Srinivasa Aiyangar, J.
1. The question raised in this Second Appeal relates to the principle on which damages should be awarded for trespass on land and the proper measure of such damages. The plaintiffs-appellants, are the owners of about 21/2 acres of land, on which and several other adjoining lands a cattle-fair used to be held annually the predecessor-in-interest of the plaintiffs would appear to have been content to let this land, for the purpose of the fair, receiving the sum of Rs. 50, as rent every year. But from about the year 1911, the plaintiffs refused to let the land on the same rant. For the years 1911 and 1912 The plaintiffs obtained, in a decree ex parte damages against the defendants, at Rs. 300 per annum, for trespass on the suit land, consisting in their using the land for the cattle-fair, without any agreement with the plaintiffs and without their permission.
2. In the first two suits, the plaintiffs have claimed from the defendant damages at the rata of Rs. 300 per annum, for two years, in each of the suits and in the last suit, Rs. 550 as damages for one year. The Court of first instance granted to the plaintiffs damages at Rs. 50 per annum and the lower Appellate-Court has confirmed the same. The learned Advocate General for the appellant has argued that the principle on which the lower Courts awarded damages only at Rs. 50 per annum was wrong in law and that a different measure of damages should have been adopted.
3. I am unable to understand on what particular principle the lower Appellate Court proceeded to fix the damages at Rs. 50 per annum, apart of course from its statement of agreement with the Court of first instance in that matter. In one part of the judgment, it almost seems that the learned Subordinate Judge was inclined to adopt, as the true measure of damages, the number of cattle that were on the plaintiffs' land.
4. At another place, he has indicated that if the accounts of the lessees could have been produced, that might have furnished to him a measure of damages he could have adopted. Reference is also made to the sum of Rs. 50 having been accepted by the plaintiffs' predecessor-in-interest, as rent as also to the said amount being reasonable rent, having regard to the rents charged in the neighbourhood. The amount of rent which the plaintiffs' predecessors were content to receive in previous years could possibly not be a measure of damages at any rate for the succeeding years. The rents paid or received in respect of the adjacent lands were the result of contract. In Williams v. Currie (1845) 1 C.B.R. 841 Justice Maule observes as follows:
If we were to hold that the Jury in estimating the damages for an unlicensed trespass of this sort are to be restrained to exactly the amount of the injury sustained by the plaintiff, it would in effect be placing a wrong doer upon precisely the same footing, as one who enters with permission.
5. The learned Judge proceeds further to indicate that the wilfulness of an act of trespass and the trespass was done for the pecuniary benefit of the defendant would be matters to be taken into consideration in assessing damages. In the case of Jegan v. Vivian (1870) 6 Ch. App. 742 before the House of Lords, the Lord Chancellor generally approves of the principle that in awarding damages a distinction may be made between a trespasser, bona fide claiming a title and a wilful trespasser, and goes on to observe that the Court never allows a man to make profit by wrong.
6. I do not however understand by the last statement than the wrongdoer is or should be placed exactly in the same position, as an agent or trustee and made to account for all the profits he has made. I construe that statement of the law merely to signify that a wilful trespasser should not be placed in a better position than a person, who had to enter into an agreement with the landlord, in respect of the use or occupation of the land; that is to say, in other words, the damages awarded against a wilful trespasser ought in no case to be less than the amount which, having regard to all the circumstances, a prudent and reasonable landlord would have agreed to let the land, for the purpose, or less than the amount which the trespasser would have had to pay as the result of the reasonable negotiation for such use or occupation of the land. The amount so arrived at would be the minimum of damages awardable against him. Over and above that, there is high authority for holding that, as in the case of certain personal wrongs, the animus with which a trespasser commits the wrong, may be taken into consideration for the purpose of awarding higher damages than would otherwise have been.
7. In this case, I have no hesitation in holding that the trespass was wilful. I am bound therefore to award as and by way of damages to the plaintiffs in the circumstances, not only the reasonable amount which, if there had been negotiations between the parties, would have boon fixed as rent but also a further amount for the wilfulness of the trespass.
8. But at the same time, in the present ease, there is the undoubted fact that the plaintiffs, knowing that the trespass was about to be or certain to be committed stood by and allowed such trespass to be committed year after year, in the undoubted hope that they would be able to recover from the defendants, the large amount of damages, for which they had obtained a decree ex parte, in the previous suit. The conduct of the plaintiffs, who complain of the wrong is an undoubted element to be taken into consideration in awarding damages; and I have no hesitation in laying it down that the plaintiffs, who stand by and virtually encourage the wrong, are not entitled to damages on the same scale, on which damages might fee granted to a plaintiff, who had done his best to prevent the commission of the wrong.
9. Taking all these circumstances into consideration, the conclusion I have arrived at is that the plaintiffs in this case, would be entitled in the first place to such amount as having regard to all the circumstances might be deemed to be the amount for which, on negotiation between the parties, the plaintiffs might have agreed to let and which the defendants might have agreed to pay, in respect of the suit land in the years in question, and in addition thereto such further damages for the wilfulness of the trespass, taking into consideration at the same time the conduct of the plaintiffs in not preventing the trespass, but standing by and allowing the trespass, to be committed. The process is difficult of imagining the plaintiffs and the defendants coming together, negotiating reasonably and arriving at a reasonable amount of rent, but it has got to be done.
10. I have come to the conclusion that a sum of Rs. 100 per annum would represent such amount. I should have been disposed to grant as and by way of further damages, for the wilfulness of the trespass, a sum of Rs. 50 per annum, but having regard to the plaintiffs' standing by and allowing the trespass to be committed with the ulterior object of claiming damages, I award only Rs. 25 in addition, for each year.
11. In the result, instead of Rs. 50 per annum awarded by the lower Courts, I award Rs. 125 per annum. The decrees of the lower Courts will be varied accordingly in all the oases. The respondents will pay the appellants' costs in this Court and in the lower Appellate Court.