JUDGMENT
1. The appellants in this case brought a suit in a Rent Court for the ejectment of the plaintiff-respondent from certain land.
2. The respondent put forward the plea that he was the owner of the land and that it was grove land.
3. The Rent Court took action, under Section 199 of the Tenancy Act and directed the respondent to file a suit in order to have the disputed question of title determined. It is out of this suit that this second appeal has arisen.
4. In his plaint the respondent claimed to be the owner of the land in question as also of the trees situated upon it. He further claimed that he had sunk a well and had constructed a house on the land and he asked for a declaration of his proprietary title with respect to all this property. In the second paragraph of his plaint he stated that, even on the assumption that he was a grove-holder, the opposite party had no right in law to eject him.
5. The Court of first instance dismissed the suit finding that the plaintiff was not the owner of the soil. The Munsif was of opinion, however, that the plaintiff was a grove-holder. He held that he had no power to give any declaration to that effect in proceedings which had come into his Court in accordance with the provisions of Section 199 of the Tenancy Act. In appeal the Subordinate Judge has found that the plaintiff is not the owner of the land but he found him to be the owner of the trees in the grove and he has given him a decree to the effect that he is entitled to hold the grove as long as the grove exists.
6. The contention before us is that the Civil Court had no authority to give a declaration regarding the right of the plaintiff to hold the grove as long as the grove exists. It is said that the only question which the Civil Court could properly entertain was the question of proprietary title.
7. We have teen referred to the judgment of a Bench of this Court, Letters Patent Appeal No. 44 of 1910, decided on the 3rd April 1917.) Manna v. Rang Lal 39 Ind. Cas. 859. That was a case somewhat similar to the present. There the lower Appellate Court found that the plaintiff had not succeeded in proving himself to be the proprietor of the land but had come to the conclusion that he was entitled to the trees and had passed a decree in the following terms:
The decree of the lower Court is modified and it is declared that the plaintiff is the owner of the trees in grove No. 111 as entered in the Former Settlement and No. 117 as entered in the Recent Settlement and that he is not the owner of the land.
8. It was held in the case that that was a perfectly good declaration which was within the competence of the Civil Court and had the decree in the present case been in that form, we could not have interfered with it. It seems to us that, following the case just mentioned, we ought to alter the form of the decree of the Court below and bring it into conformity with the decree which was passed in the case to which we have just referred.
9. It has been argued on behalf of the appellants that there is no finding that the plaintiff is the owner of the trees on this land but we think that this point is clearly established. The lower Appellate Court found that the grove had been transferred to the father of the present appellants in the year 1890. There is on the record a sale-deed by which this property was transferred and the sale-deed clearly makes mention of the trees in this grove being transferred by way of sale. It is impossible to doubt, therefore, that the Court below really found that the plaintiff is the owner of the trees.
10. We therefore, allow the appeal to this extent that we modify the decree of the Court below and substitute for the declaration given by the learned Subordinate Judge the following declaration, namely, that it be decreed that the plaintiff though not owner of the land is owner of the trees on the plots in suit. With this modification in the lower Court's order we dismiss the appeal. We make no order as to costs.
11. The cross-objections have not been pressed. They are also dismissed without any order as to costs.