MAHABLESHWAR DEVERSHETTI Vs. BADKU VENKA NAIJ

JUDGEMENT

(1.) This appeal relates to what is known as Nadgi tenure in the District of Kanara. The defendants are Nadgi tenants of the land in suit. The plaintiff is its owner. The plaintiff sued to recover possession of this land with mesne profits and damages. He alleged that the defendants had failed to comply with the condition, on which they were granted the land, of maintaining it in proper condition as a garden, and that therefore he was entitled to recover the land owing to forfeiture of tenancy by breach of the condition. Defendants Nos. 1 and 2, who have alone defended the suit contended that they had not neglected the land, and that such neglect as there had been in the last one or two years was not their fault; a hut that was on the land had fallen down, and although the plaintiff had been asked to erect a new hut, he had not done so, with the result that the defendants could not stay on the land and properly look after it. They also denied the plaintiff's right to recover mesne profits and damages.

(2.) The main issue raised in the case was whether the plaintiff was bound to provide a house for the residence of the tenants, or whether the tenants should themselves provide it. With this is to be read the third issue in the trial Court: "Have defendants committed breach of duties as alleged by the plaintiff." Both those issues were answered in favour of the plaintiff by the learned Subordinate Judge. He held that the land was certainly in a most neglected state. A Commissioner was appointed to report about it, and found that cattle were grazing in the land which was left uneared for. Admittedly the defendants were living at a distance of about a mile from the land and for three years nobody had been staying upon it. The defendants admitted that the land was not in good order, at any rate for a year and a half prior to the trial. There was no compound-wall round the land to keep out cattle, nor any hedge or fence to supplement the small portion of wall that there was on one side of the land. The trees existing on the land were admittedly at least forty years old, and no new trees had been planted, although there was spare space for doing so.

(3.) In regard to the question about the hut, the Subordinate Judge accepted the testimony of the defendants witnesses that "when a house falls down, the landlord has to supply materials and the tenant is to build the house." But in this case, according to defendant No. 2's own admission, he had taken some of the materials from the old house and allowed others to steal the remainder. Accordingly he held that materials were available to the defendants for building a new hut, and that the plaintiff was not liable to build it for the defendants. In the result he passed a decree awarding the plaintiff possession of the land, Rs. 30 for damages on account of the defendants having neglected to keep the land in good order, and Rs. 50 for the plaintiff's share of the produce of the land for one year before suit. He also gave the plaintiff their costs of the suit.