Claim by plaintiff for value of bricks or titles as damages not maintainable.

This second appeal arises out of E.A. No. 188 of 1946, in O.S. No. 103 of 1940 in the Court of the District Munsif of Visakapatnam, for restitution.

In a suit for partition instituted by the sons of one Goteti Subba Rao, the present first respondent was directed to put the appellants in possession of 44.3/4 cents of land which was found to he in excess of the property to which he was entitled and which, according to the trial Court, belonged to the appellants. An appeal was filed by the present first respondent against this direction which was dismissed by the Subordinate Judge of Vizagapatam. But this Court, in S.A. No. 2154 of 1944, reversed the decisions of the Courts below holding that

“those portions of the lower Court’s decree which do not relate to the plaintiffs shall be deleted and the rights of the defendants inter se be and hereby are left to be adjudicated upon, if necessary, in a different litigation.”

Consequently, the first respondent, in addition to applying for redelivery of that property, inter alia, claimed a sum of Rs. 2,000 as the value of two lakhs of bricks and two lakhs of tiles prepared by the present appellants from out of the earth dug from the 44.3/4 cents of land.

Dealing with this claim the trial Court held that the only relief which the present first respondent could get was a direction to the present appellants to fill, up the pits dug in the land at their cost within 15 days from the date of the order.

The first respondent herein who was aggrieved by this order, filed an appeal to the Subordinate Judge of Vizagapatam. The lower appellate Court, which confirmed the findings of the trial Court on other issues, held that the proper direction in working out the rights of the parties, so far as the claim for damages in respect of the pits dug on the land of the first respondent, was concerned was to direct the present appellants to pay the money value or the compensation for the earth dug and utilised by them and allow the present first respondent to fill up the pits in the manner he thought best as it thought that there were various difficulties in working out the direction of the trial Court as regards the filling up of the pits. But in valuing the earth dug and utilised by the appellants the lower appellate Court took into consideration the net profits realised by the appellants by the sale of the bricks and the tiles which were manufactured out of the earth dug from the land in question.

In this appeal filed against the order of the learned Subordinate Judge, Mr. Venkatesam, the learned counsel for the appellants urges that the basis adopted by the lower Court in assessing the value of the earth was erroneous that the profits: realised by the appellants have no bearing or relevancy on the question of the value of the earth utilised by them in manufacturing the bricks. It is argued by Mr. Venkatesam that the proper measure of damages to be awarded in cases like this is either the value of the earth dug out of the land or the value of the depreciation that was caused by the act of his clients, viz-, the digging of pits in the land, and that in any event, the first respondent is not entitled to the net profits derived by his clients from the sale of the bricks.

In support of his contention he places reliance on a judgment of Govinda Menon, J. in Periyayya Moopan v. Marudai Konar1. In dealing with the question as to how a person that is put to loss by the act of the parties against whom damages are sought should be compensated, the learned Judge observed:

“I am of opinion that at the utmost the first defendant would be liable to pay the price of the mud and silt at the time he utilised them for manufacturing the bricks.”

The learned Judge also stated that the net profits of the bricks manufactured out of the mud and silt would not represent the value of the mud and silt used for manufacturing the bricks. Mr. Ramariarasu, learned counsel for the respondent relies upon a decision of Raghava Rao, J.