1. The subject-matter of the litigation which has culminated in this appeal is a portion of a non-transferable occupancy holding. The first three defendants hold this tenancy, which comprises 20 bighas of land, under the plaintiffs-respondents and the other defendants, now appellants, as their landlords. It appears that the tenant-defendants on the 5th January 1911, executed a deed of release in favour of the landlords-defendants, to whom they also relinquished possession of one-tenth of the area of the entire holding. The object of this release was to enable the landlords-defendants to erect structures thereon andto hold a market on the site. This, indeed, is admitted in the written statement of the landlord-defendants, who allege that as the plaintiffs had oppressed the shop-keepers of the neighbouring market, the defendants attempted to set up another market in order to protect the shop-keepers from tyranny and for the convenience of the people of the village. It has also been found that the defendants had commenced to construct huts on the land when this suit was instituted on the 18th January 1911 for a two-fold purpose, namely, first, to eject the defendants, and secondly, to obtain an injunction to restrain the defendants from altering the character of the lard. The Trial Court granted complete relief to the plaintiffs. Upon appeal by the defendants, the Subordinate Judge has dismissed the claim for ejectment on the ground that partial surrender by the tenants in favour of the landlords-defendants 'did not operate as a forfeiture of their tenancy, though it might not bind the plaintiff landlords. The Subordinate Judge, however, has maintained the decree for injunction, On the present appeal, the defendants have urged that the injunction should be withdrawn.
2. Section 23 of the Bengal Tenancy Act, which defines the incidents of occupancy right, provides that when a raiyat has a right of occupancy in respect of any land, he may use ,the land in any manner which does not materially impair the value of the land or render it unfit for the purposes of the tenancy. In the present case, it has not been disputed that the purpose of the tenancy was agricultural. As there is no evidence to show that the land would be materially impaired in value by the establishment of the proposed market, the only question in controversy is whether what the defendants have done or intend to do on the land is calculated to render it unfit for the purposes of the tenancy. It has been argued, with reference to the decision of the Judicial Committee in Hari Mohan Misser v. Surendra Narayan Singh 34 C. 718 : 34 I.A. 133 : 6 C.L.J. 19 : 11 C.W.N. 794 : 9 Bom. L.R. 750 : 17 M.L.J. 361 : 2 M.L.T. 399, that in order to determine this question, it is essential that the Court should have regard to the size of the holding, the area withdrawn from actual cultivation, and the effect of such withdrawal upon the fitness of the holding taken as a whole for profitable cultivation. But the case mentioned is clearly distinguishable. There the purpose for which a portion of the holding was withdrawn from actual cultivation was, according to the finding of the District Judge, directly connected with agricultural pursuits, namely, the erection of buildings suitable for indigo manufacture, In the case before us, the purpose for which a portion of the land is sought to be withdrawn from actual cultivation is totally unconnected with agriculture, for what the defendants seek to do is to establish a market on the site. It is immaterial that the market will occupy not more than one-tenths of the area of the entire holding; that circumstance cannot affect the nature and character of the unauthorized act. This is clearly a case where, if the defendants are permitted to execute their design, they will render the holding unfit for agriculture, for which purpose alone the land was let out to the tenants-defendants. It has been argued, however, that the establishment of the market would not permanently render unfit the land for the purposes of the tenancy and that consequently the act is not objectionable under Section 23. We are not prepared to accept this contention as well-founded on principle. Section 23 is applicable not only to cases where the land is made permanently unfit, but also to cases where the land is made temporarily unfit for the purposes of the tenancy. The main contention of the appellants, consequently, fails and the order for an injunction must be supported.
3. It is plain, however, that the injunction has been too broadly formulated and requires modification. The injunction which restrains the defendants from changing the character of the disputed land in any way so as to render it unfit for agriculture, merely reproduces the phraseology of the Statute without any attempt to adapt it to the facts of the special case before the Court. We direct accordingly that the order of the Court below be modified and that the injunction do run in these terms: The defendants are restrained from erecting structures on the disputed land and holding a market thereon. The respondents are entitled to their costs of this appeal, as the appellants have substantially failed.