Judgment :- 1. The defendant, who was a kuzhikanom tenant, has been directed by the lower courts to pay damages for cutting and removing seven coconut trees and also for removing some earth from a portion of the holding and selling it to a panchayat. The question is whether this decision can be sustained in law. 2. A kuzhikanom tenant has fixity of tenure; and the rent payable by him is for the fruit-bearing trees of the landlord already existing on the holding and also for the fruit-bearing trees he plants. The argument of the counsel of the appellant is that the cutting of the seven coconut trees, which are found to be superannuated once by the commissioner, cannot be said to be a damage to the holding which entitles the landlord to claim damages so long as the tenant is willing to pay the rent agreed upon. He contends further that if at all the landlord is entitled to damages, the question can arise only when the property is surrendered by the tenant. Regarding the removal of the earth the counsel of the appellant contends that the tenant is entitled to enjoy the holding in any manner he likes even by removing and selling a portion of the earth, unless it is established that such removal of earth has caused permanent damage to the holding, in which case alone the landlord may have a right to claim damages. 3. The reasoning of the lower courts in this case is that since the trees and the earth belonged to the landlord and since they were appropriated by the tenant without the permission of the landlord, the tenant is bound to pay damages. In other words, the lower courts have concluded that the mere removal of trees and a portion of the earth belonging to the landlord without his permission is causing damage to the holding. 4. Three decisions have been placed before me by the counsel on both sides. The counsel of the appellant has drawn my attention to the Division Bench ruling of the Calcutta High Court in Baroda Prasad Banerjee v. Bhupendra Nath Mukherjee (AIR. 1924 Cal. 4. Three decisions have been placed before me by the counsel on both sides. The counsel of the appellant has drawn my attention to the Division Bench ruling of the Calcutta High Court in Baroda Prasad Banerjee v. Bhupendra Nath Mukherjee (AIR. 1924 Cal. 56), wherein the learned judges have held that tenants are entitled to make excavations in the property; that there is nothing in law which prevents tenants having permanent heritable rights at a fixed rent from using the land in any manner they think fit, so long as there is no risk to the right of the landlord to recover the rent payable; and that unless there are reservations, the landlord has no right, in the case of such tenures, other than the right to receive the stipulated rent. The decision cited by the counsel of the respondent is Latifa Bibi v. Narayanachari (XXVI I. C. 271), wherein a Division Bench of the Madras High Court has held that a tenant, though he holds on a perpetual lease, is prima facie not entitled to cut and carry away timber trees from the holding. The third decision brought to my notice is the Division Bench ruling of the Travancore-Cochin High Court in Anthony Ouseph v. Neelakandan Nambudiri (1955 KLT. 549). It has been held therein that the right of the landlord to obtain damages at the time of recovery of possession, irrespective of the time when the damages have been caused, is a cumulative remedy: but that does not operate as a bar to any other remedy which the landlord may have under the general law, that is, for breach of contract or in tort, so that the landlord's right to recover damages should not be confined to claim it at the time of recovery of possession alone. 5. In this last decision, I may point out, the question whether the arrangement between the parties was a redeemable or irredeemable tenure has not been considered, so that it might be argued that this decision might not apply to a case like the one before me wherein the tenant is holding under an irredeemable tenure. The Madras decision relied on by the counsel of the respondent relates to the cutting and removal of timber trees belonging to the landlord, so that that decision might also not apply to the case before me. The Madras decision relied on by the counsel of the respondent relates to the cutting and removal of timber trees belonging to the landlord, so that that decision might also not apply to the case before me. For the timber trees belonging to the landlord the tenant is not paying any rent, so that in one sense the timber tree-belonging to the landlord in a holding are not really part of the tenancy arrangement, in other words, even during the permanent tenancy and in spite of it the landlord may have the right to cut and remove the timber trees. P is because of this that I have said that the Madras decision might also not help the respondent in the present case. The Calcutta decision relied on by the counsel of the appellant appears to apply to the case before me; and that decision lays down that so long as the tenant is willing and ready to pay the rent agreed upon, he can enjoy the property in any manner he likes without causing permanent damage to the holding. Of course, the tenant is bound to surrender the property to the landlord (when he surrenders) in the same state or condition in which he took it at the time of the lease. Therefore, if for some reason the landlord is to recover possession and he recovers possession and if the holding is not then in the same condition as it was when the tenancy was created, the landlord is entitled to claim damages for restoring the property to its original state. Only then is the landlord entitled to claim damages for cutting and removing fruit-bearing trees or even removing earth from the holding. I may make it clear that the position may probably be different if the damage caused is of a permanent nature: however, I do not finally pronounce upon that question in this case. 6. There is a decision of this Court in Cheeru v. Omana (S. A. No. 297 of 1963), wherein also I find that the same line of reasoning has been adopted by Madhavan Nair J. In that case there is an additional circumstance that the tenant filed a statement that he would not resort to fixation of fair rent. 6. There is a decision of this Court in Cheeru v. Omana (S. A. No. 297 of 1963), wherein also I find that the same line of reasoning has been adopted by Madhavan Nair J. In that case there is an additional circumstance that the tenant filed a statement that he would not resort to fixation of fair rent. I think that even in a case where there is no such undertaking by the tenant, the reasoning adopted by Madhavan Nair J. must apply. As I have already pointed out, there is no finding in this case that the cutting and removal of the seven superannuated coconut trees and the removal of some earth from the holding has caused any damage to the holding much less a permanent damage. The reasoning of the lower courts is merely that the trees cut and removed and the earth removed belonged to the landlord and therefore, such removal has caused damage to the landlord. This reasoning is not correct. 7. The second appeal is allowed, the decision of the lower courts is set aside and the suit is dismissed. In the circumstances, I direct both parties to bear their respective costs throughout. Allowed.