Mungun Jha and others vs Dulhin Golab Koer and another

Maclean, C.J.—The short point we have to decide is whether the case falls within art. 36 of the second schedule of the Limitation Act, or whether it is within some one or other of the articles to which I will refer in a moment. According to the reference, the suit was brought for, amongst other things, damages for cutting and carrying away crops, and it is admitted that, if art. 36 applies, the suit is out of time, but that if art. 39 or art. 48 or 49 or art. 109, which are the articles upon which the Plaintiff relies, apply, then, as the period of three years which is the period under latter articles, had not elapsed, when the suit was instituted, it was brought within time, and the statute of limitations is not a bar. To my mind art. 36 does not apply to this case. In the first place that section is a general one and only applies when the particular case is not specially provided for in the Act. Again the words "malfeasance," "misfeasance" or "non-feasance" are scarcely the terms one would ordinarily apply to such a tort as the present. They are terms which more generally, at any rate, I do not say entirely, are a] plied to some wrongful act committed by persons standing in a fiduciary or quasi-fiduciary character, such as executors, trustees and directors of companies. But be this as it may, I think this particular case is otherwise specially provided for in the Act. Looking at the pleadings and the nature of the relief sought, I am by no means satisfied that the case does not come within art. 39, namely, compensation for trespass upon immovable property. But assuming that not to be so, 1 think the case comes within art. 49, and I agree in the judgment of Mr. Justice Ghose in the case of Sarat Lal Mundal v. Umar Haji I. L. R. 22 Cal. 877 It is difficult to say that, under the circumstances of this case, the crops having been severed from the soil, it was not specific movable property in respect of which the Plaintiff was seeking compensation for the wrongful taking away of the same. Though immovable in the first place, the crop became movable property specific in the sense that it was in specie as soon as it was severed from the soil, and I do not see why, for the purposes of this article, the fact that the severance was a wrongful act on the part of the tort-feasor ought to make any difference. Seeing that the defence is a statutory one, it is for the Defendant to show clearly that the case comes within art. 36. However, agreeing as I do with Mr. Justice Ghose''s judgment in the case I have referred to, I do not think I can usefully add anything to what he has said. With respect to the question of costs I see no reason whatever for interfering upon that point with the decision of the Court below.

Macpherson, J.

I agree. I would only add that I cannot see any real conflict of opinion in the cases of Shurnomoyee v. Pattarri Sirkar I. L. R. 4 Cal. 625 and Pandah Gasi v. Jenuddi I. L. R. 4 Cal. 665 or between those cases and the case of Sarat Lal Mundal v. Umar Haji I. L. R. 22 Cal. 877, Mr. Justice Chose has clearly stated in the latter case the grounds on which he distinguished the case of Pandah Gasi v. Jenuddi and ors. I. L. R. 4 Cal. 665. Taking the question referred to us in this case to be whether art. 36 applies to the facts of the case as found, I agree with the learned Chief Justice that it does not apply. That article only applies to cases which are not otherwise specifically provided for by the Act. In this case, the Plaintiff''s direct complaint is of an act of trespass on his land coupled with the cutting and carrying away of the crops off his land. Clearly he would be entitled to recover damages for trespass. The Plaintiff claimed in addition damages for the crops winch the Defendants wrongfully cut and carried away, and although standing crops are immoveable property, I do not see on what ground we can hold that crops after they have been cut do not come under the description of specific movable property to which art. 49 or 48 might apply. Possibly also the case might be brought under art. 109 if it is not brought under art. 39. It seems to me immaterial, or of very little importance, under which of the other articles it comes because the Plaintiff would in any case have three years from the date of the cause of action within which to bring his suit and consequently would be in time. On these grounds I think that the appeal must be dismissed.

Trevelyan, J.

entirely agree with the view expressed by the learned Chief Justice. I only wish to add this, in regard to what Mr. Justice Macpherson has stated, although, for the purposes of this appeal, it seems to me unnecessary to decide it. At the time of the reference, I thought, and I still think, that there is a distinct conflict of opinion between the decision of the learned judges in the case of Sarat Lal Mundal v. Umar Haji I. L. R. 22 Cal. 877 and the decision of Mr. Justice Mitter reported in Pandah Gazi v. Jenuddi I. L. R. 4 Cal. 665 I think that the conclusion in the latter case as to art 40 of the second schedule of the Limitation Act (IX of 1871) is equivalent to a conclusion that art. 36 of the second schedule of the Limitation Act (XV of 1877), which differs only from art. 40 of Act IX of 1871 in the prefixing of the word "wrong" to the words "malfeasance, misfeasance and non-feasance," would be applicable, whereas the ruling in the case in Sarat Lal Mundal v. Umar Haji I. L. R. 22 Cal. 877 is that it is not applicable. But as I said before, having regard to the facts of this case and the judgment of the learned Chief Justice, it does not really very much matter whether those two cases agree or whether they differ.

Ghose, J.

I agree with the Chief Justice in holding that art. 36 of the Limitation Act docs not apply, but that art. 49 does apply to the facts of this case. In the case of Sarat Lal Mundal v. Umar Haji (1), I have fully given my reasons for arriving at the conclusion at which I then did and at which I do now arrive, and I do not think I should be justified in referring to them.

As regards the case decided by Mr. Justice Mitter and Mr. Justice Maclean reported in I. L. R. 4 Cal. 665, to which reference has been made, it is sufficient to say that for the reasons I gave at page 886 of I. L. R. 22 Cal., I do not think that that case decided the precise point which is raised before us in this case.

Rampini, J.

I regret I am unable to agree with the view taken of this case by the learned Chief Justice and by my learned colleagues. I am of opinion that art. 36, of the second schedule of the Limitation Act applies to this case. I may say briefly that my reasons for thinking so are the same as those which I gave in my judgment in the case of Sarat Lal Mundal v. Umar Haji I. L. R. 22 Cal. 877.

It appears to me that this case is on all fours with that case. The Plaintiff in this case seeks to recover damages for the cutting and carrying away of his crops by the Defendants; and consequently it appears to me that no other article of the Limitation Act, except art. 36, will apply to such a case. The learned pleader for the Respondent has argued that the case comes under either art. 39 or art. 48 and 49, or art. 109. But it appears to me that none of these articles will apply. Art. 39 will not, in my opinion, apply, because the suit, as framed, is not one for compensation for trespass upon immoveable property. Arts. 48 and 49 will not apply, because this is not a suit for wrongfully misappropriating or injuring specific movable property or for compensation for taking and detaining the same. It is a suit, as is clearly shown from paragraph 5 of the plaint, for the cutting and carrying away of standing crops, which are immovable property, whereas arts. 48 and 49 can only apply to movable property which is ab initio movable, and has not been converted from immovable 10 movable property by the act of the tort-feasor. In my opinion arts. 48 and 49 cannot be held applicable, unless the first wrongful act committed by the tort-feasors, (in many cases the principal wrong), viz., the conversion of the immovable into movable property, be disregarded. Art. 109 will not apply because that article appears to me to refer to a case in which possession of immovable property has been wrongfully withheld from the Plaintiff. This is not the case in the present suit. The Defendants disclaim all interest in the land and it is not alleged that they wrongfully took possession of the land. That this is the correct interpretation of art. 109 is apparent from the language of the article itself, from the definition of mesne profits given in sec. 211 of the Code of Civil Procedure, and from the description of "an action for mesne profits" given at page 479 of Wharton''s Law Lexicon, 9th edition, where it is said : --"An action for mesne profits is an action of trespass brought to recover profits derived from land, whilst the possession of it has been improperly withheld," For these reasons I am of opinion that art. 36 applies, and I am supported in this view by the decision in the case of Pandah Gazi v. Jenuddi I. L. R. 4 Cal. 665. I may also add that, as a matter of policy, it is a matter of some importance that the period of limitation in such cases should be short. In the case of Essoo Bhaya v. The Steam Ship "Sanitar" I. L. R. 11 Bom. 136, Farran, J., says: -- "There are no cases in which it is more desirable that the evidence by which they are supported or rejected, should be promptly given and scrutinized than in actions of tort," and in my opinion this observation is particularly applicable to cases of cutting crops, so common in Bengal. I have only to add that I have no reason to dissent from the judgment of the learned Chief Justice with regard to the costs of this case.