KANHAIYALAL Vs. BADRILAL

JUDGEMENT

(1.) THIS is a Civil Regular Second Appeal by the plaintiff from the judgment and decree, dated the 24th of February, 1959, of the District Judge, Jhunjhunu reversing on appeal the Judgment and decree, dated the 17th of November, 1958 of the Civil Judge, Neem-ka-Thana.

(2.) THE plaintiff-appellant Kanhaiyalal filed the suit for the recovery of Rs. 600/- as damages against defendant-respondents Badrilal and Shri Ram alleging that the defendants had obtained a decree against Ganpat and Bhura, sons of Teja and in execution of that decree they had got attached on 21st of January 1955 one she-buffalo with a female calf and another shebuffalo (called 'jhotri' in local parlance ). These cattle, according to the plaintiff, had been handed over by him to Bhura and ganpat for grazing and had been attached on account of enmity by the defendants knowing full well that they belonged to the plaintiff and that his judgment-debtors had no right, title and interest therein. It was further alleged by the plaintiff that these cattle were kept in the custody of the defendants after attachment as supurdars but they were not properly looked after, nor were they properly fed with the result that they became of little value. The plaintiff further alleged that he had purchased these cattle for Rs. 500/- and they would have fetched Rs. 100/- more if sold in the market. The plaintiff, therefore, claimed Rs. 600 as damages from the defendants. Both the defendants contested the suit denying that these cattle belonged to the plaintiff. Several issues were framed by the trial Court and the suit was dismissed mainly on the ground that the plaintiff had failed to prove that the attached cattle belonged to him, The plaintiff filed an appeal in the Court of the District Judge, jhunjhunu. The learned District Judge held that, the attached cattle belonged to the plaintiff and that they were worth Rs. 500/ -. The learned District Judge also held that all the attached cattle had died their natural death during the period they were in possession of the defendants as supurdars and no negligence or carelessness on the part of the defendant-respondents had been established on the point that they were not properly maintained by them. The learned District judge held that for this reason the plaintiff was not entitled to their price from the defendant-respondents. He, however, granted a decree for Rs. 75/-as nominal damages on the ground that the defendant-respondents had not established that they had got the attachment made bona fide, that is, after taking all due care and caution that they were not attaching the property of a third person. In this appeal, the plaintiff claims that his suit for Rs. 600/-/- should have been decreed in entirety.

(3.) THE contention of the learned counsel for the appellant is that it is a clear case of trespass committed by the defendant-respondents with regard to the attached cattle as they had acted without due care and caution in attaching them and taken them away as supurdars and so they are liable to pay damages to the extent of the market value of the property attached.