1. The only point raised in this appeal is as to the measure of damages. The defendants by excavating their tank close to the boundary between their land and the land of the plaintiffs have caused the plaintiffs' land to subside. The plaintiffs have therefore been given a decree directing the defendant to raise the plaintiffs' land to its original level and to erect a permanent embankment for its future protection and in default to recover Rs. 1,075 as costs for doing the work which they are to get. done. Also by a permanent injunction, the defendants have been restrained from causing any such damage in future. The learned appellate Judge is satisfied that normal or ordinary damages will not meet the ends of justice and therefore thinks that the trial Court was right in giving exemplary damages. Neither of the Courts below have given any reason for the decree for exemplary damages. There were allegations that the principal defendants wanted to exchange some of their lands for the land which has been damaged, and on the plaintiffs' refusal they damaged the plaintiffs' land in this way. But there is no finding that these allegations have been proved or that the defendants intentionally damaged the land of the plaintiffs so as to entitle the letter to exemplary damages. In these circumstances I think that a decree for (Ordinary damages would meet the ends of justice, and the question is what the measure of such damages should be. In Halsbury's Laws of England, Vol. 10, p. 627 it is laid down that in respect of injury done to land by trespass the measure of damages is the depreciation in the selling value of the land and not the amount required to put the premises in repair. It is only where no adequate compensation could otherwise be given that a decree for restoration should be passed, especially in a case where the cost of restoration is much more than the depreciation in the value of the land. In this case it has not been found that the plaintiff cannot be adequately compensated except by restoration of the land to its former level together with the construction of an embankment, and, in the circumstances, I think that the case should go back for a finding on this point, and unless it is found on definite grounds that damages equal to the depreciation in the value of the land would not be adequate compensation, damages should be limited to the amount of such depreciation. In any case, if the plaintiffs could be adequately compensated by a money payment less than the amount required to restore the land to its original condition, they should be compensated accordingly.
2. It seems probable that the amount of land likely to be affected by the tank, if left in its present condition, is small. The case is accordingly remanded to the trial Court for rehearing on the question of damages and injunction in the light of the above remarks. The costs will be in the discretion of the Court below.
3. I agree.