JUDGMENT M.M. Gopal, Member - This is a second appeal against the judgment of learned additional commissioner dated 10.10.1977 dismissing the appeal against the judgment of the trial court dated 28.10.1976 by which it dismissed the suit. 2. Heard the learned counsels and perused the file. 3. The facts of the case are that Mewa, Mahabir, Narendra Prasad, Sarjoo & Mani Shanker Singh (Plaintiffs) have filed suit against Balgir, Ranchhor (defendant set no. 1) Naresh Chandra, Pravesh Chandra, Suresh Chandra (defendant set no. 2) State, Gaon Sabha under section 229-B/202 of UPZA & LR Act (hereinafter called Act I of 1951). It is alleged by the plaintiff that plot in dispute (no. 18/8 area 1.25 acre) was grove land as mentioned in paragraph 8 of the plaint, and it remained so on the date of vesting and even now that defendant no. 1 had not acquired sirdari rights over the land in dispute because the land was never given to defendant no. 1 but ho was shikmi of the grove land, hence he did not acquire any right and he could not transfer his right to defendant Ranchhor. In the alternative it is alleged that even if it is assumed that the land was given to defendant no. 1 in the nature of Shikmiyana, he was in possession only as Shikmi and thereby Asami and he could not acquire any right over the land in suit. That by getting bhumidhari, sanad defendant no. 1 cannot acquire any bhumidhari right. Defendant no. 3 as the Manager of the family executed a sale deed in favour of plaintiff on 2.12.1958 and thus the plaintiff became bhumidhar of the land in suit. Defendants 3 to 5 i.e. set no. 2 are the tenant-in-chief of the land in suit. The land including the land in dispute was taken from defendant set no. 2 Naresh Chandra & others by the plaintiffs as grove land. The trees were planted covering all sides, well and bunglows were constructed. The bunglows and the whole portion of land was settled as Shikmiyana with defendant no. 1 Balgir and the "Patwari" wrongly recorded the name of Defdt. No. 1 as shikmi over some vacant portions of grove land and later on sirdar over the same. 4. Joint written statement by Balgir and Ranchoor (defendant set no. 1) has been filed on 11.7.1969. 1 Balgir and the "Patwari" wrongly recorded the name of Defdt. No. 1 as shikmi over some vacant portions of grove land and later on sirdar over the same. 4. Joint written statement by Balgir and Ranchoor (defendant set no. 1) has been filed on 11.7.1969. They denied the plaintiffs claim that the plaintiffs were grove holders, that the sale deed dated 2.12.1958 in favour of plaintiff is not binding on the defendants. They inter alia alleged that Balgir (defendant no. 1) had been admitted as Shikmi by the original tenant and he became adhivasi and subsequently sirdar. Defendants set no. 2 Naresh and others had never planted grove (over the said portion of grove land) and as he was in possession in 1359 fasli he became adhivasi and subsequently sirdar and the rights of defendant set no. 2 if any, had extinguished, that no action was taken by defendant set no. 2 after the publication of the compensation statement, hence now he (defdt no. 1) cannot be ejected. In any way defendant Balgir admitted that he was shikmi of the grove holder. 5. The trial court by its judgment dated 28.10.1976 dismissed the suit on the ground that it (the vacant portions) was not a grove but cultivated land. He based his judgment on the vakil commissioner report which was presented on 2.3.1973. In this report it is mentioned that plot no. 18 &18/1 are adjacent to each other. There were trees (45 trees of bair, banskothi, 2 trees of lasorah, 3 trees of sahajan, 3 trees of guava and 7 trees of mangoes) and 5 trees were cut and it was a grove but later on another commission was issued who submitted his report on 12.7.1973, and subsequently he gave a supplementary report on 21.3.1974. The trial court held that the land (i.e. the said vacant portions.) in dispute was not grove. It was cultivated and it did not remain as grove and defendant no. 1 was not a shikmi. 6. The additional commissioner dismissed the appeal and held that it was not a grove and the defendant was Shikmi and not asami. He has also held that the sale deed was executed by Naresh only and (not by Suresh and Paresh), hence it cannot be said that the transfer was done on behalf of all the brothers. 7. 6. The additional commissioner dismissed the appeal and held that it was not a grove and the defendant was Shikmi and not asami. He has also held that the sale deed was executed by Naresh only and (not by Suresh and Paresh), hence it cannot be said that the transfer was done on behalf of all the brothers. 7. The plaintiffs have acquired rights through transfer by the defendant set no. 2 Naresh and others. They (Naresh others) did not challenge the right of the plaintiff. Hence the right of the plaintiffs as grove holder is beyond doubt and the plaintiffs remained as grove holders. The main question for deciding in the second appeal is whether the land having grove or not can be said to be a grove land or not and secondly whether a person who was admitted as Shikmi of such grove holder can acquire adhivasi and subsequently sirdari right. 8. The land in suit i. e. 18/3 area 1.25 acres was grove-land and as held by both the courts there were several trees over a portion of the land (i. e. about, 90 acres) and two bung-lows and some portions of the land (at different places) were vacant and it was cultivated by the defendants (at five different portions of the land). From the report of the vakil commissioner dated 23.7.1974 it is clear that the said vacant portions of grove land were never cultivated and there were big grasses over that portion. There were several trees, and two bung-lows and some portion, along with the trees, in between the trees standing or the bung-lows, was vacant land. Hence that land was cultivated and the defendant acquired the right on the basis of possession. The facts itself show that there are no sub-divisions of plot no. 18/3 and there were several trees, bung-lows etc, hence it is clear that it was grove-land. Its some portion (at different places) is vacant and constructions are done over some portion. It cannot be said that the portions over which the trees are not planted or over which there was no tree, was not a grove-land. On the other hand when there is such a big grove it is but natural to keep some portion vacant for the full enjoyment of that grove and it cannot be said that the vacant portion is outside the grove land. On the other hand when there is such a big grove it is but natural to keep some portion vacant for the full enjoyment of that grove and it cannot be said that the vacant portion is outside the grove land. The confusion has arisen due to the fact that the courts below have treated "grove land" as "grove". There is a difference between grove land and "grove". Grove land" includes grove and other portion of the grove land. Grove land has not been defined in Act I of 1951. It has been defined in U. P. Tenancy Act in Sub clause 6 of section 3, which runs as follows :- "grove-land" means any specific piece of land in a mahal or mahals 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 purpose ; and the trees on such land constitute a grove. Hence grove and other land are included within the grove land and if the trees are planted so that a considerable portion cannot be used for any other purposes that land becomes grove land. The trees on such land constitute a grove in which the land cannot be used primarily for any other purpose. Hence the whole area of plot no. 18/3 (1.25 acres) is grove land. Moreover, the portion alleged to be cultivated for one year is at five or six different places of that grove land and there were signs to show that trees were uprooted from those places. 9. Any sub-tenant of the grove land is asami (clause B of Sub section 1 of section 21 of Act I of 1951 and these sub tenants will become asamis under the Act 1 of 1951. They cannot acquire any right other than asami. The relevant portion of section 21 is as follows :- "every person who, on the date immediately preceding the date of vesting, occupied or held land as... (1)....... (b) a sub-tenant of a grove land......... shall be deemed to be an asami thereof.......... They cannot acquire any right other than asami. The relevant portion of section 21 is as follows :- "every person who, on the date immediately preceding the date of vesting, occupied or held land as... (1)....... (b) a sub-tenant of a grove land......... shall be deemed to be an asami thereof.......... (2) Occupants of Grove Land - Every person, who, on the date immediately preceding the date of vesting was a person recorded, in the manner stated in clause (b) of section 20, as occupant of any grove land, shall be called an asami of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof as an asami from year to year". Under section 16 of the U.P.Z.A. & L.R. Act sub-tenant of grove-land cannot be an occupant. The explanation of section 16 of U.P.Z.A.& L.R. Act clearly mentions "For the purpose of this section the term "land does not include...(ii) land recorded as grove land......" Hence it has wrongly been hold by both the courts below that the defendant has acquired rights on the basis of possession or on the basis of his being occupant of the grove-land. It is also mentioned so in sub-clause 14 of section 3 of the said act as follows: - "Land" means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming." In other words it does not include a grove-land. Hence from any angle the sub-tenant of grove-holder cannot be said to be a sub tenant of the land or the occupant of the land, but he remains as an asami and is liable to ejectment. 10. Hence both the courts below have not properly exercised the jurisdiction vested in them. A sub-tenant of grove-holder is always an asami. The grove land includes all the portions of that area including vacant or constructed portions. Contrary view taken by the courts below are against the provisions of law and are not based on any evidence except the entry made by lekhpal. Lekhpal cannot change the character of the land. If some portion of such a high grove land is cultivated (though doubtful) at several places by some one, it cannot be said to be outside the area of grove land. Lekhpal cannot change the character of the land. If some portion of such a high grove land is cultivated (though doubtful) at several places by some one, it cannot be said to be outside the area of grove land. Hence the judgments of the courts below are not only perverse or wrong but are against all the principle of Jaw or notions established by court. 11. The proceedings u/s 240-B of U. P. Z. A. & L.R. Act cannot adversely effect the proceedings of the regular suit, issuing of bhumidhari sanad does not finally decide the question of title. The proceedings under those provisions are also of summary nature. They cannot have binding effect on the regular suit. 12. On these grounds I hold that the plaintiffs are the grove holders and the whole area retained the character of grove land. The defendants are liable to ejectment and they should be ejected. Defendant Balgir did not acquire any right and any transfer by the defendant Balgir to defendant Ranchor has got no effect because he himself had no right. The suit is, therefore decreed. 13. I, therefore, allow the second appeal, set aside the judgment of the trial court dated 28.10.1976 and of the additional commissioner dated 10.10.1977 and decree the suit of the plaintiffs. Costs easy. Let the amaldaramad be done and defendants be ejected accordingly.