RANI MINA KUMARI BIBI Vs. SURENDRA NARAIN CHAKRAVARTY

JUDGEMENT

(1.) The events which have given rise to the litigation out of which the present appeal arises may be thus briefly narrated. On the 15 December 1902 the second defendant put in a petition before the Deputy Magistrate of Jangipore in which it was alleged that he was a tenant of the first defendant, now appellant before this Court, that he had grown crops on his holding, and that as the plaintiff, the respondent before this Court, was about to cat away the crops, there was likelihood of a serious breach of the peace. The petitioner consequently prayed for Police help. The Deputy Magistrate thereupon ordered the Police to see that no breach of the peace took place and directed them to submit a report. On the next day the Police submitted a report in which they supported the allegations of the petitioner. The Deputy Magistrate thereupon instituted proceedings under Section 144, Criminal Procedure Code, in respect of about 200 bighas of land and issued a prohibitory order against the plaintiff. The plaintiff appeared before the Deputy-Magistrate on the 9 January 1903 and urged that as the dispute related to possession of immovable property proceedings could be commenced only under Section 145, Criminal Procedure Code. On the day following the Deputy Magistrate took proceedings under that section and made an order for attachment of the land. The parties subsequently referred the matter in dispute to the arbitration of a pleader who filed his award on the 22nd Juno 1903, on the basis of which the Deputy Magistrate withdrew his previous order of attachment. Under the award the plaintiff was put in possession of 33 bighas of land and the remainder was given to the defendant. On the 21 June 1906 the plaintiff, commenced the present action for damages on a two fold basis. He alleged, in the first place, that the defendant unlawfully cut the crops grown by, him on the 9 January 1903 that is, on the day previous to the order of the Magistrate under Section 146, Criminal Procedure Code; and in the second place, that the result of the order of attachment by the Magistrate was to make it impossible for him to cultivate the land during the year 1903, so as to entitle him to the value of the paddy which he might otherwise have grown during that year. The defendant resisted the claim on the merits. He also pleaded in bar that the whole of the claim was barred by limitation and that in any view there was no cause of action in respect of the damages claimed for non-cultivation of the land in 1903.

(2.) The Court of first instance did not go into evidence on the merits and dismissed the suit on the ground that it was barred by limitation and that the plaintiff had no cause of action as against the defendant. Upon appeal the Subordinate Judge has reversed that decision and remanded the case for trial on the merits.

(3.) The defendant has now appealed to this Court and on his behalf the decision of the Subordinate Judge has been assailed on two grounds, namely, first that the plaintiff has no cause of action against the defendant in respect of the crops which, but for the prohibitory order of the Magistrate, it might have been possible for him to grow on the land in the course of the year 1903, and secondly, that the whole of the claim is barred by limitation. In our opinion these contentions are well-founded and must prevail.