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1956 DIGILAW 26 (ALL)

Sabita v. Nijja

1956-01-12

V.G.OAK

body1956
JUDGMENT V.G. Oak, J. - This second appeal by Defendants arises out of a suit for injunction and damages. Nija Plaintiff brought the suit against Smt. Sabita and ten others with these allegations. The Plaintiff obtained a number of agricultural plots from Defendant No. 1 under a registered lease dated 1-10-1941. The Plaintiff was in possession of these plots under the lease. The Plaintiff cultivated sugarcane crop in these plots in the year 1947. On 11-7-1947 Defendant No. 1 with the assistance of other Defendants wrongfully cut away the sugarcane crop cultivated by the Plaintiff. The Plaintiff therefore, prayed for a decree for Rs. 400 as damages for the loss of the crop, and for injunction restraining Defendant from interfering with the Plaintiff's possession over the plots. Defendant No. 1 contented the suit. She pleaded that the term of the lease in Plaintiff's favour expired long ago. After the expiry of the lease Defendant No. 1 took possession over the plots. She maintained that it was she, who cultivated the sugarcane crop in question. The learned Munsif held that the crop in dispute was cultivated by the Plaintiff, and Defendants were wrong in cutting the crop. The amount of compensation was fixed at Rs. 250. The learned Munsif therefore passed in Plaintiff's favour a decree for Rs. 250 as damages, and also passed a decree for injunction as prayed. An appeal filed by Defendants was dismissed by the learned District Judge of Farrukhabad. Hence this second appeal by the Defendants. 2. The crop in dispute was cut on 11-7-1947. The first question for consideration is whether the Plaintiff was entitled to retain possession over the land in July 1947 as a sub-tenant. The lease was executed on 1-10-1941. It was stipulated that the lessee would remain in possession for five years from Kharif 1349 F. The period of five years stipulated in the lease expired in October 1946. So the lease did not entitle the Plaintiff to retain possession over the land in July 1947. 3. The learned District Judge observed in his judgment that, the Plaintiff was entitled to retain in possession for a further period of five years according to the recent amendment in the Tenancy Act. The learned District Judge did not give details of that amendment. Perhaps the learned Judge had Section 295A, U.P. Tenancy Act in his mind. 3. The learned District Judge observed in his judgment that, the Plaintiff was entitled to retain in possession for a further period of five years according to the recent amendment in the Tenancy Act. The learned District Judge did not give details of that amendment. Perhaps the learned Judge had Section 295A, U.P. Tenancy Act in his mind. Section 295A of the Act deals with a person, who was a sub-tenant when the amendment came into force. The amendment came into force on 26th May, 1947. We have seen that the lease expired in the present case in October 1946. So the Plaintiff-Respondent could not got benefit from Section 295-A of the Act. Mr. B.R. Avasthi appearing for the Respondent did not rely upon this section. It, therefore, follows that the Plaintiff was not entitled to retain possession over the land after October, 1946, and that the Plaintiff's position in July 1947 was that of a trespasser. 4. The two lower courts have found hat the crop in dispute was sown by the Plaintiff. This finding of fact must be accepted in second appeal. The question arises whether the true owner of land is entitled to cut away crop grown by a trespasser. No decided case on the point was brought to my notice. But on general grounds, it seems inexpedient to permit the true owner to cut away the crop grown by a trespasser after spending a good deal of money and labour in cultivation of the crop. Admittedly, the Plaintiff was in lawful possession for a period of five years since 1941. The possession became unlawful only towards the end of 1946. No doubt Defendant No. 1 was anxious to recover possession. But the Plaintiff was not agree-r able to part with his possession. The Plaintiff continued his possession. In my opinion, although the Defendant was entitled to recover possession over her land, she was wrong in forcibly cutting away the crop cultivated by the Plaintiff. That is the legal position although the Plaintiff's status was merely that of a trespasser. The Defendants must pay compensation to the Plaintiff for the loss of the crop to the Plaintiff. 5. The Trial court fixed the amount of compensation at Rs. 250. The learned district judge without much discussion on the point stated that the amount was reasonable. I went through the calculation made by the trial court. The Defendants must pay compensation to the Plaintiff for the loss of the crop to the Plaintiff. 5. The Trial court fixed the amount of compensation at Rs. 250. The learned district judge without much discussion on the point stated that the amount was reasonable. I went through the calculation made by the trial court. The calculation of the compensation made by the trial court does not appear to be wrong. So the finding of the learned District Judge as regards the measure of compensation may stand. 6. I have found that Defendant No. 1 was entitled to recover possession over her land, and the Plaintiff's position was merely that of a trespasser. It means that the Plaintiff was in wrongful possession over land belonging to Defendant No. 1. For this, the Plaintiff should be required to pay compensation to Defendant No. 1. It is true that Defendant No. 1 did not clearly claim a set off. But since the Plaintiff has sued for compensation against the Defendants, a set off may well be allowed in favour of Defendant No. 1 for the loss of the use of her land. It was stipulated in the lease that, the lessee should pay Rs. 19 and odd to the zamindar, and Rs. 10 and odd to the lessor. In this way the lessee was liable to pay a sum of Rs. 30 per annum as rent This amount may be taken as, a fair measure of compensation for loss of the use of the land. This sum of Rs. 30 may be set off against the comp2nsation of Rs. 250, to which the Plaintiff is entitled. The net compensation to which the Plaintiff is entitled comes to Rs. 220. 7. Now we have to consider whether the Plaintiff is entitled to a decree for injunction. We have seen that Defendant No. 1 is entitled to recover possession over her land, and that the Plaintiff, is merely a trespasser. A decree for injunction in favour of a trespasser against the true owner should not be passed. I am, therefore, of the opinion that, the Plaintiff is not entitled to a decree for injunction. 8. The appeal is partly allowed, and the decree passed by the lower courts is modified. There will be a decree in Plaintiff's favour for a sum of Rs. 220 as damages. The prayer for injunction is refused. I am, therefore, of the opinion that, the Plaintiff is not entitled to a decree for injunction. 8. The appeal is partly allowed, and the decree passed by the lower courts is modified. There will be a decree in Plaintiff's favour for a sum of Rs. 220 as damages. The prayer for injunction is refused. Since parties have partly succeeded and partly failed, I direct that the parties shall bear their own costs in all the three courts.