JUDGMENT
1. The plaintiff in the suit is a mittahdar in the Salem District. The defendants are ryots holding certain lands under the plaintiff. The object of the suit is to eject the defendants. The right to eject is based in the plaint on the ground that the defendants built a house for the purpose of having skin godown on a portion of the holding which according to the plaintiff the defendants had no right to do. The plaint alleges that “the act was liable to cause damage to the relationship of landlord and tenant prevailing between the two parties and to the rights and relief which the plaintiff has under the Madras Estates Land Act.” (Paragraph 11 of the plaint). In the written statement the defendants pleaded that the ryots, from time immemorial, had been claiming the right to build skin godowns, indigo godowns, bangalows and etc., to live in and let out on the lands in respect of which assessment was ‘ collected in Salem Mitta and that the plaintiff–Mittahdar and his predecessors had accepted such right. The Deputy Collector dismissed the suit. On appeal the District Judge has held that the defendants’ act in constructing a skin godown or tannery was improper and he granted an injunction against the defendants directing him to dismantle the tannery and to discontinue tanning in the field. The defendants relied upon a custom in the Mitta, according to which ryots holding agricultural land ware entitled to erect skin godowns and tanneries (and relied on the judgment in a previous suit by the mittahdar against another ryot in O.S. No 385 of 1904. In that case it appears that a custom of the sort pleaded by the tenant was upheld by the courts. The District Judge observes, with respect to the judgment in that suit that the fact that the specific question whether the tannery would render the land unfit for agriculture was not raised would not render the judgment inadmissible in evidence or deprive it of all weight, as the effect of the custom would be to render the defendant’s act proper even if the tannery rendered the land on which it was erected unfit for agriculture. The effect of the defendant’s plea in fact is to make it a part of the contract between the parties that a skin godown or tannery might be created by the parties although no express provision to that effect be made in the contract between the parties. With respect to Act I of 1908 we are unable to find any provision in it which would render such a contract or custom invalid. Section 157 enacts that “A land holder may institute a suit before the Collector to eject an occupancy right from the holding, only on the ground that the ryot has materially impaired the value of the holding for agricultural purposes and rendered it substantially unfit for such purposes.” Reading it with Clause (g) of Section 187, which lays down that “nothing in any contract between a landholder and a ryot made before or after the passing of the Act, shall entitle a land-holder to eject a ryot otherwise than in accordance with the provisions of this Act” and also along with Section 9 which provides that, no landlord shall, as such, be entitled to eject a ryot from his holding or any part thereof otherwise than in accordance with the provisions of this Act,” Section 151 appears only to restrict the right of the landholder to eject the ryot by limiting it to a case where a ryot has materially impaired the value of the holding for agricultural purposes.
2. Section 11 has been relied by the learned vakil for the respondent. It states that “a ryot may use the land in his holding in any manner which does not materially impair the value of the land or render it unfit for agricultural purposes. But this section does not deprive him of the benefit of a contract or usage which would entitle him to use it in a manner which might impair the value of the land for agricultural purposes. It would, no doubt, probably have the effect, in case of relinquishment of the land by him, of depriving the landlord of the benefit of letting it out again for agricultural purposes. There is, however, nothing in the Act which renders such a contract or custom unenforceable against the landholder.
3. The District Judge has not considered the evidence of custom as a whole before recording a finding on the question. The respondent contends that there was no definite issue on the question of custom, although the defendant’s right to erect a skin godown or tannery was generally put in issue. It is, we think, desirable that a specific issue should be raised on the question and decided. It will be necessary to find the limits of any customary right which the ryot may possess to erect a tannery. The appellants’ pleader is hardly prepared to go the length of contending that the whole of a holding could be used for such a purpose.
4. We shall therefore reverse the decrees of both courts and remand the suit to the court of first instance for fresh disposal after framing a specific issue on the questions whether the defendant was justified by any legal and valid custom in erecting a skin godown or tannery and what are the exact incidents of such custom.
5. Both parties will be entitled to adduce fresh evidence. All costs up to date will abide the result.
