Skip to content


Jhabbu and anr. Vs. Musammat Batul and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Judge
Reported inAIR1923All146; (1923)ILR45All208; 73Ind.Cas.299
AppellantJhabbu and anr.
RespondentMusammat Batul and ors.
Excerpt:
.....of 1901 (agra tenancy act), section 146: schedule iv, serial no. 6 - suit for damages for unlawful distraint--limitation--terminus a quo--act no. ix of 1908 (indian limitation act), section 28. - - what the plaintiffs say is that they were lessees of one village arid the defendants lessees of another, and that there was bad blood between them because the plaintiffs had succeeded in securing a lease which the defendants were coveting. we have thought it worth while to look at the statements of the parties and the evidence produced by them, and, having examined the record in order to make it perfectly clear to our minds what the parties were really fighting about in the trial court, it seems to us even clearer than it would have been upon a mere examination of the plaint, that the..........of dambar singh v. balwant singh (1909) 8 a.l.j. 503 he held that it was barred by limitation. the plaintiffs appealed to the district court. in their memorandum of appeal they undoubtedly took the point that the finding against the plaintiffs on the question of limitation was contrary to law, and, further, that their cause of action accrued to them on the 16th of september, 1919, that is on the date on which the distraint terminated under the orders of the court, and not previously. they did not, however, take in plain terms the plea which, in our opinion, they should have done, namely, that the suit as brought was in its essence one falling under the first, and not under the second, clause of section 146 aforesaid. the district judge, dealing with the matter on the same linen which had.....
Judgment:

Piggott, Walsh and Lindsay, JJ.

1. The suit out of which this appeal arises was under Section 146 of the United Provinces Tenancy Act, No. II of 1901. As it has been disposed of upon a question of limitation and this is the only question before; us today for determination, we have to look narrowly at the frame of the plaint in order to see whether, on the allegations therein made, the plaintiffs were or were not seeking their remedy within the period prescribed by law. What the plaintiffs say is that they were lessees of one village arid the defendants lessees of another, and that there was bad blood between them because the plaintiffs had succeeded in securing a lease which the defendants were coveting. The plaintiffs had cut and stacked, from the land within the purview of their lease, a large quantity of thatching grass which (hey hoped to sell at a substantial profit. The defendants, it is alleged, wrongfully and maliciously levied a distraint, under colour of the provisions of Chapter IX of the Tenancy Act upon this grass of the plaintiffs. The immediate result of this was that the plaintiffs missed their market and were unable to sell their grass, while the defendants were disposing of theirs. In the meantime the rainy season began and the land upon which the plaintiffs' stacks were standing was Hooded, The plaintiffs brought a suit to contest the distraint and finally succeeded in obtaining an order from the court setting the distraint aside. When, however, they became entitled to re-enter into possession of their own grass, the stacks had been so damaged by rain and flood as to be utterly worthless. Therefore the plaintiffs claimed the full value of the stacks, as the correct measure of damages for the wrong done to them by the defendants in wrongfully distraining the same. As regards dates, we may note that the distraint was levied on the 15th of May, 1919. The suit under Section 142 of the Tenancy Act, to contest the distraint, was promptly instituted, but was not terminated by the court's order releasing the grass until the 16th of September, 1919. The present suit for damage was instituted on the 12th of December, 1919. The Assistant Collector examined the parties and fixed various issues, the first of which was an issue of limitation. He took evidence tendered by both parties. We have thought it worth while to look at the statements of the parties and the evidence produced by them, and, having examined the record in order to make it perfectly clear to our minds what the parties were really fighting about in the trial court, it seems to us even clearer than it would have been upon a mere examination of the plaint, that the essential cause of action put forward and relied upon by the plaintiffs was the wrongful nature of the distraint. The Assistant Collector, however, treated the suit as one falling wholly and solely within the purview of the second Clause to Section 146 of the Tenancy Act. Following the decision of this Court in the case of Dambar Singh v. Balwant Singh (1909) 8 A.L.J. 503 he held that it was barred by limitation. The plaintiffs appealed to the district court. In their memorandum of appeal they undoubtedly took the point that the finding against the plaintiffs on the question of limitation was contrary to law, and, further, that their cause of action accrued to them on the 16th of September, 1919, that is on the date on which the distraint terminated under the orders of the court, and not previously. They did not, however, take in plain terms the plea which, in our opinion, they should have done, namely, that the suit as brought was in its essence one falling under the first, and not under the second, Clause of Section 146 aforesaid. The District Judge, dealing with the matter on the same linen which had been followed by the court of first instance, affirmed the decision of that court and dismissed the appeal. There was a second appeal to this Court and we may make the same comment regarding the drafting of the memorandum of appeal to this Court. We have before us, however, the referring order of the learned Judges before whom the appeal was first argued, and that order makes it clear enough that the, case for she plaintiffs appellants was presented to that Bench in a twofold form: First, it was contended that, treating the suit as one under the second Clause of Section 146 of the Tenancy Act, it was nevertheleas within limitation under serial No. 6 of the fourth schedule to the said Act, because the right to bring this suit did not accrue to the plaintiffs before the 16th of September, 1919. Secondly, it was contended that, even if this first plea be repelled by the Court, the suit being essentially based upon the allegation that the distraint levied by the defendants was wrongful distraint, it was a suit upon a continuing wrong within the meaning of Section 23 of the Indian Limitation Act, No. IX of 1908. That wrong being the distraint maliciously levied by the defendants, had continued until the distraint was brought to an end under the orders of the court. Therefore, from this point of view, the plaintiffs' suit was rightly brought within three months of the 16th of September, 1919, the date ;n which the distraint came to an end.

2. We now turn to examine the first two Clauses of Section 146 of Local Act No. II of 1901. In so far as these Clauses are applicable to the facts of the present suit, the first Clause gives a right to institute a suit for compensation against the distrainor, 'if any person under colour of this Act distrains any property otherwise than according to the provisions of this Act.' The claim must be for compensation for any injury which the plaintiff has thereby sustained, that is to say, has sustained in consequence of this distraint wrongfully made under colour of the provisions of the Tenancy Act. The second Clause gives the owner of distrained property a right of fiction for damages, independent altogether of the question whether the distraint was or was not lawful and proper. The cause of action for a suit under this Clause is the distrainor's not having taken proper precautions for the preservation of the distrained property and consequent loss, damage or destruction of the same. What was laid down in Dambar Singh v. Balwant Singh (1909) 8 A.L.J. 503 was, in effect, that the cause of action for a suit under this Clause is the loss, damage or destruction to the property and that, consequently, it is to the date of such loss, damage or destruction that the court must look when computing the proscribed period of limitation, which is three months from 'the date on which the right to sue accrued.' The words above quoted from the fourth schedule to the Local. Tenancy Act are purposely general in their effect, because they have to cover the three different kinds of suits provided for by suction 146 of the Act. As applied to the second. clause, however, their effect seems to us to have been rightly stated in the ease of Dambar Singh v. Balwant Singh (1901) 8 A.L.J. 503. Here, the plaintiffs, on their own admission, knew in the month of July that their stacks of grass had been practically ruined by rain and flood. They had a right to bring their suit on the basis of this destruction, independently altogether of the question whether the distraint levied upon them was lawful or the reverse; but they were bound to bring this suit within three months of the date of the destruction of their property in, consequence of the negligence of the defendants. In so far, therefore, as the courts below have acted upon this principle of law, we think their decisions were correct.

3. Coming, however, to what we have stated as the alternative argument put forward in support of this appeal, we feel satisfied that it is in substance sound and ought 'to prevail. We repeat that the suit was, in our opinion, essentially based upon the allegation that the distraint levied by the defendants was a wrongful and malicious act done under colour of the provisions of the Tenancy Act. The wrong inflicted by an; unlawful distraint continues and is renewed every day that the distraint lasts, the lawful owner of the property being thereby restrained from making use of it or exercising any right of ownership over it. In effect, therefore, as was suggested long ago in the decision of the Board of Revenue quoted in the referring order, Dalip Upadhia v. Gauridat Upadhia (1881) 2 Legal Remembrancer (R and R. Series) 61 the cause of action for a suit for damages in respect of a wrongful distraint takes its origin from the day on which the distraint came to an end and may be lawfully instituted within the prescribed limitation period of three months calculated from the said date. This suit was therefore, in our opinion, within time. We have commented upon the imperfect nature of the pleadings set up by the plaintiffs, but we do not wish to penalize them further than by directing the costs here and hitherto to be costs in the cause. We set aside the decrees of both the courts below and send the case back to the court of first instance to be tried according to law, with reference to the finding which we have recorded on the limitation question.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //