Ramaswami Nayakar and Another vs Meenakshisundaram Chettiar and Others

Srinivasa Aiyangar, J.—The question raised in this Second Appeal relates to the principle on which damages should be awarded for

trespass on land and the proper measure of such damages. The plaintiffs-appellants, are the owners of about 2� acres of land, on which and

several other adjoining lands a cattle-fair used to be held annually. The predecessor-in-interest of the plaintiffs would appear to have been content

to let this land, for the purpose of the fair, receiving the sum of Rs. 50 as rent every year. But from about the year 1911, the plaintiffs refused to let

the land on the same rent. For the years 1911 and 1912 the plaintiffs obtained, in a decree ex parte, damages against the defendants, at Rs. 300

per annum, for trespass on the suit land, consisting in their using the land for the cattle-fair, without any agreement with the plaintiffs and without

their permission. In the first two suits, the plaintiffs have claimed from the defendants damages at the rate of Rs. 300 per annum, for two years, in

each of the suits and in the last suit, Rs. 550 as damages for one year. The Court of first instance granted to the plaintiff damages at Rs. 50 per

annum and the Lower Appellate Court has confirmed the same. The learned Advocate-General for the appellant has argued that the principle on

which the lower Courts awarded damages only at Rs. 50 per annum was wrong in law and that a different measure of damages should have been

adopted. I am unable to understand on what particular principle the Lower Appellate Court proceeded to fix the damages at Rs. 50 per annum,

apart of course from its statement of agreement with the Court of first instance in that matter. In one part of the judgment, it almost seems that the

learned Subordinate Judge was inclined to adopt, as the true measure of damages, the number of cattle that were on the plaintiffs'' land. At another

place, he has indicated that if the accounts of the lessees could have been produced, that might have furnished to him a measure of damages he

could have adopted. Reference is also made to the sum of Rs. 50 having been accepted by the plaintiffs'' predecessor-in-interest, as rent as also to

the said amount being reasonable rent, having regard to the rents charged in the neighbourhood. The amount of rent which the plaintiffs''

predecessor were content to receive in previous years could possibly not be a measure of damages at any rate for the succeeding years. The rents

paid or received in respect of the adjacent lands were the result of contracts. In Williams v. Currie (1845) 135 E R 774. Justice Maule observes

as follows : "" 4. If we were to hold that the Jury in estimating the damages for an unlicensed trespass of this sort are to be restrained to exactly the

amount of the injury sustained by the plaintiff, it would in effect be placing a wrongdoer upon precisely the same footing, as one who enters with

permission."" The learned Judge proceeds further to indicate that the wilfulness of an act of trespass and the trespass was done for the pecuniary

benefit of the defendants would be matters to be taken into consideration in assessing damages. In the case of Jegon v. Vivian (1870) 6 Ch 742

before the House of Lords, the Lord Chancellor generally approves of the principle that in awarding damages a distinction may be made between

a trespasser bona fide claiming a title and a wilful trespasser, and goes on to observe that the Court never allows a man to make profit by wrong. I

do not, however, understand by the last statement that the wrong-doer is or should be placed exactly in the same position, as an agent or trustee

and made to account for all the profits he has made. I construe that statement of the law merely to signify that a wilful trespasser should not be

placed in a better position than a person who had to enter into an agreement with the landlord, in respect of the use or occupation of the land; that

is to say, in other words, the damages awarded against a wilful trespasser ought in no case to be less than the amount which, having regard to all

the circumstances, a prudent and reasonable landlord would have agreed to let the land, for the purpose, or less than the amount, which the

trespasser would have had to pay as the result of the reasonable negotiations for such use or occupation of the land. The amount so arrived at

would be the minimum of damages awardable against him. Over and above that, there is high authority for holding that, as in the case of certain

personal wrongs, the animus with which a trespasser commits the wrong may be taken into consideration for the purpose of awarding higher

damages than would otherwise have been. In this case, I have no hesitation in holding that the trespass was wilful. I am bound therefore to award

as and by way of damages to the plaintiffs in the circumstances, not only the reasonable amount which, if there had been negotiations between the

parties, would have been fixed as rent but also a further amount for the wilfulness of the trespass. But at the same time, in the present case, there is

the undoubted fact that the plaintiffs, knowing that the trespass was about to be or certain to be committed stood by and allowed such trespass to

be committed year after year, in the undoubted hope that they would be able to recover from the defendants the large amount of damages, for

which they had obtained a decree ex parte, in the previous suit. The conduct of the plaintiffs, who complain of the wrong is an undoubted element

to be taken into consideration, in awarding damages; and I have no hesitation in laying it down that the plaintiffs, who stand by and virtually

encourage the wrong, are not entitled to damages on the same scale, on which damages might be granted to a plaintiff, who had done his best to

prevent the commission of the wrong. Taking all these circumstances into consideration, the conclusion I have arrived at is that the plaintiffs in this

case, would be entitled in the first place to such amount as having regard to all the circumstances might be deemed to be the amount for which, on

negotiations between the parties, the plaintiffs might have agreed to let and which the defendants might have agreed to pay, in respect of the suit

land in the years in question, and in addition thereto such further damages for the wilfulness of the trespass, taking into consideration at the same

time the conduct of the plaintiffs in not preventing the trespass, but standing by and allowing the trespass to be committed. The process is difficult

of imagining the plaintiffs and the defendants coming together, negotiating reasonably and arriving at a reasonable amount of rent, but it has got to

be done I have come to the conclusion that a sum of Rs. 100 per annum would represent such amount. I should have been disposed to grant, as

and by way of further damages, for the wilfulness of the trespass, a sum of Rs. 50 per annum, but having regard to the plaintiffs standing by and

allowing the trespass to be committed, with the ulterior object of claiming damages, I award only Rs. 25 in addition, for each year. In the result,

instead of Rs. 50 per annum awarded by the lower Courts, I award Rs. 125 per annum. The decrees of the lower Courts will be varied

accordingly in all the cases. The respondents will pay the appellants'' costs in this Court and in the Lower Appellate Court.