Hemchand vs Ratanchand Surana

Bhutt, J.—This is a defendant''s appeal from the decree for possession and damages.

The dispute relates to Khasra No. 785, area 0. 35 acre of Patti no. 1 of mouza Sarda. Plaintiff No. 1 Ratanchand, was at the relevant time lambardar of the Patti and the land in dispute was his grass land. The lower appeal Court has found that the said land was leased out by him to his son, Premchand, plaintiff No. 2, in the year 1943-44. It has further found that they had raised a stone wall around the land, which was wrongfully demolished by the defendants. Setting aside the dismissal of the suit by the trial Court, a decree for possession of the land and for recovery of Rs. (sic)/- as damages was accordingly passed by the lower appeal Court. The decree further directed that the plaintiffs would be entitled to the stones lying on the spot and to compensation therefor if removed by the defendants.

The finding regarding the lease of the land to plaintiff No. 2 and the construction of the wall by the plaintiffs, as also the finding on the demolition of the wall by the defendants, are findings of fact, which being based on evidence cannot be disturbed in second appeal. It was, however, urged that as the plaintiffs bad absolved some of the tort-feasors from liability, the claim against the defendants could not be maintained. This plea is not available to the defendants as they had not raised it in their pleadings.

It was next contended that after the enactment of the M.P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, the plaintiffs, having lost their proprietary interest, are not entitled to possession of the land, It was also urged that as the defendants bad not claimed to be in possession of the land, a decree placing the plaintiff in possession thereof is not valid. Both these contentions are groundless. The Act of 1950 does not affect the tenancy rights created by the quondam landlord, In fact, Sec. 45 of the Act guarantees the continuity of tenure of an absolute occupancy tenant and an occupancy tenant, as also of village servants. Plaintiff No. 2 was an occupancy tenant of the land in suit and accordingly the plaintiffs are entitled to its possession. On the other contention, the fact that the defendants had demolished the wall and stacked the stones on a part of the land was tantamount to dispossession of the plaintiffs. The lower appeal Court was, therefore, right in passing a decree for possession.

The question that remains, therefore, is only one of the assessment of damages. As held in Ratti Ram and Sons (A firm) vs. Moti Lal 75 I.A. 160 the measure of damages is the loss of the value of property caused by the wrongful act of the tort-feasor. The lower appellate Court has not transgressed this principle in assessing damages. The basis adopted by it to deter-mine the loss was to deduct the value of the stones from the cost of construction of the wall. The figure arrived at by it, therefore, represents the loss that the plaintiffs sustained by the wrongful act of the defendants.

The result is that the appeal fails and is dismissed with costs.