THAKURAIN ANAR KUAR Vs. POHAP SINGH

JUDGEMENT

(1.) This appeal arises out of a unit for damages for illegal distraint. The First Court same to the conclusion that the suit was barred by time and it also found that no damage had been proved. As to the second issue, his judgment runs thus: "There is no convincing evidence as regards the loss of property. The Amin and other witnesses of defendants clearly say that the sis bigha kachcha land can-not produce 25 maunds of grain, as alleged by the plaintiffs. The property distrained is 6 maunds 20 1/4 seers wheat and 8 maunds 3 1/4 seers of bhusa (vide plaintiff's own statement dated 24 April 1919 before the Tahsildar of Shikohabad). This it still in possession of Karimullah with whom it was deposited by the Shahna. In my opinion no damage has been proved."

(2.) The plaintiffs went up in appeal and the learned Officiating District Judge has set aside the Assistant Collector's decision on both these issues. He proceeds mainly upon presumptions and probabilities rather than on the evidence on which the Assistant Collector decided the ease. He takes no notice in his judgment of the statement made by the plaintiff as detailed by the Assistant Collector. I am informed that the record of the original case tried by the Tahsildar was before the First Court. If that was so, it was the duty of the lower Appellate Court to refer to that record and some to the conclusion after taking into consideration the statement of the plaintiff made on the 24 of April 1919. The learned District Judge was not justified in ignoring the statement of the plaintiff on which the First Court had relied and doming to the conclusion independent of such an admission, I, therefore, refer the following issue for finding to the Court below. (1) What damage, if any, had the plaintiffs sustained?

(3.) The Court below is to take into consideration any admission of the plaintiff contained in his statement of the 24 of April 1919 referred to by the Assistant Collector along with the other evidence on the record before it comes to any decision on the question.