Hari Mohun Misser v. Surendra Narayan Singh BS651892
PRIVY COUNCIL

Before:-Lord Robertson, Lord Collins and Sir Arthur Wilson.

0 D/d. 3/ 15.05.1907.

Hari Mohun Misser - Defendants

Versus

Surendra Narayan Singh - Plaintiff

On Appeal from the High Court in Bengal.

Solicitors for Appellant :- T.L. Wilson & Co.

Solicitors for Respondents :- Dallimore & Son.

Appeal from a decree of the High Court (June 1, 1903), reversing a decree of the District Court of Purnea (August 16, 1900) and restoring a decree of the Subordinate Judge of Purnea (September 30, 1899).

The question decided was whether the respondent was entitled, under the circumstances stated in the judgment of their Lordships to a perpetual injunction restraining the appellants from erecting certain buildings on a plot of land situate in the village of Badh Manoharpur.

The property which comprised this plot was held jointly by the respondent and the first three appellants, the former being entitled to a 10½ annas share, the latter to a 3½ annas share, certain defendants not parties to the appeal being entitled to the remaining 2 annas. The sixth appellant was the purchaser of the plot of land in suit, and he entered into an agreement with the first appellant to carry on an indigo business in partnership. With this view they sowed indigo, and began to build a factory on the said plot.

The plait sought a perpetual injunction, and the defence was that the land in dispute formed a portion of the holding of seventy begahs sold to the sixth appellant on May 25, 1896, that his interest therein was a transferable right of occupancy and that he had a right in law to erect the disputed buildings on the said land. It was further pleaded that the buildings were erected to the knowledge of the plaintiff and without objection on his part, that any loss occasioned to him could be sufficiently compensated in money, and that no case had been made for the grant of a perpetual injunction and the other relief claimed.

By the findings of the Courts below it was conclusively established that the sixth appellant had a right of occupancy as claimed. The Subordinate Judge decreed as prayed, but the District Jude decided that a tenant having occupancy rights was entitle to grow indigo as a crop if he so wished , and to erect permanent buildings on his holding on his holding, provided they were for the benefit of the property and consistent with the purposes for which it was let, and that the building in suit fulfilled both these requisites. The High Court, on the other hand, held that the erection of an indigo factory by an occupancy tenant rendered the land "unfit for the purpose of the tenancy" within the meaning of section 23 of the Bengal Tenancy Act, and that the finding of the District Judge to the contrary was not a finding of fact with which the High Court were precluded from interfering.

De Gruyther, for the appellants, contended that an occupancy tenant is entitled in law to erect on his land such buildings as are now in dispute. The land was let for agricultural purposes, and the buildings did not render the land unfit for those purposes and did not impair its value,. It rather increased that value to the extent of the value of the building erected. Reference was made to the Bengal Tenancy Act (VIII of 1885), sections 19, 23, 26, 29, 76, 77, 78, 178, and 183, and to Nyamuloollah Ostagur v. Gobind Churn Dutt. (1866) 6 S.W.R., Act X rulings, 40. The building were erected with the consent of some co-shares, and without objection from others. At to the extent of the injunction granted, see Specific Relief Act (I of 1877), section 54.

C.W. Arathoon, for the respondent, contended that the buildings in question were wholly inconsistent with the purpose for which the land was let. That purpose was the cultivation of crops. The manufacture of cakes out of indigo plants is not an agricultural purpose. The erection of an indigo factory on the land was calculated to render it unfit for the real purposes of the tenancy. The Bengal Tenancy Act only applied to agricultural tenancies, and section 76 provided that the use of the land must be consistent with the purpose for which it was let, that is, an agricultural purpose. Reference was made to Lal Sahoo v. Deo Narain Singh (1878) I.L.R. 3 Calc. 781; Ramanadhan v. Zamindar of Ramnad (1893) I.L.R. 16 Madr. 407; Venkayya v. Ramasami (1898) I.L.R. 22 Madr. 39; Najju Khan v. Imtiazuddin (1895) I.L.R. 18 Allah. 115. and Jugut Chunder Roy Chowdhry v. Eshan Chunder Benerjee (1875) 24 S.W.R. 220.

De Gruyther replied.

Cases Referred :-

Jugut Chunder Roy Chowdhry v. Eshan Chunder Benerjee (1875) 24 S.W.R. 220.

Lal Sahoo v. Deo Narain Singh (1878) I.L.R. 3 Calc. 781.

Najju Khan v. Imtiazuddin (1895) I.L.R. 18 Allah. 115.

Nyamuloollah Ostagur v. Gobind Churn Dutt. (1866) 6 S.W.R., Act X rulings, 40.

Ramanadhan v. Zamindar of Ramnad (1893) I.L.R. 16 Madr. 407.

Venkayya v. Ramasami (1898) I.L.R. 22 Madr. 39.

JUDGMENT

The judgment of their Lordships was delivered by

1907 May 15.

Sir Arthur Wilson :- The respondent represents the owner of a 10½ annas share in a putni tenure of considerable extent, Turuf Inaitpur Katakose, in the district of Purnea. The putni included, amongst other properties, a holding to which the present suit relates. This holding had become vested in Ram Kumar Singh, who, it is not disputed, held as an occupancy raiyat, enjoying as such the rights conferred upon a tenant of that class by the Bengal Tenancy Act (No. VIII of 1885). Ram Kumar Singh, in conjunction with some of the owners of shares in the putni, took steps for the purpose of growing indigo on the holding, and for the erection of an indigo factory within its limits.

The suit out of which this appeal arises was brought in the Court of the Subordinate Judge of Purnea, by the owners of the 10½ annas share in the putni, to obtain an injunction restraining the carrying out of the proposed changes. It is unnecessary to consider the constitution of the suit. It is enough to say that all necessary parties were joined, and that everything turns upon the rights of the 10½ annas sharers in the putni on the one hand, and those of Ram Kumar Singh, the occupancy tenant of the holding, on the other.

The enactment governing the case is Section 28 of the Bengal Tenancy Act, which says: "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."

The Subordinate Judge granted the injunction asked for. The District Judge on appeal reversed that decision. As to the first of the two restrictions contained in the section his finding was explicit. He says: "The building of a factory with necessary appliance for the manufacture of the plant near to or upon the land on which it is grown would be an operation decidedly for the benefit of the holding, and I fail to see how under any conceivable circumstances the value of the holding could deteriorate in consequence of the erection of such buildings."

This is a clear finding of fact, which has not been, and could not be, questioned.

The second restriction in the section is that the user of the land must not be such as to render it unfit for the purposes of the tenancy. The question arising with regard to that restriction was essentially a question of fact, and the District Judge decided it; but in doing so he may seem, perhaps, to have relied, not so much upon the circumstances of the case before him, as upon a proposition which, understood generally, might require qualification, for he says: "I think it may be fairly held that the erection of indigo buildings is also in conformity with the purposes for which an agricultural holding is let."

What their Lordships, however, have to decide is not whether the judgment of the District Judge was wholly satisfactory, but whether the learned judges of the High Court were justified in overruling it, as they did, on second appeal.

Second appeals are governed, so far as the present case is concerned, by Sections 584(a) and 585 of the Civil Procedure Code, under which the appeal can only lie on the ground of the decision appealed against "being contrary to some specified law or usage having the force of law." The law which the High Court found to have been violated by the District Judge's decision is thus stated: "Where, as in this case, land has been let out for agricultural purposes generally, the erection of an indigo factory on a part of such land must render it unfit for the purpose of the tenancy, because, the purpose of the tenancy being the cultivation of crops, that is agricultural purposes, the portion of the land built upon will evidently be unfit for such purposes."

That proposition of law is laid down broadly, without reference to the circumstances of individual cases, without regard to the size of the holding, or of the area withdrawn from actual cultivation, or to the effect of such withdrawal upon the fitness of the holding, taken as a whole, for profitable cultivation.

Their Lordships are unable to concur in the proposition of law so laid down. They will therefore humbly advise His Majesty that the judgment and decree of the High Court should be discharged with costs, and those of the District Judge restored. The respondent will pay the costs of this appeal.

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