Arnold White, C.J.
1. I adhere to my former judgment, and I think that the appeal should be dismissed with costs.
2. As regards the point that the building was not attached to the land by the plaintiff or her husband during the tenancy under Exhibit II, a point which was not taken in the Courts below I do not think it is necessary to hold that Section 108 of the Transfer of Property Act would be inapplicable to the case. So far as I can see, the recognition, for the period of the new tenancy, of the tenant's property in the building has no other necessary effect than to prevent the landlord from treating the building as having been surrendered to him at the end of the previous, term; it may be taken as evidence of a contract to allow the removable fixture to remain as such upon the land for the new term. I find nothing inconsistent with this view in Exhibit II, and the effect so far as the tenant's right to the building is concerned, is to reserve to him for the new term whatever rights he had during the old term and not to create new rights i. e. rights distinct in view from the old ones. There is no necessity, I think to infer the creation by Exhibit II of any more extensive right than the plaintiff's husband had before, and seeing that the point was not taken on behalf of the plaintiff below we may therefore not have before us all the available evidence, I am not prepared, to draw any inference in the plaintiff's favor which the words of Exhibit II do not necessarily import.
3. As to the question of compensation I think it is clear that it is not the law that, apart from estoppel or contract, the tenant has any right to demand compensation for buildings left by him on the premises when he quits them whether these buildings were erected with the landlord's consent or not. Consent will only be of use to the tenant as leading to an estoppel or as evidencing an agreement. I see no reason, if I may say so, to doubt the correctness of the statement of law on this point in Ismai Kani Rowthen v. Nazarali Sahib.
4. As to the facts I am content to accept them as found by the learned judge who heard the evidence. His estimate of it was not seriously attacked in the argument addressed to us on behalf of the appellant. He finds that there is no trustworthy evidence of an express consent on the part of the original landlord to the erection of the house but that is clear that the 1st defendant the original landlord's successor 'knew of the additions made to it. I agree with him that, this being the state of the evidence, and having regard to the conditions of the tenancy, there is no room for a presumption that there was any undertaking by the landlord to pay for the house if the tenant did not remove it. Even if it can be presumed that the house was originally built with the knowledge of the then landlord, that will not be enough: and I venture to think that recognition of ownership is of no effect at all: the law gives the tenant ownership during the term, and the landlord's recognition of that will not estop him or be evidence of an agreement.
5. There remains the question whether the tenant's right of removal ceases with the expiration or determination of tenancy, or if not then, when
6. This question is dealt with in Ismai Kani Rowthan v. Nazarali Sahib I.L.R. (1903) M. 211. It is there pointed out that in Section 108(h) of the Transfer of Property Act ' nothing is said as to the rights of parties in respect of such things after the termination of the lease, if they have not been already removed by the tenant. The question may arise whether the tenant forfeits all his rights in such things if he has not so removed them, and in the absence of any contraction that point the question will have to be solved with reference to local usage whatever may be the precise sense in which that expression is used in Section 108.' This last sentence no doubt suggests a misreading of the section by the learned judge, but that does not, I think, affect the following passage which, as I understand it contains his solution of the question. ' According to the customary or common law of the land as laid down in the case of Thakin Chawle Paramanaik (1860) Bengs. L.R. Supp. the option will be with the lessor either to take the building paying compensation or, if he is unwilling to pay compensation, to allow the tenant to remove the building.' And this solution seems to be in accordance with the cases in India.
7. Inasmuch then as the lessor's right of election comes into operation only after the expiration or determination of the tenancy for till then he has no right to interfere, it follows that, if he elects to allow the tenant to remove the buildings he must allow him a reasonable time after the termination of the tenancy, in which to effect the removal and accordingly the Courts in India as is pointed out by Sankaran Nair J., have been in the habit, when making decrees in ejectment suits, of postponing execution for a period of sufficient duration to enable the tenant to remove his buildings if he so desires, before surrendering possession and in Deni Ram v. Kundan Lal I.L.R. (1899) A. 496 the Privy Council took a similar course and making a decree for ejectment allowed the tenant to remove his buildings.
8. It is for the landlord to give a reasonable time, but the Courts will not count the time as against the tenants so long as the landlord's right to demand possession is in dispute. It would be inequitable to require the tenant to pull down his buildings before the question of his liability to give up possession is decided. Hence the time is counted from the date of the decree.
9. But there is nothing in any of the cases or in the texts of the Hindu and of the Muhammadan Law givers cited in the cases to suggest that after possession has been given up to the lessor, the lessee retains any right to remove the buildings or to demand compensation for them. If he has had time after the termination of the lease to remove the buildings and has not done so before he gives up possession, then I am satisfied he has no further right to do so. It is not necessary in this case to decide whether the buildings are to be held to be ' a gift in law to him in reversion 'or to be forfeited, or abandoned or whether it is only the right of recovery from the lessor that is barred. The result is the same so far as we are concerned with it.
10. Now in the present case possession was obtained by means of an ejectment order of the Presidency Court of Small Causes, and the procedure of that court does not, we are told, admit of the postponement of execution which in other cases is effected by the decree. Nevertheless the tenant is by law entitled to a reasonable time and opportunity to remove his buildings, and as I have above pointed out, that time must generally at any rate be dated from the ejectment order and not from the termination of the tenancy. The question is therefore has the tenant been given that reasonable time and opportunity by the landlord If not the court will give it now or make the landlord pay compensation. If so, the tenant has no further right to remove the building.
11. There can be no doubt, I think that the answer must be that the tenant has been given ample time and ample opportunity of removing the building after he gave up possession in February 1907 and that being so his suit was rightly dismissed and this appeal must be dismissed with costs.
Sankaran Nair, J.
12. I have read the judgment of Miller J. For the reasons already given by me I agree with the view that the improvement of the building in this case belongs to the tenant, the appellant, and that he is entitled to remove it, if the defendant is not willing to pay him its value. I am unable to agree, however, with the view that ownership is lost if not exercised within a reasonable time. The tenant is bound to remove the building within a reasonable time or before he surrenders possession. If he does not do so, I fail to see how it has the effect of transfer of ownership. The landlord may restore the land to its old condition and claim damages.
13. The law as to right to compensation laid down by my learned colleagues following the decision in Ismai Kani Rowthen v. Nazar Ali Khan I.L.R. (1903) M. 211 is undoubtedly the English Law. The English common Law has been harsh and oppressive to tenants and is not a law of justice, equity and good conscience. Indian agricultural prosperity is built on tenant's labor. Indian legislation both Local and Imperial has been steadily directed towards getting rid of the consequences that followed the application of the English law of landlord and tenant based on contract to India where such regulation is regulated by custom. In the Madras Presidency the Sudder Court in 1859 and eminent judges of great experience like Holloway and Innes laid down a different principle which I followed in my judgment under appeal. As between the two I have little hesitation in making up my mind to follow their decision in Mahalakshmi Ammal v. Palaniappa Chetty. (1871) 6 M. H. R. 245
14. It is true that the question that the building was not attached during the tenancy was not raised in the court below. But Exhibit II was a part of the plaintiff's case and it was for the defendant to raise any plea that may get rid of the inference to be drawn from Exhibit II.