- (1.) THIS is Sher Singh and others defendant appellant's second appeal against the judgment and decree of the Revenue Appellate Authority, Bikaner dated 16. 3. 1962. Briefly the facts of the case are as follows:
(2.) THIS case had a chequered career. Shri Umed Singh plaintiff respondent as long back as 1927 filed a suit for ejectment of the defendant appellants as trespassers in accordance with the Marwar Revenue Code and the Rules framed thereunder. THIS suit was decreed in 1935. In that suit the plaintiff respondent claimed no damages or mesne profits. The suit continued in appeal and was finally decided and decreed in favour of the plaintiff respondent by the Board of Revenue on 11. 5. 56. It may be remembered that the suit was decreed after the coming into force of the Rajasthan Tenancy Act, 1955. A writ application in the High Court filed by the defendant appellant against the judgment of the Board of Revenue was also dismissed on 11. 10. 57. Thus for all practical purposes the plaintiff respondents suit for ejectment of the defendant appellants as trespasser was finally decreed after a prolonged trial. The plaintiff respondent, for some error or defect in drawing up a decree and due to misdescription of the suit land was notable to get the decree of ejectment against the defendant appellants satisfied. The execution still remains pending. The plaintiff respondent therefore filed this separate suit on 31. 5. 57 u/s 183 of the Rajasthan Tenancy Act for payment of a sum of Rs. 3136/8/- as damages as the land remained in wrongful possession of the defendant appellant. The trial Court dismissed the plaintiff's suit as time barred and as well as not maintainable on the ground that the plaintiff respondent failed to claim damages at the time when the suit was filed and the provisions of Order 2, Rule 2 of the Code of Civil Procedure applied. THIS judgment of the trial Court was reversed in appeal by the Revenue Appellate Authority in the judgment appealed against. The learned appellate Court held that the previous suit before the Members of the Board of Revenue, which was decreed in favour of the plaintiff respondent was u/s 187 of the Rajasthan Tenancy Act which permits reinstatement for wrongful ejectment to a tenant and not u/s 183 which provides for ejectment of a trespasser. He therefore remanded the case for further proceedings to the trial Court. It is against this judgment that this second appeal has been preferred by the defendant appellants. It was contended by the counsel for the defendant appellant that the suit was clearly not maintainable. The rule of law laid down in Motisingh vs. Chunnilal reported in R. R. D. 1958 page 105 is not a good law. That ruling laid down that suits u/s 183 and 137 both provided for compensation alongwith the reinstatement or ejectment of separate suits were not contemplated. The ruling given in Motisingh vs. Chunnilal has now been over-ruled by the High Court of Rajasthan in the case of Rajendra Singh vs. Ganga Bishen reported in R. R. D. 1961 page 150. It clearly lays down that suits for compensation u/s 187 of the Rajasthan Tenancy Act are now maintainable and refers to the old ruling of 1958 R. R. D. page 105 which is not a good law due to amendment of the Rajasthan Tenancy Act. He further argued that said sec. 187 sub-sec. 5 of the Rajasthan Tenancy Act clearly provides that a tenant merely suing for possession is not entitled to institute a separate suit for compensation for wrongful ejectment. The counsel for the respondent's reply was that the defendant appellants were not his tenants, but merely trespassers and therefore the provisions of sec. 187 of the Rajasthan Tenancy Act will not apply. The only section that was attracted was sec. 183 of the Rajasthan Tenancy Act for ejectment of trespassers. In the Marwar Revenue Code there was no provision for ejectment of trespassers was after the Rajasthan Tenancy Act came into force, the plaintiff was entitled to claim compensation u/s. 183. He cited certain ruling in support of a proposition to show that in a suit for possession mesne profits to which the plaintiff is entitled accruing after the filing of the suit and before the delivery of possession are recoverable even by a separate suit because the cause of action is separate. We have considered the arguments advanced from both sides and perused the record. It is pertinent to decide first what was the nature of the suit that the plaintiff respondent brought for recovery of possession of the suit land. It is clear that the judgment of the Board of Revenue which finally disposed of the previous suit on 14. 5. 56 does not mention whether the suit was under sec. 183 of the Rajasthan Tenancy Act or u/s 187. It was purely a suit for recovery of possession. In fact when the first suit was filed in 1927 there was no provision in the Marwar Revenue Code for ejectment of the trespasser as admitted by the plaintiff respondents, but the nature of the suit, when it was finally decreed by the Board of Revenue in 1956 should have been determined, whether the decree of the Trial Court which the Board was confirming was u/ss. 183 or 187of the Rajasthan Tenancy Act, as the aforesaid Act had already come into force and the suit pending prior to the coming into force of the Tenancy Act must have been proceeded against as if they were found under one provision or the other of the Rajasthan Tenancy Act. It is an admitted fact that the plaintiff respondents were the khatedar tenants in the suit land and they were dispossessed by the defendant appellants. Therefore, under the old law prior to the coming into force of the Rajasthan Tenancy Act recovery of possession of the suit land and claim for mesne profits was the only remedy available to the plaintiff respondents. He accordingly claimed the first remedy and did not make a prayer for payment of mesne profits or damages. If the plaintiff respondent had prayed for award of damages for mesne profits, there was no reason to deny them the damages when the suit was finally decreed and the necessity of filing the second suit would not have arisen. It was only after the first suit for recovery of possession was decreed that the wisdom dawned on the plaintiff respondents to file a second suit under sec. 183 of the Rajasthan Tenancy Act in which he claimed damages. As far as the sec. 183 of the Rajasthan Tenancy Act is concerned, it must be clearly understood that no suit lies merely for damages under sec. 183 of the Rajasthan Tenancy Act. That section provides for an ejectment! of a trespasser and also directs that while ejecting that trespasser, a penalty must be imposed on him for each agricultural year, as the trespasser had been in possession of the land, a sum which may extend to 15 times the arranged annual rent. Thus the very wording of the sec. 183 would indicate that no separate suit u/s 183 of the Rajasthan Tenancy Act for award of damages or mesne profit is conceivable. Therefore, a separate suit would not lie u/s 183. The present suit of the plaintiff respondent is u/s 183 misconceived which is clear from the plaint itself. The counsel for the plaintiff respondent also admits that his suit was not u/s 187 of the Rajasthan Tenancy Act, but purely u/s 183 of the Rajasthan Tenancy Act. There is no doubt that u/s 187 of the Rajasthan Tenancy Act, a tenant who was evicted or prevented from obtaining possession from the holding so entitled to various kinds of remedies such as possession of the holding, compensation for wrongful ejectment, for compensation of any improvement, he may have made. Such person could claim one or all of these remedies according to the circumstances of the case. It is for the tenant who has been ejected to choose at the time of filing the suit which remedy he would like to opt out for. This sec. 187 was incorporated in the Rajasthan Tenancy Act, 1955 by an amendment of the Act No. 22 of 1960 which came into force on 27. 6. 60. This suit of the plaintiff respondent was filed in 1927 long before the amendment came into force. Thus he could not have filed a suit under the aforesaid section. Although it was possible for him to get the suit converted from sec. 183 to sec. 187 of the Rajasthan Tenancy Act which he did not. We have already stated above that no suit u/s 183 of the Rajasthan Tenancy Act simply lor award; of penalty or damages is maintainable if no ejectment is sought. The defendant appellants are already under order of ejectment from the suit land by a previous decree and thus the question of seeking further ejectment by a separate suit does not arise. Thus this second suit of the plaintiff respondent was misconceived. The question now is whether the suit of the plaintiff respondent could be treated as a suit u/s 187 of the Rajasthan Tenancy Act and he could be awarded compensation or damages for his wrongful ejectment from the holding. In the first instance this section was introduced in the Tenancy Act long after the present suit was filed. It also provides u/s 187 (5) which runs as follows: Sec. 187. (5) "a tenant who has sued for possession only shall not be entitled to institute a separate suit for compensation for wrongful ejectment or for an improvement in respect of the same cause of action. " In view of this provision of law it is clear that a separate suit would not lie for compensation u/s 187 since the plaintiff respondent had already sued for possession previously. Prior to 1960 before the sec. 187 was introduced in the Tenancy Act suit for compensation alone was not maintainable. But it is only after this section was introduced that suits of the nature conceived under sec 187 are also mainain-able and therefore the rule laid down by their Lordships in Rajendrasingh vs. Ganga Bishen in R. R. D. 1964 page 150 damages this position and distinguishes the judgment of Motisingh vs. Chunnilal of 1958 in R. R. D. 105 on the ground that it was not a good law in view of the amendment of the Tenancy Act. In this case the plaintiff respondent had already filed a suit for possession and that was decreed. His present claim for compensation for wrongful ejectment flows from the same cause of action which made him file the previous suit for possession of the holding. Having tailed to claim compensation in the previous suit alongwith the prayer for possession the plaintiff respondents were clearly precluded from filing a fresh suit for compensation or damages. In any case suit for damages alone u/s 183 is prohibited. The various rulings cited by the counsel for the respondent need not be referred to here, because they relate to the cases of tenancies under the Tenancy Act which is a special law. Thus there is much force in the contention of the counsel for the defendant appellant that the present suit of the plaintiff respondent for compensation is not maintainable in view of the express provision u/s 183 and sec. 187 sub-sec. 5 of the Rajasthan Tenancy Act. Both these sections under which such suits for damages or compensation could be filed are not maintainable. For the reasons stated above we, therefore, accept this appeal of the appellant, set aside the judgment and decree of the Revenue Appellate Authority and confirm the decree of the trial Court which dismissed the plaintiff respondent's suit. ;