1. It is first urged on the appellant's behalf that the Courts below have failed to determine the real point in dispute, namely, whether appellant is or is not the owner of the land in question. In their written statements defendants contended that the zamindar was only entitled to the revenue or the tirwah and that he had no other right. The first issue raised for determination was whether defendants were tenants with occupancy right or tenants from year to year. There is no allusion in the judgments of the lower Courts to the contention that the appellant was the owner of the soil. Moreover, this point was not taken in the petitions of appeal either in this Court or in the lower Appellate Court. There is reason to think that the terms tirwah and revenue were used in the written statements as equivalent to rent payable to the zamindar. The contention now raised in second appeal appears to us to be inconsistent with the case set up in the Courts below; and we do not consider that we ought to allow the appellant to vary it in second appeal.
2. The next contention is that the appellant is entitled to erect the chowk in dispute, It is admitted that appellant has occupancy right. It is a settled rule of law that no tenant, whether he has an occupancy right or not, is at liberty to erect houses upon agricultural holdings for other than agricultural purposes and thereby to alter the character of the holding. Every such tenant is under an implied obligation to do no act which is not consistent with the purpose for which the land was originally let for cultivation. That this was the law administered in this country is also clear from the cases cited by the District Munsif and from the decisions of this Court. It is argued by appellant's pleader that the cases referred to relate to tenancies from year to year or for a term of years and not to tenants who have occupancy rights. The principle on which those cases were decided is that in an agricultural holding the tenant is under an obligation not to alter the character of the holding and that the landlord is entitled to insist upon the tenant abstaining from doing anything inconsistent with the purpose for which the land was originally let. The appellant's pleader draws our attention to Jones v. Chappell L.R. 20 Eq. 539 and to Doherty v. Allman L.P. 5 App. Cas 709 These are cases relating to leases of houses and not to agricultural holdings, and they are therefore not in point. On the other hand Meux v. Gobley L.R. 1892 Ch. D. 253 is the case in point as illustrating the principle which regulates the rights of tenants having agricultural holdings. It is there distinctly laid down that the question on which the decision should rest in such a case as this is whether the act done by the tenant is consistent with the purpose for which the land was demised. The pleader for the appellant also relies on the decisions in Nyamutoollah Ostagur v. Gobind Chum Dutt 6 W.R. Rulings under Act X of 1859 40 and Hedayatoonissa Begum v. Shib Dyal Singh 8 W.R. 512 These decisions, however, have not been followed in later cases, nor do we see our way to reconcile them with the principle that where a right of property is infringed it is a sufficient injury to entitle a person to sue without alleging or proving special damage. Another contention is that no specific relief or injunction ought to have been granted in this case, and that the injury, if any, caused by the tenants' act may be adequately compensated for by an award of damages. The right in question is an interest in immoveable property, and the zamindar is, therefore, entitled to such specific relief as may be necessary to vindicate his right. As pointed out by the District Judge there is also no definite standard by which the compensation that ought to be awarded for prospective injury can be measured, the rent payable to the zamindar depending on a number of circumstances which it is not possible to foresee. We may also observe that by the appellant altering cultivation lands into a pleasure-house, the zamindar is placed in a position worse than that which he would otherwise occupy as regards the several rights created in his favour by Act VIII of 1865. We are not, therefore, prepared to accede to this contention.
3. As regards the particular land in dispute the admission that appellant is a tenant with occupancy right is now made without any reservation, although the District Munsif refers to a reservation in paragraph 15 of his judgment.
4. The decision of the Courts below is correct and we dismiss this second appeal with costs.