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Judgment
By the Panchayat to which the defendants were parties it was held that the persons in occupation were entitled to possession until they received
Rs. 300(Rupees three hundred). As against the 1st defendant, it must be taken that their remaining in possession and resisting the plaintiff cannot be
said to have been an unlawful act. Therefore, the resistance came within the covenant for quiet enjoyment and the 1st defendant is, therefore, liable
on the covenant. With regard to the question of damages, no similar clay was procurable in the market and, therefore, the test of market value
cannot be applied. It is, however, clear this is not a reason for awarding only nominal damages. Vide Borries v. Autchinson 18 C.B. 445; Elbinger
Actien Gesells Chafft v. Armstrong L.R. 9 Q.B. 473. Here the defendant knew the clay was to be used for the manufacture of tiles and we think
the value of this sort of clay to the plaintiff for the purposes of tile manufacture must be taken into account in assessing the damages. This is what
the District Judge has done. As to the memorandum of objections on a consideration of the evidence and after mating all due allowances, we are
not satisfied that the plaintiff has sustained damage in excess of the sum awarded which we think on the whole was a fair one. It is admitted for the
respondent that the decree in the lower Court should have directed the plaintiff and the 1st defendant to pay and to receive proportionate costs
and it will be modified accordingly. The. appeal and, the memorandum of objections are dismissed with costs.