The plaintiff is entitled to the net profits that he would have made by cultivating the lands, and the means which existed of remedying the inconvenience must be taken into account in estimating the loss.

Seshagiri Aiyar, J.

1. The defendant gave a lease of about 11 acres of inam land for 5 years to the plaintiff beginning with 1911. Before the cowle to the plaintiff the lands had been leased to another person. The plaintiff attempted to take possession of the lands but was unable to get them in the first year. In the second year he was able to get possession of a few acres and in the third year a few more. The suit was instituted for damages for failure to give possession. The defence was that there was no undertaking to give possession, that the defendant did give possession of the lands that the damages were excessive and that the plaintiff was not entitled to maintain the suit. The District Munsif held that the suit was maintainable and following The Zamindar of Vizianagaram v. Behara Suryanarayana Pantulu (1901) I.L.R. 25 Mad. 587 gave the plaintiff a decree for his share of the crops as estimated in the cowle Exhibit A. This decree was confirmed on appeal.

2. In the second appeal it was not disputed that the suit was properly instituted. The only point seriously argued related to the measure of damages. Mr. Narasimha Rao relying upon Mahamed Esa Khan v. Baboo Keshub Lal (1870) 14 W.R. 382 contended that the plaintiff is only entitled to nominal damages. The general rule as to damages whether they relate to moveable or immoveable property is contained in Section 73 of the Indian Contract Act. Two considerations arise in assessing damages : (1) whether the damages naturally arose in the usual course of things from the breach and (2) whether the plaintiff had means of remedying the inconvenience and has neglected to avail himself of them. In The Zamindar of Vizianagaram v. Behara Suriyanarayana (1901) I.L.R. 25 Mad. 587 the learned Judges without discussing the question, under very similar circumstances like the present, say : " The measure of damages is the amount of profits with interest thereon at 6 per cent. per annum which would have accrued to the plaintiff if he had been put in possession of the villages and was in enjoyment of the same during the term of the lease." In my opinion the observations are fully supported by the English authorities. In Fletcher v. Tayleur (1855) 17 Common Bench Page 21the defendant had contracted to build a ship which was to be delivered to the plaintiff in August 1854. It was not delivered till March 1855. It was held that as the primary object of the ship was to earn freight by carrying passengers, the measure of damages was the value of the profits which could have been obtained between the date fixed for the delivery and the date on which the ship was actually delivered. Wills, J., stated the law to be " that the measure of damages for the breach of a contract for delivery of a chattel should be governed by a similar rule to that which prevails in the case of a breach of contract for the payment of money " and concluded by saying " the measure of damages in such a case as this was held by analogy to be the average profit made by the use of such a chattel." In In re Trent and Humber Co. (1868) 4 Ch. A. 112, 117 the Lord Chanceller said: "The measure of damages is prima facie the same which would have been earned in the ordinary course of employment of the chattel in the time." This principle was accepted as good law in The owners of the steamship Grade v. The owners of the steamship Argentino (1889) 14 App. Cas. 519. In Jaques v. Miller (1877) 6 Ch. D. 153 which was a case of an agreement to grant a lease Mr. Justice Fry after examining the case-law on the point said : " The question of damages is a more difficult one. Damages are claimed, in addition to the specific performance of an agreement, in respect of the delay which was caused by the defendants wilful refusal to perform his contract and the consequent loss of profit to the plaintiff. I think I am at liberty to consider what would have been the value of the possession of the premises to the plaintiff for the period betwee