JUDGMENT A.P. Srivastava, J. - These two connected second appeals have come up before us on a reference made by Mr. Justice Brijlal Gupta. The learned single Judge felt that the cases needed to be heard by a Division Bench as it was necessary to resolve the conflict between two single Judge decisions of this Court in Alla Bux v. Budha, 1939 A.L.J.R. 355 and Batram Das v. Harakh Chand, A.I.R. 1949 Allahabad 754 = 1949 A.L.J. 243 The facts of the two cases be-fore us are different. Before considering the questions argued in connection with them we shall first state those facts briefly. 2. Second appeal No. 1292 of 1954 arises out of a suit for injunction restraining the defendants from obstructing the plaintiff in demolishing his southern wall and restraining them from obstructing the plaintiff from building the said wall pakka. The plaintiff claimed that the wall belonged to his house and belonged to him. He said that the wall was Kachcha and he wanted to make it Pakka. He had obtained permission from the Municipal Board for the purpose but the defendants were restraining him from pulling down the wall. He therefore prayed for the aforesaid injunction. The defendants contested the suit and denied that the wall in question belonged to the plaintiff. They alleged that the wall was really a wall of their house which the plaintiff was not entitled to pull down or reconstruct. 3. The trial court decided the question of title to the wall in favour of the plaintiff and held that the obstructions raised by the defendants was unjustified. It decreed the suit and granted the injunction prayed for. Against that decree the defendants preferred an appeal. They had engaged a counsel for arguing the appeal. When the appeal was taken up for hearing the appellants along with their counsel were present. The counsel, however, moved for an adjournment on the ground that he was not prepared with the case. This request for adjournment was rejected. The counsel then showed his inability to argue the appeal but he continued to be present in Court along with the defendants-appellants. The learned Civil Judge then heard the respondent's counsel and finding that no case had been made out for disturbing the decree of the trial court dismissed the appeal on merits. 4. The other case viz. The counsel then showed his inability to argue the appeal but he continued to be present in Court along with the defendants-appellants. The learned Civil Judge then heard the respondent's counsel and finding that no case had been made out for disturbing the decree of the trial court dismissed the appeal on merits. 4. The other case viz. Second Appeal No. 2412 of 1956 arises out of a suit for declaration. The land in dispute had an area of 50 bighas and was situate in village Marfa, pergana Sateshgarh, district Mirzapur. The Raja of Kantit was the sole zamindar of the village. On 30-6-1951 immediately before the coming into force of the U.P. Zamindari Abolition and Land Reforms Act he let out the land to the plaintiffs No. 1 and 2 and to the deceased father of the plaintiffs 3 and 4. The lease was a registered one. The tenants had been given the power of transfer. They could use the land for agricultural purposes and could also improve it by building houses, wells and tanks on it and could also plant groves on the said land. At the time the lease was granted the land was lying Banjar. After the coming into force of the U.P. Zamindari Abolition and Land Reforms Act the plaintiffs claimed to have acquired Bhumidhari rights in respect of the land. The defendants however alleged that the land was really the pasture land of the village and all the residents of the village had a customary right to graze their cattle on it. According to the plaintiff the defendants also wanted to take the land but were not successful. They therefore raised a dispute about it under Sec. 145, Cr. P. C. claiming that the land was pasture land and they had a customary right to graze their cattle upon it. The criminal proceedings ended against the plaintiffs and they had therefore to file a suit for a declaration that the land was not pasture land nor the defendants had any customary rights over it for grazing their cattle. The plaintiffs alleged that they were in possession but claimed possession in the alternative if they were found to be out of possession. The defence was that no Bhumidhari rights could be claimed in respect of the land and that the suit was bad because the Gaon Samaj had not been impleaded. The plaintiffs alleged that they were in possession but claimed possession in the alternative if they were found to be out of possession. The defence was that no Bhumidhari rights could be claimed in respect of the land and that the suit was bad because the Gaon Samaj had not been impleaded. The defendants alleged that the zamindar had no right to let out the land to the plaintiffs as it was common pasture land of the village. 5. The trial court decided all the issues in favour of the plaintiffs and decreed the suit. It was held that the zamindar had a right to let out the land to the plaintiffs and the plaintiff had become Bhumidhars. The contention that it was a common pasture land was rejected. Against the decision of the trial court the defendants went up in appeal to the Civil Judge. When the appeal was taken up for hearing one of the appellants was present. He moved an application for adjournment. It was rejected. The counsel for the appellants was not present. After rejecting the application for adjournment made by the appellant who was present, the learned Civil Judge heard the counsel for the respondents and after considering the appeal on merits came to the conclusion that it could not succeed. He therefore dismissed the appeal with costs. Against that decision of the learned Civil Judge the defendants have filed the present second appeal. 6. When the two appeals were taken up for hearing by Mr. Justice Brijlal Gupta it was argued on behalf of the appellants in support of the appeals that in the circumstances of the two cases the lower appellate court had really no jurisdiction to decide the appeal on merits. The appellants in the two cases could not be deemed to have appeared within the meaning of Or. 41, R. 17, C.P.C. and the only option which the lower appellate court had was either to adjourn the appeals to another date or to dismiss it for default. The appeals could not have been decided on merits. It was on this ground urged that the decree passed by the lower appellate court in the two cases should be set aside and the case sent back to the court below for consideration on merits. 7. The appeals could not have been decided on merits. It was on this ground urged that the decree passed by the lower appellate court in the two cases should be set aside and the case sent back to the court below for consideration on merits. 7. Reliance was placed on behalf of the appellants on some observations made in Alla Bux v. Budha, 1939 A.L.J.R. 355. It was contended, on the other hand, on behalf of the plaintiffs-respondents that as the appellants themselves were present when the appeals were taken up for hearing by the lower appellate court the appeals could not have been dismissed for default and had been rightly dismissed on merits. There was therefore no question of their being sent back for rehearing. The respondents-placed reliance on Balram Das v. Harakh Chand, A.I.R. 1949 Allahabad 754 : 1949 A.L.J. 243. 8. The question that thus arose was as to what is mean by the expressions "does not appear" and "appear" in Or. 41, R. 17, C.P.C. That rule reads :- "Where on the day fixed, or oil any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. (2) Where the appellant appears and the respondent does not appeal, the appeal shall be heard ex-parte." 9. It was urged on behalf of the appellants that for the purpose of this rule the mere physical presence of the appellants was not enough. They should be there to assist the court in connection with the merits of the appeal and should also be in a position to put forward their own case. If, therefore, the appellants has engaged a counsel and that counsel was for some reason not prepared to argue the appeal and the appellant who was present on behalf of the appellants himself could also not argue the case personally, the only course which the Court could adopt was either to adjourn the appeal to some other date or to dismiss it for default. In that case the appellant will have a right to have the appeal restored to its original number and to have it reheard. It is not open to the Court in such circumstances to decide the appeal on merits. 10. In that case the appellant will have a right to have the appeal restored to its original number and to have it reheard. It is not open to the Court in such circumstances to decide the appeal on merits. 10. The argument on behalf of the respondents, on the other hand, Is that R. 17 can apply when the appellant "does not appear." If he is there and for some reason is unable to argue the case that does not mean that he has not appeared, and if he has appeared there can be no dismissal for default. In that case the appeal can be heard only on merits. 11. Or, 41, R. 17, C.P.C. is not the only rule in the Code in which the word "appear" has been used. Under Or. 3, R. I of the Code appearance can be made by a party in person or by his recognised agent or pleader on his behalf. The proviso to that rule required the personal appearance of the party in case the court so directs it. The word "appear" is also used hi several rules of Or. 9. Under R. 1 of that Order on the day fixed in the summons for the defendant to "appear" and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders. R. 6 provides that the Court has to follow a certain course if the plaintiff "appears" and the defendant "does not appear" when the suit is called on for hearing. Under R. 7 if the defendant "appears" and assigns good reason he may be heard in answer to the suit as if he had "appeared" on the day fixed for his appearance. Under R. 8 if the defendant "appears" and the plaintiff "does not appear" the Court shall dismiss the suit. Under R. 9 an order for dismissal under R. 8 can be set aside on sufficient cause being shown for nonappearance when the case was called on for hearing. Similarly under R. 13 an ex-parte decree can be set aside on showing sufficient cause for not appearing when the case was called up for hearing. We also find the word "appear" used in Rule 2 of Or. Similarly under R. 13 an ex-parte decree can be set aside on showing sufficient cause for not appearing when the case was called up for hearing. We also find the word "appear" used in Rule 2 of Or. 17, C.P.C. Under that rule if on the date to which the hearing of the suit is adjourned the parties or any of them "fail to appear" the Court may proceed to dispose of the suit in one of the modes directed in that behalf by order 9 or make such other order as it thinks fit. An explanation added to that rule by this Court provides that "no party shall be deemed to have failed to appear if he is either present or is represented in court by an agent or pleader, though engaged only for the purpose of making an application." 12. In all these rules it appears to us that the word "appear" has been used in the sense of being present or being in attendance. If a party to a suit or appeal is in attendance and is present before the Court he must be held to have appeared in the suit or appeal. If he is not present or is not in attendance it can be said that he has not appeared. It is true that in certain circumstances the mere physical presence of a person in the court room or in the court precincts may not amount to the presence of a party or his being in attendance. For instance if a person has gone to the court room or the court premises for some purpose without being aware of any suit or proceedings pending against him it is difficult to say that he is present in any particular suit or appeal that is fixed for that date or that he is in attendance in that case. But if he knows that he is a party to the suit or appeal and that the suit or appeal is to be taken up for hearing on that particular day and is present and attends it for the purpose of taking part in the suit or appeal we cannot see how he can say that he "did not appear" simply because for some reason or the other he was not prepared to proceed with the suit in the way in which he would have liked to proceed. It is, in our opinion, the duty of each party who has to do something in connection with the case in which he is interested, to be either prepared to do that thing when the case is called or to have some one else ready to do it. If he is himself present and is in attendance he cannot expect the court to ignore his presence and to proceed as if he is not there. That will amount to the court's shutting its eyes to actual facts. It will be proceeding on a false assumption which has no basis in reality. 13. Under Or. 3, R. 1, C.P.C. a party can put in appearance either personally or through a counsel. Unless the court specifically directs, his personal presence is not necessary if he has engaged a counsel duly instructed. The presence of the counsel will amount to his presence. The counsel must however be duly instructed. If the counsel is not duly instructed and states that for some reason he cannot represent the client his presence in the court will not amount to the presence of the client. Five situations can arise in this conception. (1) The party and his counsel may both be present. (2) The counsel may be present and the party may be absent. (3) The party may be present and the counsel may be absent. (4) The counsel present may for some reason be not duly instructed and so unable to proceed. (5) The party may while being present be for some reason unable to proceed. 14. There will be no difficulty in the first two cases. The party concerned will be taken to be present. In the fourth case no body can be held to have appeared. In the third and the fifth case however the party must be held to be present and cannot in our opinion be treated as having not appeared. 15. Sri Verma, learned counsel for the appellants in one of these appeals tried to urge that if a party had engaged a counsel then the counsel alone can represent him and if the counsel is not there the presence of the party should be treated as immaterial. The Court cannot in that situation proceed as if the party had appeared. He relied in this connection on the words of Or. The Court cannot in that situation proceed as if the party had appeared. He relied in this connection on the words of Or. 3, R. 1, C.P.C. according to which appearance can be put in either by the client or by counsel. He also referred to some observations made in Garpati China Hasava Satyanarayana v. H.R.E. Board, Madras, AIR 1945 Madras 300 at p. 311. We are, however, unable to interpret R. 1 of Or. 3 in the manner suggested by the learned counsel. The rule does permit a person to appear either personally or through a counsel, but there is nothing in it to justify the conclusion that once a counsel has been engaged the client is out of the picture and cannot take part in the proceeding himself. The authority of the counsel is at the best delegate authority and the power of the client to do what he considers best in his own interest in connection with the case is not taken away by the fact that he has appointed someone else to represent him in the case for certain purpose. For instance if a person has appointed a counsel but for certain reasons the counsel is not present can it be said that it is not open to the person to apply for adjournment personally or to file any document which he thinks is necessary for the purpose of the case. Simply because a counsel has been engaged the client does not become incapable of acting on his own interest in the case. The observation in the Madras case on which learned counsel has relied does not lay down the proposition contended for. 16. In Alla Bux v. Budha, 1939 A.L.J.R. 355 on the date to which the hearing of the appeal had been adjourned the counsel for the appellant was busy elsewhere and could not appear in court. The appellant was present. He was directed to engage some other counsel and time was given to him for that purpose. When the case was called again a counsel had been engaged. He appeared but stated that he was unable to prepare the case and could not therefore argue it. The Court then dismissed the appeal on the ground that nobody had appeared to argue the case. When the case was called again a counsel had been engaged. He appeared but stated that he was unable to prepare the case and could not therefore argue it. The Court then dismissed the appeal on the ground that nobody had appeared to argue the case. Interpreting the decision as an order dismissing the appeal for default Allsop, J. said :- "I think appearance in the legal sense does not mean a mere physical presence within a certain local area or a room or anything of that kind. I think it means that a party or somebody on his behalf either expressly in words or by his conduct demands an adjudication from the court. It is possible that a party to a suit or other proceeding might physically be present in a court and might not make his presence known to it. In these circumstances I should certainly hold that there was no appearance in the legal sense of the term." Holding therefore that in that case neither the appellant nor his counsel had appeared the learned Judge set aside the decree passed by the lower appellate court and remanded the appeal for being heard on merits. 17. In Balram Das v. Harakh Chand A.I.R. 1949 Allahabad 754 : 1949 A.L.J. 243 on the date fixed for the hearing of the appeal the appellant was himself absent. He had engaged two lawyers. They were sent for but they refused to address the arguments in the appeal saying that they had no instructions. The court then dismissed the appeal with costs. Treating the order as an order of dismissal for default, an application was made for the restoration of the appeal but it was rejected. Two appeals were then filed, one against the order dismissing the appeal and the other against the order dismissing the application for restoration. Seth, J. was of the view that only one of the two appeals could succeed. Interpreting the order passed by the Civil Judge as one on merits he held that the application for restoration was not maintainable and the appeal against the rejection of that application could not therefore succeed. Then the learned Judge addressed himself to that question whether the appeal could have been decided on merits. Interpreting the order passed by the Civil Judge as one on merits he held that the application for restoration was not maintainable and the appeal against the rejection of that application could not therefore succeed. Then the learned Judge addressed himself to that question whether the appeal could have been decided on merits. He laid some stress on the fact that the counsel engaged by the appellant while stating their inability to argue had not made it clear as to what they had meant. He observed :- "I am reluctant to accept the view that a party to an appeal should be deemed to have failed to appear even though his pleader, duly appointed to argue the appeals is present in Court, and, without withdrawing frosts the case or terminating his appointment refused to argue the appeal, because his fees have not been paid or because he is not properly prepared in the case. 18. The case in Balram Das v. Harak Chand, A.I.R. 1949 Allahabad 754 : 1949 A.L.J. 243 is distinguishable from the present case in two respects. In the first place in that case unlike the present one the appellant himself was absent. Secondly the appellants' counsel had stated that they had no instructions. The appellant's counsel in the cases before us had not made any such statement. The consistent practice in this Court and the courts subordinate to it has always been that whatever may be the ground on which a counsel states that he has no instructions if he does state that he has no instructions he is deemed to have withdrawn from the case and is not considered to be a duly authorised counsel to present the party who appointed him. If, therefore, the party himself is absent and his counsel stated that he has no instructions it has always been held that the party has not appeared. Reference may be made in this connection to the case of Shanker Dat v. Radha Krishna, I.L.R. 30 All. 195 decided in 1897 where a Division Bench of this Court, consisting of Sir John Edge, C.J., and Mr. Justice Blair held :- "A party defendant retained a pleader to defend the suit against him, and the pleader filed a vakalatnama and did certain acts for the defendant. 195 decided in 1897 where a Division Bench of this Court, consisting of Sir John Edge, C.J., and Mr. Justice Blair held :- "A party defendant retained a pleader to defend the suit against him, and the pleader filed a vakalatnama and did certain acts for the defendant. However, when the suit came on for hearing the pleader came into Court and stated that he had no instructions and could not go on with the case practically, that he had retired from the case. The court proceeded with the suit and made a decree in favour of the plaintiff. Held that this decree was a decree ex parte within the meaning of Sec. 108, C.P.C." We, therefore, do not agree with the conclusion arrived at by Mr. Justice Seth that though the appellant was absent on the date of the hearing and the pleaders refused to argue the appeal stating that they had no instructions that the suit could be held to have been dismissed on merits treating the appellant as having appeared. Howsoever desirable it may be for the counsel stating that he has no instructions to state the grounds on which he is making the statement the omission to state the grounds cannot in our opinion justify the conclusion that the counsel is authorised to represent the party and the party must be deemed to have been present through him. 19. The noticeable feature of Alla Bux's case, 1939 A.L.J.R. 355 is that the appellant himself was present when the case was called. The lawyer whom he had engaged did not appear. Time was, however, given to him to engage another counsel and when the case was again called up the appellant as well as the other counsel appeared. The other counsel did not state that he had no instructions or that he wanted to withdraw from the case. He only said that he had not been able to prepare the case and could not therefore argue it on behalf of the appellant. In these circumstances even though the appellant was himself present the learned Judge took the view that he had not put in appearance in the legal hence of the term. We are with respect unable to share this view. Considering the meaning which we think the word `appear' bears in Or. In these circumstances even though the appellant was himself present the learned Judge took the view that he had not put in appearance in the legal hence of the term. We are with respect unable to share this view. Considering the meaning which we think the word `appear' bears in Or. 41, R. 17, C.P.C., we think that if the appellant was there in attendance and had gone for the purpose of looking after his appeal he could not be held to have "not appeared" simply because he could not argue the appeal himself, and could not persuade his counsel for some reason to do so. He knew that the appeal was fixed on that date for hearing. He had also gone to the Court on that date for attending to the appeal. He was in attendance when the appeal was called. It was therefore his duty either to argue the appeal himself or to have some counsel ready who could perform that function. It is true that in certain circumstances the mere physical presence of a party may not be treated as appearance in a case but we are not prepared to hold that a party can be held to have appeared only if he is able to conduct the appeal himself and if he is unable to do so he should be treated as absent even though he is there. The view taken by the learned Judge in this case does not appear to be in consonance with several other decisions which apparently were not brought to the notice of the learned Judge. 20. In Baldeo Prasad v. Kunwar Baltadur, 11 A.L.J.R. 18 there were two appellants. When the case was called up one of them appeared and informed the court that one of his counsel had gone to Agra and the other had gone to camp. He, therefore, prayed for adjournment This request was refused. The appellant present was directed to argue his case. He said he had nothing to say. The respondent's pleader then said that the appeal was not supported and should be dismissed. Agreeing with that contention the learned Judge dismissed the appeal. The other appellant then filed an application for restoration which was rejected. One appeal was filed against the order dismissing the appeal and another against the order rejecting the application for restoration. The respondent's pleader then said that the appeal was not supported and should be dismissed. Agreeing with that contention the learned Judge dismissed the appeal. The other appellant then filed an application for restoration which was rejected. One appeal was filed against the order dismissing the appeal and another against the order rejecting the application for restoration. The view taken by the Court was that when the appellant was present and had applied for adjournment if showed clearly and definitely that he did not want to drop it. He wished to press it. This bare fact that he could not argue it did not justify the learned Judge in dismissing it. It was necessary for him under the circumstances to consider the grounds of appeal and to decide the case on merits. In this case, therefore, even though the appellant's counsel was not present and he himself was unable to argue the appeal, as he was present, it was held that he could not have been held to have failed to appear and it was necessary for the Court to decide the appeal on merits. 21. In Mohammadi Husain v. Chandra, 1937 A.L.J.R. 174 when the appeal was called up for hearing the pleader engaged by the appellant appeared and presented an application stating that he could not prepare the appeal owing to other heavy engagements. He prayed for an adjournment. The prayer was rejected. The appeal was thereupon dismissed for default. A second appeal having been filed it was argued that it was not maintainable because the appeal having been dismissed for default an application for restoration ought to have been made. The objection was overruled and Niamatullah, J., held that the appeal had not in fact been dismissed for default or non-appearance. In his opinion there was appearance. The pleader who appeared had prayed for time. The prayer was made on the ground that he could not prepare the case. There was nothing to show that after the application for adjournment had been dismissed the pleader retired from the case and there was no appearance thereafter. The Court was therefore not entitled to dismiss the appeal for want of prosecution and must be deemed to have dismissed it on merits. 22. There was nothing to show that after the application for adjournment had been dismissed the pleader retired from the case and there was no appearance thereafter. The Court was therefore not entitled to dismiss the appeal for want of prosecution and must be deemed to have dismissed it on merits. 22. The exact facts do not appear from the judgment in Chimman Lal v. Syed Zahur Uddin, A.I.R. 1938 Allahabad 548 = 1938 A.L.J., 901 but it was held in that case that under Or. 41, R. 11, C.P.C. even if the appellant does not appear it is permissible for the Court to dismiss the appeal on merits. 23. In Mathura Das v. Narain Das, A.I.R. 1940 Allahabad 248 = 1940 A.L.J. 126 on the date fixed for the hearing of the appeal when the appeal was called neither the appellant nor any of his three counsels whose vakalatnamas had been filed appeared on his behalf. The court waited for one hour until 3 p.m. At that time the appellant appeared in person and put in an application for adjournment. The application was opposed and was rejected. The court then passed an order dismissing the appeal with cost in default. An application for restoration was made but was rejected. In appeal it was contended on behalf of the respondent that the appellant having been present the dismissal could not have been for default and there was therefore no question of restoration. It was argued on the other hand by the appellants that the learned Judge had not written out a judgment as contemplated by Rule 30 of Order 41 of the Code and therefore reading Rules 17 and 30 together it must be held that the appeal had been dismissed for default. It was held :- "Where the appellant and his pleader are not prepared to address the Court there is no hearing and therefore nothing is shown to the Appellate Court as to why it would interfere with the decision of the Court below. The burden of proof is on an appellant to show that the decision which he appeals from was wrong and where he does not address the Court at all, it appears to us that there is no point raised for determination and it is not necessary therefore to give a decision on any point or the reasons for the decision. The burden of proof is on an appellant to show that the decision which he appeals from was wrong and where he does not address the Court at all, it appears to us that there is no point raised for determination and it is not necessary therefore to give a decision on any point or the reasons for the decision. It is sufficient for the Court to pass an order of dismissal for default. Such an order does not necessarily mean that the appeal is dismissed for default of appearance. In such circumstances the order means that the appeal is dismissed for default of proof." It was thus held in the circumstances of the case that the appellant having appeared and applied for adjournment though he did not argue the appeal he must be held to have appeared and when he had appeared the appeal must be held to have been dismissed on merits. 24. It thus appears that with the solitary exception of the case in Alla Bux v. Budha, 1939 A.L.J.R. 355 ever since the Code of Civil Procedure was enacted in 1908 the consistent view of this court has been that if a party is present in person even though he does not or cannot argue the appeal he cannot be held to have "not appeared" and it being not a case of non-appearance the appeal can and ought to be decided on merits. If the appellant is represented by a counsel and the counsel is present though he himself is not, and the counsel states that he has no instructions both the party and the counsel must be deemed to be absent and the appeal can therefore be dismissed for default. If however the counsel is present, but does not say that he has no instructions and only refuses to argue the case he will be deemed to be present and to be representing the appellant. In that case too the appeal can be decided on merits. 25. This was the view of this Court with reference to the provisions of the earlier Civil Procedure Code also which has been replaced by Code of 1908. It is not necessary to refer to all the cases decided under the old Code. Reference may, however, be made to Fazal Ahmad v. Bahadur Singh, 1893 A.W.N. 25. 25. This was the view of this Court with reference to the provisions of the earlier Civil Procedure Code also which has been replaced by Code of 1908. It is not necessary to refer to all the cases decided under the old Code. Reference may, however, be made to Fazal Ahmad v. Bahadur Singh, 1893 A.W.N. 25. In that case on the date fixed for hearing the plaintiff's pleader appeared but because the witnesses were not present he stated that he was unable to support the plaintiff's case. The suit was consequently dismissed. It was held that it was not a dismissal for default of appearance and the plaintiffs could not therefore apply for restoration or hearing. 26. In another case reported in the same volume at page 208 Ganga Das v. Indramani, 1893 A.W.N. 208 on the date when the suit was taken up for hearing the defendant was represented by a Vakil and the Vakil appeared on his behalf. He was for some reason unable to proceed with the suit and it was therefore decreed. It was held that the decree could not be considered to be an exparte decree which could be set aside on an application under Sec. 108 of the old Code. 27. The other High Courts are not of one view on the point. The view we are taking is shared by the East Punjab High Court vide Smt. Rup Rani Devi v. Christophen South Lea, A.I.R. 1949 E.Pun. 86. But the Patna, Madras and the Calcutta High Courts are of a different opinion vide Ganesh Ram v. Baikunath Pd. Singh, 1951 Pat. 291 Satish Chandra v. Agan Prasad and Garpati China Hasaya Satyanarayana v. H.R.E. Board, Madras, AIR 1945 Madras at page 311. With all due respect however the narrow and restricted interpretation of the word `appear' which has been adopted in these cases does not commend itself to us. 28. In the cases now before us as the appellants were present when the appeals were taken up for hearing even though they were unable to argue the appeals themselves they could not be held to have failed to appear and the appeals could be decided on merits. 29. 28. In the cases now before us as the appellants were present when the appeals were taken up for hearing even though they were unable to argue the appeals themselves they could not be held to have failed to appear and the appeals could be decided on merits. 29. Coming to the merits of the two appeals it was argued in support of appeal No. 2412 of 1956 that because the land was Banjar at the time when it was let out and it continued to be Banjar all along, no Bhumidhari rights could have been acquired in respect of the land by the plaintiff under Sec. 18 of the U.P. Zamindari Abolition and Land Reforms Act because the land was not covered by the definition of the word `land' given in Sec. 2(14) of the Act. That definition reads :- " `Land' except in Secs. 143 and 144 means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which included pisciculture and poultry farming." 30. We find nothing in this definition to require that land must actually be under cultivation before it can fall within the definition. The only thing required is that the land should be held or occupied for purposes connected with agriculture, horticulture or animal husbandry. In the present case we find that the land was let out for purposes connected with agriculture and planting of groves. It could also have been used for grazing purposes in connection with animal husbandry. It was, therefore, not necessary that it could have been used for agriculture before it could be considered to be land within the meaning of the definition. The contention that the land was a public pasture land on which the defendants had a customary right of grazing their cattle and it could not on that account be let out by the zamindar to the plaintiffs has been rejected by both the courts below. That finding of fact cannot be allowed to be questioned here. The zamindar had, therefore, a right to let out the land and if the land did not fall outside the definition of the term as given in the U.P. Zamindari Abolition and Land Reforms Act the plaintiffs who held the land on the date on which the Act came into force could claim Bhumidhari rights in respect of it. The zamindar had, therefore, a right to let out the land and if the land did not fall outside the definition of the term as given in the U.P. Zamindari Abolition and Land Reforms Act the plaintiffs who held the land on the date on which the Act came into force could claim Bhumidhari rights in respect of it. The declaration granted to the plaintiffs thus appears to be correct. 31. No other point has been pressed in connection with the merits of this appeal. 32. The other appeal is concluded by findings of fact recorded by the lower appellate court. The wall in question had been held to belong to the plaintiff and it has further been held that the defendants had no rights in respect of it. They had therefore no justification for causing any obstruction to the demolition of the wall or its reconstruction. The decree impugned in that appeal too must therefore be upheld. 33. In the result both the appeals fail and are dismissed with costs.