Ramkirit Goala vs Mahesh Prashad Halwal

Ram Labhaya, J.—This is an appeal from the judgment and decree of the Additional District Judge, V.A.D., Silchar by which the order of the trial court decreeing Plaintiff�s claim for compensation was reversed and Plaintiff�s suit dismissed in its entirety.

The suit was for ejectment and rent. The claim both for ejectment and rent was u/s 58, Assam (Temporarily Settled Districts) Tenancy Act. In the plaint there was an alternative prayer for compensation to the extent of Rs. 30 for use and occupation of the land if the relationship of landlord and tenant was not established. The trial court found that the Plaintiff was the owner of the land in dispute, but no agreement of tenancy was proved. The claim both for ejectment and rent was disallowed, but the claim for compensation was decreed. On appeal the learned Addl. District Judge held that as the suit was u/s 58 of the Tenancy Act the alternative claim for compensation for use and occupation could not be entertained and therefore a decree for compensation for use and occupation could not be validly passed in favour of the Plaintiff.

The only point for consideration is whether the claim for compensation for use and occupation could be validly decreed even though it was preferred in the alternative in a suit u/s 58, Assam (Temporarily Settled Districts) Tenancy Act. There is nothing in the CPC which would be a bar to joinder of a claim for compensation for use and occupation, in the alternative, with claim for ejectment and rent u/s 58 of the Tenancy Act. The principle laid down in-- Samiulla Vs. Nil Mamud, that a person is not precluded from urging an alternative claim for damages for use and occupation though he fails to prove a contract of tenancy set up by him can be applied to this case. This view also receives support from--''Lukhee Kant v. Soomee-rooddi Tustar'' 13 BLR 243 (FB) (B). Mr. Dam has made a futile effort to support the view that has prevailed with the learned Additional District Judge. He has not been able to cite any authority in support of the proposition that the claim for compensation could not have been entertained in law. I have no doubt that the learned District Judge was wrong in the view that a decree for compensation could not have been passed because the main relief in the case was for ejectment and rent u/s 58 The order of the Appellate court is unsustainable. The appeal is allowed. The Appellate order is reversed and the decree of the trial court is restored. The Applicant will have his costs in the lower Appellate court & also in this Court on the value of the claim decreed.