M NARASAYYA AND EIGHTY FIVE ORS Vs. UNDE RAJAHA RAJA SIR RAJA VELUGOTISREE RAJA GOPALA KRISHNA YACHENDRULAVARU BAHADUR, KCIE, PANCHAHAZAR, MANSUBDAR, RAJA OF VENKATAGIRI

JUDGEMENT

(1.) This is an appeal by the plaintiff against so much of the decvee in ejectment obtained by him as directs the payment of compensation to certain of the defendants. In cases to which the Transfer of Property Act applies the rights of the tenant are defined by Section 108 (h) of that enactment and the extent of the right is the same in cases not governed by the Act. See Ismail Khan Mahomed V/s. Jaigun Bibi (1900) I.L.R. 27 Calc. 570. I do not think Section 51 of the Act applies in terms as between landlord and tenant. The observations in Ismai Kani Rowthan V/s. Nazarali Sahib (1904) I.L.R. 27 Mad. 211 at p. 221, may be said to indicate a contrary view but these observations are very guarded, and they are moreover obiter. Even if the section applied, I do not see how, in this case, it could be said the defendants believed in good faith they were "absolutely entitled" to the property in question. There have been at least two resumptions of the property by the Zamindar. There is no trustworthy evidence that these resumptions were resisted by the defendants. There have been enhancements of rent and there is nothing to show those enhancements were not accepted without protest. Both under the Hindu and the Mahomedan law as well as under the common law of India, a tenant who erects a building on land let to him can only remove the building and cannot claim compensation on eviction; Ismai Kani Rowthan V/s. Nazarali Sahib (1804) I.L.R. 27 Mad. 211 at p. 221.

(2.) The further question is, do the facts of this case bring it within any principle of equity which entitles the defendants to say, if wo are evicted, we must be paid compensation ? At the highest the evidence shows the plaintiff knew the improvements were being effected and did not interfere. This is clearly not enough to estop the plaintiff in a suit for possession [see Beni Ram V/s. Kundan Lal (1899) I.L.R. 21 All. 496 (P.C.)], and in my opinion it is not enough to give the defendants a right to compensation. In fact, I should be disposed to hold, if there is no express contract, unless the lessor is estopped from suing for possession the lessee cannot claim compensation. If the lessor is estopped from recovering possession the Court can say-- you are estopped but we will not enforce this equity against you if you pay the tenant such compensation as we think fair.

(3.) There are however no doubt cases in which courts in this country have granted compensation on what I may call general equitable grounds, without considering the question whether the facts gave rise to an estoppel against the lessor which would disentitle him from suing to recover possession. Assuming a right to compensation may arise in a case in which the lessor is not estopped from recovering possession, I am of opinion, on the facts, there is no such right in this case.