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Madhya Pradesh High Court
A. P. SEN,S. S. SHARMA
Durga Prasad - Appellant
Versus
Parveen - Respondent
Decided On : 02/10/1975
The provisions of Order 11. rule 19 (2) of the Code of Civil Procedure, must be read subject to section 162 of the Evidence Act The Court should determine whether upon the material before it the documents are, infact, of the class which can be sad to relate to the affairs of the State.
The "affairs of the State" would ordinarily refer to matters of political or administrative character relating for instance, to the National Defence, public peace and security or good neigh bourly relations, whose disclosure would be prejudicial to public interest.
There may be another class of documents, which could claim the said privilege not by reason of their contents as such but by reason of the fact that, if the said documents were disclosed, they would materially affect the freedom and candour of expression of opinion in the determination and execution of public policies. In this class may legitimately be included notes and minutes made by the respective officers on the relevant files, opinion, expressed, or reports made, and gist of official decisions reached in the course of the determination of the said questions of policy. AIR 1961 SC 493 relied on. [Para 18
(2) Encroachment-dispute-basis of determination-either an agreed map or a report of a Commissioner - Civil PC., 1908 - O.26, R.9.
(3) Civil PC., 1908 – O.26, R.9 - dispute as to encroachment-agreed map not existing- can be decided by appointment of a Commissioner.
In cases where there is a dipute as to encroachment, the fact whether there is such an encroachment or not cannot be determined in the absence of an agreed map, except by the appointment of a Commissioner under Order 26, rule 9 of the Code of Civil Procedure. [Para 25
(4) Tort-damages- vicarious liability- Government servants acting according to the law within their power-State Government not vicariously liable. [Para 29
(5) Mines and Minerals (Regulation and Development) Act, 1957 -So 27 acts done by Government servants in discharge of their official duties-no suit lies against the officials or the State Government. [Para 32
(6) Limitation Act, 1908-Art. 17 & S. 28-adverse order under section' 145 (6), CrPC., - title extinguished under section 28 of the Limitation Act-gives title to the wrong doer.
(7) Criminal P.C. 1898-S 145 (6)-adverse order passed against a person-no civil suit for title brought within limitation-title extinguished.
(8) Limitation Act, 1908-S 28- nature of the provision. Where final order is passed against a person under section 145 (6) of the Criminal Procedure Code, 1898 such party should bring a suit based on title within three years therefrom as provided by Article 47 of the Limitation Act The failure to bring such a suit results in extinguishment of the right to the property by reason of section 28 of the Limitation Act Sect on 28 is an exception to the General principle that limitation bar., only the remedy and does not extinguish the right to property The extinguishment of the right or title of the rightful owner under section 28 of the Limitation Act will operate to give a good title to the wrong doer. AIR 1947 PC 64 relied on. [Para) 5
(9) Limitation Act, 1908 - S.28 - title to immovable property extinguished-right to recorder rent or profits also lost retrospectively.
It is well settled that where the right to immovable property is extinguished, the right to recover damages or rents or profits of the property even prior to such extinguishment will be lost That is because the extinguishment of such right takes effect retrospectively 17 MPLC 4, ILR 26 Mad. 410. AIR 1937 All. 300 & AIR 1957 Kerala 117 relied on. 46 CWN 551 distin, guished [Paras 36 & 40
(10) Transfer of Property Act, 1882 - S.108 (c)-applicability of-no lease executed-only a licence given-no liability from breach of covenant of quite enjoyment arises. From the terms of the document it is clear that it was not a lease but a licence. The parties did not stand in the relation of lessor and lease and consequently the licensor was not liable for any breach of the covenant quite enjoyment implied in section 108 (e) of the Transfer of Property Act. [Paras 43 & 45
(11) Deed-interpretation of-lease or agreement to lease-distinction.
(12) Lease-what is
Whether the document operates as a lease or as an agreement to lease is a matters of construction and intention. When a document though in form of an agreement to lease, finally ascertains the terms of the lease, and gives lessee a right of exclusive possession either immediately or at a future date, the document is said to effect an actual demise and it operates as a lease.
It is well settled that when the parties to a contract contemplate the execution of a formal deed, the matter is still at the stage of agreement though it may have reached finality. 37 MPLC 186 re lied on. [Para 44
(13) Civil P.C" 1908 - O.6, R.2 - material facts should be pleaded in the plaint-plaint cannot be read with the notice-plea based on tort-cannot be treated to be one based on contract.
Under Order 6, rule 2 of the Code of Civil Procedure, the plaintiff should have stated material fact" The non-mention of these facts amounts to no pleading and, therefore, no cause of action arises. It is wrong to suggest that the plaint should be read with the notice under section 80 of the Code of Civil Procedure. AIR 1962 SC 630 relied on. [Para 46 Where the pleadings of the plaintiff are base on tort, the plain tiff cannot set up a case based on contract. [Para 49
(14) Tort- distinction between contract and tort. Where the breach of duty alleged arises out of a liability independently of the personal obligation undertaken by contract, it is tort, and it may be tort even though there may happen to be a contract between the parties, if the duty in fact arises independently of that contract. Breach of contract occurs where that which is complained of is a breach of duty arising out of the obligations undertaken by the contract. (1936) 1 KB 399 relied on. [Para 48
A. P. SEN, J.: - This appeal, filed by the plaintiff Durga Prasad, is directed against the judgment and decree of the Additional District Judge, Chhindwara, dated 25-7-1970, decreeing his claim for damages for Rs. 36,000/-for wrongful extraction and sale of about 1,800 tons of manganese ore against the defendant No. 1, Mst. Parveen Foujdar, together with interest at 4 % per annum thereon from the date of the decree i.e., from 25-7-70 till realisation, as against his claim for recovery of damages amounting to Rupees 50,000/- for loss of profits due to wrongful extraction and sale of manganese ore, and dismising his suit against the other defendants, including the defendant No, 3, the State of Madhya Pradesh. By the appeal, the plaintiff seeks a modification of the decree, and prays that the dismissal of the suit against the defendant No. 3, the State of Madhya Pradesh be set aside, and a decree for Rupees 50,000/- as damages be passed against the defendants Nos. 1 and 3. There is no appeal against the dismissal of the suit against the defendants Nos. 4 and 5.
2. The material facts leading to the appeal, briefly, are : By an interim agreement dated 11-6-1952, Ex. P-20, the State Government having sanctioned the grant of mining lease for manganese ore in favour of the plaintiff carrying on business under an assumed name of M/s. Kishanchand and Company in respect of 34.07 acres comprising of severar Khasra numbers including part of Khasra No. 21 in village Palaspani of tahsil Sausar known as 'Kachhidhana Mine No. 4', granted him permission 'to commence mining, operations' on the said area, pending execution of a formal lease in accordance with the Mineral Concession Rules, 1949. The deed on its terms amounts to nothing more than an executory agreement to lease, coupled with a licence, i.e., authority for the working of the said area, on certain terms and conditions. The defendant No. 1, the late M. F. Foujdar, held a mining lease since the year 1924 of the adjoining area of 28.34 acres comprising of several Khasra numbers including part of Khasra No. 21 in the same village, known as 'Kachhidhana Mine No. 5'. Pursuant to the grant in favour of the plaintiff, the Revenue Inspector, Sausar demarcated the plaintiff's leasehold area under the orders of the Deputy Commissioner, Chhindwara, under S. I. 1, M. R. 50 (iv) of the Mining Rules, and issued to the plaintiff a demarcation certificate dated 23-12-1952, Ex. P-2. The Revenue Inspector, instead of placing the plaintiff in possession of 34.07 acres, placed him in possession of 34.98 acres, and purported to demarcate both the plaintiff's leased area i.e., Kachhidhana Mine No. 4, and that of the adjoining Mine No. 5 of the defendant No. 1 as well as the common boundary between them, by pointing out some boundary marks, at the spot. On 25-9-1954, the State Government having sanctioned the renewal of the mining lease held by the defendant No. 1, the late M. F. Foujdar, of Kachhidhana Mine No. 5. a similar agreement, Ex. D-6, was executed in favour of the defendant No. 1, permitting him 'to continue his mining operations'.
3. It appears that the plaintiff after the demarcation done by the Revenue Inspector, constructed boundary pillars of permanent nature at the places pointed out by the Revenue Inspector, and also put up a barbed wire fencing over the common boundary. The Revenue Inspector apparently demarcated the leasehold area of the plaintiff as 34.98 acres for 34.07 acres as per the grant, i.e., in excess by 0.91 acre and the plaintiff while constructing the pillars, encroached upon a portion of the leasehold area held by the defendant No. 1 towards the west. Since there was dispute regarding the common boundary of the leasehold areas of the plaintiff and the defendant No. 1, the Deputy Commissioner. Chhindwara ordered that the common boundary be correctly demarcated and accordingly a theodolite survey was carried out by Ratansingh, Surveyor in the establishment of the Direct
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