RAMSEWAK KAJI Vs. RAMGIR CHOUDHARY

JUDGEMENT

(1.) This is an application in revision by the judgment-debtors and is directed against the order of the 1st Additional Subordinate Judge of Motihari, dated 22-4-1954, directing an enquiry to be made for the ascertainment of the amount of damages. The short facts are these. The plaintiffs opposite party filed Title Suit No. 120 of 1945, in the Court of Subordinate Judge, Motihari, against the petitioners for a declaration that they are entitled to irrigate their lands from river Sheoraha and that defendants had no right to obstruct the flow of the river. The plaintiffs also claimed a sum of Rs. 4,500/- as damages caused to their crops due to the construction of a bandh by the defendants in the river and further prayed for a decree for future damages. One of the issues framed in the suit was issue No. 8 which was in the following terms : "Are the plaintiffs entitled to damages? If so, how much?" It appears that during the hearing of the suit a petition was filed on behalf of the plaintiffs on the basis of which the learned Subordinate Judge, while decreeing the suit of the plaintiffs with regard to the declaration of their right to irrigate the lands, left the question covered by the above issue open and observed as follows :

(2.) It is not disputed that the amount of damages or mesne profits can be ascertained by a separate proceeding if there has been a decree passed in favour of the decree-holder entitling him to damages or mesne profits. The question, however, is different if by the decree the right to claim damages or mesne profits has not been determined. Mr. Tarkeshwar Nath appearing for the petitioners has contended that, unless the right of a plaintiff to get damages or mesne profits is determined in the suit itself, no proceeding can be taken for ascertainment of the amount of damages or mesne profits. He has further contended that, if the plaintiff has not been given a decree entitling him to damages or mesne profits, his right to get the same cannot be determined after the disposal of the suit. The contentions, in my opinion, are valid and must prevail. Mr. Jagdish Chandra Sinha appealing for the plaintiffs opposite party has conceded that the decree passed in Title Suit No. 120 of 1945, does not mention about the right of the plaintiffs to be entitled to get damages. But his contention is that the question of the liability of the defendants for damages and the amount of such damages was left open by the court to be determined after the disposal or the suit and therefore, they were perfectly entitled to ask the court after the disposal of the suit to determine their right for damages and to ascertain the amount of the same.

(3.) On the above contentions, the first question that may have to be decided is whether the amount of damages or mesne profits could be ascertained in a separate proceeding where by the decree no such right has been given to the decree-holder. In my opinion, the question with regard to the right of a plaintiff to get damages or mesne profits has necessarily to be determined in the suit itself and, in absence of a decree entitling him to get the same, the court has no jurisdiction in a subsequent proceeding either to ascertain the liability of the defendants to pay damages or to ascertain the amount of damages. Before a court can proceed with an enquiry for ascertainment of damages or mesne profits, there must be a decree in favour of a plaintiff entitling him to damages or mesne profits. The enquiry for ascertainment of damages or mesne profits has necessarily to end in the passing of a final decree but, before such enquiry could be made, that right must be created by the preliminary decree itself. In the present case no such right had been declared in the preliminary decree and, therefore, the court had no jurisdiction to start any enquiry in that regard. The view that I have taken gains support from a Bench decision of this court in Lalji Singh v. Dwarika Singh, Second Appeal No. 166 of 1945, D/- 16-12-1948 (A), in which it was held that, there being no direction in the decree passed in the suit for possession to the effect that the plaintiff was entitled to mesne profits which he could get ascertained in a subsequent proceeding, the application filed by the plaintiff with a prayer for appointment of a commissioner for ascertainment of mesne profits could not be entertained by the court and the court clearly had no jurisdiction to institute any such proceeding. In that case what happened was that, though no prayer for mesne profits was made in the plaint, an issue was framed before the hearing of the suit commenced to the effect as to whether the plaintiffs were entitled to a decree for mesne profits; and if so, for what amount. The ordering portion of the judgment did not say anything about the mesne profits and it concluded as under : The suit be decreed after contest against defendants 3 to 5 and ex parte against the rest with costs. The title of the plaintiffs over the suit-land is hereby declared, and it is held that they are entitled to recover possession of the same. The decree which was prepared followed the judgment and thus there was no direction in the decree either declaring the right of the plaintiff to get mesne profits or to have the same ascertained in a subsequent proceeding. Subsequently an application was made on behalf of the plaintiffs praying that a commissioner be appointed to ascertain the amount of mesne profits and, in spite of the objection raised by the defendants the court below passed a decree for mesne profits against the defendants. On appeal by the defendants to this Court, it was held that, there being no decree in favour of the plaintiffs for mesne profits, the court had no jurisdiction to ascertain the amount of mesne profits and the decree passed by it was without jurisdiction. It was accordingly set aside. This case is on all fours with the facts of the present case. Here also, as already stated, there was no decree passed in favour or the plaintiffs entitling them to any damages from the petitioners.