- (1.) THIS is an appeal, which has been erroneously described as a revision, filed by the defendants from a judgment and decree of the Additional Commissioner, Jaipur, dated 18th October, 1955, which confirmed with a variation a judgment and decree of the Assistant Collector, Jaipur, dated 24. 7. 1954 in favour of the respondents.
(2.) WE have heard the learned counsel for the appellants as well as Bhonriya, respondent at some length. WE have closely examined the record. The material facts of the case are as follows - Jagdeo, father of the respondents, instituted a suit in the court of the Nazim Sawai Jaipur on 27. 5. 1947, alleging that the defendants had prevented him from cultivating his land consisting of khasra Nos. 451 to 455 and 459 at village Kanota. The land was commanded by a well commonly known as Kharia. The plaintiff had obtained a Patta of the land in suit from the Thikana on Sawan Sudi 5, Svt. 1996, and was subsequently granted Parcha Chakbandi on 26. 11. 1945. He sought the help of the Tehsil in the matter with the assistance of the Tehsil he started cultivating the land in question on 26th September, 1946. The defendants permitted him to cultivate khasra Nos. 451 and 459. They did not permit him to bring the remaining land under the plough. The crop which he had cultivated in khasra Nos. 455 and 459 withered away because the defendants did not allow him to water them from Chah Kharia. He had cultivated barley in a portion of the fields and had raised fodder in the remaining portion. He wanted to cultivate zira crop in the remaining fields, but defendants did not permit him to do so. He estimated the loss which the defendants caused to him at Rs. 400/- and prayed that he should be awarded damages to the tune of Rs 400/- and a permanent injunction should be issued restraining the defendants form interfering with his cultivation of the fields in question. In the written statement filed by the defendants a preliminary objection was raised by them that the suit as framed by the plaintiff was not cognizable by a revenue court. The Nazim overruled the objection and the defendants filed an appeal against his order to the Deputy Commissioner Sawai Jaipur He dismissed it on 31. 5. 1948 on the ground that as the plaintiff was unlawfully prevented from cultivating and irrigating the land duly let out to him he had every right to sue trespassers who prevented him from doing so for compensation, and damages, under sec. 90 (b) of the Jaipur Tenancy Act, read with Sec. (1) (3) of the Jaipur State Grants Land Tenures Act, 1947. The Assistant Collector framed a number of issues and after recording the evidence adduced by the parties decree the claim of the respondents, who were brought on the record after the death of their father. He decreed the claim of the respondents to the extent of Rs. 175/ -. The defendants lodged an appeal from the decree of the Assistant Collector, before the Additional Commissioner, Jaipur. After scrutinizing the evidence adduced by the respondents in support of their contention that they had suffered damage to the tune of Rs. 400/- the learned Additional Commissioner held that Bhonriya's statement was too vague to form a basis of any definite finding as to the extent of loss suffered by him. His witnesses were equally vague. To avoid the trouble of forming an estimate of the loss sufferred by the respondent the trial court had not gone into the evidence and had passed its decree on the provisions of sec. 90 (b) of Jaipur Tenancy Act. The learned Additional Commissioner was clearly of the opinion that the said provisions did not apply to the present case as no trespass had been proved to have taken place. He came to the conclusion that as the appellant had obstructed the respondents in using the luo without any justification they were liable to pay damages to them in the amount of Rs. 100/ -. He, therefore, scaled down the decretal amount from Rs. 175/8/- to Rs. 100/-only. Aggrieved by his decision the defendants have come up in appeal to the Board. It was contended on behalf of the appellants that the learned Additional Commissioner had fallen into an error in decreeing the claim of the respondents to the extent of Rs. 100/- when he was of the opinion that the provisions of sec. 90 (b) of the Jaipur Tenancy Act did not apply to the facts of the case. He should have rejected the claim of the respondents out-right. It was, further, contended that the suit as framed by the father of the respondent was not triable by a revenue court. It was also urged that after the learned Additional Commissioner had come to the conclusion that the evidence adduced by the respondents was vague and lacking in particulars he should not have placed any reliance upon it and should not have awarded damages to the respondents to the extent of Rs. 100/ -. Bhonriya respondent argued that he and his brothers had been put to considerable loss by the act of the appellants, who had prevented them from watering their fields, Before we deal with these contentions we think it proper to observe that we cannot go behind the concurrent finding of fact arrived at by the courts below on the point that the appellants had prevented the respondents from working 'chah Kharia' and watering their fields in which they had cultivated barley crop and fodder. The main contention which has been raised on behalf of the appellants turns on the construction of sec. 90 (b) of the Jaipur Tenancy Act, read with sec. 135 of the Act lays down that the provision of sec. 90 (b) of the Jaipur Tenancy Act shall apply to the ejectment of a trespasser under this Act subject to some modifications indicated in it. The question which falls for determination is whether a person who prevents another from working a well and watering his field can be described as a trespasser. If he can be considered as a trespasser then the provisions of sec. 90 of the Jaipur Tenancy Act which provides for ejectment of a trespasser shall apply to him. A trespasser has been defined in sec. 5 of the Jaipur Tenancy Act, which reads as follows : - "any person who takes possession of unoccupied land without lawful authority or who prevents another person from occupying land duly let out to him shall be regarded as a trespasser. " 'land' has been defined in sec. 4 (6) of the Jaipur Tenancy Act as follows: 'land' means land which is let or held for agricultural purposes or for purposes subservient thereto, including land occupied by house or enclosures situated on a holding It includes a tank which may be used for the purpose of irrigation or growing singhara or other similar produce but does not include Abadi. " The land on which the well is sunk for the purposes of irrigating agricultural land is land within the meaning of the Jaipur Tenancy Act because it is used for the purposes subservient to agriculture. The well itself is a structure on such land and is, therefore, included in the definition of land. The words for purposes subservient to agriculture which also occur in the Punjab Tenancy Act were construed in Immamuddin vs. Makha, 62 PR 1891, and Dhani Khan vs. Mehtab Khan, 40 PR 1893 as including land on which a well is put up for the purpose of irrigating agricultural land. If a person prevents another from working his well he can certainly be described as a trespasser. The right to occupy land necessarily implies its beneficial use and also includes the use of any structures which have been put up on it for the purposes subservient to agriculture. In order to illustrate this point fully we may give an example. A person prevents another from cultivating a crop on land which is admittedly in his possession. He does not interfere with it when he goes upon the land but only prevents him from sowing a crop on it. Such a person cannot allege that he is not a trespasser in the eye of the law because he did not prevent the other person from occupying his land. The word 'occupation' which is synonymous with actual physical possession involves two different elements. A person in possession of an object has the right to exclude others from its enjoyment and possession. Again he has a right to the beneficial enjoyment of the object himself. A person who prevents him from the beneficial enjoyment of that object necessarily interferes with his possession of the object. In the present case, the appellants by preventing the respondents or their father from working the well and watering their fields prevented them from the beneficial enjoyment of the land and in that sense prevented them from occupying the land duly let out to them. Their case would be hit by the definition of a trespasser given in sec. 5 of the Jaipur Tenancy Act and would also fall within the ambit of sec. 90 (b) of the said Act. We are, therefore, clearly of the opinion that the learned Additional Commissioner went wrong when he held that the provisions of sec. 90 (b) of the Jaipur Tenancy Act did not apply to the case. On this point we are in agreement with the finding of the trial court because it had correctly construed the provisions of sec. 90 (b) of the Jaipur Tenancy Act. It would necessarily follow from what has been stated above that the suit was exclusively triable by a revenue court. So far as the remaining contentions on behalf of the appellant is concerned we may observe that the evidence adduced by the respondents points to the conclusion that they suffered damage because they were prevented from watering their crops at least on one occasion. On this point both the lower courts have come to a clear finding which is based on adequate data. In second appeal we cannot go behind a finding of fact unless it is shown that it was manifestly unjust or was incompatible with the weight of the evidence. The evidence is neither vague nor unreliable on the point that the respondents or their father was prevented from working the well and watering his fields on one occasion. The only point which remains to be considered is the extent of damage which was suffered by the respondents. Under sec. 90 (b) a trespasser can be required to pay damages which may extend to four times the annual rent calculated at the settlement rates. While assessing the damages facts of each case should be gone into. Taking into consideration the circumstances of the present case including the fact that the respondents were prevented from watering their fields once and that at least three waterings were necessary to ripen the crops sown in the fields, we think that the ends of justice would be met by awarding the respondents as sum of Rs. 100- which is a little more than twice the rent assessed at the settlement rates in respect of these fields. For the aforesaid reasons we maintain the order of the learned Additional Commissioner decreeing the claim of the respondents to the extent of Rs. 100;-and dismiss the appeal. .;