1. This appeal arises out of a suit for ejectment under Section 155, Ben. Ten. Act. The suit was based upon the allegation that the defendant took settlement of two plots of land as an agricultural holding and has used the land in a manner which renders it unfit for the purposes of the tenancy and has also broken a condition of the lease which has made him liable to ejectment. The lease contained the following stipulation:
On the lands of the aforesaid jama, I shall not bo able, without your permission, to set up any hat, bazar, gola or ganja or to erect a building or to manufacture bricks or to excavate a tank or pond; nor shall I be able to do anything, which renders the land unfit for agricultural purpose, that is, anything that impairs the value of the lands; but, if I do so, you shall be entitled to eject me from the jote with damages.
2. The plaintiff's case was that the defendant, in contravention of the stipulation aforesaid, has used the lands as a hat for molasses. The defence was that the lands do not constitute an agricultural holding and were not taken for agricultural purposes, that no hat was established on the lands and that the lands were not rendered unfit for cultivation. Other defences, e.g., as to non-service of notice, non-liability for compensation and non-maintainability of the suit were also taken. The Munsif made a decree, ordering that, within a month from the date of the decree, the defendant should make the lands fit for cultivation and for growing agricultural crops and should pay Rs. 25 as compensation to the plaintiff, and that, in default, the plaintiff should get khas possession of the lands and also recover the said amount as compensation from the defendant.
3. There was an appeal and a cross-appeal from the Munsif's decision, which were both dismissed, with the modification that the amount of compensation was fixed at Rs. 5. The defendant has appealed. The question involved in the appeal is no longer a question of substance, but one of sentiment only, for the stipulation, to which reference has been made, was inserted with the real object of preventing the defendant from using the two plots of land as an adjunct to or a place which could be used for any purpose which would afford facilities for a hat, which the defendant has got on the other side of a channel and just opposite thereto, and that object has been gained by an injunction which, I am told, has been issued in plaintiff's favour and against the defendant and which will now subsist. As however the parties are very keen about the contest that they raised in this case, the appeal would necessarily have to be dealt with on its merits. To determine the controversy between the parties, it has to be seen, in the first place, as to what exactly is the use that the defendant has made of the lands. On this point, the finding of the District Judge, which is very lucidly expressed, is as follows:
It appears that, on Sundays and Thursdays, a large number of carts laden with gurh dealers and other men assembled on plot No. 549. These carts carried gurh, evidently for the purpose or being sold. The men, who brought them or the other men who assembled on the plot, evidently were the buyers or the sellers of the commodity, but the exact evidence is wanting whether the purchase and the sale took place on plot No. 549 or whether the gurh was carried across the river to Chaprail. My conclusion is, upon reading the evidence and considering the probabilities of the case, that plot No. 549 was meant to be used as a landing stage for the carts and boats and a temporary dumping place for the commodity arrived from the west of the river and meant to be taken over to the eastern side.
4. Now, on this finding, it will have to be considered firstly, whether there has been a breach of a term in the contract, and secondly, whether the land has been used in a manner which renders it unfit for the purpose of the tenancy. Covenants, the breach of which entails a forfeiture, must always be strictly construed. On the finding, it cannot, in my opinion, be held that the defendant has set up a hat, bazar, gola or ganja.' It has not been established that any sale or purchase takes place on the land, or that the goods are stored there in expectation of such a transaction. If the land is used as a landing stage for the goods to remain there only for a temporary period and pending arrangements for their conveyance to the other side of the river, there has been, in my judgment, no breach of the covenant. The first question therefore must be answered in the negative. So far as the second question is concerned, the lease, in view of the terms used therein, must be regarded as one for agricultural purposes; and, indeed, it has not been disputed that the tenancy created by it is one governed by the Bengal Tenancy Act. That being the position, what has to be determined is whether the user of the land has been such as renders it unfit for agricultural purposes. The effect of the user as found by the Munsif, to quote his words, has been that
the soil of the land has hardened and become salty by the congregation of men and cattle and by the action of cattle-urine and to that extent has been rendered unfit for the purposes of the tenancy.
5. The learned District Judge has observed that, on the evidence, he was not satisfied that such abuse has rendered the land unfit for cultivation, but he was of opinion that if the defendant went on for years using the land in this way, injurious results might ensue. Now, it cannot be denied that, even if the proposed or prospective user of land is likely to render it temporarily and not permanently unfit for the purposes of the tenancy, an injunction might issue restraining such user: see Rajkishore Mondal v. Rajoni Kant (1916) 37 IC 249. But when it comes to a question of ejectment under Section 155 of the Act, it will have to be found as a fact that the abuse has in fact resulted in rendering the land unfit for the purpose of the tenancy. That this is the interpretation of Clause (1), Section 155 is, in ray opinion, plain from the provision for compensation which is contained in Sub-section (2) of the section and which is compulsory. If the finding of the Munsif could be relied on, there cannot be any doubt that the requirements of Clause (1) would have been satisfied. But that finding has been upset by the District Judge and upset on grounds which I am unable to say are insufficient. He has said:
The evidence led by the plaintiff to support this view is that the surface of the land had become hardened; to render it fit for cultivation it has got to be dug up with the spade and that will mean extra cost, but the evidence that the surface of the land had become hardened comes not from any expert, but from certain witnesses, whom I should hold as incompetent to give the opinion, All these witnesses have spoken from cursory inspection. There is no doubt that if a number of carts and men congregate on a plot, the surface should become hard, but to what depth the hardness will extend and whether this hardness is injurious for agricultural purposes I am not convinced and, on this point, the majority of the witnesses examined are not competent to speak and none of them have spoken. It was argued again by the plaintiff that if a number of cattle are unyoked and rest on the plot, their excreta will impair the fertility of the plot. But the qualities of the cow-dung and urine have been differently explained by the parties and on this point too we have no expert opinion whether cattle excreta add to or take away the productive power of the soil, I find again that this plot adjoins the river; a portion of it periodically is flooded by river-water. Then again there is no satisfactory evidence that at any time it was cultivated and yielded agricultural produce. Some of the plaintiff's witnesses will have it, paddy, jute were grown on the plot; others maintain pulses, peas were grown and they strenuously denied the cultivation of jute or paddy. It would appear that the plot was possessed by a ferryman and there was and is a ferry near the plot. So I cannot rely upon the unsatisfactory evidence adduced by the plaintiff and I cannot find that actually any crops are grown on the plot or that; by the use, the defendant put the land to it has deteriorated in fertility. It would again appear that it was only for a few months of two years that this abuse had taken place. Then again it was not every day, but only two days in a week that the land was so used. Further, it would appear that, even on those two days in the week, the land was so used, say for 12 hours a day.
6. In my judgment, it is not enough for a decree under Section 155, Ben. Ten. Act, when it is founded upon Clause (a), Sub-section (1) of that section, to find that a continuance of the alleged abuse for a sufficient length of time would produce injurious results. And that is all that the learned Judge has found in this case. I am of opinion therefore that the decree which the plaintiff has obtained is not sustainable. The appeal is allowed and, the decisions of the Courts below being set aside, the plaintiff's suit is ordered to be dismissed with costs in all the Courts.