of determining the legal print as to which of two wajibularzes should be held to govern a case it is permissible to find a custom exists where the lower appellate Court found that no custom exists. But in any circumstances even if there be no custom in the matter the entry in the wajibularz of the Settlement of 1889 constitutes a valid contract as far as the parties are concerned. When the zamindars in 1889 agreed that they would permit their occupancy tenants to cut and enjoy trees of spontaneous growth standing upon their holdings a zamindar in later years cannot be allowed as against that to claim such trees from occupancy tenants.
20. The suit must fail and the appeal must succeed. I decree the appeal accordingly and direct that the suit of the plaintiff stands dismissed, The plaintiff will pay his own costs and those of the defendants in all Courts.