1. This is a suit relating to certain trees which once belonged to one Ram Prasad, an occupancy tenant in the plaintiffs' village. Ram Prasad had planted certain trees in the occupancy holding and he had also planted some trees in the village waste land. Ram Prasad's rights in these trees were sold in execution of a decree of 6th July 1908, and purchased by the present defendant. Ram Prasad then left the village and had no longer any connexion with it. The plaintiff in this case as zamindar sues for possession of these trees. The Court of first instance decreed the claim. The lower appellate Court in appeal has modified the decree of the Court below by upholding it in so far as the trees on the occupancy holding are concerned. But it has dismissed the suit in respect of trees standing on the waste land. The ground upon which it has differentiated the claim as to the trees situated in the waste land and on the occupancy holding is that the sale of trees in the occupancy holding was bad under the Tenancy Act, S. 21 of which prohibits a tenant from transferring a tenancy. It has however held that as to trees in the waste land he had greater rights of transfer.
2. The question was concluded in Letters Patent Appeal No. 23 of 1909 decided on 17th January 1910, in the case of Jugdip Narain Singh v. Jokhan Ahir (1). In that case the tenant had planted trees with the permission of the zamindar. Those trees were not in his occupancy holding. The tenant sold the trees and the zamindar brought a suit for possession of the trees on the ground that the tenant had no right to sell them.
3. The defendant in that case pleaded that under the village custom the tenant was entitle to sell the trees not situated in the occupancy holding. The Court found that no such custom had been proved and holding that the zamindar must be deemed to be the owner of those trees and in the absence of custom to the contrary, the tenant had no right to sell them, it dismissed the claim for possession but declared that the sale was invalid. The case is on all fours with the present case and I am bound to follow it. I must hold that the tenant had no right to sell the trees and the auction sale therefore did not transfer the ownership of the trees to the purchaser. The claim of the plaintiffs must be decreed, the decree of the Court set aside and the decree of the Court of first instance restored. I allow the appeal with costs and order accordingly.
V.B/R.K
4. Appeal allowed.