TARINI PROSAD MITRA Vs. RAKHAL CHANDRA MANNA

JUDGEMENT

(1.) This Rule has been obtained by the plaintiff whose suit for damages his been dismissed by the Court of Small Causes at Midnapore. The amount involved is small but the questions raised are of general importance.

(2.) The facts admitted and found are as follows. One Ramchandra Ghosh held an occupancy holding, very small in area, under the plaintiff. On October 22, 1932, he sold the same to the defendant for Rs. 25. At the date of the sale the e were on the kills two bamboo clumps. After getting the notice of the transfer and within the time mentioned Section 26F of the Bengal Tenancy Act, the plaintiff made an application for pre-emption on October 26, 1933. While the application was pending the defendant cut and removed all the bamboos. This he did on January 3 and 1931, apparently on the conviction that he had no defence to the application for pre-emption. On January 11, 1931, the order for pre-emption in favour of the plaintiff was made and the plaintiff in due course took possession of the holding. He thereafter instituted the suit, out of which the Rule arise, for damages. In the plaint he stated that by reason of the removal of the bamboos the value of the holding had been impaired. The learned Small Cause Court Judge has found that the defendant had cut and removed all the bamboos. He assessed the value at Rs. 7-8-0 but dismissed the suit on the ground that the plaintiff had no cause of action, as his title to the holding accrued on the date of the order for preemption, i.e., at a date subsequent to the act complained of. Against this decree made by the Small Cause Court the plaintiff has moved this Court.

(3.) In my opinion the judgment of the Court below is wrong, and must be set asides and the plaintiff must have a decree for the sum of Rs. 7-8-0 with proportion are cost of the Court below.