1. The respondent is a kanamdar and the appellant the owner of the suit land. The suit was filed for the eviction of the respondent on the ground that he had not paid the stipulated rent. The second defendant, who was the assignee of the kanam right, thereupon filed O.P. No 48 of 1941 for the renewal of the kanam, as he was entitled to do under the Act. The appellant then amended his plaint and furnished an additional ground for eviction, viz., the commission of waste. That is the only question that was discussed in the lower appellate Court; and it is the only question to be considered in this Court. The lower appellate Court held that the appellant was not entitled to evict the respondent.
2. It is not sufficient for the appellant to prove waste. A mere diversion of the use of the land might amount to waste; but according to Section 20(2) he cannot have a tenant evicted unless he proves that the tenant:
has intentionally and wilfully committed such acts of waste as are calculated to impair materially and permanently the value or utility of the holding for agricultural purposes.
It is alleged that on two items of property, items 2 and 4, the defendant had filled up the paddy flats with earth, thereby converting them into parambas : and on one of the parambas so made he had constructed buildings and on the other a dwelling house and tea shop. He had also planted cocoanut trees and arecanut trees in parts of item 4. The trial Court held that these were not acts of waste, but were improvements. The lower appellate Court found it unnecessary to go so far; but it agreed with the District Munsiff that the land had not been ” materially and permanently impaired ” by the acts of the defendant. It therefore dismissed the appeal.
3. The learned District Munsiff considered the allegation that the paddy flats had been built up with earth and converted into parambas and found, disagreeing with the commissioner appointed to examine the land, that there was no evidence that the defendant had done so. In the lower appellate Court, the question of the liability of the defendants to be evicted from the land was considered purely as a question of law; and we find no discussion in the judgment of the lower appellate Court of the question of fact whether earth had been laid on the paddy fields to convert them into parambas. We must therefore assume that no such argument was put forward in the lower appellate Court and that the appeal was argued on the assumption that no such act was done. If, in fact, earth had been laid on the plots, it might be argued that Section 20(2) entitled the plaintiff to evict the defendant. This question does not however arise for consideration in second appeal.
4. The questions that have therefore to be considered in this Court are whether (1) the construction of the buildings and (2) the planting of cocoanut and arecanut trees, amount to acts of waste that ” are calculated to impair materially and permanently the value or utility of the holding for agricultural purposes.” I agree with the learned Counsel for the appellant if it had been alleged and proved that deep foundations had been dug in his paddy fields for the construction of the house, he would have a strong case for eviction, but that appears not to have been done. The buildings are of a temporary nature and seem to have been constructed only from the surface of the earth. The trees are not trees that take deep root; and as the learned Subordinate Judge has pointed out, the prayer of the appellant that the cocoanut trees and arecanut trees should be uprooted and the land restored to its original condition, is itself an admission that the land had not been permanently impaired by the planting of these trees.
5. The learned Counsel for the appellant has sought support for what would seem to be a very weak case in Narayana Rao v. Zamindar of Muktyala Estate (1928) 54 M.L.J. 621 : I.L.R. 51 Mad. 478, a decision with regard to Section 151 of the Madras Estates Land Act. The wording of that section as it was before its amendment in 1944 was:
A landholder may institute a suit before the Collector to eject a ryot from his 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.
Srinivasa Ayyangar, J., in delivering the judgment of the Court said:
The question with reference to him (the fifth defendant) is whether what he has done in respect of the land amounts or not, to use a general expression, to a diversion of the land from agricultural purposes. We use that expression deliberately, because taking the whole of Section 151, the principle that seems to underlie that section is that when a holding is in the possession of a tenant he holds it on the terms agreed to or settled between the parties only for agricultural purposes and that as such tenant he is not at liberty to divert the land from the main purpose of the holding, namely, the agricultural purpose and any such diversion, it is provided, will entail a forfeiture whereupon the landholder might sue the tenant for ejectment.
This argument ignores the use of the words ” has materially impaired the value of the holding for agricultural purposes,” which would seem to be a question of fact in each case. Even assuming, however, that this judgment correctly construes Section 151 of the Madras Estates Land Act, Section 20(2) of the Malabar Tenancy Act, is worded differently. In a suit for eviction under this Act, the landholder would not merely have to prove that the land was materially impaired for agricultural purposes but that it was permanently impaired. That he certainly has not done in this case. Because a house has been built on the surface of the earth, there is no reason to suppose that the land will be any the worse after the house has been demolished and the land ploughed.
6. Finally, it has been argued that even though the lower Court felt precluded by the wording of Section 20(2) from decreeing the eviction of the defendants, it should have granted an injunction requiring the defendant to restore the land to the purposes for which it was granted. It may well be that the plaintiff has a right to require the defendants to use the land for the purpose for which it was granted; but the plaintiff has not asked for such a relief. It is true that he has asked the Court to require the defendants to restore the land before handing it back to him; but that request was coupled with the prayer for eviction. The defendants were to be evicted and they were then to restore the land to its original condition before handing it back to the plaintiff.
7. There was no prayer that even though the defendants were not evicted, they should nevertheless be required to restore the lands to their original Condition. The suit was only for eviction and for consequential reliefs.
8. The appeal fails and is dismissed with costs.