JUDGMENT 1. This is a miscellaneous application under Section 151, read with Order XLVII, Rule 1 of the C.P.C. of the plaintiff-respondent, in Second Appeal No. 316 of 1971-72/Distt. Allahabad, which was filed by some of the defendants and was allowed by Sri H.N. Agarwal, the then Member, on August 31, 1979 deciding the appel and Reference No. 1425 of 1971-72/Allahabad, on the ground that the Cross Appeal filed by the plaintiff on August 17, 1977 was a decided while deciding the appeal. Therefore, an apparent mistake and illegality has been committed. 2. We have heard the learned counsel for the parties and have perused the record. 3. It was argued on behalf of the applicant that the cross-objection was to be decided as if appeal was filed by the plaintiff. 4. It was argued in reply that the cross-objection will be deemed to have been dismissed as the relief sought in it was not granted by the Board while deciding the Second appeal and the reference. 5. It was also argued that if it is treated as a Review application, it is time-barred as it was filed on November 30, 1979 against the order dated August 31, 1979. 6. The application is also under Section 151 of the Code of Civil Procedure and it appears to us that by not deciding the cross-objection along with the appeal and reference, as illegality was committed by the Board. Therefore, a party cannot be allowed to suffer for the mistake committed by the Board. 7. Order XLI, Rule 22 of the C.P.C. runs as follows: "O. XLI, R. 22(1) Any respondent, though he may not have appealed from any part of the decree may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection, to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. Explanation. Explanation. - A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that Aiding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent. (2) Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. (3) Unless the respondent files with the objection a written acknowledgement from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent. (4) Where in any case in which, any respondent, has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. (5) The provisions relating to pauper appeals shall, so far as they can be made applicable, apply to an objection under this rule." Sub-rule (4) of Rule 22 provides that the memorandum of objection so filed may nevertheless be heard and determined even when the original appeal is withdrawn or is dismissed for default, and sub-rule (1) provides that in such cross-objection the respondent may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been given in his favour. He may take any cross-objection to the decree which he could have taken by way of appeal. Therefore, it is clear that cross-objection is almost a cross-appeal and has to be decided along with the appeal. Thus, it is clear that by not deciding the cross-objection of the respondent-plaintiff, an illegality was committed which is apparent on the face of the record and is a sufficient ground for allowing this application. Therefore, it is clear that cross-objection is almost a cross-appeal and has to be decided along with the appeal. Thus, it is clear that by not deciding the cross-objection of the respondent-plaintiff, an illegality was committed which is apparent on the face of the record and is a sufficient ground for allowing this application. Hence, this application is hereby allowed and the arguments on behalf of the opposite parties are rejected. 8. We have also heard the learned counsel for the parties on the cross-objection and the appeal and the reference, because if cross-objection is allowed and some modification in the judgment and decree passed in second appeal in question arises, then a Single Member having jurisdiction will not be able to cope with the situation as a Single Member and will not be able to modify the judgment and decree. The learned counsel for the parties agreed to this procedure and have argued the appeal, the reference and the cross-objection together. This judgment shall govern all of them. 9. It was argued on behalf of the plain-tiff-cross-objector that as the land in suit was grove when the U.P. Tenancy Act came into force, the grove holders became hereditary tenants as the character of the grove was last as the land in suit is recorded as Banjar in 1348 Fasli. 10. It was argued, in reply, that the character of the grove was lost long before U.P. Act XVII of 1939 came into force and no rights accrued to such grove-holders under the Agra Tenancy Act of 1926. 11. The cross-objection is only regarding plot No. 204 (9 Biswas). In 1282 Fasli, this plot was recorded as grove of Imam Bux, ancestor of defendants Nos. 15 to 19. It may be noted that in the pedigree given in the judgment of the learned Additional Commissioner, instead of Imam Bux, the fourth son of Sheikh Subhani, Subhan Bux has been wrongly typed. This fact has been admitted by the learned counsel for the opposite parties. In 1309 Fasli, Niamatullah, Hayatullah and Barkat Ullah, sons of Nadir Bux, are recorded. They were ancestors of the plaintiff. In 1334 Fasli, Niamatullah, father of the plaintiff, is recorded and the plot in question is recorded as grove. But in 1348 Fasli the plot is recorded as Banjar. The U.P. Tenancy Act came into force on December 16, 1939, that is in 1347 Fasli. They were ancestors of the plaintiff. In 1334 Fasli, Niamatullah, father of the plaintiff, is recorded and the plot in question is recorded as grove. But in 1348 Fasli the plot is recorded as Banjar. The U.P. Tenancy Act came into force on December 16, 1939, that is in 1347 Fasli. The plot is recorded as Banjar in 1348 Fasli, which means that it had ceased to be a grove prior to 1347 Fasli and was not cultivated after it and had ceased to be a grove land, because old para 118 of the Land Records Manual provided as follows: - "118. Land shall be recorded as a grove only if trees are planted thereon in such numbers that when full grown they will preclude the land or any considerable portion thereof being used primarily for any other purpose. Land formerly a grove but now cleared and cropped should be shown under cropped area. When a crop has been sown among the trees of a grove the words 'cultivated grove' (Bagh Mazrua) shall be entered in the column of the year to which it relates, and the name of the crop with its area shall be entered in the column of crop concerned. Similarly when Singhara has been sown on the land covered with water, the words 'covered with water' (Zerab) should be entered in the column of the year to which it relates. The crop and area should be entered in the column of crop concerned." 12. In new para A-101 of the Land Records Manual it is provided that when a field is thrown out of cultivation and the character of land is not changed so as to require an alteration in the entry, the entry against it in column 18 shall, for three successive years, be 'new fallow' respectively, and thereafter for the next two successive years the entry shall be 'old fallow' and in the sixth year it will be recorded as a 'culturable waste', provided that the character of the land has otherwise remained unchanged during any of these five years. 13. 13. In old para 121 of the Land Records Manual, it was provided that for first three successive years 'new fallow' (1), (2), (3)' respectively shall be written and then for next three successive years 'old fallow (1), (2), (3)' respectively shall be written, and then in the seventh year the entry shall be 'culturable waste'. 14. It is, therefore, clear that this land had lost the character of the grove at least five or six years prior to 1347 Fasli and certainly was not a grove when the U.P. Tenancy Act XVII of 1939 came into force. Therefore, by no stretch of imagination, under Section 206(a) of U.P. Tenancy Act hereditary rights could have accrued to the plaintiff and the defendants with whom the co-tenant, sought relief for being declared to be a co-tenant. 15. Section 197 of Agra Tenancy Act 1926, in its clause (a) provides as follows:- "197. Notwithstanding anything previously contained in this Act, but subject in respect of the matters mentioned in clauses (a), (b), (c) and (f) to any custom or contract to the contrary. (e) it shall be presumed that grove-holder holds the land in respect of which he is a grove holder as a non-occupancy tenant under a lease the term of which will expire when the land ceases to be grove land." It is thus clear that the grove holder in respect of the land of which he is a grove holder holds the land as non-occupancy tenant under a lease the terms of which will expire when the land ceases to be the grove land, which means that the grove-holder of the family of the plaintiff and the contesting defendants even ceased to be non-occupancy tenants when the grove lost its character prior to 1347 Fasli. Therefore, no rights had accrued to the plaintiff or defendants when U.P. Act XVII of 1939 came into force. We are, therefore, of a firm to opinion that the cross objection (cross appel) has got no force and is liable to be rejected. 16. In view of the above, the Cross-objection of the plaintiff is rejected. 17. In view of the result of the cross-objection, no need exists for interfering with the result of the appeal and reference as decided by the Board.