MUHAMMAD MOHSIN KHAN Vs. TURAB ALI KHAN

JUDGEMENT

(1.) THE only question in this appeal is as to the correctness of the principle upon which damages were estimated by the Courts below. THE suit was one for damages for the wrongful cutting and conversion of the crops of the plaintiff. THE damages in such a case is the loss sustained by the plaintiff by reason of the removal and conversion of his crops, calculated on the market-value of the crops, It was the duty of the Courts below to ascertain what was the value of the crops which were so removed. THE learned Subordinate Judge in this judgment refers to the conflicting nature of the oral testimony of witnesses on both sides, the plaintiff's witnesses exaggerating and the defendants underrating the quantity of the produce. "THE plaintiff", he says, "assessed the damages on the ground of the produce having been 20 maunds per bigha, which was the maximum produce which the land was capable of producing. THE defendants on the other hand alleged that the produce was only 9 maunds per bigha". In this conflict of testimony the learned Judge came to the conclusion that everything should be presumed against a spoliator, and acting on that principle held that the presumption was that the produce was the greatest the land was capable of producing. He then observes: "In these circumstances the damages should be penal so as to have a deterrent effect and this effect cannot be produced if the amount came near to the value of the product and no more". THE learned Judge was entirely wrong in his view that the damages should be penal and that damages must be assessed which should have a deterrent effect. In a suit of the kind the damages to which a plaintiff is entitled is the actual loss sustained by him by reason of the wrongful acts of the defendants. Penal damages with a view to a deterrent effect ought not to be awarded. THE learned District Judge adopted the principal laid down by the learned Subordinate Judge as to the assessment of damages and in doing so acted contrary to the principles which should guide the Courts in assessing damages. In view of this it would have been necessary for us to have referred our issue to the lower appellate Court as to the true value of the grain which was removed by the defendant, if the parties had not left it in our hands to determine the amount of the damages. THEy have left this question to us, and having given the best consideration we can to the matter, we think that a sum of Rs. 696 is fair compensation to the plaintiff for the loss which he has sustained. We accordingly allow the appeal to this extent that we vary the decree of the Court below as to damages and reduce the amount awarded from Rs. 1,044 to Rs. 696. In other respects the decree will stand. We give no costs of this appeal.