RAGHUNATH Vs. NMOHAMMAD ALI HASAN KHAN

JUDGEMENT

(1.) This is a suit by a zamindar for possession of a plot of land by ejectment of the tenant in possession on the allegation that it had ceased to be a grove, in that on the whole area of 176 acres there were only left two mango trees. Both Courts have found that on the whole area there were only remaining two mangoes, three self-planted babul and some 8 berri (plum) trees, and, holding that the area had lost its character as a grove, have decreed the plaintiff's claim.

(2.) I have been pressed with the decision of two learned Judges of this Court upholding in Letters Patent Appeal a judgment of a single Judge, the case of Mahbub Ali Khan V/s. Chiddan (1). The judgment, as reported, was difficult to understand and there seemed clearly something wrong. I sent for the original judgment, and all ambiguity vanished when the original judgment showed that there was a clerical error in the report, live lines from the bottom of page 600, where the figures "35 biswas" should be "15 biswas." A correction of the clerical error is vital in view of the remark in the judgment of the Division Bench reported at page 602, where it is said: It is not correct to stay that because small portions of the plots have been brought under cultivation the lands have ceased to retain their character as groves; and that was clearly the unexpressed basis of the judgment of Mr. Justice Mukerji after he had held that the contract was indivisible. I note also that the putting into italics of the passage at p. 601 is also a reporter's error

(3.) It has been held in some cases that the zamindar could eject the tenant from that portion of the grove which had ceased to be used as a grove. The decision of this Court to which I have referred, though it does not specifically mention those cases, is based on a principle which involves holding that such decisions are wrong.