- (1.) THE circumstances that give rise to this appeal and cross-appeal may briefly be stated thus: Harjiram plaintiff brought a suit against Shiv Singh defendant for recovery of Rs. 1,100/-as compensation for wrongful dispossession on 27-8-40 in the court of the Judicial Superintendent, Nagore. On 3-5-49 after the enforcement of the Marwar Tenancy Act, 1949, this suit was transferred to the court of the S. D. O Nagore who after trying the same granted a decree for Rs. 92/- in favour of the plaintiff on 27-10-51. THE plaintiff went up in first appeal before the Additional Commissioner,jodhpur and the defendants filed a cross-objection. THE appeal was allowed and the plaintiff's suit was dismissed on the ground that the parties had entered into a compromise in a criminal litigation and hence no suit for compensation could lie in a revenue court. THE plaintiff came up in second appeal before the Board, which set aside the order of the first appellate court and remanded the case back to it with the direction that the appeal be reheard and decided on merits. THE learned Additional Commissioner has after hearing the appeal granted a decree for Rs. 520/- in favour of the plaintiff. THE defendant has come up in second appeal before us. THE plaintiff has filed a cross-objection.
(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. The first contention raised on behalf of the appellant is that the suit being exclusively for compensation and without any prayer for ejectment, was not maintainable Reliance has been placed in this connection on sec. 94 of the Marwar Tenancy Act, wherein it has been provided that "a person taking or retaining possession of land without the consent of the person entitled to admit him and otherwise than in accordance with the provisions of the law for the time being in force shall be liable to ejectment under this section on suit of the person so entitled and also to pay damages which may extend to four times the annual rental value calculated in accordance with the sanctioned rates. "this provision is almost a reproduction of sec. l80, of the U. P. Tenancy Act. As observed by Qazi Asisuddin Ahamad in his commentary on the U. P. Tenancy Act, 1950 Edition Page 1043". A suit for damages alone appears outside the scope of this section. "a contrary view was expressed by the U. P. Board of Revenue in Chhidu Singh vs. Nathu Ram 17 R. D. 227 and the learned author has expressed his disagreement with this view. The Board observed that" if any other view was adopted, a trespasser would be able to avoid damages by the simplest expendent of abandoning the fields he had unlawfully usurped. "the learned author has met this argument by saying that if a trespasser has vacated the land," it is open to the aggrieved person to go to a civil court for damages for wrongful occupation of land. The remedy is not barred, only there will be a change of forum. In view of the fact this provision of the Marwar Tenancy Act stands modified by the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, we consider it unnecessary to examine the U. P. decisions further. Item 12 Group B Schedule I of the Act provides for a suit for recovery of possession by a person who has been wrongfully ejected or for compensation or for both. This provision is analogous to that of item G, Group II sec. 77 of the Punjab Tenancy Act. As is clear from the wordings itself, it is open to a tenant to institute a suit for recovery of possession alone and it is not necessary that to claim compensation he should party for recovery of possession as well. The import of this provision has been examined by the Rajasthan High Court in Bhawani Ram vs. Seth Ram Narain reported in 1955 R. L. W. page 112. In that case a suit was filed in the Munsiff's court for manse profits in respect of an agricultural land. The defendant pleaded that the suit was triable exclusively by a revenue court. The Munsiff held that the suit was beyond the competence of a revenue court as it did not fall within the scope of Item, 12 Group B Schedule I of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act. The defendant went up in revision before the High Court and it was decided therein that the term compensation is wider in scope than the term mesne profits and it includes the latter because in assessing the measure of compensation the court has to take into account the mesne profits of the property. That suit was only for compensation without any recovery of possession and the High Court held that the suit was triable not by a civil court but by a Revenue Court. The contention raised by the appellant should therefore fail. The other contention of the appellant is that the amount of compensation to be awarded cannot exceed four times the annual rental value as laid down in Sec. 94 of the Marwar Tenancy Act. On a consideration of all the circumstances of the case,this argument also is clearly untenable. In the first place, the period in respect of which compensation is claimed is prior to the enforcement of the Marwar Tenancy Act. Secondly, as laid down in Sec. 2 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, all existing laws shall in so far as they relate to matters dealt with in this Act stood repealed. Further as laid own in Sec. 6 of the Act, all suits appeals etc. pending on the commencement of this Act shall be deemed to have commenced under this Act and shall be tried and determined in the manner prescribed by the Act. Item 12 Group B Schedule I of the Act does not prescribe any maximum of compensaiion in this respect as laid down in Sec. 94 of the Marwar Tenancy Act. Hence this contention is over-ruled. It was also argued on behalf of the appellant that the compromise arrived at by the parties in the criminal litigation should operate as a bar to this suit. This point was examined by the Board in its judgment dated 7-1-54. The app-llant's counsel has not been able to cite any decision which may support his contention. The authorities relied upon by him have already been examined in the previous judgment of the Board. Indian Cases Volume XIX page 948 was cited before us in this appeal which does not at all support the appellant. It was observed therein that "if the complainant had instead of taking criminal proceedings sued for damages for the tort, the composition could have been pleaded as accord and satisfaction and it would have been a complete bar to the suit. " It does not lay down that a composition in a criminal litigation would operate as a bar against a suit for compensation. This brings us to the question of the amount of compensation. The learned Additional Commissioner has given no valid grounds for arriving at his assessment. He has mostly drawn upon his own imaginations in fixing the yield of the land in dispute and the cost of production. This is not a correct approach. The amount of compensation has to be determined on the basis of evidence and in accordance with fixed principles. We have, therefore, examined carefully the evidence led by the parties. The plaintiff has failed to establish that he suffered the loss as claimed by him. The appellant has, however, admitted in his statement before the lower court that in Svt. years 2000 and 2001 the yield of the land was of valuation of Rs. 35/- and Rs. 40/- respectively. Evidently the defendant cannot escape his liability to pay this amount as per his own admission. As observed by Ranawat J. in Bhawani Ram vs. Seth Ram Narain, the word compensation includes the following items: - (1) The actual pecuniary loss directly sustained, e. g. the actual amount of money wrongfully withheld, the pecuniary value of the property wrongfully detained. (2) The indirect pecuniary loss e. g. the loss of profits, loss of credit, loss of reputation, loss of business etc. (3) The value of time spent in establishing the right violated. (4) The actual expanse or cost of suit. (5) The mental suffering e. g. vaxation, anxiety and worry. (6) The bodily suffering produced by personal injuries, e. g. pain and the consequent illness. (7) The sense of wrong or insult felt by the sufferer on account of the act or omission being done with a malicious and deliberate intention. Items Nos. 1, 6 and 7 do not arise in the case. As for items No. 2, as pointed out above, the appellant must be held or liable to pay Rs. 75/ -. As regards items 3,4 and 5 we are of the opinion that looking to the long duration of the litigation the number of hearings held in the case, the various courts in which this litigation was fought out and the amount expended in it, the plaintiff should in gairness be held eligible to recover Rs. l00/- on each of these three items separately i. e. a total of Rs. 300/- in respect of them. The result would, therefore, be that the plaintiff should be awarded Rs. 300/- plus Rs. 75/- i. e. Rs. 375/- as compensation in the case. The appellant's appeal would succeed only to this extent. For reasons given above, the cross-objection should fail. We would allow this appeal in part, reject the cross-objection and direct that the decree of the lower appellate court be modified to the extent that instead of Rs. 520/-, a decree for Rs. 375/-only will be granted in favour of the plaintiff against the defendant. The parties shall bear their costs throughout. .;