CHINNAN AMBALAM Vs. RAMIAH MANIAM AND OTHERS

JUDGEMENT

(1.) A.A.O. Nos. 369 of 1964: - - This appeal arises out of O.S. No. 17 of 1963 on the file of the District Munsif, Madurai Taluk. The suit was dismissed by the learned District Munsif, but, on appeal by the plaintiffs, the learned Subordinate Judge set aside the decree of the trial Court and remanded the suit to the lower Court for fresh disposal in the light of the directions in the judgment of the appellate Court. This appeal has been filed under O. 43, R. 1(u), C.P.C., against the said order of remand by the defendant. The suit was filed for recovery of Rs. 300 as damages said to be the value of tamarind fruits carried away by the defendant from the tamarind tree alleged to be situate in S. No. 764/3. Plaintiffs 2 and 3 claimed to be the owners of S. 764/3 and the said tamarind tree. They had leased the tree to the first plaintiff in 1959 for five years. It is alleged that the defendant carried away the tamarind fruits on 21st February 1961. A criminal case was launched, but the defendant was acquitted. Still the plaintiff: were entitled to recover damages in the civil court and a decree was prayed for in favour of the first plaintiff.

(2.) The defences put up were these: (1) the plaintiff had not title to S. No. 764/3 and, in particular, he has no title to the tree; (2) the tree was not situate in S. No. 764/3, but was situate in S. No. 769; there was no tree at all in S. No. 764/3. S. No. 769 was poramboke land and the defendant had obtained a tree, patta for the trees in S. No. 769 from the Government; (3) the tamarind tree yields only once in three years and there was no yield in 1961; (4) the defendant did not carry away the tarns rind fruits of the tree.

(3.) The learned District Munsif, who tried the suit, pointed out that the question of title was only incidental but still it had to be decides. He decided it against the plaintiffs in respect of the land, S. 764/3 and the trees in particular. He also held that the plaintiffs had failed to show that the tree was situate in S. No. 764/3. He further held that there was no yield in 1961 and that it had not been proved by satisfactory evidence that the defendant had removed the yield. On these findings he dismissed the suit.