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Koduri Krishnarao Vs. State of Andhra Pradesh, Hyderabad - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 268 of 1957
Reported inAIR1962AP249
ActsCode of Civil Procedure (CPC), 1908 - Order 11, Rules 11, 12, 17 and 21 - Order 12, Rule 8; Evidence Act - Sections 65; Limitation Act, 1908 - Schedule - Article 115
AppellantKoduri Krishnarao
RespondentState of Andhra Pradesh, Hyderabad
Appellant AdvocateB.V. Ramanarusu and ;R.V. Vidyanagar, Advs.
Respondent AdvocateN.S. Raghavan, Govt. Pleader and ;A.Gangadhara Rao, Adv.
civil - damage - order 11 rules 11, 12, 17 and 21 and order 12 rule 8 of code of civil procedure, 1908 and section 65 of evidence act, 1872 - lessee with right to use ferry claimed compensation on ground that by allowing new ferry his monopoly right over prescribed area violated - lessee claimed part of amount received in transporting goods in that particular route - lessee given right to transport passengers only - no monopoly given to lessee - no evidence on record regarding loss sustained by lessee due to permit given to other ferries - held, lessee not entitled to damage. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting.....krishna rao, j. (1) this is a plaintiff's appeal from the decree of the court of the subordinate judge, eluru dismissing his suit to recover a sum of rs.1,92,192-8-0 as damages from the state of andhra pradesh. the plaintiff was the lessee for the period from 1-7-47 to 31-3-52 of the rights of working the rajahmundry-dowlaishwara steamer 'dorothy' and with country boats and of running a steam boat service in the river godavari above the anticut with the government-owned steamer 'helen'. he purchased the lease right at a publicauction held on 20-6-1947 by the divisional engineer (highways) kakinada in pursuance of the sale notification ex. b-1 and entered into an agreement ex. b-2 with the government of the composite state of madras for the payment of an annual rental of rs. 22,500/-. he.....

Krishna Rao, J.

(1) This is a plaintiff's appeal from the decree of the Court of the Subordinate Judge, Eluru dismissing his suit to recover a sum of Rs.1,92,192-8-0 as damages from the State of Andhra Pradesh. The plaintiff was the lessee for the period from 1-7-47 to 31-3-52 of the rights of working the Rajahmundry-Dowlaishwara steamer 'Dorothy' and with country boats and of running a steam boat service in the river Godavari above the anticut with the Government-owned steamer 'Helen'. He purchased the lease right at a publicauction held on 20-6-1947 by the Divisional Engineer (Highways) Kakinada in pursuance of the sale notification Ex. B-1 and entered into an agreement Ex. B-2 with the Government of the composite State of Madras for the payment of an annual rental of Rs. 22,500/-. He brought the suit claiming damages on the ground that the Government had failed to comply with the terms and conditions of the lease. The first head of his claim was for Rs.5500/-, in reimbursement of the cost of repairs carried out by him to the steamer 'Dorothy'. His case is that the Government had to hand over to him to the steamer 'Dorothy'and 'Helen'in good working order and that it failed to do so. He effected the necessary repairs to the steamer 'Doorthy' under the directions of the Asst. Engineer, Highways, Rajahmundry at a cost of Rs. 5500/-. But the other steamer 'Helen' required too heavy an investment for being put in working condition.

The second head of his claim was for Rs. 1,01,750/ being the loss incurred by him on account of the Government not handing over the steamers 'Dorothy' and 'Helen' in good working order. This amount was made up of 3 items, namely Rs. 71,250/-, 10,000/ and 20,500/-. He averred in the plaint that the steamer 'Dorothy' even after carrying out the repairs aforesaid was not in a safe working order during the flood seasons, that the Highways department were unable to obtain the necessary permits for the requisitequantity of coal, that for want of coal, that for want of coal even the steamer 'Dorothy' could be used only once a week, that he was therefore obliged to hire three launches on a rent of Rs. 15,000 per annum and also a punt to maintain the ferry service and that during the cycloneof 1949 the steamer Dorothy sank and it was not salvaged by the Government. He claimed Rs. 71,250 for the hire of the three launches for the period of 4 year 9 months, Rs.10,000 for the hire of the punt for five years, and Rs. 20,500 for the salaries and maintenance of the crew of Dorothy and Helen from 1-7-1947 to 30-11-1949 and from 1-7-1947 to 31-3-1952 respectively.

The third head of his claim related to his complaint of the violation of his monopoly rights, by the Executive Engineer, issuing license for the plying of six launches between Rajahmundry and the Central Delta. He estimated the consequent loss in his income at Rs.7500/ per year and claimed a sum of Rs. 35,625/-. The fourth head of his claim for Rs. 20,000/ representing the loss in his income by the Government allowing public traffic over the Godavari anticut in the summer months of 1950, 1951 and 1952. He claimed half of the estimated fees realised by the Government, for permitting the vehicles to pass over the anticut, on the ground that he was deprived of his income for their transhipment. The fifth head of the claim was for Rs.20,000/ being the interest on the aforesaid amounts from 1-4-1952 till 31-3-1955 the date of the plaint, but this need not detain us further as it has been given upin the appeal.

(2) The defendant contended in the written statement that the lease was of the ferry service and not of the two steamers there was no condition that the steamers should be given in good working order, that as a matter of fact they were handed over to the plaintiff in working order, and that under the terms of thelease agreement Ex. B-2, the renter had to effect all the necessary repairs to both the steamers were found unfit to ply in the river. There was no obligation on the defendant to arrange for the supply of coal. It was a term in the agreement that the plaintiff shall not claim compensation on any account See clause 36 of Ex. B-2. There was no infringement of the plaintiff's ferry right by the licensing of boats to carry passengers and goods from Rajahmundry and Dowlaishwaram to the various places in the Central Delta. The Godavari anticut is beyond the ferry limits and the plaintiff was not prejudicied by allowing vehicles to pass over the anticut. The defendant also disputed the correctness of the amounts claimed and pleaded that the claim for the damages was also barred by limitation.

(3) The learned Subordinate Judge held on a constuction of Exs. B-1and B-2 that it was not one of the conditions of the lease that the steamers had to be handed over to the plaintiff in good working order and on the other hand, under the terms of the lease, the leassee had to effect the necessary repairs to the steamers during the lease period at his own cost. In these circumstances, although as a matter of fact the steamers were not in running condition when they were handed over in running condition when they were handed over by the Highways department to the plaintiff, that fact did not entitle the painiff to claim the cost of repairing them. The plaintiff had failed to prove his further case that the Assistant Engineer of the department assured him that the cost of repairs would be paid by the Goverment. Owing to the absence of vouchers or corroborative evidence and the plaintiff's non-production of his account-books, it was not possible to hold that Rs.5,500/- claim was the correct cost of repairs. For these reasons, the learned Subordinate Judge negatived the plaintiff's claim to recovere the Rs. 5500/-.

With regard to the next head of the plaintiff's claim, the learned Subordinate Judge held that as it was not the duty of the Highways Department to effect necessary repairs to the steamers and as the supply of coal was stopped by the Director of Controlled Commodities only owing to the plaintiff's failure to submit monthly returns, the plaintiff was not entitled to ask for compensation for having hired private launches and the Government punt to run the ferry. The plaintiff had deliberately suppressed his accounts and the evidence on his own side showed that the costs of coal required for daily consumption by both the steamers was Rs. 100/- at the time. The result of the evidence was that the plaintiff had miserably failed to establish the loss, illegally caused by his resorting to the alternative method of running the ferry. He had also failed to establish the alleged payment to the crew of the two steamers. For these reasons, he was not entitled to Rs. 1,01,750/- claimed by him. As to the alleged infringement of his monopoly rights, there was no evidence that the issue of permits to the six private launches caused any prejudice to his rights under the lease or a loss in his income. There was a similar lacuna in the evidence with regard to the fourth head of his claim. Further the Godavari anicut was found by the learned Subordinate Judge to be not within the ferry limits. In the result, the learned Subordinate Judge negatived the entire claim of the plaintiff and dismissed the suit.

(4) At the threshold of his argument before us, Sri B. V. Ramanarusu, the learned counsel for the appellant put forward the plea that he was handicapped by the Government with holding material evidence. In support of this complaint, he referred to his notice dated 25-9-1956 issued to the defendant under O. XII, R. 8 to produce 16 items of documents. The defendant replied on 22-10-1956 producing some documents and stating that some others were not available with the Highways Department. In regard to 5 of the documents, it was stated that they were unpulished reports of one Government Officer to another and were inadmissible in evidence. However, the plaintiff did not pursue the matter further and the trail commenced on 22-10-1956 itself. It is now contended by the learned counsel that prima facie the aforementioned 5 items are not privileged under Section 123 of the Evidence Act, and that such of the documents as were not available with the Highways Department ought to have been produced by the defendant after obtaining them from the department with which they were lodged. It is urged that there was default on the part of the defendant in respect of all these documents and that there was default on the part of the defendant in respect of all these documents and that the trail Court ought to have struck out the defenceunder O. XI, R. 21.

We see no substance in these submissions. A plain reading of O. XI, R.21 shows that the Court could have invoked the penal provisions of that rule only if there had been an order to answer interrogatories or for discovery or for imspection of documents under Rules 11, 22, and 18 of O. XI. The plaintiff did not apply under any of the provisions of O. XI at all. He merely gave a notice to produce under O. XII, R. 8. If there was default on the part of the defendant, the plaintiff's notice enabled him to adducese condary evidence of the contents of the document under Section 65, clause(a) of the Evidence Act. It is not even suggested that the plaintiff sought to let in secondary evidence of these documents and that such evidence was shut out. It follows that nothing turns on the partial non-compliance on the part of the defendant with the plaintiff's notice under O. XII, R. 8 dated 25-9-1956.

(5) We observe in this connection that the plaintiff appears to have had no grievance at the trail that the defendant with held any documents, except as to the punt register in respect of which we find a sentence in his deposition,'I issued notice for the production of punt register'. The learned trail judge finds that the plaintiff deliberately supported his own accounts and failed to exhibit relevant material from P.W. 2's accounts. The plaintiff's lame explanation was that his own accounts were in the possession of his manager; but he did not take out summons to the manager to produce his accounts. The situation is similar to that in the Apear Collieries v. Radha Gobinda, : AIR1954Cal480 ; and there is no justification for drawing any adverse inference against the defendant.

(6) We shall now deal with the several sums claimed by the plaintiff seriatim. With regard to the proof of expenditure for repairs to the two steamers, the learned counsel strongly relied on Exs.A-12 and A-25. Ex.A-12 is the plaintiff's letter dated 23-10-1947 to the Divisional Engineer, Kakinanda and he has mentioned in paragraph 2 thereof that the repairs cost him Rs. 5500/ Ex. A-25 is his letter dated 29-8-1948 to the Assistant Engineer, Rajahmundary submitting a statement of the amounts spent and five vouchers for Rs. 5500/-. It is in the evidence of the Divisional Engineer (D.W. 2) that the steamers were not in running condition when they were handed over to the plaintiff at the commencement of the lease and that he approved of an estimate prepared by his subordinates for repairs costing between prepared by his that he approved of an estimate prepared by his subordinates for repairs costing between Rs. 6000/ and Rs. 7000/-. We are therefore inclined to accept the plaintiff's evidence that the effected the repairs costing him Rs.5500/-. The main question for consideration are: (1) Whether the plaintiff is entitled to reimbursement of the cost of repairs and (2) Whether the claim is barred by time.

(7) On the first point, the contention of the learned counsel is that the obligation of the Government to hand over the steamers in good working order was in implied term under the contract between the parties. We are inclined to agree with his contention. Admittedly under Exs. B-1 and B-2, the plaintiff had to ply both these steamers from the very commencement of the lease a few days after the auction was held. Clause 21 of Ex. B-1 which was incorporated by clause 37 of Ex. B-2 into the contract specially provided that the rented should ply the steamer Dorothy between the ferry limits from the 10th June to 30th november every year. It would have been impossible for the plaintiff to perform this obligation unless the steamer was handed over to him in working order. The clauses in the contract that the lessee should effect repairs at his own cost during the lease period obviously refer to subsequent repairs after the steamers were taken over in working order by the lessee.

(8) Under the law, apart from the terms imported by mercantile usage, the Court may imply terms, which are necessary in order to repair an intrinsic failure of the expression in the contract, in other words, which will implement the presumed intention and give business efficacy to the contract. As observed in Cheshire and Fifoot's Law of Contracts (1945 Edition at page102),

' The document which the parties have prepared may leave no doubt as to the general ambit of their obligations; but they may have committed, through inadvertance or clumsy draftsmanship, to cover as incidental contingency, and this omission, unless remedied may frustrate their design.'

This principle was asserted by the English Court of Appeal in the Moorcock, (1889) 14 P. D.64, and applied by the Privy Council in Kleinert v. Abosso Gold Mining C0., (1913) 58 Sol.Jo.45. The doctrine may be invoked only if an obligation clearly intented as such would fail to take effect unless some oversight is remedied. The minimum necessary to save the contract from being wrecked will be supplied. The implied term may not contradict or vary the express terms of the agreement. Applying these principles, in our opinion, there was an implied term in the contract that the lessor had to supply vessels in working order although the repair during the lease period were, under the express terms, to be effected by the lessee. The learned Government Pleader relied on the last sentence in Ex. B-14 dated 25-6-1957, a letter of the Divisional Engineer (D. W. 2) to the Superintending Engineer in which it was stated that the term of the lease was extended from 9 months to 4 years 9 months and the lessee would repair the two steamers at his own cost. This unilateral statement to which the lessee was not a party cannot be taken at its face value.

(9) In support of his connection as to the implied term, Sri B. V. Rama Narasu has cited a number of decision which lay down that when goods are hired, there is an implied term that they are as reasonably fit and suitable for the purpose for which they are hired as reasonable care and skill can make them. Sutton v. Temple, (1843) 152 ER 1108; Jones, (1867) 15 LT 619; Vogan and Co. v. Oulton, (1899) 81 LT 435; Reed v. Dean, 1949-1 KB 188; Isufally Hassanally v. Ibrahim Dajibhai, AIR 1921 Bom 191 (1). We do not consider it necessary to make more than a passing mention of these cases, because we are of opinion that the contract in the present cases, was not one of hiring the two steamers. The lease was to run the ferry and the steam boat service, and the steamers were to be plied for the convenience and safety of the passengers particularly at the time of floods in the rivers. There are various clauses in the contract under which the lessee had to provide the public with alternative means of transport when one or both the steamers were unserviceable; but the lessee was not entitled to abatement of rent. Under clause 33 of Ex. B-2 'if he fails to run the steamer regularly for a period of 20 days in the aggregate between the period 15th June, to 30th November, save on the ground of break-down of the machinery' the contract could be terminated. If one of the objects of the contract was to hire out the steamers, it would be inconsistent with the stipulation of a penalty for failing to run them at the usual period of the floods in the river. We would prefer to rest our decision as to the existence of an implied term that the steamers should be handed over in working order. On the fact that the lessee was under the obligation to ply the steamers regularly almost immediately after the steamers were handed over to him, this obligation itself being conceived in the public interest.

(10) Turning to the question of limitation, the claim for reimbursement is governed by Art. 115 of the Limitation Act which provides for a period of 3 years from the date when the contract is broken. There was no continuing wrong as held by the lower Court, because as soon as the repairs were effected by the plaintiff on account of the default by the defendant, there was a completed cause of action for reimbursement. Ex. A-12 shows that the repairs were effected by 23-10-1947. The suit was instituted only on 31-3-1955 and the claim was therefore barred by time.

(11) As regards the second head of the claim in the plaint, Sri B. V. Rama Narusu does not dispute the correctness of the trail Court's finding that the defendant did not undertake to secure the supply of coal for running the steamers and that the plaintiff himself was responsible for the stopping of the supply. He now rests the claim on the sole ground that the steamers and that the plaintiff himself was responsible for the stopping of the supply. He now rests the claim on the sole ground that the steamers required major repairs which are property to be effected by the owner and not by the lessee. The argument is that the inadequacy and the ultimate stopping of the supply of coal were immaterial because the steamers could not be run anyhow for want of major repairs and that the plaintiff probably did not submit the monthly statement to the Director of Controlled Commodities, because the coal was of no use to run the steamers. But this is pratically a reversal of the stand taken by the plaintiff in his correspondence with the defendant and even during the trail. In his letter Ex. A-5 dated 30-7-1947 to the Director of industries asking for the supply of coal, the plaintiff represented that the steamer traffic was held up due to want of coal and heavy floods in the river and not that it was due to the steamers being in disrepair. In his letter Ex. A-12 dated 23-10-1947 to the Divisional Engineer, the plaintiff claimed to have effected repairs to the steamers, and said.

' As a result of the formation of sand shoals in the river and the inability to secure coal in spite of best efforts, it has become practically impossible to run the steamers......... For want of coal the streamers were run by fuel............ and as such I had to maintain and use extra hired launches costing Rs. 3000/-........ I therefore request you to take charge of the two steamers'.

Further the evidence shows that long after the plaintiff hired the launches in October, 1947, the steamers needed only repair which could have been and ought to have been effected by plaintiff in accordance with the conditions of the contract. In Ex. A-21 dated 28-4-1948 a copy of the letter of the junior Superintendent of P. W. Workshops at Dowlaishwaram, he reported that only temporary repairs were necessary to keep the steamers going on for another 6 months and that they could be carried out by the plaintiff himself and that he would supervise the repairs. As we have already mentioned, under the contract the plaintiff himself had to carry out the necessarry repairs during the lease period and it is not compensated for the loss arising from his default in this respect, for that would be allowing him to take advantage of his own wrong.

Apart from this, on a consideration of the evidence, we have no hesitation in agreeing with the lower Court's conclusion that the plaintiff hired the launches and punts not because the steamers with coal. As his primary obligation under the contract was to maintain the service by running the steamers, he seems to have made a show of attempting to obtain coal and keeping the steamers in repair. As he has not produced his accounts, it is not possible to say that he really incurred loss and if so its extent. Similarly with regard to the payments of the salaries to the crew of the two steamers he has produced only the oral evidence of the Sarang (P. W. 4) of one of the steamers whom the learned Subordinate Judge found to bean interesrted witness. The plaintiff did not produce the acquittance book in which P. W. 4 admittedly used to sign. Further, although clause 12 of Ex. B-2 provided that he had to engage the crew, nothing prevented him from disbanding them with the approval of Government when he ceased to use the steamers and had recourse to the launches and the punt instead. For all these reasons, we agree with the lower Court in rejecting the plaintiff's claim to recover the Rs. 1,01,750/-.

(12) We shall now deal with the remaining heads of the plaintiff's claim, namely, reimbursement of the loss of Rs. 35,625/ alleged to have been incurred by him by reason of the Government allowing private launches to ply within the ferry limits and of the loss of Rs. 20,000/-alleged to have been incurred by him by the Government allowing traffic on the Godavari anticut during the summer months of 1950 to 1952. The plaintiff's case in that the right to transport passengers, goods, carriages, carts animals etc. in the entire strech of the water of the river Godavari within the ferry limits specified in Exs. B-1 and B-2 of Rajahmundry, Dowlaishwaram, Bobbarlanka, Kovvur and vijjeswaram is his exclusive monopoly. Soon after he took the lease, the Executive Engineer of Dowlaishwaram issued licences for the plying of six launches between Rajahmundry and the Central Delta instead of between Boobbarlanka and the Central Delta.

The plaintiff complains that this monopoly rights between Rajahmundry and Boobbarlanka were there by violated and that he sustained a loss which is estimated by him at Rs.7,500/ per year. Further, in February, 1950 the Government allowed vehicles, including lorries loaded with goods, to pass over the Godavari anticut and realised more than Rs. 40,000 as fees. The plaintiff complains that he was there by deprived of his income from transporting the goods from either side of the river to the other and asks for half the amount of the fees realised by the Government by way of compensation. The defence of the Government is that the plaintiff's ferry right was only to carry passengers etc. between the limits specified in Exs. B-1 and B-2. The licensing of boats from Rajamundry and Dowlaishwaram to places which were beyond the ferry limits and in the Central Delta did not infringe his right or prejudice him. The Godavari anticut was beyond the ferry limits and the Government is entitled to levy fees for allowing vehicles over the anticut. The plaintiff could not question this right and has no cause for complaint.

(13) A combined reading of Exs. B-1 and B-2 shows that the lease to the plaintiff was of ferry rights between Rajahmundry and Bobbarlanka, between Rajahmundry and Kovvur, between Bobbarlanka and between Bobbarlanka and vijjeswaram. The limits of these ferries and the prohibition are as on either side of the river were specified in appendix A to each of Exs. B-1 and B-2, consistently with what had been previously notified by the Government in 1942. In paragraph 3 of his letter Ex. A-12 dated 23-10-1947 to the Divisional Engineer Highways, Kakinda, the plaintiff had complained against the licences granted to private launches for service from Rajahmundry to Amalapuram, Gannavaram and Kukteswaram via Bobbarlanka and asked for the reimbursement of the loss cause to him. The letter Ex. A-16 dated 21-11-1947 of the Executive Engineer, Dowlaishwaram in this connection shows that he permitted six launches to ply in the canals from Bobbarlanka to the Central Delta. With regards to the quantum of the loss, there is only the plaintiff's own oral evidence that on account of the private launches there was a reduction of 300 passengers per day in the number of passengers carried in his launches resulting in a loss of about Rs. 28/ to Rs. 30/ daily and that the Government realised Rs. 40,000/ Rs. 50,000/ per year by permitting vehicular traffic over the Godavari anticut. D.W. 1, the Assistant Engineer corroborated that the annual toll charges over the anticut amounted to Rs. 50,000/-.

(14) The question for cosideration is whether the nature of the ferry right, which was acquired by the plaintiff under Exs. B-1 or B-2, gave him the monopoly right set up by him. There was no clause either in Ex. B-1 or B-2 that other launches should not bel icensed to ply or that traffic should not be allowed to cross over the anicut. It is therefore clear that there is no express grant of the right claimed. The contention of Sri B. v. Ramanarasu is that the right can be spelled out from clause 13 of Ex. B-1 and from the very nature of what is mentioned as 'ferry rights' in Ex. B-2. Clause 13 of Ex. B-1 reads as follows :

'The public who violate section 9 of the Canal and Public Ferries Act which forbids within the limits fixed for the ferry, the transport of passengers, goods, carriages, cards, palanquins are animals , etc., in any boats or crafts except such as are maintained or licensed at the ferry are liable for the prosecution.'

This merely shows that the ferry in question is a public ferry subject to the provision of the Madras Canals and Public Ferries Act (II of 1890). It has to be noticed that there is no general provision in that Act, similar to Section 16 of the Bengal Ferries Act which enjoins that no rival ferry can berun within a distance of two miles from the limits of the publicferry in question. Under Sec. 9 of the Madras Act transport by unauthorised persons is prohibited within the limits defined in the notification under S. 8. But admittedly the private launches here were authorised by the grant of licences. We asked the learned counsel whether he had any case that hewas prevented from levying tolls at the landing places of the ferry leased to him. He replied that he had no such cases and that the only case put forward by him is that the ferry rights, as understood in law, which were granted to him under the lease, carried a monopoly right which was infringed.

(15) The learned counsel relied on the English law under which all anicut ferries are treated as monopolies. But even under the English Law, the ambit of the monopoly right is not an exclusive right to carry passengers and goods across the stream by any means whatever, but only an exclusive right to carry them across by means of boats or vessels and substantially in the line of the ferry, Hopkins v. Great Northen Rly. Co. (1877) 2 QBD 224 at pp.231 to 234. It was thus held in Rameswar Singh v. Secretary of State for India, ILR 34 Cal 470 that the mere construction of a railway bridge across a river, where by the profits of the ferry are reduced, does not entitle the owner to claim damages. On the same reasoning it follow that by allowing traffic over the Godavari anicut, there could not been no infringement of the ferry rights leased to the plaintiff and that he is not entitled to damages on that account. In the case of Hamerton v. Dysart (Earl), 1916-1 AC 57, the respondents claimed an ancient ferry across the Thames at Twickenham and complained against the appelants having set up a feery and carried people across the river about a quarter of a mile away from the termini of the ancient ferry. The appelant alleged that they were entitled to do this because their ferry served a different neighbourhood, and was in respect of a totally new and different traffic created by the opening of the Marble Hill Park. The House of Lords allowed the appeal because the evidence regarded as a whole, showed that the appellants' ferry was not a disturbance of the ancient ferry. Referring to the rights of the ferrymen, viscount Haldane said at page76:

'He is entitled to a monopoly of his line of ferry, and he has a cause of action against any one who carries either in that line or in another line of ferry so near as to make it an alternative way of carrying between substantially the same points..........'

' Is the new ferry in substance and in the main a means of abstracting the traffic of the old ferry, or does it carry a new and different kind of traffic, for which the convenience of the public requires a fresh provision?'

With regard to the limits to be placed on the right of the ferrymen his Lordship observed at page77:

'But every such monopoly ought to be strictly construed. Just as it does not preclude the setting up of a bridge to serve new though adjacent traffic, because such an interference with what the convenience of the public required under the new conditions is held not to have been within its purview, so if there is a sufficiently large and defined class, containing a substantial number of people who would naturally cross the river at points and with objects different from those which obtained with the class of people who frequented the old ferry, the former class would be outside the monopoly'. With regard to the question of what constitutes new and different traffic, Lord Sumner said aat page 107-- 'What it comes to, I think is this. The principle is to inquire whether the new trafficis de facto part of the burden and obligation of the old ferry. If it is not, the owner of the old ferry has no right in it. He cannot impose himself on the new public as a burthen for his private profit. This is what, I take it, is meant by saying that, 'the publlic convenience requires a new passage' or reasonably demands new facilities. On the other hand, a public that is part of the burthen of the old ferry is not new traffic, though as it grows, it may compel the ferryman to adapt his ferry to take a larger business.'

In that case it was held that traffic created by the opening of the public park was new traffic, which the old ferry had enjoyed not because it belonged to it naturally, but because there was no other way across until the new ferry was made, and that the diversions of it by the new ferry was not a disturbance of the old ferry.

(16) In Tripp v. Frank, (1792) 2 R.R. 495, the plaintiff was the lessee of a ferry across the river Humber between Kingston upon Hull and Barton. The defendant took passengers by boat from Kingston upon Hull to Barrow two miles lower down upon the opposite coast of the riverr Humber. It was held that there was no infringement of the plaintiff's exclusive ferry right. The principle established was that if there bean exclusive ferry from A to B it does not prevent persons from going by another boat from A directly to C, though it lienear to B, if it be not done fraudulently and is not a pretence for avoiding the regular ferry. This is a direct authority in support of the defendant's contention that by allowing other launches to ply from Rajahmundry and Dowlaishwaram to places in the Central Delta, the plaintiff's right was not violated Similarly in 1877-2 QBD 224, it was held that the owner of a ferry cannot maintain an action for loss of traffic, caused by a new highway by bridge or ferry which has been made to provide for new traffic. There can be doubt on these authorities that even if the expression 'ferry rights' used in Ex. B-2 meant what is understood in English Law, the plaintiff is disentitled to claim damages.

(17) The learned counsel has been unable to persuade us from a perusal of the plan Ex. B-3 that the Godavari anicut is within the plaintiff's ferry limits. We see no reasons to reject the evidence of D. Ws .1 and 2 or to differ from the finding of the lower Court that the Godavari anicut is outside the ferry limits. The plaintiff has failed also to adduce the best evidence such as his own accounts to show that be incurred loss on account and on account of allowing the launches and of allowing the traffic in the Godavari anicutu. However in the view we have taken that the plaintiff has no right to claim damages, it is unnecessary to discuss these question at length.

(18) The appeal fails and is dismissed with costs.

(19) Appeal dismissed.

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