JUDGMENT Daniels, J.
1. This was a suit for damages for certain trees alleged to have been wrongfully cut and for an injunction against the defendants forbidding them to cut any further trees in a plot numbered 378, The plaintiffs-appellants are the zemindars. They alleged in their plaint that the trees were of spontaneous growth, but pleaded in the alternative that even if they had been planted the first defendant, who is an occupancy tenant in the village, had no right to transfer them. The trees which have been cut were sold by the first defendant to the second and third defendants and cut down by them. The first defendant pleaded that he was the owner of the trees, which wee planted by his ancestor with the permission of the zemindar, and that he had a right to sell them. He also alleged a custom by which tenants planting a grove had a right to sell the trees. A great deal has been made in argument of the fact that the learned Judge finds that the wajibularz does not support the special custom relied on and that it is not proved. It has been argued that, on this finding, the suit should have been decreed without going into other matters, but, as the Calcutta High Court remarked in a recent case, it is not every variation between pleading and proof which is fatal to a suit or a defence. The main defence of the defendant was that he was the owner of the trees and was entitled to sell them, and it was on this question and not on the question of special custom that an issue was framed in the trial Court.
2. The facts found by the Court below are that this grove was planted some 40 years ago with the permission of the zemindar by the defendant's ancestor on what was at the time a non-occupancy holding. He further finds that the grove was planted only a year or two after the commencement of the tenancy. The area which was converted into a grove originally formed a portion of a larger plot but at the last Settlement it formed a separate plot numbered j 378. The learned Judge has relied on the reported ruling in Jalesar Sahu v. Bajmangal, (l) and, following that ruling, has held that, when permission was given by the zemindar to" plant a grove on the non-occupancy tenure, the effect of this was to put an end to the tenancy as such, and to substitute therefore a fresh contract between the parties by which the position of the defendant was converted, into that of a grove-holder with transferable rights. That case related to an occupancy holding, but the case is much stronger where the land was held without occupancy rights asjt in the present case. It is most unlikely that the tenant would agree to spend the 'considerable sum of money necessary to convert the plot into a grove if he was still to remain liable to be turned out of the land and to lease trees at any time.
3. In appeal the plaintiffs have relied on an earlier decision in Daya Kishen v. Muhammad > Wazir Ahmad 30 Iad. Cas. 665 : 18 A.L.J. 883. That decision is, to my mind, clearly inconsistent with the decision in Jalesar Sahu v. Bajmangal 63 Ind. Cas. 487 : 48 A. 606 : 19 A.L.J. 616, and, though in the later ruling an attempt was made to distinguish it on what appears to me very slender grounds, it appears to me that the earlier ruling must now be considered to have been overruled and to be no longer good law. The iater ruling has been followed and approved in a number of cases by me personally, e.g., Lal Baijrlth Singh v. Chandrapal Singh 78 Ind. Cas. 529 : 21 A.L.J. 457; (1928) A.I.R. (A) 653, and I belreve by other Judges also, and it has-rightly been held by the learned District Judge to govern the present case. Following that ruling, I dismiss the appeal with Costs including in this Court fees on the higher scale.