Mangobinda Sadhu and Others vs Kumar Brahma Niranjan Chakravarty and Murlidhari Marwari and Another

Wort, J.—The question in this appeal is whether defendants Nos. 1 to 7, who for the sake of convenience may be called the Sadhu defendants and who are the appellants before us, are liable for the wrongful extraction of coal by their lessees, defendants Nos. 8 and 9, who may be described as the Marwari defendants: in other words whether the Sadhus are liable as joint tortfeasors with the Marwaris.

The facts are these. In the year 1261 Fasli being 1854, the plaintiffs granted a palni lease to the predecessors of the defendants, of whom the Sadhus are the successors, of Mauza Palasthali appertaining to taluk Kendua Kasta in parganah Kundahit Kareya bearing tauzi No. 551 of the Santal Parganahs. In the year 1915 the plaintiffs commenced an action against the Sadhus claiming a declaration of their rights to the minerals and a permanent injunction restraining the Sadhus from working the coal, which it appears they had been doing. This action after a varied history was ultimately decided by the Subordinate Judge in 1924, granting the declaration and the injunction prayed for; an appeal to the High Court by the defendants failed in 1928. Whilst this action was pending, the Sadhus in the year 1921, granted mining rights to the, Marwari defendants, and in this action, the Sadhus filed a petition to the Court praying that the Marwari defendants should be joined. This prayer was refused and in 1929 the suit out of which this appeal arises was commenced against the Sadhus and on April 1, 1930, at the instance of the plaintiffs, the Marwaris were joined as party defendants. Their claim in this action was for an account to ascertain the amount of coal cut and wrongfully taken away from the Mauza, during the period from August 6, 1926, till March 31, 1929, the date upon which they ceased working. The Judge granted a decree against the defendants for a sum of Rs. 15,030; a decree as against the Sadhu defendants for a sum of Rs. 4,028 for the period from August 6, 1926, till March 31, 1927, holding that the Marwari defendants were not liable for this amount, as they were not joined until April 1, 1930. The Judge held that as regards the balance that is to say, Rs. 11,002 all the defendant, were liable jointly and severally. Interest was also awarded from the date of the decree till realization.

But in this appeal we are not concerned with the quantum of damages. The only question is whether the Sadhus could be held liable for Rs. 4,028 and for the balance of Rs. 11,002. It is the Sadhus contention that they did not themselves extract the coal(which is a face)and that they are not liable for the acts of their Sub-lessees, the Marwaris. As regards this question, the learned Judge in the Court below has held the Sadhus to be joint tort feasors with their Sub-lessees, and, for the purposes of this decision has relied upon the terms of the Sub-lease between the Sadhus and the Marwaris. The Sub-lease, as I have said, was granted pendente lite; the premium paid by the Marwaris was Rs. 33,000 and a sum of Rs. 1,500 per annum was reserved as the minimum royalty. There were certain other benefits under the Sub-lease accruing to the Sadhus, but with those we are not concerned. In the lease, the facts of the litigation, which I have stated was commenced in 1915, was recited, and, under the lease the Marwaris had agreed to bear all the expenses of the case and to conduct an appeal up to the Privy Councils the Sadhus being bound to render all assistance to the Marwaris in the matter. It was agreed that if the litigation failed, there should be a refund of the premium of Rs. 33,000. As the learned Judge has pointed out, by the terms of the lease the Marwaris were bound to work the coal and the wrongful extraction of the coal was bound to continue. The Sadhus, if they had called upon the Marwaris to stop work after the injunction had been granted, would have been liable to return the premium and of course would not, in those circumstances, receive their minimum royalty; on the other hand, the Marwaris felt constrained to go on in order to recoup themselves as far as possible the premium which they had paid for the right of extracting the coal.

One of the arguments addressed to us is that at the time that this lease was granted (i.e. in 1921) the view taken of the law in India was that lessees (being the Sadhus in this case) had a right to the minerals a view which was shown to be wrong by a later well-known decision of their Lordships of the Judicial Committee of the Privy Council. But this argument does not avail the defendants. The question of the existence of a bona fide belief of their right to extract the coal only goes to the measure of damages. If there were no bona fide belief they would be liable to the gross value of the coal; if otherwise, then the plaintiffs would be entitled only to the net value of the coal. But as I have already stated this question does not arise as the matter of damages is not a question arising in this appeal.

The main argument in support of the defendants contention is based upon the decision of their Lordships of the Judicial Committee of the Privy Council in Pugh v. Ashutosh Sen 56 I.A. 93 : 114 Ind. Cas. 604 : AIR 1929 P.C. 69 : 33 C.W.N. 323 : 29 L.W.449 : 10 P.L.T. 155 : 6 O.W.N. 151 : 49 C.L.J. 415 : 31 Bom. L.R. 702 : 8 Pat. 516 : (1929) A.L.J. 170 : 56 M.L.J. 517 : Ind. Rul. (1929) : P.C. 116 (P.C.). The passage relied upon in the opinion of their Lordships as expressed by Lord Warrington was as follows:

In their Lordships'' opinion the learned Judges in both Courts have misapprehended the question they had to try, namely, whether the appellant was a joint tort feasor with Bagchi and Pilcher & Co. Ltd, respectively. Neither the fact that he was their lessor--assuming, contrary to their Lordships view, that he was a lessor in the proper sense of the term, nor that he encouraged the wrong-doers, whatever this may mean, would be sufficient by itself to support finding that he was a joint tort feasor.

For the application of the statement just read, it will be necessary to observe the facts of that case. The suit was against the appellant Pugh. The right in dispute was coal in an area called Gaurigram under the mining lease of April 3, 1914, granted by the Raja. The appellant Pugh had purchased certain mining rights which had been granted by the Raja to the Kohinoor Coal Company, Ltd. These mining rights related to an area called Pathargarda, adjoining part of the western boundary of Gaurigrarn. Included in this purchase was the benefit, if any, of a sanad of September 16, 1913. This sanad was given by the Raja to the Kohinoor Coal Company by which he promised to grant, to the Kohinoor Coal Company mining rights over 20 bighas of land within Gaurigrarn. But there was clause in the sanad saying that, "if the mining lease is not executed and registered within the said four months", the Raja would be competent to settle the land with any other person.; The condition was not performed by the Kohinoor Company, and so, at all material times, Pugh although having the benefit of the sanad in fact acquired no interest in the 20 bighas of coal land in Gaurigrarn. The non September 3, 1917 the appellant granted and demised his interest to the defendant in the action named Bagchi. Bagchi then assigned his interest in 1919 to Pilcher & Co., Ltd. The conveyance to Pugh recited the sanad and said that no lease had ever been granted; but the conveyance included the benefit, if any, of the sanad, and Pugh apparently under the belief that he had certain rights worked coal in Gaurigram up to January 1917. The suit by the plaintiff was begun in June 1920. So as regards the claim against Pugh himself, it was barred by limitation. The Courts sought to make Pugh liable by reason of his grant to Bagchi and Bagchi''s sanad to Pilcher & Co., Ltd. Their Lordships of tLe Privy Council, as indicated by the passage to which I have referred, stated that the grant by Pugh to Bagchi was not a lease but an assignment of the whole of his rights. There was no evidence that Pugh had extracted the coal for the period in suit and he could be held liable only by xeascn of his assignment. Their Lordships held in the circumstances of the case that even if Pugh had been a lessor, he would not have been liable, and (as I understand the case) for the reason that Pugh had made no grant of specific rights in Gaurigram but had merely given them a grant of such rights as he possessed. The facts of that case are entirely different from those in the present case. It would perhaps be impossible in this case to hold that the Sadhu defendants were responsible merely because of the relationship of lessees and sub-lessees between them and the Marwaris. The Sadhus would not be responsible for a trespass in the Sub-soil committed by their Sub-lessees and with regard to the sub soil not demised, nor would they be liable if their acts merely encouraged the Marwaris. But the facts here are entirely different. Here the Sadhus entered into a definite contract with regard to this specific coal which was in dispute in the action of 1915, and if the Marwaris are trespassers, so are the Sadhus. It would be surprising if it were necessary to hold in this case that if the Sadhus had extracted the coal themselves, they would be liable, yet they would not be liable if by this contract with their sublessees they agreed that their sub-lessees should extract the coal and that they were to share in the profits. This is not a question of relationship between the parties, nor is it a question of encouragement by the Sadhus of the Marwaris, but it is a question of a contract between the parties to extract the coal, the subject matter of the former suit and this suit. There seems to be no more to be said about the case. Quite clearly in those circumstances defendants Nos. 1 to 7 are joint tortfeasors with the Marwaris. No other question arises in the appeal.

For those reasons, in my opinion, the appeal fails and must be dismissed with costs.

Manohar Lall, J.

It has been strenuously argued on behalf of the appellants, defendants Ncs. 1 to 7, that they are not liable as joint tort feasors because they themselves did not extract any coal belongir g to the plaintiffs during the period for which the decree has been passed against them. The facts necessary to decide this question are no longer in dispute. It appears that a suit was filed by the present plaintiff in 1915 against defendants Nos. 1 to 7 or their predecessors (members of the same family) who were in possession of certain lands by means of a patni grant of the year 1261 Fasli which did not contain any express authority to extract minerals. In that suit the plaintiffs also claimed for a declaration of their rights to the minerals and further asked for a permanent injunction restraining the defendants-appellants from working the coal mine, and claimed damages on account of coal extracted by the appellants for ascertain period. While that suit was pending, the defendants Nos. 1 to 7 (who may be termed as the Sadhus hereafter) gave a sub-lease on October 21, 1921, for a period of 999 years to defendants Nos. 8 to 9, who will be referred to as the Marwaris hereafter. The Sadhu defendants failed to get an order from the Court for adding the Marwaris as party defendants in May 1922 and the suit was ultimately decreed against the appellants in December 1924. The appeal by the appellants failed in July 1928 and thereafter the plaintiffs took formal delivery of possession (whatever that may meanj on March 2, 1929. By the present action which was raised by the plaintiffs on August 15, 1929, they claimed damages against the appellants for the period August 16, 1926, to March 2, on the basis of the actual tonnage of coal removed from the plaintiff''s coal field. The Marwaris were made defendants on April 1, 1930, and June 11, 1930. The learned Subordinate Judge has decreed the suit against the appellants only for the period from August 16, 1926, to March 31, 1927, for a total som of Rs. 4,028 and has passed a joint decree for the balance about Rs. 11,178 besides interest and costs against the appellants and the Marwari defendants for the period from April 1, 1927, to March 2, 1929.

The critical question, as indicated above, in this case is whether the appellants are liable for thecoal which was extracted by the Marwari defendants on the strength of a Sub-lease executed by the appellants in favour of the Marwari defendants in October 1921. It is stronglyargued by the learnedAdvocate for the appellants that inview of the authoritative decision of the PrivyCouncil in Pugh v. Ashutosh Sen 56 I.A. 93 : 114 Ind. Cas. 604 : AIR 1929 P.C. 69 : 33 C.W.N. 323 : 29 L.W.449 : 10 P.L.T. 155 : 6 O.W.N. 151 : 49 C.L.J. 415 : 31 Bom. L.R. 702 : 8 Pat. 516 : (1929) A.L.J. 170 : 56 M.L.J. 517 : Ind. Rul. (1929) 116 his clients are not liableatall for thecoal extracted by the Marwari defendants simply because a Sub-lease was executed by hisclients in October 1921 and he submits that there is no other circumstance established in this case. Before considering the applicability of that decisionit is necessary to find the facts which appear to have been established in the present case. It seems clear to my mind that the Sub-lease which enabled the Marwari defendants to extract coal was granted by the appellants during the pendency of the suit in which the rightof immovable property was directly inquestion, and therefore, there was a prohibition against any transfer by any parties to the suit so as to affect the rights of the plaintiffs: see Section 52 of the Tranefer of Property Act. On the construction of the sub lease and the kibuliyat which is printed at page 3, it is also clear to my mind that this was not a lease in the ordinary course of business. The Marwari Sub-lessees were aware of the risk in entering into this transaction and the appellants and the Marwaris entered into this transaction more in the nature of speculation than as a bona fide Sub-lease. The appellants obtained immediately a salami of Rs. 33,000 for selling the right to extract coal from the lands of the plaintiff which right was seriously in jeopardy. They also reserved to themselves a minimum royalty of Rs. 1,500 a year thus forcing the Marwari defendants to work the coal mines in order to make up for their liability forrecurring and continuing minimum royalty. The appellants tried in May 1922 to add the Marwaris as defendants in the suit obviously because they wanted to share the liability with them. The present case is not a case of mere granting of lease by one party to another but something more was done. The appellants granted a Sub-lease at a time when they had no right to grant this sublease. They immediately took the sum of Rs. 33,000 as salami which they had no right to take. They entered into speculative transactions with the Marwaris securingto themselves a permanent minimum royalty of Rs 1,500 a year and forcing the Marwaris to work the coal mines which belonged to the plaintiff only. Thequestion whether the defendants are joint tort feasors is a question which depends entirely upon the facts of each case. Upon the facts of this case,I am inclined to hold, that the appellants were joint tort feasors with the Marwari defendants in view of the circumstances stated above and that it is no excuse for them to say that they have not extracted coal in the relevant period. They had already obtained a salami of Rs.33,000 and reserved a minimum royalty of Rs. 1,500 a year which was in one sense an advance realisation of a part of the sale proceeds of the coal (to which they had no right) during the period in suit. It is, there fore no answer to say that for the periods in suit they have not extracted any coal nor realised anything but only had a right to realise some royalty. The case is exactly the same as if the Marwar is and the appellants jointly started to plunder the plaintiff of his coal and each plunderer helped himself to different portions of the plunder inunequal portions: see Azeem Khan v. Ameerun 12 W.R. 38 : 3 B.L.R.P.C. 44.

I now consider the case strongly relied upon by Sir Mantnatha Nath Mukharji on behalf of the appellants, viz. Pugh v. Ashutosh Sen 56 I.A. 93 : 114 Ind. Cas. 604 : AIR 1929 P.C. 69 : 33 C.W.N. 323 : 29 L.W.449 : 10 P.L.T. 155 : 6 O.W.N. 151 : 49 C.L.J. 415 : 31 Bom. L.R. 702 : 8 Pat. 516 : (1929) A.L.J. 170 : 56 M.L.J. 517 : Ind. Rul. (1929) 116 . That case was decided upon the finding that the appellant was not the lessor of the defendants who had been found working the coal fields without authority and upon the assumption that even if the appellant was their lessor or if he encouraged the wrong-doers, still there was nothing else in that case to support the finding that he was a joint tortfeasor. Their Lordships also pointed out that the case of Doe v. Harlow (1838) 12 Ad. & E. 40 : 113 E.R. 724 : 54 R.R. 523 settled no principle at all but the Court simply held in that case that there was evidence upon which the jury might properly find that Warren had made himself a party to the tort. I take this decision of the Privy Council to mean no more than what it says, namely, that the mere fact that a lessor executes a lease in favour of a wrong-doer is not sufficient by itself to support a finding that the lessor has become a joint tort feasor. In the present case, as I have indicated already, there are a number of circumstances which are conclusive in my view, to Show that there is sufficient evidence to justify the finding at which the learned Subordinate Judge has arrived, namely. That the appleants are joint tort feasors with the Marwaris.

Sir Manmatha Nath Mukherji next argued that the learned Subordinate Judge was in error indecreeing the suit against the appleants only for the period August 1926 to March 1927, and thereby depriving turn of his right to have contribution from the Marwan defendants. It is enough to say that the learned Subordinate Judge has not decided that the appleants have no right to contribution against the Marwari defendants for this amount. This question will be determined if and when an occasion arises. The plaintiff has a right to sue any joint tort feasor and to recover the decree against him and it is no defence to say that the decree should have been passed also against another joint tort-feasor.

I, therefore agree that this appeal fails and must be dismissed with costs.