Seshagiri Aiyar, J.
1. The plaintiffs as trustees of a temple sue to eject the defendants. The allegation in the plaint is that the defendants erected a house upon a portion of the holding' and are, therefore, liable to be evicted. The Suit Collector dismissed the suit. In appeal, the District Judge came to the conclusion that the erection of the building by the the tenants impaired the value of the land and rendered it substantially unfit for agricultural purposes; but instead of passing decree in ejectment he directed compensation to be paid to the landlords under Section 152 of the Estates Land Act. Both the tenants and the landlords have appealed to this Court.
2. In the appeal by the tenants, it is argued that as the building was erected only on a small portion of the holding, the finding that the whole laud has been rendered unfit for agricultural purposes is unsustainable. As was pointed out by the Judicial Committee in the case Hari Mohan Misser v. Surendra Narayan Singh 17 M.L.J. 361 : 9 Bom. L.R. 750, it is the Court which has jurisdiction to weigh evidence, that must find whether the land has been rendered unfit for agricultural purposes. As the Court of second Appeal, we are bound by that finding. We, therefore, accept the conclusion of the District Judge, which is unambiguous. Moreover, there is no issue as to on what portion of the holding, the building was erected and whether that erection prejudiced cultivation in other portions of it. Another objection taken by Mr. Venkatachariar is, that the holding is held in severalties by the brothers and that the act of waste committed by one of them should not entail liability to ejectment on the others. There is no finding that this division of the holding was assented to by the landlords or that they received separate rents from each of the individual tenants in respect of the portion in his occupation. Unless these conditions are satisfied Section 145 of the Estates Land Act cannot be invoked in favour of the tenants. We must overrule this contention also.
3. On the question of the compensation which has been awarded, both parties have raised objections. In the view I am disposed to take of this case, that question will have to be remanded for further consideration to the lower Appellate Court.
4. In the appeal by the landlords, the trustees, it was first argued by Mr. Rajagopalaehariar that the alternative remedy of compensation is not available to the tenants, as a permanent house was constructed by them. Reliance was placed upon two decisions of this Court in Ramanadhan v. Zemindar of Bamnad 16 M.k 407 and Orr v. Mrithyunjaya Gurukkal 24 M.k 65, for this proposition. In the first of these cases, which was a suit for injunction restraining the tenant from further proceeding with the contemplated erection of the building, the learned Judges held that the landlord was entitled to that relief. The observation in the judgment that there is also no definite standard by which the compensation that ought to be awarded for prospective injury, can be measured,' should not be construed as meaning that in all cases where a building has been erected, damages will not afford adequate relief in lieu of ejectment. In the second case, the learned Judges came to the conclusion that the injury was incapable of 'being compensated. That was arrived at with reference to the facts of that case. The learned Judges do not lay down that in all cases where a building is erected on agricultural land, the only remedy open to the landlord is to evict the tenant. Whatever may have been the view prior to the passing of the Estates Land Act, Sections 151 and 152 of that Act put the matter beyond controversy. Under Section 152, if the Court is satisfied that the tenant can be relieved from liability to ejectment by awarding against him some pecuniary compensation, the Court should adopt the latter course. There is no differentiation between the erection of a building and any other act of waste. I am clearly of opinion that wider the Estates Land Act, it is open to the Courts to award compensation in lieu of ejectment in all cases of waste. The more serious question is this. Whether the compensation mentioned in Section 152 is to be regarded as putting an end to the relationship of landlord and tenant, so that the money value paid by the tenant renders the building and the site on which it stands, the absolute property of the tenant? The compensation awarded in this case proceeds on the footing that from the date of its payment, the tenant is to have absolute right to the property. I do not think that the act contemplates the severance of the relationship of landlord and tenant by the grant of compensation. It would amount to the compulsory purchasing out of the landlord, if he is asked to accept a money payment in this way. The words of Section 152 which relate to this question are: The decree shall provide that, if within one month from the date thereof, or such further time as the Collector for reasons to be recorded may allow, the ryot does not repair the damage or pay as compensation a sum which shall be fixed by the Collector and specified in the decree, he shall be ejected.' Now, the repairing of the damage at the expense of the tenant would still continue the relationship of landlord and tenant, and why should the award of compensation terminate such relationship. The use of the two clauses in the same; context, shows that in both cases the relationship is to subsist. The intention of the Legislature is to give an indulgence to the tenant to remain on the property, notwithstanding the act of waste he has committed, and for this purpose he is to be directed to pay compensation for the injury he has done to the property. The compensation should be fixed on the basis that a tortions act was committed by the tenant upon the holding, and not as if the landlord is to be purchased out of his right by the award of compensation. There is no indication anywhere, either in Section 151 or 152, to suggest that a severance of relationship was in the contemplation of the Legislature. It seems to me that the defendants must continue to hold the land and the building thereon as tenants subject to the payment of the rent originally agreed upon. The damage to which they have rendered themselves liable is not for the value of the right which the landlords have in the holding, but for the wrongful act which the tenants have committed on the property. In this view, it is necessary that the award of compensation should be revised. The District Judge and the Revenue Divisional Officer have assessed the amount on the ground that the landlord will lose all his rights in the property. The lower Appellate Court must be asked to assess the damage in the light of the above observations. The finding will be returned in six weeks and seven days will be allowed for objections.
5. These are two second appeals by the parties in Appeal No. 236 of 1912 in the District Court of Tinnevelly. Summary Suit No. 120 of 1911 in the Court of the Deputy Collector of Koilpatti Division was by the Dharmakarthas of the Koilpatti temple under Section 151 of the Madras Estates Land Act asking for the ejectment of the defendants, the pattadara No. 223 of the suit lands. The Appellate Court reversing, the decree of the first Court, directed the defendants to pay the sum of Rs. 1,210 and in default of such payment to be ejected. In Second Appeal No. 2523 of 1913, the defendants Nos. 3, 4 and 5 claim that no decree should be passed against them, as they had with the consent of the landholders, divided their lands and had not constructed any building or otherwise materially impaired the value of their portion of the holding for agricultural purposes. That contention is founded on Section 145, but the sub-section provides that no landholder should be bound to recognise the sub-division of any irrigated field into plots less than five acres in extend It is urged that the landholder had given his consent, but no issue was taken on this point and the point was evidently not urged in the lower Appellate Court. Both Courts have found that the holding as a whole has been materially impaired for agricultural purposes and rendered substantially unfit for such purposes and we cannot interfere with that finding in second appeal.
6. The Court has not, thought it necessary to order the buildings to be removed though that was considered the proper remedy in Ramanadhan zemindar of Ramnad 3 M.L.J. 185, the leading case before the Act, and in Orr v. Mrithyunjaya Gurukkal 24 M.k 65, which followed it, but has granted compensation.
7. The amount of compensation fixed by the first Court was 10 per cent, of the market value of the land covered by the buildings objected to by the landholders and the question of the propriety of this assessment can only be raised in connection with the point taken by the landholders, appellants in Second Appeal No. 290 of 1914. The important point in that appeal is their claim that the decree should declare that the relation of landholders and ryots still subsists and that the ryots are still liable to pay the rent due on the patta. The defendants claim contra that the tenure has ceased. This is a very important question, which is raised now for the first time in this Court. It is, in my opinion, somewhat unfortunate that the Act does not differentiate between such alternations of the character of the holding as to improve the value of the land but make it unfit for agricultural purposes, and such variations as lower the value of the land for all purposes. The Act gives for the first time, a right to sue to eject for such acts, it having been held in the cases above referred to that such acts do not create a forfeiture and the Legislature might well have made some special provision for acts that really improve the value of the land. An injunction results in a waste of money, while ejectment leaves the position as it stood before. We have, however, to construe the section as it stands and decide what is the effect of awarding compensation and flowing from that, what is the basis of compensation. At first sight, it seems incongruous that a plot which cannot be cultivated, should continue to be held on an agricultural lease, but I am Satisfied that it is contemplated by the Act. Section 151 of the Estates Land Act-presumes that the landholder will institute a suit in ejectment. It provides that he may also ask for compensation in addition to ejectment. In such a case, obviously the land would retain its character and on ejectment, the landholder would secure another ryot, with or without compensation from the old ryot. An alternative right is given to the landholder to sue for an injunction with or without compensation. In such a case, the ryot would be restrained from continuing the injury to the land but would remain a tenant, I with or without having to pay compensation. In the third case, the landlord can sue for the repair of the damage or waste. In such a case, a mandatory injunction would go to the tenant compelling him to make such necessary improvements in the land as would restore it to its former value and there would remain still the relation of landlord and tenant. So far for Section 151.
8. We now come to Section 152 of the Estates Land Act. 'if in any suit under the preceding section,' that is, a suit in ejectment or for an injunction or for repair of damage, an occupancy ryot is found liable to ejectment,' but it appears that it is not necessary to eject the tenant, the Court might make a certain order. The object of the section is not to leave it to the will of the landholder to exact whatever remedy he wishes but to provide that whatever the relief the landholder asks for, the Court shall have a discretion to give such relief as it thinks fit, that is to say, it specifically reserves to the Court the powers which existed prior to the Act. So the section provides that where it appears that the damage to the holding admits of being repaired,, or that pecuniary compensation would afford adequate relief, the decree shall provide that, if within a certain period, the ryot does not repair the damage or pay the sum fixed by the Collector for compensation he shall be ejected', and this is the order made in this case. Assuming, therefore, that whatever the relief sought for by the landlord might be, the Court has declined to decree ejectment, it can make a conditional order for ejectment giving the ryot a short time to do one or two things, either to repair the damage or pay compensation. If he does not take advantage of the time given to him, he is ejected and the landholder procures a new ryot and the relation of landholder and ryot continues. If he does repair the damage, it is equally clear that the land is restored to its proper condition, the ryot remains in his holding and the relation continues.
9. We now come to the last case, namely, where a ryot takes advantage of the conditional order, and within the time given by the Collector pays compensation. It seems to me impossible to construe these words as making an exception to the results arrived at in the other cases and involving the destruction of the existing relation. If it had been intended to produce a different result, it would have been so provided in the Act and that not having been done I can only construe the words in conformity with the previous conclusions. The ryot must continue to hold the land but pay compensation for the injury to the holding. A difficulty arises, however, to the measure of the damages. This was noted in Ramanadhan v. Zemindar of Ramnad 3 M.L.J. 185, where it was pointed out that there was no definite standard by which prospective injury could be measured. In cases where the fitness of the land for cultivation has been let down, the damages are easily estimated and must be such sum of money as would enable the landholder to restore it to its former condition, that is, to do what the ryot might himself have done to repair the damage,' it would cover such expenses as renewing water channels, removing weed or sand or other deleterious matter. But in cases like the present where the land has in fact become more valuable, though less fit for agricultural purposes, it is certainly difficult to fix compensation. It is impossible to say that no compensation should be given, because such a construction would permit ryots to convert agricultural land into town plots taking the whole increased value to themselves and depriving the landholder of his share in what is known in English Law as betterment.' Where ryot land is taken by the State under the powers of land acquisition the landholder is entitled to his share of the premium paid for the compulsory purchase. Where the landholder seeks to avail himself of the provisions of Section 186 of the Estates Land Act and acquire the holding, the ryot is entitled to full compensation, and it seems to me to follow that the ryot cannot claim to improve the value of the land for his own benefit without paying any compensation to the landholder. Further, in certain circumstances a landholder is entitled to sue for enhancement. Such circumstances are set out in Section 30 of the Estates Land Act. They include improvement of the land by agencies outside the landholder or the ryot and the improvement of the land effected by the landholder. Now, clearly the conversion of an agricultural land into buildings deprives the landholder of his right to effect an improvement himself and of his right to share in the result of other improvements not made by the ryot, and this was also pointed out in Ramanadhan v. Zemindar of Bamand 3 M.L.J. 185. It is difficult to value the loss of these prospective rights which must vary considerably with the location of the land, but an attempt must be made to do so. Compensation fixed, as has been done in this case, by awarding 10 per cent, of the improvements to the landholder is to my mind not ascertained in the proper manner. I would call for a finding from the lower Appellate Court as to the amount of compensation due to the landholders on the basis of, the foregoing observations.