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Judgment
Deka, J.—This appeal arises out of a suit brought by one Mohan Keot who has since been substituted by his legal heirs after his death, for declaration of his title as an occupancy tenant with respect to half a bigha of land (2 K. 10 lechas)--covered by Lakhiraj patta No. 1 of the Kamakhya Temple--and for a decree with respect to Rs. 203/5/- which represented the compensation paid by the Railway authorities for removal of some earth from the aforesaid area in the year 1948 The compensation money was paid through the Deputy Commissioned Kamrup to the two defendants who as Dolois represented the interest of the Kamakhya Temple to which the land belonged. The defendants admitted plaintiff''s possession with respect to the land but contested the declaration of the plaintiff''s title as occupancy raiyat as contemplated under the Assam Tenancy Act (Act III of 1935 and the right of the plaintiff to get any share of the compensation money which was paid by the Railway authorities for the removal of the earth. The learned Munsiff declared the plaintiff''s right as an occupancy raiyat with respect to the land in suit and passed a decree for Rs. 3-5-0 only for compensation which represented the price of the crops as paid by the Railway authorities. Against this decree the pontiff appeled and the learned Subordinate Judge. L.A.D. who heard this appeal varied the decree with respect to the compensation and passed a decree in favour of the plaintiff, or more strictly his heirs, for a sum of Rs. 100 out of the sum of Rs. 200 originally paid by the silav authorities far the removal of earth from the land in suit. The Dolois (Managers'' of the Kamakhya Temple who were defendants 1 and 2 have preferred this appeal against the decree passed by the Subordinate Judge, L.A.D.
The learned Subordinate Judge in his judgment under appeal, finds that the plaintiff or his heirs (appellants before him) were occupancy tenants within the meaning of Section 13 of the Assam Tenancy Act and u/s 14 thereof, they had only the right to we the land in any manner which did not materially impair the value of the land or render it unfit for the purpose of tenancy. He further held that the land in question was a trust/property and the respondents (defendants 1 and 2)--as trustees were bound to see to the use of the land in a manner so that the corpus aid not suffer. He further found that there was no evidence to show the extent of the damage caused apparently, to the tenant)--by the cutting and removal of the earth from the land in question,--but nevertheless he passed a decree in favour of the plaintiff for a part of the compensation money in the following words:
The removal of earth must have caused some damage to the lands. As a result, the deterioration, if any, has been caused presently to the tenant and ulteriorily to the owner. So, in cases of occupancy tenants, I am inclined to give them an equal share in the compensation money with that of the owners. I, therefore, hold that the appellants as occupancy raiyats are entitled to recover Rs. 100 (one hundred) only out of the compensation money received by the respondents in connection with the damage caused to these lands.
The learned Advocate for the defendant-appellants has contended that the decree for compensation as passed by the learned Subordinate Judge is arbitrary and without any legal foundation.
Mr. Ghose for the appellant has not disputed the finding that the plaintiff is an occupancy tenant with respect to the land in suit and the only question for consideration is whether by virtue of such a status,--he is entitled to any part of the compensation money paid by the Railway to the proprietor of the land for the removal of the earth. It is conceded that the plaintiff has adduced no evidence to show that he sustained any loss or damage due to the removal of the earth from a portion of the land under his tenancy or even that the land has suffered in quality. He based his claim to a portion of the compensation money solely on his right as an occupancy tenant with respect to the land. The rights, of an occupancy raiyat are stated in Sections 14 and 15 of the Assam Tenancy Act which have been referred to by the learned Munsiff as well as by the learned Subordinate Judge. An occupancy tenant has a right to use the land subject to certain limitations as to enjoyment and transfer of his interest; he can neither remove the earth himself if it materially impairs the value of the land or renders it unfit for the purpose of tenancy,--nor can he fell trees that are not raised or grown by him. An occupancy tenant is not a full owner. For instance he has no power to sell the holding. In the absence of power to sell the holding, he is not entitled to participate in the sale proceeds of a part of the corpus or the compensation money paid to the landlord by a stranger who removes some earth from the land covered by the tenancy.
The learned Advocate appearing for the respondents has in support of his case laid stress on the following judicial decisions:
''Lalit Kumar v. Bhagawan Ch. Sarma ILR (1950) 2 Ass. 257 ; Jyoti Prosad Singha Deo Bahadur Vs. Kenarem Dubey and Others, ; Damodar Das Vs. Secretary of State, ; AIR 1927 262 (Privy Council)
The case reported in ''Lalit Kumar v. Bhagawan Ch. Sarma'' ILR (1950) 2 Assam 257 is a decision of this Court to the effect that in case of acquisition of lands under the Defence of India rules the occupancy raiyat is entitled to a share of the compensation award. This Court observed:
What happens is that upon requisition when the Government takes possession of the property the claimants are kept out of it and as the Government have taken possession in pursuance of their statutory powers, they must pay compensation for such possession....
Mr. Lahkar has argued that the plaintiff was kept out of possession at least for some time when the earth was removed but in the absence of evidence to that effect this contention cannot prevail. The compensation for the crop damaged has been decreed in favour of the plaintiff. But he has failed to prove any other loss or damage and his claim not being based upon temporary deprivation of possession of the land itself while the earth was being removed, we cannot say that the plaintiff suffered any loss for being out of possession of the land while the earth was being removed.
Jyoti Prosad Singha Deo Bahadur Vs. Kenarem Dubey and Others, is a decision of the Calcutta High Court with respect to a land acquisition proceed in where the land was permanently acquired by the Government under the Land Acquisition Act and it was held that the Zamindars were not entitled to any share in the compensation money inasmuch as the minerals to which alone the ''Zamindars were entitled, had not been acquired and their interest did not in any other way suffer. The case, therefore, is clearly distinguishable from the facts of the case before us.
AIR 1927 262 (Privy Council) is Anr. case dealing with land acquisition, where the persons in possession were held to have a preferential claim to the compensation paid where they are permanently deprived of the possession of the property.
Damodar Das Vs. Secretary of State, has no bearing on the facts of this case, the point involved being whether a bungalow standing on a particular plot of land comes within the definition of "land" for the purpose of compensation payable within the Land Acquisition Act.
It is, therefore, clear that none of the cases cited by Mr. Lahkar is of any assistance in deciding the point at issue.
Mr, Lahkar next contended that the case is governed by the provisions of Sections 35 and 36 of the Land Acquisition Act. Section 35 deals with acquisition of lands for temporary use and occupation not exceeding three years--and there is provision for paying compensation to the persons interested,--after serving proper notice on them in writing as provided u/s 95(2) of the Land Acquisition Act. Section 36 of the Land Acquisition Act provides for entering into possession of the acquired land and for paying compensation for damage if any done to the land and not provided for by the agreement and in case the land becomes permanently unfit to be used for the purpose for which it was used immediately before the commencement of the term, and if the persons so interested shall so require, the local Government shall proceed to acquire the land as if it was needed permanently for a public purpose or for a company.
In the case before us, it does not appear that the land was acquired, even temporarily or that any notice was served for such acquisition. Ex. 3--the list showing the amount of compensation does not contain any particulars about any acquisition caser it merely shows that earth was removed from 2 K. 10 lechas of laud from the Raiyatwari holding of Mohan Keot (Pattadars being the 2 defendant Dolois) for the purpose of the Railway Double Line project.
Cases under the Land Acquisition Act are clearly distinguishable from the present case. In the case of acquisition of land covered by permanent tenancy or in case of a tenant with occupancy rights, the tenant is deprived of the use of the land for which he might reasonably ask for a share in the compensation money,--but in this case there has been no such acquisition resulting in permanent or temporary deprivation of the use of the land in the possession of the plaintiff or his heirs. In the absence of a statutory right given to an occupancy tenant to claim compensation in the case of removal of some earth from the land in his possession, the plaintiff as an occupancy tenant could ask for compensation only if he suffered damage due to the removal of the earth from his holding. In this case no such damage has been proved, nor has the plaintiff succeeded in showing that as a consequence, the land has deteriorated in quality or has been rendered unfit for the purpose of his tenancy.
In this view of the matter, we hold that the learned Subordinate Judge was in error in apportioning the compensation between the compensation between the plaintiff and the defendants. The decree passed by him for compensation is, therefore, set aside. The judgment and decree as passed by the Munsiff are restored and the appeal is allowed with costs throughout.
Thedani, C.J.
I agree.
Ram Labhaya, J.
This is an appeal from the judgment and decree of the Subordinate Judge, L.A.D, by which the decree of the Munsiff of Gauhati for a declaration in plff''s favour of his title to occupancy rights in land measuring 2.10 L and also for a sum of Rs. 3-5-0 with proportionate costs was modified to this extent that the sum of Rs. 3-5-0 decreed was enhanced by a sum of Rs. 100.
Defts have appealed to this Court. They have prayed for the reversal of the appellate decree and the restoration of the trial Court''s decree.
Plff. claimed that he was an occupancy riyot in the land in dispute under the Kamakhya temple, represented by the two Dolois who are the defts. He states that during the last war, B.-A. Railway cut and removed earth from the land in question when constructing a double railway line. Compensation for damage to the land was assessed at Rs. 203-5-0 by the Revenue Court in the Requisition case and as the land was found in possession of the plff by the requisitioning authority, compensation was deposited in plff''s favour. Defts, how-ever, have succeeded in withdrawing the amount under the orders of the Deputy Commissioner. In para 4 of the plaint, it was averred that the Railway Company had caused heavy damage to the cultivation of the plffs by digging earth from the land and compensation, therefore, was payable to the plffs, who were the occupancy tenants with permanent rights.
The suit was resisted by the defts. Several pleas were raised. Plffs'' claim to occupancy rights was denied. In para 4 of the written statement it was alleged that the Deputy Commissioner, Kamrup, ascertained the amount of compensation for damage caused by the B.A. Hallway to the said land by cutting and removal of earth. Plffs'' claim to compensation was repudiated on the ground that the right to the ownership and possession of the land vested in the Temple.
The learned Munsiff came to the conclusion that plff. was an occupancy riyot in the land in dispute. The land in question is Lakheraj (revenue free). The Kamakhya Temple is the landlord and the plff. is the occupancy riyot under the Temple. On these facts he found that the plff as a tenant was not entitled to any share in the compensation which had been allowed for deterioration of the soil of I he land. His remedy, in his opinion, was to claim reduction of rent if there were any permanent deterioration of the land without any fault of his. In his view, plff was entitled to use and occupation only. He, therefore, allowed him only Rs. 3-5-0 which was the compensation assessed for the damage to his crop.
The learned Subordinate Judge on appeal found on facts that earth had been removed and it must have caused some damage to the land. "As a result, the deterioration, if any, has been caused preset) fly to the tenant and ulteriorily to the owner." The situation, in his opinion, was not covered by any provision of the Statute and he, therefore, applied the rule of equity, justice and good conscience and allowed the compensation lo be divided between the landlord and the tenants in equal shares.
Mr. Ghosh has assailed the correctness of the appellate decision mainly on the ground that the landlord (the Temple) represented by the Dolois is the owner of the land which includes the soil and the surface. The Temple, therefore, would be the owner of the earth removed and as, such entitled to compensation that was allowed. In his view, the occupancy tenant had merely the right of possession and user which has not been interfered with by the removal of the earth from the soil of the land. The earth as also the compensation for it, he argued, represent trust property. He also points out that if any damage has been done to plffs rights, his only remedy is to ask for reduction of rent u/s 47 of the Assam (Temporarily Settled-Districts) Tenants Act. He has also argued that plff has not proved that he has suffered any actual loss and on this ground alone his claim for compensation must fail.
I do not think these contentions should prevail. The learned Counsel has first claimed that the landlord is the owner of the land and therefore of the soil including the earth which was removed belongs to him. I do not see any warrant for this proposition in the Statute or in any general principle. The plff admittedly has occupancy rights in the land. I He has acquired these rights under the Assam Tenancy Act. His rights qua his landlord are regulated by this Act. u/s 14, he has the right to use the land in any manner which does not materially impair the value of the land or render it unfit for the purpose of the tenancy. His right of user and therefore of possession is exclusive subject to the conditions laid down in Section 14. The landlord cannot interfere with the use and occupation of the land by the tenant. He cannot take away the produce of the land or the fruit of the trees standing on it. He could not remove earth from the soil as that would interfere with his right of user and possession of the tenancy as it exists. If he could not remove earth from the soil himself, he could not permit its removal either.
u/s 15 of the Act, the occupancy tenant has the right to plant, to enjoy the flowers, fruits and other products of, to fell and to utilise and dispose of the timber of any tress on such land. The right is subject to the proviso that he cannot fell, utilise or dispose of the timber of any tree which stood on the holding before the creation of the tenancy. The landlord is not entitled to disturb the enjoyment and use by the tenant of the trees so long as they stand. He would be liable criminally if he were to cut and remove the trees in the holding.
In Baldeo Narayan Chaudhary and Others Vs. Emperor, persons found responsible for cutting and removing trees on behalf of the landlord were convicted for theft on the ground that the landlord was not entitled to disturb the tenant''s enjoyments and use of the trees standing on the holding.
In Wazuddin Gazi and Another Vs. Munshi Sayeb Ahamed and Another, it was held that the landlord is bound by an implied obligation to indemnify the tenant against disturbance by his own act or by the acts of these who claim under him and he is liable for damages caused to the tenant. This result would follow from the tenant''s right to exclusive user and possession. The position should not be different if enjoyment of the land is interfered with by removal of earth by the landlord from its soil.
Section 17 of the Act provides that occupancy raiyat shall not be ejected by his landlord from this holding, except in execution of a decree for ejectment passed on the ground that he has used the land comprised in his holding in a manner which renders it unfit for the purposes of the tenancy, or has broken a condition of his tenancy consistent with the provisions of the Act which makes him liable to ejectment. Clause (b) of Section 17 relates to breaches of contractual obligations. In this case, occupancy rights have been acquired by long user. There is no evidence of any other contract between the parties. The tenant may, therefore, be liable to ejectment only if he renders the tenancy unfit for the purposes of the tenancy. If he does not do so, he would be non-evictable.
The occupancy rights are heritable. They descend to the heirs like other Immovable property subject to any custom to the contrary. The right of the tenant to alienate the tenancy is subject to written consent of the landlord. The tenant may apply for reduction of rent u/s 47 on the grounds specified in the section.
As against the rights of the tenant described above, he is under a statutory obligation, (vide Section 16) to pay rent for his holding at fair and equitable rates. The rates may be enhanced by contract within certain limits and under certain conditions laid down in Section 22 he landlord may also apply to the Court for enhancement of rent on certain specified rounds.
The tenant in this case has the right to exclusive user which the landlord cannot disturb rule He would be non-evitable unless he lenders the tenancy unfit for the purposes of the tenancy. The tenancy rights are heritable, they are also alienable with the permission of the landlord. Enhancement of rent is regulated by the Act itself. The rent that the plaintiff is under an obligation to pay is Rs. 1/- per bigha. He is entitled thus to the entire produce of the land and its exclusive use and enjoyment, with other rights enumerated above, the landlord is merely entitled to a nominal cash vent. The question in these circumstances, that arises is whether the landlord can be taken as the full owner of the land. It is on this basis that the right to the entire compensation can be claimed. It appears to me that the claim made is fallacious. Occupancy rights I fare creatures of the Statute. When they are created, ownership of the land is for all practical purposes divided into two separate bundle f rights, namely, the rights of the landlord or le proprietary rights and the rights of the occupancy tenant. The Act defines the attributes of lese occupancy rights. Both the rights, namely, that of the landlord and the tenant are capable ownership. The landlord owns his proprietary rights. They are heritable and alienable. Similarly, tenant owns his rights. They are also her it though they are alienable with the permission of the landlord. The use of the land goes to he tenant and the landlord has no right to disturb his user. Wherever, therefore, occupancy rights exist in a holding, it cannot be aid that the landlord owns the land. He merely owns proprietary rights in the land, the occupancy rights in the land belong to the tenant. When an occupancy holding is acquired by the Government in its entirety, the whole of the compensation does not go to the landlord. If he were the owner of the land, would be entitled to the entire compensation. In Lalit Kumar v. Bhagwan Ch. Sarma'' I.L.R (1950) 2 Assam 257, a Division Bench of this Court consisting of my Lord the Chief Justice and myself, held that occupancy ryots ire not in the strict sense of the word mere plants to whom the right to enjoy the property alone has been transferred; occupancy rights are heritable and transferable and can Ct. be regarded merely as rights accruing upon lease. On this basis occupancy tenants were flowed a share in the compensation. The lamed Chief Justice, who delivered the judgment that case, referred with approval to the observation of Garth, C.J., who delivered lie judgment of a Division Bench of the Calcutta High Court reported in ''Province of Bengal Board of Trustees for the Improvement of Calcutta AIR 1946 Cal 416. These observations are to the following effect:
The parties who usually suffer most from (sic) being taken for Government purposes are either the ryots with right of occupancy, the holders, whoever they may be of the first permanent interest above the occupying (sic). The actual occupier is of course turned glut by the Government, and if he is a ryot with a right of occupancy, he loses the benefit of that right, besides being driven possibly to find a holding and a home elsewhere; and the holder of the tenure immediately superior to the occupying ryots, whatever the nature of his holding may be, loses the rent of the land taken during the period of his holding. These two classes, therefore would, generally speaking, be entitled to the larger portion of the compensation, and if the darpatnidar in this instance belongs to the latter class, the larger portions of the compensation ought, presumably, to have gone to him.
In this view it cannot be denied that where the entire holding is acquired, the compensation would be divisible between the Landlord and the occupancy tenant. Mr. Ghosh has not questioned the correctness of the decision reported in ''Lalit Kumar v. Bhagwan Ch. Sarma'' ILR (1950) 2 Assam 257, It would, therefore, follow that a Landlord is not the owner of the land which is occupied by an occupancy tenant. The rights of ownership vest in both the landlord and the occupancy tenant. The landlord''s share of ownership is represented by his right to realise rent from the tenancy.
That the rights of the Landlord and the tenant are distinct is shown also by Section 2 of the Act. It provides:
When the Landlord of an occupancy or privileged raiyat''s holding is a proprietor. Land holder or settlement-holder and the entire interests of the Landlord and the raiyat in the holding become united in the same person by transfer, succession or otherwise, such person shall have no right to hold the land as a raiyat but shall hold it as a proprietor, Landholder or settlement-holder, as the case may be.
The section recognises the doctrine of merger. When two distinct rights are united in the same person, he becomes the full owner. There is then no Landlord or the tenant left. The union of the two rights brings full ownership to the man in whom the rights unite. Till such a merger takes place, the legal rights of the Landlord and the tenant have a separate existence. This view receives further support from Section 71 of the Act, which provides for the acquisition of the land in possession of a tenant by a Landlord. If a Landlord is the full owner, such a provision for acquisition would not be necessary. According to this section, if a Landlord wants to acquire the holding, he has to apply to the Deputy Commissioner and if the Deputy Commissioner is satisfied that the possession is desired for one or the other purposes specified in Section 71, he may require the tenant to sell his interest in the whole or such part of the holding to the landlord upon such terms as may be approved including full compensation to the tenant.
The scheme of the Act clearly shows that rights of the occupancy tenant are not mere rights of user. Its examination reveals that there is nothing in the Act which would support the view that the Landlord is the owner of the land to the exclusion of the tenant. Both have rights in the holding and they are owners of their respective rights which when combined constitute what is called ownership of the land. Neither the landlord nor the tenant is entitled to describe himself as the owner of the land.
The fact that the Temple happens to be the landlord does not improve its position as against the tenant. The Temple may have occupancy tenants under it. The proprietary rights or the rights of the landlord belong to the Temple. They would be trust property. The occupancy rights which have a separate existence are no part of the trust property. ''Kamini Debi v. Pramathe Nath'' 39 Cal 33 , on which reliance has been placed by Mr. Ghosh does not help him at all. It was a case of acquisition of debuttar property. But there was no question of any rights of an occupancy tenant in the case. The question that arises in this case did not arise there and the case is of no assistance to us. Para 41.4 of Mulla''s Hindu law also has been relied upon by him. According to this para:
A shebait is, by virtue of his office, the administrator of the property attached to the temple of which he is the shebait. As regards the property of the temple, he is in the position of a trustee.
There can be no quarrel with this proposition. The Dolois of the temple would certainly be trustees of the temple property. The question is whether the temple in this case can be regarded as the owner of the land. The temple no doubt is the owner of the proprietary rights. The Dolois of the temple would, therefore, be trustees of the rights that vest in the temple. They cannot be also trustees of the rights of the occupancy tenants.
The above view finds support from ''Barada Prasad v. Bhupendra Nath'' AIR 1924 Cal 50. It was held in this case that there was nothing in the law which prevented tenants having permanent heritable rights at a fixed rent from using the land in any manner they think fit so long as there was no risk to the right of the landlord to recover the rent payable. The learned Judge observed that it was settled law that unless there are any reservations in favour of the landlord, he has no right in she case oil such tenures other then the right to receive the stipulated rent. The defendants were the tenants in that case. Pill''s, questioned their rights to make hollows and excavations to manufacture bricks in the said land. It was found that the clefts, were permanent tenants and they had not been charged with any such act of waste as would be detrimental to the Plfi''s interest. The injunction prayed for against the debts was refused. The implication of the decision may well be that where an act of waste detrimental to the interest of the landlord is alleged or proved the landlord may be able to seek some kind of redress. The main proposition laid down was that so long there is no risk to the right of the landlord to recover the rent payable, the landlord has no right in the case of such tenures to control the user by the tenant unless there tire express reservations in his favour.
In Jyoti Prosad Singha Deo Bahadur Vs. Kenarem Dubey and Others, some land was acquired under the Land Acquisition Act. It was in the actual possession of the tenants under certain Kheraji Brahmottardars and these latter held the land under Raja Jyoti Prosad Singh Deo Bahadur, Zamindar of Panchkote. A part of the compensation was allowed to the tenants. As regards the rest of it, there was a dispute between the Kheraji Brabmotardars and the Zamindar. The entire holding, it appeared, was not acquired. The annual rent of the tenancy was Rs. 2/8/-. The question in the case was whether the landlord was entitled to get anything more then he getting. No abatement of the rent had asked for by the tenants on account of he question of the land. They also gave insurance that they would not claim it at reason of the acquisition. In these stances, it was held that the landlord could (sic) even be allowed the capitalised value the said sum of Rs. 2/8/- or any petition thereof. The view that prevailed was that the landlord does not suffer any abatement diminution of rent, he could not get any portion of the compensation money awarded by land acquisition Collector. According to view if a portion of the holding is taken the landlord may not be entitled to any of the compensation if the tenant does not for abatement of his rent. A claim to entire compensation on the ground that landlord is the owner of the land was not put forward.
It is true that in this case the land acquired and this is a distinguishing feature the case, but it brings the nature of the land lord''s right into clear relief. As said above Division Bench of this Court has already that an occupancy tenant would be entitled a part of the compensation if the entire holding is acquired. In case of acquisition, therefore, the landlord cannot possibly prefer claim to the entire compensation. In case, earth has been removed from a part the holding. It was removed by the Railway for purposes of constructing a double line. The requisitioning authority assessed the pensation. Plff''s case was that removal earth caused damage to the holding. In para the plff. stated that Railway Company caused heavy damage to the cultivation of plffs. by digging out earth from the land But plff. was prepared to accept the compensation assessed by the authorities for the damage done to the land. In para. 4 of the write statement it was stated that compensation due by reason of the damage caused by Railway to the said land, by cutting earth. The defts. were also agreed to the amount assessed. It was thus the case of both the side that the Railway by digging and removing earth had caused damage to the land. Compensation was due. The amount even is in dispute. The only question is titled to this compensation. The landlord claims that he has got the exclusive right it. In the case of acquisition of the holding, he would be entitled only to a shall in the compensation. In the case of part acquisition, the view taken in ''Jyoti Prosacp Kenaren Dubey'' AIR (20) 1933 Cal 767; that if the tenant was not asking for any statement of rent he alone would be entitled the entire compensation. The ratio of decision was that the landlord''s right receive rent would remain intact. In case also the landlord is receiving his fix cash rent. The tenant cannot claim any abatement. Mr. Ghosh''s contention that it is open to the tenant to claim reduction in rent u/s 47 is unsound. The tenant in order to claim reduction of rent has to show that there permanent deterioration of land without fault of his. He has also to show that landlord has obtained or is entitled to reduction in the revenue payable to him. Assuming that permanent deterioration of the tenancy has taken place, the tenant cannot show that my reduction in revenue has taken place or to take place. The land is revenue free; no further reduction in revenue can take place. The Nation then is that the landlord is not paying any revenue His rent remains undiminished. The (sic) cannot claim any reduction. The (sic) of earth interfered with the enjoyment the tenant only. The deterioration of be (sic) or the damage done to it is admitted both sides. The tenant alone suffers by it. Taking it to be a case of permanent determination or the tenancy, the loss, whatever it may be would be caused to the tenant. Even if both were put to loss as in the case of the accusation of the holding in part or in its entirety, the compensation would be divisible as held above. If the loss falls entirely on the (sic) of the tenant, the landlord should not be in any better position. He may not be permitted appropriate the entire compensation. His (sic) could not be better then it would if a portion of the tenancy had been acquired. On principle a case of acquisition not distinguishable from a case of permanent deterioration of a part of the tenancy the view point of the respective claims compensation. The landlord obviously cannot claim the whole of the compensation if it is found that there is permanent deterioration of the tenancy, a feature to which the parties as seem to be committed. On the other hand, if (sic) permanent deterioration of the tenancy has broken place, the landlord is secure in the enjoyment of his right. He continues to get his (sic) cash rent. His claim to entire compensation would be weaker still, for in the absence of permanent injury the tenant alone loses the use of earth that has been removed. The rent Re. 1 per annum. The area of land from which earth has been removed is 2 K. 10 L. The rent for this would be As. 8 If the entire compensation is given to the landlord, would be getting in addition to his fixed (sic) a sum equivalent to the rent for about (sic) years. The tenant who loses the use of earth to which he is admittedly entitled and which would cause some reduction however small in the produce would get nothing. The equity of the situation is a strong indication if the fact that this could not be the intention if the law. The only basis on which the landlord can claim the entire compensation is that he is full owner of land and its soil. This claim has been examined above. Its hollowness is apparent from the fact that where land acquired, both the landlord and the tenant (sic) compensation according to the share of He produce that each may be entitled to. No case therefore, has been made by the deft. appellants (landlords) for the entire amount of compensation. They have been allowed half it and to this division the tenants are not objecting, Mr. Ghosh has made no attempt to how that appellants would be entitled to arguer share of the compensation if they are not entitled to the whole. The appeal in these circumstances cannot succeed.
The learned Counsel for the appellants has also relied on ''Pamcbandra Debidas v. Kalikar Singh'' 162 I.C. 757 (Nag). In this case, it was held that where the tenants are only lessees to whom the right to enjoy the land for agricultural purposes is transferred, the property in the land continues to remain with the landlord The tenants in this case never acquired occupancy rights. Their status was not that of occupancy tenants under any particular Act. They were tenants under a contract. The proposition laid down in that case, therefore cannot be applied to occupancy tenants.
For the reasons given above, I think this appeal should fail and ought to be dismissed with costs.