JAGDISH Vs. HARSARUP

JUDGEMENT

(1.) Har Samp, plaintiff, owns agricultural land in village Mandaoli Fazalpur. Adjoining land is owned by Jagdish and others, defendants. The defendants, while excavating earth from their land, are alleged to have excavated earth from a part of the plaintiffs land and later on,refused to restore it. The plaintiff filed a suit against the defendants claiming mandatory injunction for restoration of earth.

(2.) The defendants raised various pleas in defence. One of the pleas was that the suit was not maintainable in view of section 41 (h) of the Specific-Relief Act, 1963 (Act No. 47 of 1963). The tribal court came to the conclusion that since equally efficacious remedy of damages was available to the plaintiff so mandatory injunction could not be granted, and since he had not claimed damages this relief was prohibited by sub-section (2) of section 40 of the Act. The suit was, therefore, dismissed.

(3.) The plaintiff filed an appeal. One of the grounds taken in appeal was that the tribal court should have afforded an opportunity to amend the plaint to enable the plaintiff to claim damages in the alternative. It was thus prayed, in the alternative, that the plaintiff be granted an opportunity to amend the plaint for claiming damages.