MAHDEO PATEL Vs. NARAYAN

JUDGEMENT

(1.) THE plaintiff-appellant's suit for possession of three plots, A, B and C, shown in the map filed with the plaint, was decreed in the first Court so far as plot A was concerned. The four defendants appealed to the Court of the District Judge, Nagpur, while the plaintiff filed a cross objection to the effect that he was also entitled to a decree with regard to plots B and C. The cross-objection failed, but the defendants' appeal succeeded to the extent that, instead of granting the so-called injunction for the removal of the super' structure and possession of plot A, the lower appellate Court gave the plaintiff a decree for Rs. 60 as damages in respect of the trespass on his land.

(2.) AGAINST the judgment and decree of the lower appellate Court, the plaintiff has come up on appeal, while the defendants-respondents have filed a cross-objection. It will be convenient to dispose of the latter first, because, if the cross objection were to succeed, the plaintiff's suit would be liable to dismissal and no question would arise as to the form of relief the plaintiff was entitled to on the findings of the lower appellate Court.

(3.) PASSING now to the appeal filed by the plaintiff : what has been urged on his behalf is that the lower appellate Court erred in granting a decree for damages only. In so doing the learned District Judge seems to have been misled by the decision in Behari Lal v. Sheo. Lal [1907] 3 N.L.R. 114. That decision had reference to a question' of easement. Here, both the Courts below have come to a finding that there was a deliberate trespass on plot A, and it is further clear that a protest was made at an early stage in this connexion on behalf of the co-sharer whether Mahadeo or Punjabrao is really immaterial for the present purpose. It is true that the protest also had reference to plots B and C which have been held to belong to the defendants, but that, in my opinion, makes no difference as regards the validity of the protest made so far as plot A is concerned.