SHIV SINGH Vs. HARJIRAM

JUDGEMENT

(1.) THE circumstances that give rise to this appeal and cross-appeal may briefly be stated thus: Harjiram plaintiff brought a suit against Shiv Singh defendant for recovery of Rs. 1,100/-as compensation for wrongful dispossession on 27-8-40 in the court of the Judicial Superintendent, Nagore. On 3-5-49 after the enforcement of the Marwar Tenancy Act, 1949, this suit was transferred to the court of the S. D. O Nagore who after trying the same granted a decree for Rs. 92/- in favour of the plaintiff on 27-10-51. THE plaintiff went up in first appeal before the Additional Commissioner,jodhpur and the defendants filed a cross-objection. THE appeal was allowed and the plaintiff's suit was dismissed on the ground that the parties had entered into a compromise in a criminal litigation and hence no suit for compensation could lie in a revenue court. THE plaintiff came up in second appeal before the Board, which set aside the order of the first appellate court and remanded the case back to it with the direction that the appeal be reheard and decided on merits. THE learned Additional Commissioner has after hearing the appeal granted a decree for Rs. 520/- in favour of the plaintiff. THE defendant has come up in second appeal before us. THE plaintiff has filed a cross-objection.

(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. The first contention raised on behalf of the appellant is that the suit being exclusively for compensation and without any prayer for ejectment, was not maintainable Reliance has been placed in this connection on sec. 94 of the Marwar Tenancy Act, wherein it has been provided that "a person taking or retaining possession of land without the consent of the person entitled to admit him and otherwise than in accordance with the provisions of the law for the time being in force shall be liable to ejectment under this section on suit of the person so entitled and also to pay damages which may extend to four times the annual rental value calculated in accordance with the sanctioned rates. "this provision is almost a reproduction of sec. l80, of the U. P. Tenancy Act. As observed by Qazi Asisuddin Ahamad in his commentary on the U. P. Tenancy Act, 1950 Edition Page 1043". A suit for damages alone appears outside the scope of this section. "a contrary view was expressed by the U. P. Board of Revenue in Chhidu Singh vs. Nathu Ram 17 R. D. 227 and the learned author has expressed his disagreement with this view. The Board observed that" if any other view was adopted, a trespasser would be able to avoid damages by the simplest expendent of abandoning the fields he had unlawfully usurped. "the learned author has met this argument by saying that if a trespasser has vacated the land," it is open to the aggrieved person to go to a civil court for damages for wrongful occupation of land. The remedy is not barred, only there will be a change of forum. In view of the fact this provision of the Marwar Tenancy Act stands modified by the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, we consider it unnecessary to examine the U. P. decisions further. Item 12 Group B Schedule I of the Act provides for a suit for recovery of possession by a person who has been wrongfully ejected or for compensation or for both. This provision is analogous to that of item G, Group II sec. 77 of the Punjab Tenancy Act. As is clear from the wordings itself, it is open to a tenant to institute a suit for recovery of possession alone and it is not necessary that to claim compensation he should party for recovery of possession as well. The import of this provision has been examined by the Rajasthan High Court in Bhawani Ram vs. Seth Ram Narain reported in 1955 R. L. W. page 112. In that case a suit was filed in the Munsiff's court for manse profits in respect of an agricultural land. The defendant pleaded that the suit was triable exclusively by a revenue court. The Munsiff held that the suit was beyond the competence of a revenue court as it did not fall within the scope of Item, 12 Group B Schedule I of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act. The defendant went up in revision before the High Court and it was decided therein that the term compensation is wider in scope than the term mesne profits and it includes the latter because in assessing the measure of compensation the court has to take into account the mesne profits of the property. That suit was only for compensation without any recovery of possession and the High Court held that the suit was triable not by a civil court but by a Revenue Court. The contention raised by the appellant should therefore fail.