In a suit for damages for wrongful injunction, it is incumbent on the plaintiff to prove malice as also that the defendant acted without reasonable and probable cause.

( 1 ) THIS appeal by the plaintiff is directed against the judgment and decree dated December 10, 1965 passed by the learned Subordinate Judge, Sixth Court, Alipore in Money Appeal No, 158 of 1964 arising out of the judgment and decree of the learned Munsif, fifth court at Alipore in Money suit No. 208 of 1961. The learned Munsif held that by unlawfully interfering with the exercise of the property rights of the plaintiffs the defendants committed an act in the nature of trespass to the property and they were, therefore, liable for damages. In the result, the learned Munsif decreed the plaintiff's suit in part allowing damage to the time of Rs. 100/- for the trespass and disallowing the claim for damages at 50 paise per diem for loss of use of the property. The defendants appealed and the plaintiff filed a cross-objection, The lower appellate court allowed the defendants' appeal and set aside the judgment and decree of the trial court and rejected the cross-objection of the plaintiff/respondent. It is against the aforesaid order of the lower appellate court that the present second appeal had been preferred.

( 2 ) A short point has been canvassed by Mr. Bhaskar Bhallacliavya for Mr. Radhakanta Bhattacharya appearing for the appellant. The point raised before me by Mr. Bhattacharya was that the judgment was not proper judgment of reversal inasmuch as the appeal was decided on the Division Bench decision re ported in ILR (1944) 2 Cal 358 : (ATR 1944 Cal 289) and not on the case of the earlier Division Bench decision of this High Court reported in (1912) 16 Cal LJ 34, in spite of the fact that the earlier Division Bench decision had not been overruled and the facts of that earlier decision were on all fours with the present one.

( 3 ) THE plaintiff/appellant brought the suit for damages on the allegation that the defendants filed a suit claiming easement right of way over the plaintiffs land, being. . 04 decimal in dag No. 123-124 of mouza Sahapur to the West of the tank in Dag No. 122. The other allegation was that the defendants wrongfully obtained temporary injunction against him in T. S. No. 259 of 1956 of Munsif, 1st Court, at Alipore which was finallly dismissed. The claim for damages was based on the defendants' wrongful interference with the exercise of his properly rights and preventing the plaintiff from making construction on the said land by the order of injunction obtained by the defendants in their suit. The defendants opposed the claim denying all material allegations of the plaint and stating, inter alia, that title suit No. 259 of 1956 was a bona fide suit and the interim order of injunction obtained by him in that suit was made absolute on a contested hearing and as such no claim for damages could be maintained in a Civil action,

( 4 ) TRIAL proceeded on such facts and the matter was disposed of by the learned courts below as indicated above. The trial court based its decision on the principles enunciated in the case of Bhutnath Pal Mistry v. Chandra Benode Pal Chowdhury reported in (1912) 16 Gal LJ 34 in which it was held that unlawful interference with the exercise of the property rights of a person would result in an act in the nature of trespass to property and it would not be necessary for the plaintiff to prove any malice or want of reasonable and probable cause in a suit for damages on that score. Factually, when the suit was ultimately dismissed the trial court held that the plaintiff would be entitled to damages on the ground of unlawful interference by the defendants with the exercise of the plaintiff's property rights. The lower appellate court, however, based its decision on a later decision of the Division Bench reported in ILR (1944) 2 Gal 358 : (AIR 1944 Cal 289) (Bhupendra Nath Chatterjee v. Trinayani Dasi) which dissented from the earlier Division Bench decision reported in (1912) 16 Cal LJ 34 and where it was held that in a suit where a party claimed damages for the loss of prop