JUDGMENT
1. The suit out of which this appeal has arisen was brought by the plaintiff who is a zamindar of the village to have a sale of trees growing in the village set aside and for possession of the bagh. Jokhan who sold the trees is an occupancy tenant of the plaintiff but the trees were not in his occupancy holding but were planted by him. The question in the suit was whether a tenant, who with the consent of the zamindar plants a grove or trees in the village, is empowered to sell them without the permission of the zamidar. The learned Judge, from whose decision this appeal has been preferred, concurring with the lower Courts, found that the evidence established a custom whereby a tenant who plants trees in a bagh outside his holding becomes the owner thereof and can transfer the same without the zamindar's permission. The evidence which was adduced in support of this custom has been laid before us. It consists of the evidence of a few witnesses and also some deeds of sale of trees in the village in question and in neighbouring villages. As was held in the case of Kausilia v Gulab Kuar A.W.N. (1899), 73 : 21 A. 297, the property in trees growing on a tenant's holding is by the general law vested in the zamindar and in the absence of special custom, the tenant is not entitled to cut down and sell such trees. This decision follows that in Imdad Khatun v. Bhagirath 10 A. 159. In that case Straight and Tyrrell, JJ., held that the trees upon an occupancy holding, whether planted by the tenant himself or not belonged and attached to such holding and are not succeptible of transfer by the tenant. The bagh, in the present case is not in the occupancy holding of the tenant. Whether it is or is not in such holding of the tenant, it seems to us that the custom which is set up in this case is one which must be established by clear, cogent and convincing evidence. No such evidence is to be found in the record. According to the Wajib-ul-arz, the trees belong to the zamindar but there is a note appended to the Wajib-ul-arz that the tenants claimed the right to the trees. The fact that a few sales of trees have taken place without the consent of the landlord is not sufficient to establish a custom see Ram Bilas v. Lal Bahadur 30 A. 311 : A.W.N. (1908), 112 : 5 A.L.J. 456 : 4 M.L.T. 169. The evidence to which we have been referred wholly fails to satisfy us that the special custom alleged exists and the appeal must be allowed. The plaintiff claims possession of the grove. This he cannot have so long as Jokhan remains his tenant. But he also asks to have the sale set aside and to this relief he is entitled. We accordingly allow the appeal, set aside the decree of this Court and the decrees of the lower Courts and give a decree to the plaintiff declaring that the sale made by Jokhan to the co-defendants is invalid and we direct that it be set aside. In view of the fact that the plaintiff claimed possession of the groves and has failed to establish his right thereto, we direct that the parties respectively shall bear their own costs in ail Courts.