MANORAMABAI MORESHWAR Vs. IBRAHIM KHAN BISMILLA KHAN

JUDGEMENT

(1.) THE appellants are legal representatives of the original plaintiff who died during the pendency of this appeal. He had filed a suit against the defendants respondents for recovery of Rs 130. 00 on account of compensation for illegal seizure of his cattle by the defendants on 23rd August 1958.

(2.) THE allegation was that the plaintiff's cattle were grazing in an uncultivated portion of field Khasra No. 50, area 6. 98 acres of Village Singori, which was owned by the plaintiff , but the defendants, with a view to cause wrongful loss and damage to the plaintiff, trespassed into his field and drove away 17 head of cattle and impounded them in the cattle-pound at mouza Parseoni. These cattle had to be released by paying poundage fee Rs. 74-4-0 and an additional amount of Rs. 50 was claimed as loss sustained because the animals were not available for cultivation for a day and Rs. 5-12-0 were claimed on account of the value of 12 seers of milk which was lost to the plaintiff. This suit was brought in the in the Civil Court at Nagpur where only one of the defendant i. e. defendant No. 1 was shown to have resided. Even the plaint makes it clear that the defendants Nos. 2 and 3 were residents of Singori tahsil Ramtek, district Nagpur.

(3.) THE defendants denied the claim of the plaintiff. According to them, the cattle were in that part of the field which was in actual possession of the defendant No. 1 and his brothers and were grazing and damaging their crops, and therefore, the defendants seized the plaintiff cattle and impounded them in the cattle-pound. The written statement shows that the only seizure was the defendant No. 3 who has seized that cattle. The alleged trespass by the three defendants was denied in the joint written-statement it was also their case that the defendant No. 1 and his brothers owned the entire khasra No. 50 and they had obtained a decree for possession of northern half of the said Khasra in Civil Suit No. 31 A of 1956, decided on 12-9-1957, by the Fourth Additional Judge to First Civil Judge, Nagpur at Ramtek against one Gulabrao, and according to them, the southern half was also in their possession. In paragraph no. 5 of the Written-statement, a specific plea with regard to the jurisdiction of the Nagpur Court was taken and it was stated that the plaint did not disclose any cause of action within the jurisdiction of the Court and the Court had no jurisdiction to try the suit. The defendants pleaded that the alleged impounding the cattle and their alleged release took place on the plaintiff's own showing beyond the jurisdiction of the Court. It was further stated that the defendants Nos. 2 and 3 are also admittedly living and working for gain beyond the jurisdiction of the Court and thus the suit was not tribal by the Court. A specific objection to the jurisdiction of the Court was thus taken by the defendants in the written-statement itself. When the parties went to trial, the defendants filed an application under O. 14, R. 2, Civil Procedure Code, requesting the Court to first decide the question of jurisdiction and to postpone the recording of evidence till the decision on the issue of jurisdiction. It may be stated that on the allegations in the plaint, the defendant No. 1 was the only person who was staying within the jurisdiction of Nagpur Court and the two other defendants were staying within the jurisdiction of Ramtek Court. The plaint does not attribute any specific tortuous act to the defendant No. 1 but an omnibus statement that the defendants seized the plaintiff's bullocks has been made in the plaint. That statement has been denied by all the defendants and the fact of seizure of the bullocks is admitted only so far as the defendant No. 3 is concerned, who resides out of the jurisdiction of Nagpur Court. The record also does not disclose and it is an admitted fact I the trial Court no leave of the Court, as contemplated by Section 20 (b) of the Civil Procedure Code, was sought when the suit was instituted.