SHER SINGH Vs. UMAID SINGH

JUDGEMENT

(1.) THIS is Sher Singh and others defendant appellant's second appeal against the judgment and decree of the Revenue Appellate Authority, Bikaner dated 16. 3. 1962. Briefly the facts of the case are as follows:

(2.) THIS case had a chequered career. Shri Umed Singh plaintiff respondent as long back as 1927 filed a suit for ejectment of the defendant appellants as trespassers in accordance with the Marwar Revenue Code and the Rules framed thereunder. THIS suit was decreed in 1935. In that suit the plaintiff respondent claimed no damages or mesne profits. The suit continued in appeal and was finally decided and decreed in favour of the plaintiff respondent by the Board of Revenue on 11. 5. 56. It may be remembered that the suit was decreed after the coming into force of the Rajasthan Tenancy Act, 1955. A writ application in the High Court filed by the defendant appellant against the judgment of the Board of Revenue was also dismissed on 11. 10. 57. Thus for all practical purposes the plaintiff respondents suit for ejectment of the defendant appellants as trespasser was finally decreed after a prolonged trial. The plaintiff respondent, for some error or defect in drawing up a decree and due to misdescription of the suit land was notable to get the decree of ejectment against the defendant appellants satisfied. The execution still remains pending. The plaintiff respondent therefore filed this separate suit on 31. 5. 57 u/s 183 of the Rajasthan Tenancy Act for payment of a sum of Rs. 3136/8/- as damages as the land remained in wrongful possession of the defendant appellant. The trial Court dismissed the plaintiff's suit as time barred and as well as not maintainable on the ground that the plaintiff respondent failed to claim damages at the time when the suit was filed and the provisions of Order 2, Rule 2 of the Code of Civil Procedure applied. THIS judgment of the trial Court was reversed in appeal by the Revenue Appellate Authority in the judgment appealed against. The learned appellate Court held that the previous suit before the Members of the Board of Revenue, which was decreed in favour of the plaintiff respondent was u/s 187 of the Rajasthan Tenancy Act which permits reinstatement for wrongful ejectment to a tenant and not u/s 183 which provides for ejectment of a trespasser. He therefore remanded the case for further proceedings to the trial Court. It is against this judgment that this second appeal has been preferred by the defendant appellants.