Judgement

Appeal (No. 130 of 1928) from a decree of the High Court (April 30, 1926) varying a decree of the Subordinate Judge at Asansol, Burdwan District.

The appellant company and a firm carrying on business as the Nandi Coal Association were lessees of adjacent coal mines. On September 22, 1919, the appellant company instituted a suit alleging that the firm had encroached upon their mine and removed coal therefrom. They claimed as damages the value of the coal removed and the cost of erecting a barrier to cut off their mine from the defendants ; they also claimed an injunction.

The only survivor of the firm as constituted at the date of the alleged trespass was made defendant No. 1; he died during the suit and his son and heir, respondent No. 1, was substituted for him. Defendants-respondents Nos. 2 to 6 were the widows and minor sons, and representatives, of deceased members of the firm.

The defendants by their written statements denied that the plaintiffs had " any right or title to the property in suit," and pleaded that the plaintiffs had " no cause of action " against them ; they alleged that the coal was not within the boundaries of the plaintiffs lease, but of their own ; they pleaded also that the suit was barred by limitation.

The Subordinate Judge by his judgment found (1.) that the coal was removed from within the boundaries of the plaintiffs lease ; (2.) that the firm had wrongfully extracted 18,544 tons of coal; (3.) that the coal was taken before 1915 ; (4.) that the encroachment was due to inadvertence and mistake; (5.) that the plaintiffs first learnt of the encroachment in 1919. On these findings he held that the suit was not barred. He made a decree for damages, both in respect of the coal taken and the cost of erecting the barrier, and he granted an injunction.

On an appeal by the defendants to the High Court, and cross-objections by the plaintiffs, the decree was affirmed so far as an injunction had been granted, but in all other respects it was set aside.

Mukerji J. (Greaves J. concurring) agreed with the above five findings of fact by the trial judge. The learned judges held, however, that the claim to damages for the coa extracted was barred by arts. 39 and 49 of the Limitation Act; in their opinion art. 48 applied only to a dishonest conversion. The claim to the cost of the barrier, though not barred by limitation, failed because the barrier was not necessary. They held, agreeing with the trial judge, that Act XII. of 1855, and therefore art. 35 of the Limitation Act, did not apply as the coal taken presumably increased the assets of the members of the firm.

The plaintiffs having appealed to the Privy Council, the defendants cross-appealed by special leave, contending that the plaintiffs had no title to the coal, as the patnidars, their lessors, had no title. Both Courts in India had declined to entertain that contention on the ground that it was not raised on the pleadings or issues.

1929. Dec. 9. Dunne K.C. and Hyam for the appellants. The limitation article applicable to the claim for conversion of the coal was art. 48; that article applies to all conversions whether dishonest or not. Consequently time did not run until 1919, when the plaintiffs first knew of the encroachment. The recent decision of the Board in Pugh v. Ashutosh Sen (( 1928) L. R. 56 I. A. 93.) is conclusive on the above points. Upon the evidence the barrier was necessary as a reasonable protection from the results of the continuing trespass by the encroaching galleries ; the value of the pillars of coal left in the galleries should not be deducted. The respondents cannot raise the contention put forward by their cross-appeal. It depended upon the terms of the patni lease granted by the zamindar to the plaintiffs lessors. [Reference was made to Satya Niranjan Chakravarti v. Ram Lal Kaviraj (( 1923) L. R. 52 I.

A. 109.) and Bijoy Singh Dudhoria v. Surendra Narayan Singh. (( 1928)L.R.55 I.A.320.)] As the point was not raised by the