NILAMBUR THACHARAKAVIL MANAVADAN THIRUMALPAD Vs. MESSRSPARRY AND CO

JUDGEMENT

(1.) This suit was brought by Nilambur Raja for recovery of possession together with damages for use and occupation of 20 acres of land and for value of buildings and machinery removed by the defendant upon a certain area which had been granted on lease by the Plaintiff's predecessor on 14 August 1879 to Mr. Minchin for gold washing for a period of 36 years which expired on 14 August 1915.

(2.) In 1862 the plaintiff's predecessor granted a lease of 500 cawnies in the same locality for a rent of Rs. 500 to be paid annually for coffee cultivation to the same Mr. Minchin for a period of 91 years. That lease has not expired and will not expire till 1953. Messrs. Parry & Co., who are the defendants in this suit, obtained an assignment from Mr. Minchin of all his rights in both leases. The contention on the part of the plaintiff, who is the appellant in this Court, is that the grant of a mining lease implied a surrender of the lease for coffee cultivation for the area over which goldwashing operations were conducted. This contention is based upon the English rule of law that the acceptance of a new lease operates as a surrender of a prior lease. In Woodfall on Landlord and Tenant the learned author explains this rule as being founded upon estoppel. He says that as a lessee is estopped from saying that his lessor has no power to give him the lease and as the lessor cannot grant a new lease during the continuance of the old lease, it follows that the acceptance of the new lease implies a surrender of the first lease. An exception to this rule occurs if what is accepted by the lessee is the grant of a thing collateral to, and consistent with, the lease of the land. Instances are given in which the grant of a new thing does not imply the surrender of the thing first granted. Mr. Ramachandra Ayyar argues that the two operations, coffee planting and goldmining, cannot be carried on simultaneously, as one operation would interfere with the peaceful enjoyment of the other right over the soil. We must therefore see what was the intention of the parties when they gave and received the two lease deeds, Exhibits I and II. In the first place it is noteworthy that the lessee in both the leases is the same person, and therefore the lessee is in a position to make arrangements for the two operations of coffee planting and goldwashing being carried on side by side in such a way as not to interfere with each other. Next it is noticeable that the rent under the two agreements was agreed to be paid simultaneously and that under Clause 4 of Exhibit A, which is a counterpart executed by the lessee in favour of the lessor, he agreed that he would not ask for any diminution of the rent due under the lease for cultivation on account of the execution of the gold sifting works in the same area, thus showing that the two operations might go on side by side and that the raining lease was not intended to involve a surrender of any portion of the land leased for coffee planting. Taking all the circumstances into consideration I feel clear that the grant of the second lease was not inconsistent with the continuation of the first, and that it is only in cases where there is some such incompatibility between the enjoyment under the now lease and the enjoyment under the prior lease that the second will involve a surrender of the first.

(3.) As regards the removal of machinery, etc., under the cultivation lease the lessee is entitled to keep the machinery upon the land leased to him until that lease expires, and the fact that under Clause 7 of Exhibit A his landlord was expressly exempted from liability to pay compensation for machinery and buildings left upon the land itself indicates that the property in them was regarded as remaining with tenant who erected them. Thus whether the gold mining plant is removed or left standing, the landlord cannot now demand to be paid anything on that account. In this view the plaintiff has no legal claim against the defendant and his suit was rightly dismissed in the lower Court. The appeal must be dismissed with costs. Ramesam, J.