BHANWARI MST Vs. BHONRIYA

JUDGEMENT

(1.) THIS is an appeal, which has been erroneously described as a revision, filed by the defendants from a judgment and decree of the Additional Commissioner, Jaipur, dated 18th October, 1955, which confirmed with a variation a judgment and decree of the Assistant Collector, Jaipur, dated 24. 7. 1954 in favour of the respondents.

(2.) WE have heard the learned counsel for the appellants as well as Bhonriya, respondent at some length. WE have closely examined the record. The material facts of the case are as follows - Jagdeo, father of the respondents, instituted a suit in the court of the Nazim Sawai Jaipur on 27. 5. 1947, alleging that the defendants had prevented him from cultivating his land consisting of khasra Nos. 451 to 455 and 459 at village Kanota. The land was commanded by a well commonly known as Kharia. The plaintiff had obtained a Patta of the land in suit from the Thikana on Sawan Sudi 5, Svt. 1996, and was subsequently granted Parcha Chakbandi on 26. 11. 1945. He sought the help of the Tehsil in the matter with the assistance of the Tehsil he started cultivating the land in question on 26th September, 1946. The defendants permitted him to cultivate khasra Nos. 451 and 459. They did not permit him to bring the remaining land under the plough. The crop which he had cultivated in khasra Nos. 455 and 459 withered away because the defendants did not allow him to water them from Chah Kharia. He had cultivated barley in a portion of the fields and had raised fodder in the remaining portion. He wanted to cultivate zira crop in the remaining fields, but defendants did not permit him to do so. He estimated the loss which the defendants caused to him at Rs. 400/- and prayed that he should be awarded damages to the tune of Rs 400/- and a permanent injunction should be issued restraining the defendants form interfering with his cultivation of the fields in question. In the written statement filed by the defendants a preliminary objection was raised by them that the suit as framed by the plaintiff was not cognizable by a revenue court. The Nazim overruled the objection and the defendants filed an appeal against his order to the Deputy Commissioner Sawai Jaipur He dismissed it on 31. 5. 1948 on the ground that as the plaintiff was unlawfully prevented from cultivating and irrigating the land duly let out to him he had every right to sue trespassers who prevented him from doing so for compensation, and damages, under sec. 90 (b) of the Jaipur Tenancy Act, read with Sec. (1) (3) of the Jaipur State Grants Land Tenures Act, 1947. The Assistant Collector framed a number of issues and after recording the evidence adduced by the parties decree the claim of the respondents, who were brought on the record after the death of their father. He decreed the claim of the respondents to the extent of Rs. 175/ -. The defendants lodged an appeal from the decree of the Assistant Collector, before the Additional Commissioner, Jaipur. After scrutinizing the evidence adduced by the respondents in support of their contention that they had suffered damage to the tune of Rs. 400/- the learned Additional Commissioner held that Bhonriya's statement was too vague to form a basis of any definite finding as to the extent of loss suffered by him. His witnesses were equally vague. To avoid the trouble of forming an estimate of the loss sufferred by the respondent the trial court had not gone into the evidence and had passed its decree on the provisions of sec. 90 (b) of Jaipur Tenancy Act. The learned Additional Commissioner was clearly of the opinion that the said provisions did not apply to the present case as no trespass had been proved to have taken place. He came to the conclusion that as the appellant had obstructed the respondents in using the luo without any justification they were liable to pay damages to them in the amount of Rs. 100/ -. He, therefore, scaled down the decretal amount from Rs. 175/8/- to Rs. 100/-only. Aggrieved by his decision the defendants have come up in appeal to the Board.