1. The 1st defendant is the appellant. The plaintiffs who are the landlords of the plaint land brought this suit for the following reliefs:
(a) that the permanent damage to the plaint land area of 1/4th kurukkam, inflicted by the defendants by their having erected two walls on the site and placed two stone pillars thereon, be removed at the defendants' expense;
(b) that the defendants may be made to pay the plaintiffs their costs.
2. The plaint 1/4th kurukkam area is in one corner of a big tone land measuring a little over 12 kurukkams in extent in the village of Kalakkudi. The plaintiffs' complaint is that as the 12 and odd kurukkams were granted as tope lands on tope cowle (that is for cultivation of fruit trees), the defendants had no right to convert any portion of the lands into a building site and the defendants by enclosing 1/4th kurukkam by walls, by raising its level and by fixing stone pillars have made that portion unfit for horticulture. The suit was brought in the Revenue Court under Section 151(2) of the Madras Estates Land Act.
3. The second issue raised in the case was whether the suit land or any portion of it has been materially impaired in its value for agricultural purposes and if so, when? The Suits Deputy Collector gave his finding as follows: 'It is clear from the evidence that the 1/4th kurukkam in question has been rendered unfit for cultivation. I, therefore, find this issue in favour of plaintiffs.' Now the issue was whether the suit land or any portion of it has been materially impaired in its value for agricultural purposes and the finding is that 1/4th kurukkam in question has been rendered unfit for cultivation. There is no finding that the suit land of 12 and odd kurukkams taken as a whole has been materially rendered unfit for cultivation as a tope.
4. The lower Appellate Court in a very short judgment says: 'It may be that the plot in question is only a small fraction of the holding but that circumstance would not take the case out of the purview of Section 151 of the Madras Estates Land Act;' and on this finding, the Suits Deputy Collector's decree directing the defendants to remove the walls and to restore the land to its original state was confirmed.
5. Of the contentions in second appeal before us, only one need be considered, the others not being seriously pressed. That one contention is that the Courts below have not considered and tackled the question whether there was a material impairing of the holding of 12 and odd kurukkams taken as a whole by acts done on the plaint 1/4th kurukkam area, and that is what they had to consider under Section 151, Clause 2, of the Madras Estates Land Act.
6. Section 151, Clause 1, of the Act is as follows:
'A landholder may institute a suit before the Collector to eject an occupancy ryot from his holding only on the ground that the ryot has materially impaired the value of the holding for agricultural purposes and rendered it substantially unfit for such purposes.' Clause 2 allows the landholder to sue not only for the relief of ejectment mentioned in Clause 1 but also for injunction, or for the repair of the damage, or for compensation or for a combination of these three reliefs. I am unable to accept the ingenious argument of the respondents' learned Vakil, Mr. Section Srinivasa Aiyangar, that the right given by the second Clause to the landholder allowing him to sue for an injunction, is not governed by the condition laid down in the first Clause, namely, that the ryot must have materially impaired the value of the holding for agricultural purposes and rendered it substantially unfit for agricultural purposes. The second clause is clearly a supplement to the first Clause, giving the supplementary and alternative reliefs to the relief of ejectment given by the first Clause, the right to sue for these supplementary and alternative reliefs, however, being governed by the same conditions.
7. The provisions of Section 151 were compared by learned Vakils on both sides during the arguments with the provisions of Section 11. Section 11 says: 'a ryot may use the lands in his holding in any manner which does not materially impair the value of the land or render it unfit for agricultural purposes.' It will be seen that there is a slight difference between the wording of Section 11 and the wording of Clause 1 of Section 151 in two points. The word 'substantially' is omitted in Section 11 before the words unfit for agricultural purposes.' Again the word and' is substituted in Section 151 for the word 'or' before the word render.' Lastly the words 'for agricultural purposes' appear only at the end of Section 11, whereas they (appear after both the verbal clauses in Section 151, Clause 1. I am unable to see what the difference between materially impairing the value of the holding for agricultural purposes' and 'rendering it substantially unfit for agricultural purposes' is or why the conjunction 'and' was substituted for 'or' in the latter section. I do not think that any real distinction was intended to be made by the slight differences in phraseology between Section 11 and Section 151, Clause 1.
8. The substantial question for decision is, therefore, whether Section 151 intended to give the landholder a right to sue for any of the reliefs mentioned therein in all cases, even if only a part of the holding was rendered unfit for agricultural purposes, or whether it intended to give the right to sue for any of those reliefs, only when the holding ns a whole was rendered substantially unfit for agricultural purposes by the acts of the ryitt committed on the whole or on any part of the holding. On this question I think we are bound by the decision of the Privy Council in Hari Mohun Misser v. Surendra Narayan Singh 17 M.L.J. 361. In that case, the Calcutta High Court in construing Section 23 of the Bengal Tenancy Act (on which Section 11 of the Madras Estates Land Act is founded) laid down that the landholder is entitled to an injunction to remove an indigo vat built upon a portion of a large holding, because that portion had become evidently unfit for agricultural purposes. Their Lordships of the Privy Council say that the proposition of law So laid down by the High Court, (namely, that even if a part of a holding had become unfit for agricultural purposes, the landlord is always entitled to an injunction to rectify the acts done on that part of the holding) cannot be upheld, as that proposition was laid down too broadly and unconditionally. Their Lordships say that reference must be had to the circumstances of individual cases, 'to the size of the holding,' to the area withdrawn from actual cultivation,' and 'to the effect of such withdrawal upon the fitness of the holding taken as a whole for profitable cultivation before the relief of injunction could be granted.
9. We are bound to follow this ruling of their Lordships and as we find that the lower Courts have in arriving at their conclusions merely considered the question whether the 1/4th kurukkam in dispute was rendered unfit for agricultural purposes, and have not considered the question whether with reference to the circumstances of this individual case with regard to the size of the holding, with regard to the area withdrawn from actual cultivation and with regard to the effect of such withdrawal upon the fitness of the holding, the value of the holding as a whole has been materially impaired for the purpose of the horticulture, we cannot confirm their decrees.
10. I would, therefore, call for a finding from the lower Appellate Court on the following issue on the evidence already on record: 'Has the holding of 12 and odd acres taken as a whole been materially impaired in value for agricultural purposes' (which include horticultural purposes) 'or rendered substantially unfit for the said purposes owing to the acts found to have been committed by the defendants on the 1/4th kurukkam referred to in the plaint, having reference to the circumstances of this case, having regard to the size of the holding as a whole and to the size of the area withdrawn from actual cultivation and to the effect of such withdrawal upon the fitness of the holding taken as a whole for profitable cultivation.' The finding should be submitted within six weeks from the receipt of records and 10 days will be allowed for filing objections.
11. In compliance with the order contained in the above judgment of this Court the District Judge of Ramnad submitted the following
FINDING.* * *
12. In the circumstances pointed out above, I find the issue in the negative and against plaintiffs.