Sitaram Sham Narayan Firm vs Iswari Charan Sarangi and Others

Wort, J.—This appeal arises out of an action by the plaintiff in which he claimed damages against the defendants for converting to his own use certain Kendu leaves which are used for the manufacture of biris. It appears that the plaintiff had a license from the Government to collect these leaves from forest blocks Nos. 1 to 8 in the Chaibasa forest division. The defendants are proprietors of village Sarashposh, and the plaintiff''s case was that the defendants intercepted the labourers employed by the plaintiff for the collection of these leaves and persuaded them to sell these leaves to them (the defendants). A complaint was made and ultimately some 50,000 bindas were seized and at the time of the action were in possession of the Forest Department. The trial Court came to the conclusion that the plaintiff had failed entirely to make out his case. From the judgment in would appear that the learned Judge disbelieved a great deal of the plaintiff''s evidence.

The appellate Court however, although affirming the decision of the trial Court, differed so far as certain points were concerned. It is to be noticed particularly that the plaintiff claimed damages with regard to the 50,000 bindas seized and held by the Forest Department. A good deal of the controversy in the Courts below arose with regard to the question whether the defendants could possibly have produced the quantity of leaves which were found, from the trees of their particular jungle. The Judge of the appellate Court came to this conclusion and I propose to state his words:

After examining all the evidence on this point I find that while it is clear that it would not be possible to gather leaves for biris to any great extent from the trees of this village (that is the defendant''s village), I would hesitate to find that it would be impossible to gather any at all.

Together with that finding I would refer to the finding at the end of his judgment in which he states:

The evidence on record shows that some Kendu leaves from the protected forest were purchased on behalf of the defendants, but so far as this suit is concerned I do not find satisfactory evidence to show where the leaves attached same from.

Now it is contended by Mr. Mukherji on behalf of the appellant that as the plaintiff has established the fact that the defendants have taken some leaves and as those leaves are intermixed with the leaves of the defendants it was for the defendants to show the extent to which they had committed this conversion, in other words, the onus was on the defendants to establish for the plaintiffs the extent of the damages which they (the plaintiffs) had suffered.

For this proposition reliance is placed upon the case of Duke of Leeds v. Earl of Amherst (1855) 20 Beav 289. The learned Vice-Chancellor (Sir Lancelot Shadwell) in that case, after quoting the Holy Scriptures and the Roman Civil Law, and Lord Coke, takes it that the principle which he sets out in the earlier part of his judgment is established, and the principle was stated by the learned Vice-Chancellor in these words:

I take it, that the general wisdom of mankind has acquiesced in this: that the author of a mischief is not the party who is to complain of the result of it, but that he who has done it must submit to have the effects of it recoil upon himself.

Some of the authorities of the Common law to which he refers seems to have little application to the principle which he sets out in the earlier part of his judgment. Coke, C.J., had said:

In this case the law is, that if J.S. have a heap of corn and J.D. will intermingle his corn with the corn of J.S. he shall here have all the corn because this was so done by J.D. of his own wrong, and so it was adjudged in a case between Shordish and Moore.

It seems to me that the Duke of Leeds'' case (1855) 20 Beav 289 which was a case of equitable waste has little or no application to this case before me. I would assume for the purpose of Mr. Mukherji''s argument, although in my experience I have never heard the principle applied that if there is conversion then it is for the defendant wrongdoer to show which and to what extent the property of the plaintiff has been converted. But the difficulty in this case for Mr. Mukherji who appears on behalf of the appellant is this, as I said at the commencement of my judgment, that the plaintiff confined his case to 50,000 bindas, and so far as that case was concerned the Judge in the Court below was not satisfied where the attached leaves came from.

In other words so far as the leaves in suit were concerned the plaintiff has failed to establish his title as the learned Judge points out. It is perhaps useless to say again as one has so many times said from this Bench that if the parties really considered what their case was before they went to Court a great deal of the trouble which is caused to the litigants would be obviated.

It is admitted that the plaintiff confined his case to 50,000 bindas. Had he not so confined his case, but satisfied himself with establishing the defendants'' conversion of some leaves and then by calling coolies whom he employed to collect the leaves endeavoured in so far as it lay in his power to prove the quantity which had been sold to the defendants, it seems to me that the result of the action would have been very different from what it was. In other words, although it might be thought, as Mr. Mukherji argues, that the plaintiff was entitled to damages because he had proved conversion, as he has confined himself to 50,000 bindas, it is difficult to see in the face of the finding of the Court below bow he could possibly succeed.

The only doubt that is in my mind is whether the Subordinate Judge was of the opinion that it was necessary for the plaintiff to prove the actual identification of the leaves themselves in contradistinction to the proof of the quantity which the plaintiff alleged had been converted.

It stands to reason that no party could possibly prove the identification of the leaves themselves, but it was possible for them, at any rate, to roughly prove the quantity which they alleged had been converted. In that state of affairs it is a question whether the case should go back for the learned Judge to consider whether the plaintiff in the circumstances of the case is entitled to any damages at all.

I have repeated already several times the fact that the plaintiffs confined themselves to these particular 50,000 bindas. I would add that it was a judgment of affirmance, and from the judgment of the trial Court it would appear that the plaintiff''s case was disbelieved almost in its entirety. In these circumstances it seems to me that I can hardly accede to the argument which is advanced on behalf of the appellant, although in fact it has been established that the defendants have converted some of the leaves to their own use. I have great sympathy with the plaintiff, but having regard to the manner in which the plaintiff framed his action and having regard to the finding of the Subordinate Judge in the Court below it seems to me that the only conclusion that I can arrive at is that the appeal fails.

There was a further argument by Mr. Mukherji to the effect that he was entitled to general damages in contradistinction to special damages. There is a confusion of thought, if I may say so, with respect to Mr. Mukherji. The measure of damages in an action for trover is the value of the goods. According to the circumstances the general damages may be a substantial sum or may be a nominal sum, but there may be additional special damages given besides the actual value of the goods if the damages sustained are held not to be too remote. There is abundant authority for that. The suggestion in this case that the plaintiffs are entitled to general damages fails entirely because according to the decision of the Subordinate Judge the plaintiffs have failed to prove their case.

I must repeat that they confined themselves to these 50,000 bindas. These are not the property of the plaintiffs according to the judgment of the Court below. If they contented themselves with a general case of conversion by the defendants then the Judge in the Court below would have been bound to have said that some leaves have been converted and therefore the plaintiffs are entitled to some damages. In my judgment therefore, as I have said, the appeal must be dismissed.

There was a point raised by Mr. Mukherji on behalf of the respondents to the effect that no second appeal lay as this was an action cognizable by a Small Cause Court.

Article 35, Clause (ii) however provides that where, but for Ch. 4, Penal Code, the act would be an offence punishable under Ch. 17, the act giving rise to cause of action is excluded from the jurisdiction of the Small Cause Court Judge. In my judgment therefore the preliminary objection cannot be supported. The appeal fails on its merits and must be dismissed with costs. The orders for costs in the Courts below should remain as they were made. Leave to appeal is allowed.