C.D. Parekh, J. - (1.) GAON Sabha, Brindaban, through Husani, Pradhan Gram Samaj, Pargana Gondwa, Tehsil Sandila, district Hardoi, instituted the suit under Section 163/167 of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) in respect of grove No. 408 having an area of 25 bghas 13 biswas containing nearly 400 trees such as Mahuwa, Mango, Shisham, etc. The assertion of the Gaon Sabha was that the grove in dispute belonged to Rudra Bux Singh, Respondent No. 6 an intermediary who sold the same to Avadhesh Kumar, Petitioner in the present writ petition by a registered sale deed dated 7th January, 1963. The contention of the Gaon Sabha was that under Section 154 of the Act the transferee acquired an area of more than 12 1/2 acres of land and as such acquired no title either in the land or in the tree and both transferor and transferee were liable to ejectment. The suit was contested by the Petitioner on the ground that the sale was valid transaction and the document conferred good title on the Petitioner and the suit property was an intermediary's 'grove' and not land as defined in the Act so Section 154 of the Act did not apply and that even if the area be 'land' he was not liable to ejectment from 12 1/2 acres of the land. The trial court by judgment dated 29th August, 1964, decreed the entire suit. Against that decree and judgment the Petitioner preferred appeal which was heard by the Additional Commissioner, who dismissed the appeal by his judgment dated 20th February, 1965. The Petitioner thereafter preferred second appeal before the Board of Revenue which was dismissed on 4th of January, 1971. The Petitioner thereupon filed the present writ petition in this Court. The petition came up for hearing before the learned Single Judge who was of the view that the writ petition raised questions of law of general importance. According to the learned Single Judge the first question which arises in the case is "whether the term 'land' as used in the Zamindari Abolition and Land Reforms Act includes a grove or grove land so that the transfer of a grove will be liable to be covered by Sections 154 and 163 of the Zamindari Abolition and Land Reforms Act." Another question of equal importance, according to the learned Single Judge, involved in the writ petition is "whether the term 'holding' would include proprietor's grove - A third question which according to the learned Single Judge requires consideration is "whether in a case where a transfer is of more than 12 1/2 acres of land, could the transfer be valid to the extent of 12 1/2 acres." In view of the general importance of these questions the writ petition has been referred to a larger Bench and thus it has come before us.
(2.) THE admitted facts are that Sri Rudra Bux, Respondent No. 6, was Bhumidhar of plot No. 408 measuring 25 bighas and 13 biswas. He transferred the same through the sale deed in question to the Petitioner. Thus the Petitioner held more than 12 1/2 acres of grove along with the trees standing thereon. Section 3(14) of the Act defines the word "land". It runs thus: "land" except in Sections 109, 143 and 144 and Chapter VII means land held or occupied for purposes connected with agriculture, horticulture or animal husbandary which includes pisciculture and poultry farming. According to the Commissioner the word "horticulture" as used in this definition means "cultivation of a garden, art of science of cultivating or managing gardens including growing of flowers, fruits and vegetables." He has furthers held that there may be some orchards or garden which may requiry every day attention but there are also orchards or gardens which require very little day to day care. He further held that even if fruits are grown that activity comes under the definition of "horticulture". According to the Commissioner, therefore, the land occupied for purposes connected with "horticulture" is land to which Section 154 of the Act was applicable,
(3.) RELEVANT portion of Section 154 of the Act is quoted below: Restrictions on the transfer by a bhumidhar: (1) Save as provided in sub -sections (2) and (3) no Bhumidhar shall have rights to transfer by sale or gift any land other than tea gardens to any person other than an institution established for a charitable purpose where such person shall as a result of the sale or gift become entitled to land which together with land if any held by himself or together with his family will in the aggregate exceed l2 1/2 acers in Uttar Pradesh .... Taking into consideration the import of Section 154 the Commissioner has held that the transfer made by Rudra Bux Singh Respondent No. 6 related to the land covered by Section 3(14) and was hit by Section 154 of the Act. He has also adverted to Section 163 of the Act which runs thus: Transfer in contravention of this Act: (1) Where a transfer of any holdings or part thereof has been made in contravention of the provision of Section 154 or Section 157 -A the transferee shall notwithstanding anything in any law be liable to ejectment from such holding or part on the suit of the Goan Sabha which shall thereupon become vacant land; but nothing in this section will prejudice the right of the transferor to realize the whole or portion of price remaining unpaid or the right of any other person other than the transferee to proceed against such holding or land in enforcement of any claim thereto. (2) To every suit for ejectment under this section the transferor shall be made a party. Before the Commissioner it was urged on behalf of the Petitioner that the wordings "be liable to ejectment from such holding or part on the suit of the Gaon Sabha which shall thereupon become vacant land" are relevant. In this sentence the word "part" means ''part which is in excess of 12 1/2 acres." The contention as it appears was that if the sale is void it would be vo d in respect of the area of land in excess of 12 1/2 acers, but to the extent of 12 1/2 acers the transfer would be legal and valid covered by Section 154 of the Act. The Commissioner repelled the contention and did not agree. He has held that the word "part" in Section 163 refers to the holding transferred and thus the entire transfer is void and there is no question that the Appellant (Petitioner in writ petition) should continue in possess on over 12 1/2 acers out of the entire area. The Additional Commissioner maintained the decree passed against the Petitioner. 5 Before the Board of Revenue two points were urged on behalf of the Petitioner (1) that the grove is not included within the definition of the word 'land' given in Section 3(14) of the Act and (2) that the sale was not void for the entire area. The Board of Revenue held that the Bhumidhar's grove is 'land as defined under the Act and Section 154 was applicable to it. As for the other point the Board held that the transferee (Petitioner) shall be liable to ejectment from the entire holding if the transfer is for the whole of it and he would be ejected from the part of the holding if only that part has been transferred. In the opinion of the Board that was the correct interpretation of Section 163 of the Act. While interpreting Section 163 of the Act the Board also held that the words "vacant land" occurring in Section 163 of the Act mean "a land available to the Gaon Sabha for allotment". After having recorded these findings the second appeal was dismissed. 6. The point canvassed before us is that the definition of the word 'land' as given in Section 3(14) of the U.P. Zamindari Abolition and Land Reforms Act does not cover 'grove' and therefore Sections 154 and 163 of the Act do not apply to the transaction in dispute. For the purposes of the interpretation of the word "land" in relation to the grove we have therefore to interpret the word "horticulture" as used in Section 3(14) of the Act. "Horticulture", according to Chamber's Twentieth Century Dictionary, 1966 Edition means "the art of gardening" and "horticulturist" means "one versed in the art of cultivating gardens". According to the Shorter Oxford English Dictionary, 1961 Edition, "horticulture" means "the cultivation of a garden; the art of science of cultivating or managing gardens, including the growing of flowers, fruit and vegetables'' and "horticulturist'' means "one who practices horticulture, especially one who practices it scientifically as a profession." "Horticulture", according to Encyclopaedia Britannica, 1968 Edition, means the division of agriculture which relates to the cultivation of fruits, vegetables and ornamental plaints is both an art and science. It is an art in that through practice certain skills are developed in necessary operations such as propagation, pruning and spraying which are essential to successful culture. It is a science in that underlying these practices is an orderly a ray of fundamental facts which explain direct the performance. 'Horticulture' originally meant the culture of a garden or enclosure in contract with 'agriculture', meaning the cultivation of a held. The association of horticulture with intensive culture of plants in small areas is a popular conception; yet some phases of horticulture have developed into i industries which occupy important economic positions in the field of agriculture .... Horticultural crops, with the exception of the Irish potato, are more important as a group than as individual crops. They include fruits, vegetables, ornamentals and nursery stock and seeds .... The apple is the most important tree fruit of the temperate zone. The orange is the most important commercial tree fruit of tropical and sub tropical regions.... The mango is as important to the people of India as is the apple to the inhabitants of the temperate regions" From the meaning of the word "horticulture" it is thus apparent that the trees grown as orchard or grove are included in the operation known as "horticulture", and the land subject to these operations is covered by the definition of the word 'land' as given in the Act. We are also supported in cur view by a Full Bench (?) (Division Bench) case of this Court Kushar v. Ahmad Khan, 1962 AWR 391. In that case before the Full Bench (?) (Division Bench) interpretation of Sections 7 - 11 of the U.P. Consolidation of Holdings Act was involved. The definition of the word 'land' in relation to grove land was considered; 'land' under that Act means 'land' held or occupied for the purposes connected with agriculture, horticulture and animal husbandary.... Grove land was therefore, held to be the land for the purposes of the Act. We are in respectful agreement with the view expressed in this Full Bench (?) case and hold that in the instant case as well under the Act grove land is included in the definition of 'land' as given in the Act. 7. Learned Counsel for the Petitioner referred to us Section 6 of the Act and its Sub -section (1) the relevant portion reads thus: Consequences of the vesting of an estate in the State: When the notification under Section 4 has been published in the Gazette then notwithstanding anything contained in any contract of document or in any other law for the time being in force and save as otherwise provided in this Act, the consequence as hereinafter set forth shall, from the beginning of the date of vesting ensure in the area to which the notification related, namely - (a) all rights, title and interest of all the intermediaries: (1) in every estate in such area including land (cultivable or barren) grove land, forests whether within or outside village boundaries, trees (other than trees in village abadi, holding or groves), fisheries, tanks, ponds, water -channels, ferries pathways, abadi sites, hats, bazars and melas (other than hats, bazars and melas held upon land to which Clauses (a) to (c) of Sub -section (1) of Section 18 apply), and. (ii) in all sub -soil on such estates including rights if any, in mines and minerals, whether being worked or not, shall cease and be vested in the State of Uttar Pradesh free from all encumbrances; .... The submission of the learned Counsel is that under Section 6 of the Act the word "grove -land" has been used but the "trees'' other than trees in village abadi, holding or grove belonging to the intermediaries have been exempted. He has also invited our attention to Section 3(13) of the Act which defines the words "intermediary's grove" which expression means 'grove -land held or occupied by an intermediary as such". His submission therefore on the basis of these two sections is that the Respondent No. 6 had been an "intermediary" and the property in dispute was the grove land of the intermediary" and was "occupied by an intermediary as such and, therefore was not the "land" as covered by the definition in Section 3(14) His further submission is that even if it is held that the land is covered by the definition, at least the trees standing over the land could not vest in the State and it remained the property of Respondent No. 6 and he had every right to sell those trees to anyone he liked and in such circumstances so long as the trees are there and the land is covered by the trees for the purposes of Section 163 of the Act the land had not become "vacant land" nor the Gaon Sabha could file a suit invoking the restrictions on the transfer by a bhumidhar of the land exceeding in aggregate 12 1/2 acres. The consequences of vesting are contained in Section 18 of the Act. The relevant portion runs thus: Settlement of certain lands with intermediaries or cultivators as bhumidhar - (1) Subject to the provisions of Sections 10, 15, 16 and 17, all lands - (i) in possession of or deemed to be held by an intermediary as sir, khudkasht ...on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary, lessee, tenant, grantee or grove -holder, as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession as bhumidhar thereof. .... 8. This, therefore, clearly settles down the position that if there be a 'grove' of an intermediary and he be a 'grove holder' on the date immediately preceding the date of vesting the 'land' shall be deemed to have been settled by the State Government and such a person is entitled to take or retain possession as bhumidhar thereof. The question therefore, that under Section 154 of the Act he could not transfer the land of which he had become bhumidhar has to be considered. According to Section 154 of the Act "no bhumidhar shall have rights to transfer, by sale or gift, any land...held by himself or together with his family...in the aggregate exceed 12 1/2 acres". Therefore, the clog is on the transfer. All this can be considered provided Respondent No. 6 was a "grove -holder" and the land was a 'grove'. We have, therefore, to look into the U.P. Tenancy Act to find out the meaning of expression 'grove holder' in view of the provisions contained in Section 3(26) of the Act Section 3(6) of the U.P. Tenancy Act is applicable which runs thus: 3(6) "Grove -land" means any specific piece of land in a mohal or mohals having trees planted thereon in such numbers that they preclude or when full grown will preclude, the land or any considerable portion thereof from being used primarily for any other purposes and the trees on such land constitute a grove. This definitely indicates that 'grove' is something different from 'grove land' because the definition says that the trees on such land viz, 'grove -and' constitute a 'grove'. Section 3(3) of the Act defines 'intermediary's grove' which means grove land held or occupied by the intermediary as such But Section 6 of Act, where it deals with the consequences of vesting of an estate in the State, as quoted above, deals with 'grove -land' and 'grove' separately. The 'grove -land' referred to above will be grove -land referred to in Section 3(6) of the U.P. Tenancy Act. Clause (a) of Section 6 of the Act also refers to the rights, title and interest of the intermediaries in trees ceasing and vesting in the State. From among the trees, such of the trees as constitute a grove have been excluded from the operation of Clause (a) of Section 6. Therefore, the excluded category of trees forming the grove cannot be considered to have vested in the State on the abolition of the estates. Section 18, which creates bhumidhari rights, deals among other items, with intermediary's grove. The expression 'intermediary's grove' is defined, as stated above, which means 'grove -land held or occupied by an intermediary as such'. In the instant case from the judgment of the Commissioner it appears that dispute was whether the land in suit was a 'laud' or not and it was admitted by both the parties that it was 'grove'. Tnerefore the only dispute that was to be decided before the revenue courts was whether the dispute related to 'grove' or to 'grove land'. The admitted case of the parties was that the grove was there which constituted of about 400 trees Therefore, in view of the provisions of law as discu ssed above the trees did neither vest in the State nor the title to the trees was in any way affected by the U.P. Zamindari Abolition and Land Reforms Act. The title to the trees remained with Respondent No. 6 and he could alienate the same in the manner he liked 9. The learned Counsel for the Petitioner placed reliance on the case reported in Mst. Jamshed Jahan Begam v. Lakhan Lal, AIR 1971 SC 1618. That case arose out of U.P. Encumbered Estates Act proceedings and it was held in that case that the trees being the debtor's property (an intermediary under the Zamindari Abolition and Land Reforms Act) were liable to be proceeded with in execution of the decree under Section 24 of the U.P. Encumbered Estates Act The Supreme Court held that 'grove is something different from grove -land'. Section 6(a) deals with grove land and trees separately, From among the trees such of the trees which constitute a grove have been excluded from the operation of Section 6(a). They do not vest in the State and cannot form the subject of creation of Bhumidhari rights under Section 18". Thus it was held that the trees were liable to be proceeded within execution of the decree. The question therefore, remains to be considered is whether the 'land' for the purposes of Section 163 of the Act which did not vest in the State and in which bhumidhari rights could be acquired after the abolition under the U.P. Zamindari Abolition and Land Reforms Act would become vacant land available for the purposes of allotment by the Gaon Sabha. The scope of Section 163 is limited so far as the nature of the land which is occupied by trees is concerned. The transfer e in a case where the transfer has been made in contravention of Section 154 will be liable to ejectment and thereupon either the entire holding or part thereof will become vacant land. But in a case where the right in the trees is transferred by an intermediary not in the capacity of a bhumidhar as contemplated by Section 154 of the Act but as a holder of grove or owner of trees he can do so because the right is reserved by the Act. The restrictions in our opinion, as contained in Section 154 of the Act do not curtail the rights of intermediary grove holder. The land although is affected by the existence of the trees but it does not loose its character as a grove and the trees do not loose their existence by any fiction but they remain as trees and so long as they keep standing or are substituted or re -planted the transfer of the trees separate from the land would be valid and if their number is such that they preclude or when full grown will preclude the land or any considerable portion thereof from being used primarily for any other purposes, the Gaon Sabha till that period in our opinion, will not have any right to treat the land as vacant and utilise the same or allot the same. We are, therefore, of the opinion that the term 'land' as defined in the U.P. Zamindari Abolition and Land Reforms Act includes the land occupied by a "grove" but the transfer of the "grove" or the "trees" is not covered by Sections 154 and 163 of the Act. Section 154 of the Act, in our opinion, puts a clog on the transfer by a bumidhar on the land as such and there is no restriction on the right of the ex proprietor or intermediary over his rights in the trees which he had and which after the zamindari abolition he acquired under Section 6 of the Act. The transfer therefore in the instant case cannot be taken to be the transfer of the land but it can only be taken to be the transfer of the trees and is valid to that extent. It the trees cover up the entire area of the land being more than 12 1/2 acres the transferee does not get any right in the 'land' itself except the right to maintain the trees of which he becomes the owner by transfer and to maintain the nature of the grove or plant trees so as to exclude or preclude the entire land or any portion thereof from being used primarily for any -other purpose. 10. The word 'holding' has not been defined in the U.P. Zamindari Abolition and Land Reforms Act but in view of Section 3(26) of the Act we have to refer to the definition of the word 'holding' as given in the U.P. Tenancy Act, 1939. The term 'holding' has been defined in that Act which means a parcel or parcels of land held under one lease, engagement or grant, or in the absence of such lease, engagement or grant under one tenure and in the case of a thekedar includes the theka area. We have already observed that the land whereupon trees stand vested in the State and Bhumidhari right in the land whereupon the trees stand has separately been created under Section 18 of the Act in consequence of the vesting. Bhumidhari right is created in respect of that land whereupon a 'grove' stands. The question therefore that the proprietor 's grove as such has not been recognised by the Act nor any right has been created in favour of any intermediary is only a loud thinking and not a matter of substance. The right that has been created in consequence of the abolition is a right to hold the trees and also the land. Section 18 of the Act speaks about the settlement of certain lands with intermediaries as bhumidhars and includes a land in the possession of intermediary as his grove In the instant case it was admitted by both the parties that the subject matter of dispute was a grove. This made it necessary to consider the rights in the land and trees standing thereon. In our opinion therefore proprietor's grove has been treated as grove land held by an intermediary as such and is included in his holding and an intermediary is entitled to transfer the trees and may alienate the land as well within the limits provided by Section 154 of the Act. In case of transfer of trees only the transferee does not get any right in the land itself but he has the right to maintain the trees of which he becomes the owner by transfer. The transferee may either remove the trees or maintain the nature of the grove or plant new saplings or plant so as to exclude or preclude the entire land or portion thereof from being used primarily for any other purpose. 11. We, therefore, hold that the term 'land' includes the land covered by grove or trees and the transfer of the land not covered by trees is controlled by Section 154 of the Act. In case where the land is covered by trees so as to exclude or preclude the entire land or portion there of from being used primarily for any other purpose the transfer of trees is not controlled by Section 154 of the Act and the transferee of such land is neither liable to ejectment nor the land becomes vacant land under Section 163 of the Act The transferee in entitled to maintain the nature of the grove. We further hold that transfer of more than 12 1/2 acres of land will not be valid in a case where the transferee becomes entitled to land which together with land, if any held by himself or together with his family, will in aggregate exceed 12 1/2 acres in Uttar Pradesh. If the transferee is an institution established for charitable purposes or the transfer is covered by Sub -sections (2) and (3) of Section 154 of the Act, the transfer will be valid. 12. In view of the above discussion the writ petition must succeed. So long as the trees stand in such a manner as to maintain the nature of the grove and preclude or exclude the entire land or portion thereof from being used primarily for any other purposes the land cannot be treated as vacant land. The title in the trees that have been transferred or which may be planted subsequently will vest in the Petitioner. He will not be liable to ejectment so long as the nature of the land is maintained as grove but the land or any part thereof shall not be deemed to have been conveyed to the Petitioner and he acquired no title to the land except to retain the same as stated above. 13. In the result the petition is allowed and the order dated 29 -8 -l964 passed by the trial court, dated 20 -2 -1955 passed by the Additional Commissioner and the order dated 4 -1 -1971 passed by the Board of Revenue are quashed. 14. In the circumstances of the case we make no order as to costs.;