Venkaiya vs Ramaswamy and Another

Moore, J.—The plaintiff (appellant) sued to eject the defendants (respondents) on the ground that they had converted a piece of wet land

held by them on patta under him intended for cultivation with paddy, ragi, &c., into a cocoanut garden. He also prayed that he should be awarded

Rs. 2 as the cost of removing the cocoanut plants on the holding. Both the lower Courts have dismissed his case with costs. In the pattas filed

(Exhibit A series) the land under cultivation is classed as wet, but nothing is said as to the nature of the crops that should be grown on it. As the

District Judge remarks, the plaintiff tried to import into the terms of the tenancy a clause to the effect that the tenant should not use the land for any

purpose inconsistent with its general character as paddy land, and finds that the burden of proving that such a condition was one of the terms of the

tenancy was on the plaintiff and that he has not discharged it.

It is now urged in appeal that the tenants have, by growing cocoanut trees on paddy land altered the character of the holding and that the

landlord is accordingly entitled, if not to eject them, at all events, to get a decree directing the removal of the cocoanut plants and the reconversion

of the land into ordinary wet land. It is urged that if this is not done, the amount of rent to be paid to the landlord may be diminished, that it may

hereafter become impossible to identify the land and that it may also be rendered difficult for him if the land is cultivated with cocoanut trees to

realize the arrears due to him by attachment and sale of the crops growing thereon under the provisions of Act VIII of 1865. It does not appear to

me that there is much force in these contentions. Whatever crop the tenants may grow they must, it is clear, pay the rent agreed in the patta and no

alteration in the nature of the crops can, it is admitted, give them any right to claim any deduction from that sum. There can be no real danger that

there will hereafter be any difficulty in identifying the land, and it does not appear to me that there is any evidence on the record to justify the

supposition that the tenants who, it is shown, have a permanent right of occupancy, will run the risk of losing that right by neglecting to pay the rent

due by them. It is also pleaded that if the land remains as a cocoanut tope the landlord will, in case the tenants abandon it, be put to considerable

expense in having the trees cleared away so as to make it fit for the cultivation of paddy, &c. As the land is valuable, the landlord need not, as it

appears to me, be under any apprehension that these tenants with a permanent right of occupancy will abandon it.

It is further urged that when the tenants planted cocoanut trees on the wet land they altered the character of the holding and thereby committed

an act of waste and that such being the case the landlord is entitled to a decree as prayed for. The only cases of importance that have been quoted

at the hearing are Ramanadhan V. Zemindar of Ramnad I.L.R., 16, M. 407 and Lahshmana v. Appa Rau Ib. 17, M. 73 . What was held in the

former of these cases was that a Zemindar was entitled to compel a tenant to demolish a dwelling house which he had erected for purposes not

connected with agriculture on agricultural land held by him, and in the latter that a Zemindar is justified in inserting a clause in a patta preventing a

tenant from erecting buildings on his holding which are not compatible with the agricultural character of the holding. These decisions, it is clear, treat

of cases of a completely different nature to that at present under consideration. Turning to the latest edition of Woodfall on the Law of Landlord

and Tenant (16th Edition, page 648), I find that the tenor of the decisions as to waste by changing the nature of the property is briefly as follows: If

the tenant convert arable land into wood, or � converso, or meadow into arable, it is waste and this would appear to be the case, even when the

act is done according to the custom of the country for the purpose of amelioration. If a tenant pull down a malt-mill and build a corn-mill it is waste,

also if ho convert a corn-mill into a fulling-mill it is waste, though the conversion be to the lessor''s advantage. Applying the principle of these

decisions to the present case, it appears to me that the defendants cannot be held to have committed waste. They have not converted the holding in

one of a completely different character. They have, it must, in my opinion be held, merely chosen to grow one description of crop, cocoanuts, in

lieu of another, paddy or ragi. They cannot be said to have converted ""arable. land into wood,"" inasmuch as a cocoanut garden is, it must be

admitted, something very different from a wood. In many parts of Malabar one may see in a stretch of wet land fields grown with cocoanut trees

intermingled with plots of paddy land. Both are irrigated in much the same way and both may, it appears to me, be held to be cultivated with wet

crops. As I cannot hold that the tenants have committed waste, I would dismiss this second appeal Avith costs.

Subrahmania Aiyar, J.

In this ease, so far as the present appeal goes, the appellant (plaintiff)--an Inamdar,--seeks to obtain a decree directing the respondent

(defendant)--a ryot,--to remove certain cocoanut trees planted by him a short time before the institution of the suit in one of the parcels of land in

his possession. The District Munsif and the District Judge decided against the appellant.

Now beyond putting in the pattas issued to the respondent tinder the Rent Recovery Act for faslies 1299 to 1304, the appellant produced no

evidence. These pattas show nothing more than what the respondent himself admits, viz., that the land in question is nanja or irrigated land. On the

other side, the respondent called a few witnesses, to prove the prevalence of a practice, in the locality wherefrom this case comes, of persons, in

the position of the respondent, planting cocoanut or other fruit trees on lands of similar description without reference to the consent of the

landholder. The District Judge, however, held that no such practice was made . out. The case has to be decided with reference to but three

undisputed circumstances:

The land has hitherto been used only for growing paddy or ragi.

The right, which the respondent possesses in the land, is of a permanent character though he may, if he likes, relinquish the land in accordance

with the proviso to S. 12 of the Rent Recovery Act.

The rent payable for the land is a definite money rent which is not liable to be enhanced save for the exceptional reason and under the conditions

specified in the first proviso to S. 11 of the enactment referred to.

In the absence of special rules, laid down as applicable to questions such as the present arising between persons in the position of the parties to

this case, we must, in dealing with such questions, be guided, as far as practicable, by the principles which govern similar questions when they arise

between persons who stand to each other in the relation of landlords and tenants, in the strict sense of the terms, to which relation that subsisting

between the present parties bears, in important respects, an analogy.

Now according to those principles, the appellant will not be entitled to any relief unless the respondent has, by planting the trees, contravened

some agreement or understanding between him and the appellant as to the crops to be raised on the land; or unless the land has, by being so

planted, been put to an unhusbandlike use : (assuming that ,the obligation to use ,in a husbandlike manner implied in certain circumstances is to be

taken as an incident of the respondent''s holding, a point as to which I shall add a few words later on) or unless the act of the respondent amounts

to waste.

First, has the respondent by the act in question, violated any agreement or understanding between him and the appellant as to the crops to be

raised ? In support of the contention that he has, the only circumstance, relied on, is that, as stated before, paddy or ragi alone has hitherto been

grown on the land. But clearly that by itself is not sufficient to establish the existence of an agreement or understanding that the respondent was not

to use the land for the cultivation of any other suitable crop or produced. In Westropp v. Elligott (9 App. cases 815), Lord Watson, dealing with

an argument similar to that urged here, said "" though the tenant were to use the land mainly for pasture (that was the purpose for which the land had

admittedly been used there for a considerable period) it would not, in my opinion, necessarily follow that the holding had been let to be used'' for

that purpose. I think it would be necessary in addition to the mere fact of use, to prove some facts in relation to the character and capabilities of the

holding from which it might be inferred that the tenant could not reasonably have contemplated any other use."" (Ibid 832). Next, has the

respondent acted in an unhusbandlike manner ? This question, oil course, implies that the obligation imposed by law on an ordinary tenant that in

the absence of a contract to the contrary he should manage the land in a husbandlike manner, is applicable to a raiyat such as the respondent.

Having regard, however, to the fact that such ryots possess in their lands a heritable and alienable interest of a permanent character, it would seem

to be improper and mischievous to hold that the implied obligation, just referred to, is an incident of their holdings, inasmuch as on the one hand, it

is not at all to the ryot''s interest to depart from the usual and regular course of good husbandry; and on the other such a ruling might be utilized by

landholders for improper ends and might lead to vexatious litigation on their parts against ryots whom they dislike. But it is not necessary to decide

that point now. For, assuming that an obligation as aforesaid, is an incident of the respondent''s holding, there is not a title of evidence to prove that

in planting the trees, the respondent acted in a manner unwarranted by good husbandry. Is would be quite unreasonable to hold that a tenant, who

has been in the habit of raising one kind of crop for many years, by simply changing the crop does an unhusbandlike act. If authority were

necessary for so plain a proposition, I would refer to Lord Chancellor Earl of Selborne''s conclusion in the case already cited, to the effect that ""the

mere fact of use in a particular manner for a considerable period of time is not enough to show that any other use would be contrary to the

covenant "" to manage, till, and use the lands in a good husbandlike manner, and in due and regular course of good husbandry, so that the same

might not be in any way injured or deteriorated."" (9 App. cases p. 820). It may not be superfluous to add that, even if I were unaware of the fact

that, in different parts of the country, notably in parts of Coimbatore, valuable topes of cocoanut and arecanut trees have been and are being

grown oil irrigated lands paying revenue to Government, I should decline to say that the planting of such trees on similar lands, held by ryots in

Zamindari and Inam villages, is prim� facie opposed to good husbandry which is a relative term, since, in the words of Lord Ellenborough in

Leigh v. Hewitt 4 East 159, ""what shall be considered in farming as good and husbandlike manner must vary exceedingly according to soil, climate,

and situation.

Lastly, does the respondent''s act complained of amount to waste ? It cannot be waste unless it has caused lasting or permanent injury to the

appellant''s right. The right to rent, which is the only tangible one that he now possesses, is obviously not affected in any way. On the contrary, as

the trees grow and the value of the land increases, the security for the rent would become better and better. It is quite true that if no trees had been

planted but paddy or vagi continued to be grown, the appellant would have been in a position to distrain crops of that description for any rent

remaining unpaid when, such crops are on the land; whereas, in the present altered condition of the land, there would be no crop on it to proceed

against until the trees come to bearing. But Suppose the respondent, instead of planting the trees, had merely allowed the land to reman

uncultivated. In that case also the appellant would have found nothing on the land to distrain, and such an omission would have given him no legal

ground for complaint. How then is he entitled to say that the absence of distrainable crops, in the case suggested on his behalf, is an injury to him ?

The only other argument put forward with reference to the present point, is even more unsubstantial than the one just dealt with. It may be that, if

the respondent relinquishes the land at some future time and the appellant is then disposed to remove the trees, if any, then standing on the land, in

order to grow paddy, &c., thereon, he would be put to a slight expense. But the contingency of any relinquishment of the land and of the removal

of any of the trees is so very unlikely and the cost of the removal would be so trifling that, in my opinion, courts would not be justified in accepting

such circumstances to constitute, in point of law, any injury to the appellant and much less a lasting or permanent injury. I have, consequently, no

hesitation in holding that the planting of the trees does not amount to waste. It is, therefore, unnecessary to consider the contention that, even if

there was waste, relief should be refused to the appellant on the ground that the waste was, as it is called, meliorating or improving waste.

As to the authorities relied on behalf of the appellant, they are clearly distinguishable from the present. In Lakshman v. Ramachendrao ILR 10

M. 351 certain tenants from year to year were held disentitled to grow a mango grove on the land, let. This was on the ground that such tenants

were under the obligation to return the land in the condition in which it was when it was leased to them. In cases like that, it does not seem unfair

on the part of the landlord to say that, as the tenant''s interest was determinable on notice to quit, the planting of trees that would take years to

grow would ordinarily not do any good to the tenant, whilst it might prove to be a burden on the landlord who is most interested and, therefore,

such trees ought not to be grown without his consent. The next case cited, Kunhammed v. Narayanan Mussad ILR 12 M., 320 is, in principle,

similar to the decision just noticed. For, although the tenant, in the case in question, was not a tenant from year to year, yet he was one who had to

surrender the land at the end of the customary kanom term of twelve (12) years and, under the instrument of kanom which created the tenancy,

even earlier if the rent fell in arrear. The reasoning, rightly adopted, in that class of cases is quite inapplicable to cases such as the present since, in

this latter class, there is no obligation to surrender at all. In Ramanadhan v. Zemindar of Ramnad I. L. R. 16 M. 407 the ryot no doubt possessed

the same permanent interest which the respondent possesses. But there, agricultural land was used as the site of a house built for non-agricultural

purposes. Such an alteration the law prohibits because it is calculated to subject the landlord to risks and inconveniences pointed out by Lord

Macnanghten in Kehoe v. Marquess of Lansdowne 1893, App. cases and to which it is unjust to expose him. At page 466 of the report his

Lordship observed, ""He (the Marquess) let an agricultural holding; he must take back a congested district. '' Oh,'' said the leading counsel for the

appellants, ''these cottages can be easily removed; they need not subsist a day longer than anybody likes. They have only to be raised from the

grounds and thrown aside.'' Well, that is a summary mode of eviction which would not, I should think, commend itself to any landlord in Ireland,

and which, I am sure, the appellants themselves would hesitato to put in force. The learned Counsel, who spoke second for the appeal, took a

more practical view; he admitted that if the land were returned to Lord Lansdowne with these cottages upon it, he could only get rid of them by

actions of ejectment. Everybody knows what that means--expense, delay and odium ! And all the time while the landlord was vindicating his rights,

and probably for a very long time afterwards, the lands would lie idle and unprofitable. To my mind, that is a grave injury as well as an imminent

danger."" Between such a case and this, there is no similarity.

I, therefore, concur in dissinissing the second appeal with costs.