P.N. Shinghal, J.
1. This is a petition by Umaid Singh for quashing the judgment of the Board of Revenue dated April 6, 1966, which has been placed on record as Ex. 6. In order to appreciate the controversy before us, it will be sufficient to state the broad and the admitted facts.
2. The petitioner is the ex-Jagirdar of Thikana Nimbera. A suit was instituted by the Thikana in 1927 with the allegation that the defendants in the suit had trespassed over the land of the plaintiff and were liable to ejectment the suit was filed under the provisions of the Marwar Rules of 1925 Under Rule 3(k) of those Rules it was permissible to file a suit for ejectment and under item (n) of that rule it was also permissible to file a suit for the recovery of compensation payable on account of ejectment the Thikana, however, confined us suit to ejectment and nit ask for compensation the suit was decreed for ejectment by the Assistant Revenue Officer in 1935, and a final decree was passed by the Board of Revenue in favour of the plaintiff on May 11, 1956 thereafter another suit was Filed on May 31, 1957, in the court of Assistant Collector, Jaltaran, under Section 183 of the Rajasthan Tenancy Act, 1955, hereinafter referred to as 'the Act', for damages amounting to Rs. 3,136/8/- for the period from Smt. 2002 to 2013, along with interest, subsequent damages and costs It was however dismissed by the trial court which took the view that the suit was not maintainable, by virtue of the provisions of Order 11 Rule 2 CPC and was barred by limitation. On appeal, the Revenue Appellate Authority remanded the case for trial. That led to a second appeal to the Board of Revenue in which the impugned judgment Ex. 6 dated April 6, 1966 was passed and the appeal was allowed, the judgment and decree of the Revenue Appellate Authority were set aside and he trial court's decree dismissing the claim in the suit was upheld. As the petitioner feels aggrieved against that judgment, he has prayed that it may be quashed in the exercise of this court's extraordinary jurisdiction the Board of Revenue has taken the view that a separate suit for damages was not maintainable under Section 183 of the Act and that the suit could not also be maintained under the amended Section 187 of the Act because of the bar of Sub-section (5) of that section the Board has also taken the view that the cause of action for the suit of 1957 was the same as for the earlier suit of 1927.
3. It has been argued by Mr. Dave, learned Counsel for the petitioner that the learned Members of the Board of Revenue have committed an error of law apparent on the face of the record in taking the view that the suit was not maintainable under Section 183 of the Act the learned Counsel has urged that as the petitioner's suit for ejectment of the trespassers had already been decreed in 1935, and that decree had been finally upheld in 1956, be could not file a suit for ejectment once again and that there was no reason why his suit for damages should not have been maintained under Section 183 of the Act.
4. A reading of Section 183 of the Act, as it stood at the time of the institution of the suit in 1957, shows that it essentially and primarily dealt with a suit for the ejectment of a trespasser, and it goes on to provide, further, that, apart from such ejectment, the trespasser shall 'also' be liable to pay as penalty the sum prescribed by the sub-section there is therefore no justification for the argument of the learned Counsel for the petitioner that the learned Members of the Board of Revenue committed an error of law in holding that the petitioner's suit for the recovery of the damages was not maintainable under Section 183 of the Act. It may also be pointed out that the claim in the suit was not for the recovery of damages by way of 'penalty'.
5. We have also considered the other argument based on the provisions of Section 187 of the Act. Even if it is presumed that the plaintiff was a tenant at the time of the institution of the suit in 1957, and that the suit would have been otherwise maintainable, we find that Sub-section (5) of Section 187 stood in the way of the maintainability of the present suit for inasmuch as it provided that a tenant who had sued for possession only, shall not be entitled to institute a separate suit for compensation for wrongful ejectment in respect of the same cause of action there is therefore nothing wrong with the view which has been taken in the respect by the learned Members of the Board of Revenue.
6. As we find no merit in this writ petition, it is hereby dismissed with costs.