The main legal point established in the judgment is the interpretation and application of the Indian Limitation Act, specifically Art. 48 and Art. 49, in the context of a trover action for damages for the conversion of specific movable property, and the determination of joint liability.

Judgement

Appeal (No. 30 of 1927) from a decree of the High Court (December 22, 1925), affirming, subject to a modification, a decree of the Subordinate Judge of Purulia (November 26, 1921).

On June 26, 1920, parties represented by respondents Nos. 1 to 4 brought a suit against the appellant and two other defendants, for an injunction and for damages in respect of coal extracted from lands of which the plaintiffs were lessees and under-lessees. They alleged that they first knew of the encroachments in June, 1919. The present appellant was defendant No. 3. The coal had been extracted by defendants Nos. 1 and 2 by encroachments from lands held by defendant No. 1 from defendant No. 3 as under lessee of the whole of his lessee interest, and under-leased to defendant No.

2.

The defendants in addition to other defences pleaded limitation.

The facts are fully stated in the judgment of the Judicial Committee.

The trial judge granted an injunction and decreed damages against the three defendants.

The present appellant alone appealed to the High Court, which affirmed the decree subject to a modification in the damages awarded. The learned judges (Adami and Sahey JJ.) rejected the plea of limitation, holding that the suit was governed by the Indian Limitation Act, 1908, Sch. L, arte 48, and that it had been brought within three years of the time when the plaintiffs first knew of the encroachment. They agreed with the trial judge that the defendants had acted in good faith, and honestly. They held the appellant liable in damages together with the other defendants on the authority of Doe v. Harlow. (( 1840) 12 Ad. & E. 40.)

1928. Nov. 19, 20. De Gruyther K.C. and F. E. Farrer for the appellant. The suit was governed by art. 39, or possibly art. 49, of the Indian Limitation Act, 1908, Sch. I.; in either case the three years period ran from the time when the coal was extracted. The Courts in India erroneously held that art. 48 applied, and consequently that time ran only from the date when the plaintiffs first knew of the encroachments. A consideration of the terms of the various articles shows that art. 48 applies only to a “conversion " which is " dishonest " ; the word " dishonest " governs " conversion" as well as " misappropriation." That view is further supported by the position of the commas in the official print of the Act. Lodna Colliery Co. v. Bipin Behari Bose (( 1920) 55 Ind. Cases, 113.), which was followed, was wrongly decided.

But in any case this appellant was not liable. The suit was not for an account of profits received by him, but a suit for damages for trover. He was not, however, the principal of the other defendants, nor a joint tortfeasor with them. There was no evidence that the appellant knew of the encroachments by

L. P. E. Pugh V. Ashutosh Sen 251

the other defendants. Although he received royalties upon all the coal extracted, there was nothing to show him that part of the coal was from the land encroached upon. The sub-lease given by the appellant provided for royalties upon coal from the " demised land " only. In Doe v. Harlow (( 1840) 12 Ad. & E. 40.), which was relied on, the only question was whether there was any evidence to support the verdict of the jury; Lord Denman expressly said that the result would have been otherwise if the defendant had merely put the trespassers into possession. The facts of the present case are similar to those in Thomas v. Atherton. (( 1878) 10 Ch. D. 185, 199.) In delivering the judgment of the Court in that case James L. J. said that had the matter not been concluded by an award but had proceeded to trial, the defendants would undoubtedly have succeeded. The appellant having demised for the whole of his unexpired term was in law an assignor of the lease. [Reference was made also to Powell v. Aiken (( 1858) 4 K. & J. 343.) and Elias v. Griffith, (( 1878) 8 Ch. D. 521.)]

Sir George Lowndes K.C. and Wallach for respondents Nos. 2, 3 and 4. The terms of the lease executed by the a