1. This appeal is directed against the decision of the learned Additional District Judge, Jessore, reversing the decision of the Munsif, First. Court, Jhenidah. The case in the plaint was that defendants 1 to 4 in the suit held an agricultural jama of Rs. 7.8-0 carved out of an original jama of Rupees 18-8-0. This jama included a plot of homestead land, plot No. 1720, on which the defendants lived. They went to-live elsewhere, and in 1434 B. S. erected a hut on the plot, and allowed the Mahomed an public to use it as a mosque. Further, they attempted to collect money by subscription to build a pucca mosque. The suit was brought under Section 25, Ben. Ten. Act. In the first Court, the substantial defences were that no notices under Section 155, Ben. Ten. Act, had been served on the defendants ; that the suit was barred by waiver and acquiescence as the landlord knew of, and assented to the erection of the hut for the specific purpose indicated; that the plot on which it stood was homestead land; that by law, equity and custom, defendants were entitled to erect a mosque, and that there was no user rendering the land unfit for the purposes of the tenancy. The Munsif decreed the suit against defendants 1 to 4. The decree directed the removal of the hut, gave nominal damages of one pice to the plaintiff, and directed khas possession on default. Further defendants 1 to 4 were
permanently restrained from allowing the public to acquire any right on and from erecting or allowing anyone else to erect either a kutcha or a pucca jama ghar or mosque on the plaint lands.
2. On appeal, the learned Additional District Judge held, in agreement with the lower Court, that there had been a proper service of notices on the defendants, that the suit was not barred, that the original tenancy was an agricultural tenancy, that the plot on which the hut stood was a plot used as homestead land and comprised in the tenancy, and that the hut was a public mosque, erected
with the obvious intent of using it for prayer as well as allowing neighbours of the same community to flock there and say their prayers there.
3. On these findings he came to the conclusion that such user did not hamper in any way the purposes of the tenancy and consequently constituted no ground for ejectment under Section 25, Ben. Ten. Act. The short point therefore for decision in this appeal is whether on the facts found, the tenant has used the land in a manner which renders it unfit for the purposes of the tenancy. On full consideration of the question, we are constrained to take the view that the answer must be in the affirmative. We are unable to hold that the erection of a place of public worship on land comprised within a tenancy originally created for the purpose of agriculture, is a species of user permissible under Section 23, Ben. Ten. Act. In our view, such permissible user must be user connected, directly or indirectly, with the purposes for which the tenancy was originally created, and attributable to the special needs of the tenant as an agriculturist. We do not think it can be said that the erection of an edifice intended for public worship, whether such edifice is constructed on homestead or on agricultural land, can be held to be such user.
4. As indicated in Raj Kishore v. Rajani Kanta AIR 1917 Cal 280, one of the tests to be applied in such a ease is whether the purpose for which the land is used is or is not one totally unconnected with agriculture, and on the facts here found, there-can be no doubt that there is no such connexion. In Dhirendra Kumar v. Radha Charan AIR 1920 Cal 263 it was held that the construction of a cremation ghat on an occupancy holding rendered it unfit for the purposes of agriculture, and even if it be conceded that in the present case the plot was bastu land used, before it was abandoned, as the dwelling house of the raiyat, it cannot we think be maintained that the erection of a place of public worship on the site does not make it unfit for the purpose for which it was originally intended and used.
5. Our attention has been drawn on behalf of the respondent, to the case reported in Hari Mohan Mitter v. Surendra Narain Singh (1907) 34 Cal 718. In that case however it was distinctly found that the erection of the buildings in question was in conformity with the purposes for which an agricultural holding was let. We are therefore of opinion that on a correct application of the principles which emerge from a consideration of the law and of the reported cases, the decision arrived at by the learned Additional Judge cannot be supported. It follows that the plaintiff-appellant is entitled to a decree in accordance with the provisions of Section 155, Ben. Ten. Act. The decree passed by the Munsif is not however in strict accordance with the provisions of that section, nor is an injunction by which the defendants are permanently restrained from allowing, the public to acquire any right on the plaint lands, a valid form of prohibition.
6. The result of the conclusion arrived at by us therefore is that the appeal is allowed, the decision of the Court of appeal below, dismissing the plaintiff's suit is set aside, and a decree is passed in favour of the plaintiff in accordance with the provisions of Section 155, Ben. Ten. Act. The plainsiff's suit is decreed against defendants 1 to 4. They are, to pay to the plaintiff the amount of Rs. 1,00 as compensation for misuse of the lands appertaining to the agricultural holding in suit. The misuse of it is capable of remedy; and the defendants are liable to be ejected from the holding in execution of this decree in the event of their noncompliance with the direction of this Court in the matter of payment of compensation mentioned above, and of remedying the misuse of the holding. Such misuse consisting in using plot 1720 mentioned in the plaint as a place of public worship, and raising a structure on the same which is used, or is meant to be used, as a public place of worship (a mosque) within two months from this date. As mentioned in the judgment of the trial Court, the plaintiff's suit is dismissed as against defendants 5 to 10. The parties are to bear their own costs in the litigation throughout. The records of the case are to be returned as soon as practicable.
7. I agree.