1. The plaintiff (appellant) leased 15 acres 65 cents of dry land to the predecessor of defendants 1 to 4 in 1907 for a period of 30 years. Defendants 1 to 4 have now sold 14 acres of land to defendants,5 to 10, and the 5th defendant has begun the erection of a building on 100 sq yds., has planted about 25 or 30 trees and fenced in one acre of this land and sunk a well. The plaintiff accordingly brings this suit under Section 151 of the Estates Land Act for the eject-ment of defendants 1 to 4. The sale deed of the 14 acres is not filed, but the 8th defendant, who is the only defendant examined in the suit, admits that the 14 acres were purchased for about Rs. 1,800 and that the land has been purchased for building purposes, cattle-sheds and storage of hay. Although, therefore, the 5th defendant alone has begun building on the land, it is clear that defendants 5 to 10 have all purchased the land for building purposes and defendants 1 to 4 have executed-the sale deed for that purpose. Both the Lower Courts have found that the erection of this building by 5th defendant on two cents of land and the planting of fruit trees and the sinking of the well have not materially impaired the value of the holding for agricultural purposes.
2. It is contended for the respondent on the authority of Hari Mohari Misser v. Surendra Narayan Singh I.L.R. (1907) Cal. 718 : 17 M.L.J. 361 that this is, a rinding of fact which is binding on me in second appeal, but this contention cannot be upheld in the present case, for Section 151 contemplates a suit against the ryot for materially impairing the value of the holding. In this case the ryot is defendants 1 to 4 between whom alone and the plaintiff there is the relation of landlord and tenant. We are not concerned here with the action of 5th defendant, except in so far as it is in pursuance of the act of defendants 1 to 4. The sale to defendants 5 to 10 is not binding on the plaintiff, and inasmuch as each of the vendors is only entitled to 2 113 acres, the landlord can object to the sub-division of the land, inasmuch as each sub-division is less than 5 acres of dry land. When we come to consider whether the tenants have materially impaired the value of the holding we have to realise what it is that the tenants have done. The land is leased for agricultural purposes and by selling 14 acres out of 15.65 acres for building purposes the tenants have in effect converted the agricultural land into building sites. It is true that at present only a small extent of the land has been actually built upon, but defendants 1 to 4 have agreed to buildings being erected upon the whole 14 acres and have precluded themselves from raising any obstruction thereto. When we therefore consider the holding as an agricultural holding there only remains 1 acre 65 cents of agricultural land. If the ryots wished to cultivate the whole they could not do so because of their contract with defendants 5 to 10 under which the nature of the holding is entirely altered, and in this view it appears to me that they have materially impaired the value of the holding tor agricultural purposes and rendered it substantially unfit for such purposes.
3. The plaintiff is accordingly entitled to a decree for ejectment.
4. Plaintiff has also claimed compensation. It cannot be suggested that the erection of this small building has materially injured the plaintiff and it would be very difficult to fix the amount of compensation. It is, however, recognised by Napier, J. in Sankaralinga Moopanar v. Subramania Pillai (1915) 29 M.L.J. 514 that some compensation would be admissible as otherwise ryots will be enabled to convert agricultural land into town plots and take the whole increased value to themselves, but, as in this case, the buildings have not yet been erected over any considerable portion of the holding I do not consider that any compensation need be paid.
5. The second appeal is allowed and there will be a decree for ejectment with costs throughout.