INDRAJ SINGH Vs. SAVITRI KUNWAR
LAWS(ALL)-1965-2-2
HIGH COURT OF ALLAHABAD
Decided on February 18,1965

INDRAJ SINGH Appellant
VERSUS
SAVITRI KUNWAR Respondents


Referred Judgements :-

CHUNI LAL SOWCAR V. SRINIVAS RAO [REFERRED TO]
RAM SINGH V. THE CROWN [REFERRED TO]
MAHMUD HUSAIN KHAN VS. RADHA KISHUN [REFERRED TO]



Cited Judgements :-

MAN IU DEVI VS. DIRECTOR OF PUBLIC INSTRUCTION [LAWS(CAL)-1973-12-11] [REFERRED TO]
MURARI LAL VS. RAMAN LAL [LAWS(ALL)-1977-9-7] [REFERRED TO]
DAMODA PANIGRAHI VS. BANCHHANIDHI PANGRAHI [LAWS(ORI)-1976-6-10] [REFERRED TO]


JUDGEMENT

S.N. Singh, J. - (1.)THE plaintiff respondent claiming to be the Bhumidhar of the property in suit filed the present suit against the defendants under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act and claimed Rs. 300/- as damages. THE suit was contested by the defendants that the plaintiff was not the Bhumidhar, She was not entitled to sue. She had not impleaded Sri Vijai Kumar and Sri Virendra Kumar as parties to the case. THE suit was further resisted on the ground that the same was barred by limitation and that the defendants were in possession with the consent of the plaintiff.
(2.)ON the above pleas the trial Court framed several issues and remitted an issue about Bhumidhari right to the competent Civil Court. The Civil Court held that the plaintiff was the Bhumidhar of the land in suit and this finding was accepted by the Assistant Collector in this case. Having held that the plaintiff was the Bhumidhar the trial Court found that the defendants were trespassers and that the trespass started in January 1956, as such he found the suit to be within time and decreed the suit for ejectment and recovery of Rs. 300 as damages.
The defendants went up in appeal against this decision but the same was affirmed by the learned Additional Civil Judge, Moradabad by this judgment dated the 24th if October 1958.

In appeal before me on behalf of the delendants it has been urged that the revenue Court had no jurisdiction to pass a decree for lamages. The second submission was that the Courts below have wrongly held that the defendants were trespassers. As a matter of fact they were proved to be in possession with the consent of the plaintiff. The third submission if the learned counsel was that in absence of he U. P. State the suit was not maintainable.

(3.)SO far us the first submission of the earned counsel is concerned no such plea was taken in either of the two Courts below it has been taken for the first time in this appeal. However, I have considered the arguments on this point. It is true that when the Zamindari Abolition and Land Reforms Act came into Force in the Schedule we only, find that at serial No. 2-4 Section 209 is mentioned and in column No. 3 only this much was written "suit for ejectment of persons occupying land without title'. With this it is argued that as there was no mention of damages at the time when the suit was instituted the suit for damages could not be filed in the revenue Court. This appears only to be a lacuna in the Schedule for we find that by an Amendment Act 37 of 195S words "and damages" were added to this Schedule. The point for consideration is as to whether before the addition of these words "and damages" could the revenue Court grant the relief for damages or not? Since the suit under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act was cognizable by the revenue Court and the section itself mentions that the plaintiff could get the relief of ejectment as well as damages against the defendants I do not think that mere non-mention of the words "and damages" would disentitle the plaintiff from getting the relief of damages from the revenue Court. The addition of the words "and damages" made subsequently is by way of abundant caution. The suit under Section 209 was within the jurisdiction of the revenue Court. In my opinion the revenue Court could grant the relief or damages as claimed. Now at this time when this point has been raised before me the revenue Court admittedly has jurisdiction to pass a decree for damages. Anomalous result would follow if today I direct that the plaintiff may file a suit for the recovery of damages. The result would be that the plaintiff would go to the same Court for the same relief which she has already got. I do not think that even accepting the submission of the learned counsel any useful purpose will be served. Courts are meant to do substantial justice and not to put complications in the way of a suitor. In my opinion the Courts below have rightly granted the relief of damages in this case.
So far as the question of consent is concerned it is a pure question of fact whether a person is in possession with or without the consent and after considering the evidence of both the parties the Courts below have come to the finding that the defendants were in possession with the consent of the plaintiff. This finding could not be interfered with.

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