SHYAM NARAIN SINGH Vs. KAILASH PATI RAI

JUDGEMENT

(1.) This is a defendant's second appeal. The suit as originally filed was for an injunction restraining the defendants from felling any Shisham tree within the plots of land specified in list at the foot of the plaint. On the allegation that three Shisham trees were felled and their timber carried away by the defendants, the plaint was amended, and, in addition to a decree for injunction, the claim for a decree for recovery of Rs. 300/-by way of damages was also claimed. The suit was decreed for an injunction restraining the defendants from cutting any Shisham trees from the plots of land specified in list Ka at the foot of the plaint and for recovery of Rs. 150/- with proportionate costs against the defendants with the exception of defendant No. 7, who was declared not liable to damages or to costs. The lower appellate Court dismissed the appeal by the sixth defendant from the trial Court's decree, but also said that the decree "for the payment of Rs. 150/-as compensation to the respondents 1st set (meaning thereby the plaintiff-respondent) as also proportionate costs of the suit is affirmed. " The sixth defendant is again the appellant in this Court, and the only point raised before me, as before the lower appellate Court, was whether the suit was cognizable by the Court of Munsif, Ghazipur. The argument raised before me was that the only prayer left in the plaint after its further amendment in the appellate Court was for recovery of Rs. 300/- as damages for the three Shisham trees which were said to have been cut away by the defendants; and Shisham trees, even while rooted to the earth, are standing timber and, therefore, movable property. Any relief for damages in respect of movable property could be claimed before the Nyaya Panchayat if the claim was for less than Rs. 500/ -. It is necessary in this context to mention that the first relief for injunction was scored out during the hearing of the appeal before the lower appellate Court with its leave on 7th February 1970 after its order dated 3rd December, 1969, directing that the suit and the appeal would abate in respect of the existing trees in dispute under Section 5 of the U. P. Consolidation of Holdings Act, but could go on in respect of the claim for compensation for the trees already cut down. The lower appellate Court has held that if the suit had not been abated under the U. P. Consolidation of Holdings Act as aforesaid, it would have remained in its original form, and the question of maintainability of the suit for damages simplicity would not have arisen. Learned counsel urged that the lower appellate Court was in error in applying the principle of the deci sions in Smt. Sonawati v. Sri Ram 1968 A. W. R. 1 = 1968 A. LJ. 313 Shobha Nath v. Ram Baran 1954 A. L. J. 265 and Rajmangal Singh v. Vindhyachal Singh 1964 A. W. R. 560, to the facts of the present case although it was of the view that a suit in which the only claim was for damages for the loss caused to movable property in a sum less than Rs 5007-was cognizable by the Nyaya Panchayat. Learned counsel also urged that since the Code of Civil Procedure did not apply to the Nyaya Panchayat there was no question of returning the plaint for presentation to the Nyaya Panchayat and the lower appellate Court could have only dismissed the claim for damages in the situation which arose after the abatement of the suit for injunction. Under Section 64 (1) (c) of the U. P. Panchayat Raj Act, the jurisdiction of a Nyaya Panchayat extends to a Civil case for compensation for wrongfully taking or injuring a movable property", in case the value of the subject matter of the case does not exceed Rs. 100/- and where a notification has been made by the State Government in the official gazette, under sub-section (2) the jurisdiction extends to all such civil cases of the value not exceeding Rs. 500/ -. That the jurisdiction was so extended by a notification of the State Government to cover cases of the value not exceeding Rs. 5007- is not in dispute. What is said is that Shisham trees are, under the law, standing timber, and, therefore, movable property. Under clause (29) of Section 4 of the U. P. General Clauses Act, 1904, "movable property" has been de nned1 to 'mean property of every description, except immovable property" and by clause (23) immovable property'' has been defined to "include land benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth, but it is expressly added that it shall not include standing timber, growing crops or grass. " The definition is the same as that contained in the Transfer of Property Act although in the definition of immovable property in the General clauses Act 1897, standing timber, growing crops or grass are not excluded U. P. Panchayat Raj Act, 1947, being a State enactment, the provisions of U. P. ' General Clauses Act, 1904 will govern the interpretation of the meaning of movable property in clause (e) of sub-section (1) of Section 64 of that Act. In the result it must be held that the claim for compensation for wrongfully cutting and taking away three Shisham trees was cognizable by the Nyaya Panchayat, and that being so, the claim was not entertain able by The lower appellate Court was, therefore, not right in holding that the suit continued to be maintainable in the civil Court al though the plaint had been allowed to be amended by it. It is the amended plaint which had to be seen for the purposes of determining the jurisdiction of the Court and not the unlamented plaint. Mr. Sankatha Rai, Learned counsel for the respondent relied upon the decision of the Supreme Court in Smt. Sonawati v. Sri Ram (supra ). In that case an order under Section 145 of the Code of Criminal Procedure had been passed and a suit for declaration and injunction was filed, However, after the order of the first appellate Court the defendants appear to have obtained possession over the land under the order under Section 145 of the Code of Criminal Procedure. The plaint was thereafter amended with the leave of the High Court and a decree for possession was also claimed. The High Court found in favour of the plaintiff in that case and passed a decree for posses sion. That case is clearly distinguishable from the facts of the present case. Once the order under Section 145 of the Code of Criminal Procedure was put in jeopardy by the finding of the declaratory suit in the Civil Court, the order of the Criminal Court was in a State of suspense and was executed only when the first appellate Court had found in favour of the defendants; but when the High Court found in favour of the plaintiffs, it restored the plaintiffs to the same position which would have existed if the order of the Criminal Court had not been allowed to be executed pending second appeal in the High Court. The amendment of the plaint by adding a relief for possession was in that case a mere formality. Under the circumstances I am of the view that Smt. Sonawati's case is not an authority for the proposition that if the original claim was entertain able by the Civil Court it may after the amendment of the plaint decree a claim in respect of which it has no jurisdic tion. Learned counsel for the respondent then contended that the suit could not be dismissed and that the only order which could be passed was an order returning the plaint for presentation to the Nyaya Panchayat; and in this context he relied upon the explanation to Rule 10 (1) or order of the Code of Civil Procedure. The provisions as to return of plaint are intended to effectuate justice and prevent harassment to the parties, and in cases where court-fees is pay able, to save the parties the expense of having to pay the court-fees twice over. However, in the present case the provisions of the Code of Civil Procedure and the Court Fees Act do not apply to Nyaya Panchayats. It is not neces sary even to file a written plaint, and under these circumstances it does not appear proper to direct the return of the plaint. The proper order to pass would be to dismiss the suit. I may, however, make it clear that the dis missal of the suit will not prejudice the respondents right to institute a claim before the Nyaya Panchayat in accordance with the provisions of the U. P. Panchayat Raj Act. In the result the appeal succeeds and is allowed. The decree under appeal is set aside and the suit shall stand dismissed but in the circumstances the parties are left to bear their own costs throughout. .