KRISHNA DAS RAY Vs. MOHENDRA CHANDRA SIL

JUDGEMENT

(1.) This appeal arises out of a suit for mandatory injunction upon the defendants to fill up a tank, which had been excavated on a portion of the land comprising the tenancy (which is found by the Courts below to be a tenure), held by some of the defendants under the plaintiffs, in breach of a condition in the kabuliyat; for compensation, and for ejectment of the defendants therefrom.

(2.) It was alleged that the notices under Section 155 of the Bengal Tenancy Act were served upon the defendants. It is found, however, that the notice was defective and not served upon all the defendants. The suit, moreover, was instituted more than a year after the excavation of the tank. The Court of first instance (the Subordinate Judge) accordingly disallowed the claim for ejectment. He also found that the tank supplies good drinking water to the people of the locality, has supplied a great want and is a work of great public utility, that the tank and ghats have been made at a considerable cost, and in fact that the tank is an improvement on the property, and having regard to these facts and the fact that the plaintiffs were not prompt in coming to Court, be disallowed the mandatory injunction. He, however, held that plaintiffs should get Rs. 1,000 as compensation, and made a decree accordingly. On appeal the Court of Appeal below agreed with the Subordinate Judge on the first two points, but held that the whole suit was barred under Art. 1, Schedule III of the Bengal Tenancy Act. The plaintiffs have appealed to this Court.

(3.) As stated above, the notice under Section 155, Bengal Tenancy Act, was defective, and the suit was brought more than a year after the excavation of the tank. The claim for ejectment could not, therefore, be sustained. Both the Courts below have also given good reasons why the claim for mandatory injunction should be disallowed, and these questions have not been raised before us. The only contentions raised before us relate to the question of compensation. The Court of Appeal below was of opinion that the claim for compensation was merely ancillary to the claim for ejectment, and in that view held that as the suit for ejectment was barred by the one year's rule of limitation contained in Art. 1, Schedule III of the Bengal Tenancy Act, the whole suit was barred. We are of opinion, however, that the claim for compensation was independent of the claim for ejectment, although the wording of the plaint may lend colour to the contention that the suit was framed as one under Section 155, Bengal Tenancy Act. In the third paragraph of the plaint the plaintiffs asserted that they were entitled to have the land restored to its farmer condition, to recover reasonable compensation and to get khas possession. The first prayer in the plaint was for mandatory injunction, the second for reasonable compensation and the fourth for khas possession. The first two are claimed independently of the claim for khas possession, and we are of opinion that the claim for compensation can be maintained even though the claim for ejectment fails.