1. This is a second appeal by the plaintiffs whose suit has been dismissed by both the lower Courts. The facts are simple and not in dispute. The plaintiff is the sole zamindar of the village and the defendant is an occupancy tenant. The defendant has recently constructed a well close to his occupancy tenancy on some 'parti' land. The mukhtar-am of the plaintiff admits that the distance of the well from the occupancy holding is only 20 paces. The plaintiff has not shown that he has been caused any special damage by the construction of this well. The only argument put before me on appeal, out of the various grounds of appeal, was that it was necessary for the lower Courts to find that there was a local custom entitling the defendant to make the well in question, and that as a matter of fact it was not necessary for the defendant to make the well because sufficient water could be obtained for irrigation of his holding from a jhil. Section 110, Act 3 of 1926 states:
An ex-proprietary or 'occupancy tenant may make any improvement except that he may not plant trees, make a tank, or erect buildings of a permanent character unless there is a local custom entitling him to do so or he has obtained the written consent of his landholder.
2. It appears to me that the word 'except' governs all the words which follow it to the end of the section. Therefore any improvement which does not come after the word 'except' may be made by an occupancy tenant. 'Improvement' is defined in Section 3(11) and in Sub-section (a). 'improvement' includes wells. It was argued that a well is the same as a tank. The learned Counsel who put forward this argument was unable to support it by any definition in any dictionary or by any ruling or by any reference to the Act itself. On the contrary, the Act enumerates in Section 3(11)(a) both wells and tanks. If these two words were synonymous the Act would not have specified them separately. Further if the provisos in Section 110 had been intended to apply to wells as well as to tanks, the two words would have been mentioned in Section 110 just as they have been mentioned in Section 3(11)(a). I consider, therefore, that there is no force whatever in the argument, and that it is unnecessary to prove that there is any local custom entitling an occupancy tenant to make a well. No other ground of appeal was argued before me, but I may state that I agree with the findings of the lower appellate Court generally, and I consider that as Section 3(11) permits an improvement to be made for the benefit of the holding without being on the holding, there is no difficulty arising in the present case from the fact that the well has been made on parti land close to the occupancy holding. It is only in case the plaintiff could have shown that he suffered any special damage by the construction of the well that any cause of action could arise to him. He has failed to do so in the present case. I dismiss this appeal under Order 41, Rule 11.