JUDGMENT R.C. Lahoti, J. -- 1. The defendants have come up in appeal aggrieved by the judgment and decree of the lower appellate Court directing a suit for restoration of possession to be decreed in reversal of the decree of the trial Court which had dismissed the suit. 2. On 16.6.69 the plaintiff filed the suit, initially seeking relief of issuance of permanent preventive injunction simply alleging that he was a tenant holding the suit property on tenancy having raised thereon a Takhat (wooden platform) with the permission of the Municipal Corporation and that in denial of the right of the plaintiff to occupy the suit property, the defendants in collusion were attempting at interfering with his right to enjoy it. It appears that the plaintiff has also sought for an ad-interim injunction protecting his possession which having been denied, the plaintiff amended the plaint by alleging further that he had ,been deprived of the possession and was entitled to restoration thereof. 3. The defendants in their written statement denied the case of the plaintiff and submitted that the plaintiff was granted on 4.9.67 merely a licence to use the premises which licence having been terminated on account of the plaintiff having defaulted in payment of licence money and also having committed a breach of the conditions of the licence, the defendant No.1, the licensor, had resumed the use of the premises and with effect from 13.2.69 the defendant No. 2 was inducted into use of the premises as a licensee; the suit was, therefore, not maintainable. 4. The trial Court held that the plaintiff was not a tenant but a licensee merely and hence not entitled to sue. The finding has been reversed by the lower appellate Court. 5. On 28.9.78 certain questions of law were framed by this Court while admitting the appeal for hearing parties. However, having heard the learned counsel for parties on all the contentions raised by them, this Court is convinced that the following are the only questions of law arising for decision in appeal and on these the learned counsel have addressed the Court: (1) Whether the deed dated 4.9.67 (Ex. D/3) creates a lease or a licence merely? (2) Whether the plaintiff was ejected from the property otherwise then in due course of law and if yes, then the remedy to which he is entitled? 6. D/3) creates a lease or a licence merely? (2) Whether the plaintiff was ejected from the property otherwise then in due course of law and if yes, then the remedy to which he is entitled? 6. On 20.11.78, this Court had framed the following additional question of law on which also the learned counsel have been heard -"Whether the suit is not maintainable for the reason that defendant No. 1 Shri Khasgi Trust is not a juristic person?" 7. It is further submitted by the learned counsel for the defendant/appellants that the suit as filed by the plaintiff/respondent was not a properly constituted suit and hence the suit being a nullity in the eye of law as having been instituted against a non-entity was liable to be dismissed forthwith at the very outset and if it was not done, still the decree passed in such a suit was liable to he set aside. Developing the argument further the learned counsel submitted that the suit was instituted impleading the Trust as a trust without implicating trustees and a trust being not a legal entity the suit was not a properly constituted one. The learned counsel referred to the provisions contained in Order 31 C.P.C. entitled "Suits by or against trustees etc." specially Rule 2 there of providing that in the event of there being several trustees they shall all be made parties to a suit against one or more of them. Adding force to his contention, the learned counsel referred to the observations of the Privy Council in para 16 in Govt. of Province of Bombay v. Pestonji (AIR 1949 PC 143 pr. 28); in Lala Man Mohan Das v. Janki Prasad & Ors. (AIR 1945 PC 23) and to a Division Bench decision of the Allahabad High Court in Ram Ghulam & anr. v. Shyam Sarup & ors. (AIR 1934 All. 1). The Allahahad High Court has taken view that a trust cannot act in its own name and one of the trustees cannot represent the other trustees and in a suit to which a trust is a party all the trustees should be impleaded, failing which no decree can be passed. In Adiraju Arasu Kannikke Ballala v. Pattu Alias Lakshminarayana and others (AIR 1922 Mad. In Adiraju Arasu Kannikke Ballala v. Pattu Alias Lakshminarayana and others (AIR 1922 Mad. 405 (1), a Division Bench of the Madras High Court has held that in a suit against temple all the trustees are necessary parties, even though there is an agreement between them authorising one of them to represent the temple. 8. Anticipating the rigour of the contention, the plaintiff respondent acted wisely in moving an application under Order 1, Rule 10 C.P.C. making a prayer for impleading the trustees as parties to the suit. The learned counsel for the appc1lantrrrust submitted that merely a leave sought under Order 1, Rule 10 C.P.C. for impleading the trustees would not suffice; it was obligatory for the plaintiff/respondent to salvage the suit to seek an appropriate amendment in the plaint so as to convert the suit into a properly constituted one. The learned counsel further submitted that such an exercise would he a futile one at this stage inasmuch as the present one was not a case of bringing additional parties on record in a properly constituted suit but it was a case of the plaintiff/respondent belatedly attempting at converting an incompetent suit into a properly constituted one; hence even if this Court were to permit an amendment, the suit would be deemed to have been instituted on the date of the application seeking amendment/impleading of the parties, a course not permissible on account or gross delay which had already taken place and the suit having become barred by time by now. 9. It is to be noted that an objection on the ground of suit being not a properly constituted one was not taken in the written statement, also not before any of the Courts below and not taken even in the memo of appeal originally filed before this Court, but has been taken lately by way of an amendment in the memo of appeal and seeking framing of additional question of law founded on that objection. It would be shear injustice to throwaway the plaintiff's suit on a ground which was not taken before any of the Courts below, more so, when the plaintiff/respondent has promptly expressed his desire to remedy the defect soon on its being pointed out. It would be shear injustice to throwaway the plaintiff's suit on a ground which was not taken before any of the Courts below, more so, when the plaintiff/respondent has promptly expressed his desire to remedy the defect soon on its being pointed out. The application filed by the plaintiff/respondent though styled as one under Order 1, Rule 10 can very well be treated as one seeking an amendment -- the lable of the application being immaterial and the Court being concerned with the substance thereof. 10. This Court may usefully recall the observations of their Lordships in the leading authority of M/s Ganesh Trading Co. v. Moji Ram ( AIR 1978 SC 484 ) wherein their Lordships have said: "Provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendment, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued." xx xx xx "Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases arc meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviation from the course which litigation on particular causes of action must take." 11. In yet another oft-quoted authority in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon ( AIR 1969 SC 1267 ) their Lordships observed: "Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side." Their Lordships allowed an amendment in the plaint where the suit was not properly constituted one as having been filed against a non-juristic entity and \ said: "The application could not be refused on the ground that there was no averment therein that the mis-description was on account of a bona fide mistake, and on that account the suit must fail. There is no rule that unless in an application for amendment of the plaint it is expressly averred that the error, omission or mis-description is due to a bona fide mistake, the Court has no power to grant leave to amend the plaint. The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations. The description of the plaintiff by a firm name in a case where the Code of Civil Procedure did not permit a suit to be brought in the firm name should properly be considered as a case of description of the individual partners of the business and as such a mis-description, which in law can be corrected. It should not be considered to amount to a description of a non- existent person." 12.01 Bal Niketan Nursery School v. Kesari Prasad ( AIR 1988 SC 1970 ) was a case in which a suit for ejectment was filed by a school in its own name through its Manager. It was decreed by the trial Court and the revisional Court confirmed the decree in favour of the school. It was decreed by the trial Court and the revisional Court confirmed the decree in favour of the school. In a writ petition filed before the High Court by the tenant, for the first time an objection was taken that the school was not a juristic person entitled to file a suit through its manager and hence the suit was not maintainable. The school by way of abundant caution filed an application under Order 1, Rule 10 C.P.C. for amendment of the plaint by correcting the name of the plaintiff so as to implead the registered society as plaintiff. Their Lordships condemned the belated objection taken by the tenant regarding the competence of the school to file the suit and observed that the application under Order 1, Rule 10 C.P.C. could have been allowed and the registered society represented by its Secretary could have been added as a party. Out of several High Court decisions cited with approval before their Lordships, one by Madhya Bharat High Court and other by Andhra Pradesh High Court deserve to be noticed. 12.02 In Laxmikwnar Shriniwas Das v. Krishnaram Baldeo Bank, Lashkar (AIR 1954 MB 156) it was held that the words "where a suit has been instituted in the name of a wrong person as plaintiff" must be construed to include those suits which are instituted by the persons who had no right to do so and that the fact that the person instituting a suit had no cause of action would not take away the Court's jurisdiction to order substitution of another person as plaintiff. 12.03 Karri Somalu v. Thimmalapalli Venkateswamy [(1963) 2 Andh WR 138] it was held that the expression "wrong person" in Order 1, Rule 10 C.P.C. cannot be confined merely to a person wrongly described but would also extend to include a person whose name ought not to have figured as plaintiff for want of right to file the suit and that the object of the Rule is to save suit" instituted honestly although in the name of the wrong person as plaintiff and to ensure that honest plaintiffs do not suffer. 13. A decision of this Court in Idol Shriji v. Gappulal (1978 JLJ 208) may also be referred wherein the suit was brought on behalf of the Idol and only one trustee filed the suit and the other trustee was joined later on. 13. A decision of this Court in Idol Shriji v. Gappulal (1978 JLJ 208) may also be referred wherein the suit was brought on behalf of the Idol and only one trustee filed the suit and the other trustee was joined later on. This Court held that it was a proper re-presentation of the Idol and not a case of addition of new plaintiff. This Court further held: 'When an idol is substantially on the record of a suit from the beginning, the rectification of the original improper representation by a proper representation cures all the original technical defects with effect from the date of institution of the suit. The rectification cannot be treated as the addition of a new party so as to attract the penal provision of section 21 of the Limitation Act." 14. It follows that defect in constitution of suit originating from a non-juristic person being impleaded as a party to the case, if not deliberate but occurring bonafide, is capable of being cured by joining the proper person who ought to have been joined and once cured it removes the defect retrospectively. 15. On a review of several authorities noticed herein-above and following the law laid down by the Apex Court in its application to the facts of the present case it must be held that though the suit was filed against a Trust in the name of the Trust without impleading all or any of the trustees, the error or omission was not a deliberate one, the plaintiff had intended to sue the trustees and the name of the Trust impleaded as defendant No.1 should be deemed to be a collective description of the trustees who should have been sued. If only the defect would have been pointed out at a proper stage the plaintiff would certainly have taken prompt steps, as he has done, in rectifying the same. The suit cannot be thrown out on the belated objection raised for the first time before this Court and here too belatedly. Order 1, Rule 10 C.P.C. is clearly attracted to the facts of the case and impleading of the trustees, if allowed at this stage, would not be a case of new parties being joined but would have the effect of curing the defect retrospectively. 16. The application dated 18.2.91 filed by the plaintiff/respondent is therefore allowed. Order 1, Rule 10 C.P.C. is clearly attracted to the facts of the case and impleading of the trustees, if allowed at this stage, would not be a case of new parties being joined but would have the effect of curing the defect retrospectively. 16. The application dated 18.2.91 filed by the plaintiff/respondent is therefore allowed. The plaintiff/respondent is directed to implead the trustees described in para 1 of the application as defendants No.1 (A) to (D) in the plaint in place of the Trust presently impleaded as defendant No. 1. No remand is considered necessary. The Vikalatnamas filed at different stages of the litigation go to show that the trustees were very much represented before the Court and all that they could have said by way of defence has been said and brought on record. The amendment shall be carried out within 2 weeks and if not carried out by the plaintiff/respondent, the same shall be carried out by the office and certified by the Additional Registrar. 17. The next question to be examined is whether the relationship between the plaintiff and the defendant No.1 was that of a licensee and licensor or that of a lessee and a lessor. 18. The status of the plaintiff or the capacity in which the plaintiff entered into possession or occupation of the Otla in suit is the most crucial issue to be determined inasmuch as that would determine the relief to be given to the plaintiff in the event of his having been found to have been dispossessed from his possession or occupation of the Otla otherwise than in due course of law. 19. If the plaintiff was a tenant, then merely on expiry of tenancy by afflux of time his possession would not become unauthorised, but would remain a juridical possession even if not consented to by the landlord. He would have a right to protect his possession so long as not evicted by due process of law. He would have a right in law to resist any attempt at wrongful or forcible dispossession by anyone including the landlord. If in possession he can protect the same by seeking an injunction and if dispossessed otherwise than in due course of law than by seeking restoration of possession. [See, Moqilipurru v. Malampati ( AIR 1982 A.P. 253 DB); Brigadiar K.K. Varma & Anr. v. Union of India & Anr. If in possession he can protect the same by seeking an injunction and if dispossessed otherwise than in due course of law than by seeking restoration of possession. [See, Moqilipurru v. Malampati ( AIR 1982 A.P. 253 DB); Brigadiar K.K. Varma & Anr. v. Union of India & Anr. (AIR 1954 Born. 358- DB); and Gulam Mohomed Azam v. Emperor (AIR 1919 Born. 97-DB)] 20. The position of a licensee is quite different. As held in D.H. Maniar and others v. WamanLaxman Kudav ( AIR 1976 S.C. 2340 ): "A person continuing in possession of the premises after termination, withdrawal or revocation of the licence continues to occupy it as a trespasser or as a person who has no semblance of any right to continue in occupation of the premises. Such a person by no stretch of imagination can be called a licensee. " 21. It will be useful to refer to section 64 of the Easements Act, 1882, which reads as under : "64. Licensee's rights on eviction. - where a licence has been granted for a consideration, and the licensee, without any fault of his own, is evicted by the grantor before he has fully enjoyed, under the licence, the right for which he contracted, he is entitled to recover compensation from the grantor." 22. The remedy of a licensee even if dispossessed during the continuance of licence is neither an injunction nor restoration of possession but merely recovery of compensation, not to talk of the licensee being dispossessed on expiry of the period of licence or the licence ceasing to be in force on account of breach of conditions of licence by the licensee. 23. A Division Bench of the Allahabad High Court has held in Basdeo Bai v. Dwarka Ram and another [AIR 1916 All. 219 (2)] "It seems to us fairly clear from the language of Ss. 52 to 64 Easements Act that even if the plaintiffs-respondent" be mere licensees whose licence has been improperly revoked their remedy lies not in a suit for possession, but in a suit for damages as laid down in S. 64, as a licensee is a person without any title and has no interest in the land." 24. The tests for determining whether a grant is a lease or a licence, are too well settled. The tests for determining whether a grant is a lease or a licence, are too well settled. A lease involves grant of a right of exclusive possession while a licence has merely a right of user not involving possession, and even if a right of occupation is given but the same is not an exclusive right of occupation, it would be a licence merely. Lease is a heritable right while licence is a personal right not capable of being inherited. 25. A few decisions may be noticed. In the leading authority of Associated Hotels of India Ltd. v. R.N. Kapoor ( AIR 1959 SC 1262 ) their Lordships held: "The following propositions may be taken as well established: (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, its a licence and (4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease." 26. Referring to the abovesaid decision, their Lordships of the Supreme Court in Mrs. M.N. Clubwala and another v. Fida Hussain Sahab and others ( AIR 1965 SC 610 ) held: "Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties. Similarly where the terms of the document are not clear the surrounding circumstances and the conduct of the parties have to be borne in mind for ascertaining the real relationship between the parties. The fact that the premises are in exclusive possession of a person would not make him a lessee. Similarly where the terms of the document are not clear the surrounding circumstances and the conduct of the parties have to be borne in mind for ascertaining the real relationship between the parties. The fact that the premises are in exclusive possession of a person would not make him a lessee. If, however, exclusive possession to which a person is entitled under an agreement with a landlord is coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease." 27. Recently in Khalil Ahmad Bashir Ahmed v. Tufelhussen Samanbhai Sarangpurwala (1988-1 SCC 155) their Lordships have emphasised that in order to determine whether the document creates a licence or a lease the real test was to ascertain the intention of the parties. 28. In Smt. Rajbir Kaur and another v. M/s Chokosiri and Co. ( AIR 1988 SC 1845 ) their Lordships have held: "Exclusive possession itself is not decisive in favour of a lease and against a mere licence, for, even the grant of exclusive possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease. In the last analysis the question whether a transaction is a lease or a licence "turns on the operative intention of the parties" and that there is no single, simple litmus-test to distinguish one from the other. " 29. Having noticed the law, let the facts and circumstances of the case, as discernible from pleadings and the evidence brought on record, and indeed the deed itself may now be noticed to determine what was the intention of the parties. 30. It is pertinent to note that the plaint is conspicuously silent about the various averments which were expected to have been made in the suit of the nature filed by the plaintiff. There is no adequate description of the suit premises. The terms of the alleged tenancy, the nature thereof and the period of comment cement and expiry thereof are not mentioned at all. It is the trust, the defendant No.1, which in its written statement came out with all these details which were expected to have been brought on record by the plaintiff. In short, the plaint averments give no assistance in solving the problem. 31. The deed of licence dated 4.9.67 is Ex. D/3. It is the trust, the defendant No.1, which in its written statement came out with all these details which were expected to have been brought on record by the plaintiff. In short, the plaint averments give no assistance in solving the problem. 31. The deed of licence dated 4.9.67 is Ex. D/3. It shows that the defendant No.1 is a charitable trust and the building of which it forms part is basically a temple building enshrined by an idol of Goddess Laxmiji. The foundaries detailed in para 2 of the licence deed show that the suit premises arc bound on the eastern side by the way leading to the temple; on the West by a wall of the temple; on the North by a main road and on the South by a 3 ft. passage lying between the wall and the platform. 32. The document, Ex. P/14, is a letter written by the Trust Secretary to the plaintiff in response to the later's communication dated 3.8.67. It appears that the plaintiff had through his letter dated 3.8.67 made a request to the defendant Trust for leasing out the Otla to him. The plaintiff's proposal was not acceptable to the Trust and the Trust enclosed a deed of licence informing the plaintiff of the terms and conditions on which alone it would be possible for the Trust to license out the Otla to the plaintiff. The document Ex. P/1 to P/6 which incorporate the correspondence between the plaintiff and the Municipal Corporation indicate that the Otla was not capable of being exclusively possessed and enjoyed by the plaintiff unless and until a Takhat i.e. a wodden platform was also raised thereat, for which purpose the plaintiff had vigorously persuaded the Municipal Commissioner who ultimately yielded to the plaintiff's persuasion permitting him to raise a wooden platform temporarily and for a period of one year only expiring in December 1968. The Trust was not a party to the permission secured from the Municipal Corporation by the plaintiff. 33. The contents of the licence deed dated 4.9.67, Ex. The Trust was not a party to the permission secured from the Municipal Corporation by the plaintiff. 33. The contents of the licence deed dated 4.9.67, Ex. D/3, go to show that the duration of the licence was limited to a period of 11 months; the grant was personal to the plaintiff; it was non- transferable and non-heritable; the grant did not create any right, title or interest in the plaintiff; it authorised the licensor to terminate the licence; even within the period of 11 months; it fixed a consolidated amount of Rs. 1100/- by way of licence-fee for 11 months period of licence, payable in 11 equal instalments of Rs. 100/- each. 34. Applying the law noticed hereinabove to the facts of the present case, it is clear that the plaintiff's proposal for taking the premises on lease was not acceptable to the Trust. The Trust had specifically proposed for the Otals being only licensed out. The right created in the plaintiff was a personal one, of limited duration, and not heritable. The very nature of the premises, being part of Otala situated by the side of the way in the building leading to the temple (the scat of the idol) did not permit exclusive right to possess and enjoy being transferred. The intention of the parties as spelled out from their conduct, the correspondence preceding the creation of the right and the terms and conditions incorporated in the deed of licence Ex. D/3, do suggest that the intention of the parties was to create a licence and not a lease. No right, title or interest in the Otala was created in the plaintiff. 35. The learned counsel for the plaintiff/respondent submitted that the documents, Ex.P/9, P/18 and D/4 use the term 'rent' for the amount paid by the plaintiff to the Trust as a consideration for enjoyment of the Otala by him and that suggests that what was being enjoyed by the plaintiff was a lease-hold right and not a licence merely. The contention cannot be accepted. The contention cannot be accepted. A complete answer is provided by the law laid down by their Lordships of the Supreme Court in Konchada Ramamurty Subudhi v. Gopinath Naik and others ( AIR 1968 SC 919 ) in the following words: "The fact that the word 'rent' had been used in the compromise deed was not conclusive an in its wider sense rent meant any payment made for the use of land or buildings and thus included the payment by a licensee in respect of the use and occupation of any land or buildings." It follows that the inference drawn hereinabove holding the relationship between the parties to he that of licensor and licensee is not dented in any manner whosoever by use of the word 'rent' in the receipts issued by the Trust to the plaintiff. 36. The learned counsel for the Trust has submitted that there is no evidence to hold that the plaintiff was wrongfully dispossessed and on the contrary the circumstances brought on record suggest that the plaintiff had voluntarily surrendered possession over the Otala to the defendant Trust consequent to the termination of the licence and hence he was not entitled to any relief. This contention cannot be accepted in view of the overwhelming evidence adduced by the plaintiff. The plaintiff was a defaulter in the sense that he had grossly defaulted in paying the meagre amount of licence-fee to the defendant/trust and had also committed breach of other conditions of the licence as disclosed by the contents of the notices dated 31.7.68 and 24.1.69 (Ex. D/5 and D/6) and the reply dated 9.9.68 (Ex. Pill). The plaintiff's licence stood terminated rightly and justly. He was also afforded a reasonable opportunity of vacating the licensed Otala. But he did not do so voluntarily. Several reports made by the plaintiff to the Police, viz, those dated 12.6.69 (Ex. P/12); 14.6.69 (Ex. P/13); 28.6.69 (Ex. P/8) and the reply of Superintendent of Police, Indore, dated 30.6.69 (Ex. P/9 and 9/15) coupled with oral evidence adduced on behalf of the plaintiff do go to show that the plaintiff was wrongfully dispossessed. Inspite of this holding it shall have to be held in the light of the law already discussed that the plaintiff's suit seeking an injunction or as amended for recovery of possession was misconceived; his remedy was only to have sued for recovery of damages. 37. Inspite of this holding it shall have to be held in the light of the law already discussed that the plaintiff's suit seeking an injunction or as amended for recovery of possession was misconceived; his remedy was only to have sued for recovery of damages. 37. A long period of over 20 years has been lost in litigation. It has already been held that the plaintiff should have sued in damages, the only remedy available to him. No material is available on the record of the case to assess the damages suffered by the plaintiff. Still taking all the facts and circumstances of the case into consideration, this Court feels that an amount of Rs. 2,200/-calculated at the rate of double the licence money which was fixed between the parties should satisfy the plaintiff's demand for damages. However, option is left open to him. If he considers the amount of Rs. 2,200/- reasonable enough to satisfy his claim for damages, let the defendants tender the amount and let the plaintiff accept it or if the defendants do not tender the amount let the plaintiff take out an execution and recover the amount of Rs. 2,200/- from the defendants. However, if he chooses not to accept this amount as satisfying his claim for damages, he is left free to declare his option and have recourse to such other remedy for recovering the damages as may be open and available to him. 38. The appeal is allowed. The judgment and decree of the lower appellate Court as also of the trial Court are set aside. The plaintiff's suit for recovery of possession over the suit property is directed to be dismissed. Instead it is directed that he shall be entitled to recover an amount of Rs. 2,200/- by way of damages from the defendants subject to option referred to in para 37 above being exercised by him. Parties are left to bear the costs as incurred throughout.