JUDGMENT Mukerji, J.
1. This is a Letters Patent Appeal against the judgment of a learned Single Judge of this Court by which he dismissed the second appeal before him. The original plaintiff died pending the litigation and his legal representatives have been brought on the record. The plaintiff, Jadunath Misir, claimed a declaration in respect of two groves bearing Nos. 182 and 189, on the allegation that they were his, and in a partition between the zamindars to which he was not a party, the defendant got the groves enter, ed in his name in the village papers. The plaintiff asserted that he was in possession and was entitled to the declaration. As a matter of precaution he asked for delivery of possession if it was found that he was out of possession.
2. The defence was that the plot No. 189 was not a grove at all but was a highway in the village and the plaintiff had nothing to do with it; that plot No. 182 was no doubt a grove but it had been planted by some tenants who died heirless and that it had escheated to the zamindar so that the zamindar was the owner of it. The Courts below sustained the defence so far as plot No. 189 went, but they decreed the plaintiff's suit with respect to the grove plot No. 182 and granted a declaration holding that the plaintiff was in possession. The lower appellate Court held, the plaintiff's position was that of a grove-holder and he was entitled to the decree he had got in the first Court. On second appeal it was contested that having regard to the plaintiff's case and to the finding of the lower appellate Court, the suit was not cognizable by the civil Court. This plea of the defendant succeeded with the learned Single Judge of this Court, but the learned Counsel for the respondents urged before that learned Judge that the plaintiff's case was that he was the "owner" of the plot Nos. 182 and 189 and that, therefore, it was never the plaintiff's case that he was a mere grove-holder and, therefore, presumably, a non-occupancy tenant within the meaning of Section 197 of the Agra Tenancy Act of 1926. On this plea being taken, the learned Single Judge read the plaint and came to the conclusion that the plea was a correct plea and he thereupon dismissed the appeal holding that the suit was cognizable, by the civil Court.
3. Before us it has been contended by the-learned Counsel for the defendant that it was never the plaintiff's case that he was the "owner" of the plots Nos. 189 and 182. We have heard the learned Counsel for the respondents and we are clearly of opinion that the case put before the learned Single Judge of this Court was put up on behalf of the respondents for the first time. The plaint starts with the statement that the plaintiffs are cultivators in the village of Ratanpur. The plaint nowhere suggests that the plaintiff had any right other than that of a cultivator in the village or in any portion of it. Where the plaintiff says that he is the-owner, he says that he is the owner of the grove, that is to say, he is a grove-holder. The issue material on this point as framed in the Court of first instance runs as-follows:
1. Whether the plaintiff or the defendant is the owner of the trees in plots Nos. 182 and 189 (new)? Are the plots the groves of the plaintiff?.
4. The judgment of the learned, Subordinate Judge, who heard the appeal, no where indicates, nor does the judgment of the Court of first instance, that at any stage of the case the plaintiff claimed the ownership of the plots 182 and 189. As a matter of precaution we got the statement of plaintiff's grandson Kashi, son of Bhabhuti respondent, read out to us. He was examined on behalf of the plaintiff. He said that his grandfather was 90 years old and he, the witness, was looking after his case. We could, therefore, very well look into the statement of this man Kashi in order to find out what the plaintiff's case was. He nowhere stated that he had' any interest in the two plots otherwise as a grove-holder. In the circumstances we are of opinion that the plaintiff's case was a simple one, namely the case of a grove-holder. That being so, the position of the plaintiff in law was that of a tenant, and prima facie this suit should be cognizable by the revenue Court under Section 121, Agra Tenancy Act, 1926.
5. The learned Counsel for the respondents, however, has argued that Section 121 does not apply, and his reasons were as follows : Section 121 speaks of a "holding" and says that a tenant of a holding may sue the landholder for a declaration of his right as tenant; but a "holding," as defined in Section 3 of the Tenancy Act, is "a parcel or parcels of land held under one tenure. ", and a "land" is defined in Clause (2) of Section 3 as "land which is let or held for agricultural purposes, or as grove-land or for pasturage.... " There cannot be any holding unless there be a land, and land does not include a grove but includes only grove-land. "Grove-land" is defined in Clause (15) of Section 3 as a specific piece of land...having trees planted thereon in such numbers that when full grown they will preclude the land or any considerable portion thereof being used primarily for any other purpose.
6. This means that a grove land must be a land which has nob got full grown trees on it and land which is capable of cultivation. This argument of the learned Counsel for the respondents, though ingenious, does not appeal to us. In the definition of the word "land" it is distinctly said that land, which is let for agricultural purposes or which is let as grove land or which is let for pasturage, is the land with which the Act concerns itself. Now when land is let for planting a grove, the land at once becomes a grove land, whether the trees that stand on it are small or large. According to the argument to the learned Counsel for the respondents, a land ceases to be a grove land when the trees are grown up and when no space is left for agricultural purposes. But this argument does not take notice of the language of the Act in other relevant places. For example in Section 197, Clause (a) runs thus:
It shall be presumed that a grove-holder holds the land in respect of which he is grove holder as a non-occupancy tenant under a lease the term of which will expire when the land ceases to be a grove-land.
7. The last mentioned expression "grove-land" is used there in the sense of land under a grove. It is only when the trees are cut down that the land ceases to be a grove land within the meaning of Clause (a) Section 197. Again, in the same Clause (a) the word "land" occurs. It is said that it would be presumed that the grove-holder is a non-occupancy tenant in respect of the land which underlies the trees. On these grounds, we are not impressed by the learned argument of the counsel for the respondents that Section 121 is not applicable to a suit like this. The result is that the appeal should succeed. Then the question is what order we should pass. As we have interpreted the plaint, it was a simple case of a grove-holder suing his landlord for a declaration of his title as a grove-holder. This being a suit clearly cognizable by the revenue Court, the only order we should pass is an order returning the plaint for presentation to the proper Court. But to this proposed order an exception is taken by the learned Counsel for the appellant on the ground that we are sitting here to hear a Letters Patent Appeal and that we have got no powers anywhere by which we can direct a plaint to be returned for presentation to the proper Court. An appellate Court has got under the Civil Procedure Code all the powers which a Court of first instance has got. It is true that the appeal which we are hearing is not preferred under the Civil Procedure Code; but we are still in appellate Court and all our procedure is governed by the Civil Procedure Code. We are entitled to remit issues and do other things which an appellate Court can do. We have, therefore, no doubt; that we have the power to return the plaint for presentation to the proper Court. We allow the appeal, set aside the decree of the learned Single Judge of this Court and the decrees of the two lower Courts and direct that the plaint be returned to the plaintiff-respondents for presentation to the proper Court.
8. Having regard to the fact that the appellant has succeeded hare, but the respondents succeeded in all the three Courts on the merits, we direct that the parties shall bear their own costs in the two hearings in this Court and in the Courts below.