R.C. Mitter, J.
1. This Rule has been obtained by the plaintiff whose suit for damages his been dismissed by the Court of Small Causes at Midnapore. The amount involved is small but the questions raised are of general importance.
2. The facts admitted and found are as follows. One Ramchandra Ghosh held an occupancy holding, very small in area, under the plaintiff. On October 22, 1932, he sold the same to the defendant for Rs. 25. At the date of the sale the e were on the kills two bamboo clumps. After getting the notice of the transfer and within the time mentioned Section 26F of the Bengal Tenancy Act, the plaintiff made an application for pre-emption on October 26, 1933. While the application was pending the defendant cut and removed all the bamboos. This he did on January 3 and 1931, apparently on the conviction that he had no defence to the application for pre-emption. On January 11, 1931, the order for pre-emption in favour of the plaintiff was made and the plaintiff in due course took possession of the holding. He thereafter instituted the suit, out of which the Rule arise, for damages. In the plaint he stated that by reason of the removal of the bamboos the value of the holding had been impaired. The learned Small Cause Court Judge has found that the defendant had cut and removed all the bamboos. He assessed the value at Rs. 7-8-0 but dismissed the suit on the ground that the plaintiff had no cause of action, as his title to the holding accrued on the date of the order for preemption, i.e., at a date subsequent to the act complained of. Against this decree made by the Small Cause Court the plaintiff has moved this Court.
3. In my opinion the judgment of the Court below is wrong, and must be set asides and the plaintiff must have a decree for the sum of Rs. 7-8-0 with proportion are cost of the Court below.
4. It is no doubt true that the right, title and interest in the holding vests in the applicant for pre-emption from the date of the order for pre-emption and not from an earlier date. From that date the landlord applicant steps into the shoes of the purchaser, subject to the provisions of Sub-section (7) of Section 20-F. But it does not necessarily follow that he has no remedy if after the purchase and before the date of the order for pre-emption the transferee by his acts or culpable omissions impairs the value of the holding. The landlord applicant has to pay as the price of preemption the price paid by the purchaser besides the statutory compensation, and it is only just that he should have the holding substantially in the same condition in which it was purchased by the transferee. Besides, before the date of the order for pre-emption the transferee is in the position of an occupancy ryots and he has the same duties and is under the same obligations as any other occupancy ryot. Section 23 of the Bengal Tenancy Act forbids such a ryot from doing any act which impairs the value of the holding, and if he does such an act, he is liable to pay his landlord damages. Section 23-A. gives such a ryot the right to fell and appropriate trees, but this right is subject to the provisions of Section 23 and an occupancy ryot's right to fell and appropriate trees is not unrestricted. In ordinary circumstances and in many cases the cutting down and appropriation of bamboos or trees by the tenant would not impair the value of a holding; at least the depreciation in value will be small and negligible and would not be actionable at the instance of the landlord on the principle of de minimis non lex curat, but cases can be conceived where such an act would impair substantially the value of the holding and so would be actionable. To take an instance, a garden with valuable trees, fruit bearing and timber, is let out to a settled ryot of the village for horticultural purposes, to be used and developed as a nursery, he cannot without impunity cut and appropriate all the trees, convert the garden into a barren field and then plant it with flowering shrubs which may seem to him to be a more profitable undertaking. In such case the landlord would surely be entitled to sue him for damages. In the case before me the holding was purchased for Rs. 25 only with the bamboo clumps, the value of which in comparison with the price paid by the opposite party, is not considerable. I accordingly hold that the suit is maintainable by the petitioner and he is entitled to a decree for Rs. 7-8-0 with proportionate costs of the lower Court. The Rule is accordingly made absolute, but without costs as there is no appearance on behalf of the opposite party.