KAMALNAYAN JAMANALALJI BAJAJ Vs. SHAMRAO BAPUJI

JUDGEMENT

(1.) THE defendants-appellants' father in execution of his decree against one Mt. Kawtika Bai purchased certain absolute occupancy fields situate in mouza Digras in auction on 30th June 1937. The sale was confirmed on 13th January 1938 and possession was taken on 10th May 1940. The plaintiff who is the lambardar of the village thereupon applied to the revenue authorities for pre-emption and while that application was pending he instituted the suit out of which this second appeal has arisen against the defendants (their father having died in the meanwhile) for arrears of rent or damages for use and occupation of the fields during the years 1940-41 to 1942-43. The trial Court decreed the plaintiff's claim for rent and the Court of first appeal upheld that decree treating the decretal amount as arrears of rent or as damages for use and occupation on the basis of the ruling in Sarbarakar Kesuraj v. Narayanrao A.I.R. (26) 1939 Nag. 175. Hence this second appeal by the defendants.

(2.) THE learned Counsel for the appellants in this Court contended that the trial Court which was a Court of Extra Subordinate Judge, Second Class, had no jurisdiction to try the suit as it could only try rent suits and not suits for damages for use and occupation. He contended that this was not a suit for rent as the defendants were not tenants and could not be tenants till the decision of the application for pre-emption. The notification regarding the Court of the Extra-Subordinate Judge, Second Class, is not before me and it is not possible to say without seeing it if that Court could or could not try a suit for damages for use and occupation. It is, however, not necessary to send for it as the case can be decided on another point.

(3.) AS the rent was offered to the plaintiff-respondent that he did not accept it, the trial Court rightly decided that he was not entitled to interest and costs.