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Noyna Misser and anr. Vs. Rupikun and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal609
AppellantNoyna Misser and anr.
RespondentRupikun and ors.
Excerpt:
landlord and tenant - cultivation--changing character of lands--forfeiture--mandatory injunction. - .....an injunction to compel the defendants to uproot the trees they have planted upon the land. now, a remedy by injunction is no doubt a useful, but it is at the same time a very strong remedy, and one not ordinarily granted where any other remedy is fairly open to the applicant, or where the conduct of the parties has been such as to make it a harsh remedy to give in a particular case. the legislature have expressed their view upon the matter in section 56 of the specific relief act, which is one of those dealing specifically with injunctions, and among the conditions there laid down it is enacted that an injunction cannot be granted when equally 'efficacious relief can certainly be obtained by any other usual mode of proceeding,' and 'when the conduct of the applicant or his agents has.....
Judgment:

Wilson, J.

1. We think that this appeal should be dismissed. Two points have been discussed before us: First, whether the Judge in the lower Appellate Court was right or not in overruling so much of the decree of the Court of First Instance as granted to the plaintiffs a decree evicting the defendants. As to that we feel no hesitation; no authority has been cited to us, nor any reasoning satisfactory to our minds tending to show that where a tenant has been guilty of a breach of duty in the use of his land, such as making a tank in it, building on it improperly, or changing the character of the cultivation, this operates necessarily as a forfeiture and renders him liable to be evicted. On this point, therefore, we fully agree with the lower Appellate Court. The second question is one of much greater difficulty, and that is whether the lower court, ought not at the same time to have given them a decree granting an injunction against the future use of the land by the defendants in the way objected to by the plaintiffs. Now it appears to us quite clear that the learned pleader for the plaintiffs (appellants) has established the proposition that what was done by the defendants was a wrong for which a remedy is to be found in, law. A tenant has not the right to alter the character of the land which he holds in such a way as to permanently injure the interest of the landlord in that land; and on the finding in this case it must be taken that the tenants, the defendants in this case, have done so. A suit for damages would, therefore, undoubtedly lie, but this is not what is asked for in this case. What is asked for is an injunction to compel the defendants to uproot the trees they have planted upon the land. Now, a remedy by injunction is no doubt a useful, but it is at the same time a very strong remedy, and one not ordinarily granted where any other remedy is fairly open to the applicant, or where the conduct of the parties has been such as to make it a harsh remedy to give in a particular case. The Legislature have expressed their view upon the matter in Section 56 of the Specific Relief Act, which is one of those dealing specifically with injunctions, and among the conditions there laid down it is enacted that an injunction cannot be granted when equally 'efficacious relief can certainly be obtained by any other usual mode of proceeding,' and 'when the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the Court.' Now, one way in which an applicant may disentitle himself to the assistance of the Court, is, if he has stood by for a considerable time and allowed the person, against whom he applies, to go on with his work, and lay out his money and labour upon the land without any objection, and only applies to the Court after allowing all this to go on for some time. We think it has been sufficiently found that that is what has taken place here. The plaintiffs allege in their plaint that the cause of action arose in Kartick 1286, when the plaintiffs were informed that the land had been used as complained of by the defendants. An issue was framed upon this point, the second the issue on the merits, viz., 'whether or not the plaintiffs had knowledge and cognizance of the planting of the grafts when they were so planted.' Now what the lower Appellate Court while reversing so much of the decree of the Court of First Instance as declared the plaintiffs' title to evict, has found is this: the Subordinate Judge says, first:

2. 'The Munsiff, believing the plaintiffs and his putwary, has held that the mango trees were planted in 1285 and 1286 Fasli but I do not believe them. The Munsif has made a local enquiry and has himself found that the disputed trees are from 4 1/2 cubits to 6 cubits in height, and I think that according to the natural law they must have been planted more than three years before the suit, if not before;' and he says: 'I cannot agree with the Munsif in thinking that they were planted in 1285 and 1286;' and later on he says: 'The plaintiffs state that their cause of action arose in Kartick 1286 Fasli, when they became aware of the wrongful acts of the defendants, but I do not believe that story, and it was obviously made to avoid limitation. It is contended that the uprooting of the trees may be done legally, although the prayer of ejectment be not granted; but I think that when the plaintiffs and their putwary acquiesced in the defendants' planting the trees and allowed their claim of ejectment to be barred, they should not be now allowed to have the trees uprooted. I do not believe, however, that the trees were planted with the zamindar's consent.' This appears to us to amount to a finding that the plaintiffs, at the time when the trees were planted, were aware of the fact, and that they stood by for more than three years--how much more does not appear--and allowed the defendants to spend their labour and capital upon the land without taking any action in the matter. That appears to us to be a sufficient reason why no injunction should issue in the case. These are the only two points discussed before us. There is no claim for damages in the suit. For these reasons this appeal must be dismissed with costs.


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