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Durga Prasad Vs. Mst. Parveen and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 97 of 1970
Judge
Reported inAIR1975MP196
ActsEvidence Act, 1872 - Sections 123 and 162; Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 2 - Order 11, Rule 19(2) - Order 41, Rule 1; Mineral Concession Rules, 1949 - Rule 41; Mines and Minerals (Development and Regulation) Act, 1957 - Sections 27; Limitation Act, 1908 - Sections 28 - Schedule - Article 47; Code of Criminal Procedure (CrPC) - Sections 145(6); Transfer of Property Act, 1882 - Sections 105 and 108
AppellantDurga Prasad
RespondentMst. Parveen and ors.
Appellant AdvocateS.P. Hakim, Adv.
Respondent AdvocateK.K. Adhikari, Govt. Adv.
DispositionAppeal fails
Cases ReferredHarrison v. Muncaster.
Excerpt:
- - 1 as well as the common boundary between them, by pointing out some boundary marks, at the spot. 4 and that the state government through its officers and servants placed him in possession of the lease area by effecting necessary and correct demarcation thereof with a view to complete the lease agreement of the plaintiff, and to enable him to peacefully enjoy and utilise the rights created on him under the aforesaid lease, and that the boundary according to the lease plan was fixed and shown by the revenue inspector to the parties at the spot, to which no objection was raised by the defendant no. 3 cannot also be made liable for breach of section 108(c) of the transfer of property act because the covenant of quiet enjoyment embodied therein does not protect the tenant against any.....a.p. sen, j. 1. this appeal, filedby the plaintiff durga prasad, is directed against the judgment and decree of the additional district judge, chhind-wara, 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 fox 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.....
Judgment:

A.P. Sen, J.

1. This appeal, filedby the plaintiff Durga Prasad, is directed against the Judgment and decree of the Additional District Judge, Chhind-wara, 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 fox 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 several 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 ordersof the Deputy Commissioner, Chhind-wara, under Section I. 1, M. Rule 50 (iv) of theMining 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 Director of Land Records in 1955 and the theodolite survey revealed that the leasehold area of the plaintiff bounded by the pillars constructed by him towards the west was in excess by 0.91 acre.

4. The plaintiff brought the suit alleging that he 'held a Mining Lease for manganese ore' of Kachhidhana Mine No. 4 and that the State Government through its officers and servants placed him in possession of the lease area by effecting necessary and correct demarcation thereof with a view to complete the lease agreement of the plaintiff, and to enable him to peacefully enjoy and utilise the rights created on him under the aforesaid lease, and that the boundary according to the lease plan was fixed and shown by the Revenue Inspector to the parties at the spot, to which no objection was raised by the defendant No. 1, at the time of the demarcation or subsequently, and the demarcation was thus accepted as correct and all along acted upon by the parties.

5. The plaintiff further alleges that he sank a pit in a portion of Khasra No. 21 in or about the year 1952 shown by letters ABCD in which his mining operations were in process; and that he opened another open cast pit in or about the year 1953-54 towards the west of the first pit shown by letters EFGH in red in the plaint map, Ex. P-l and started his mining operations thereon and raised some manganese ore. without any objection by any one. The mining operations in this pit were, however, temporarily suspended under the advice of the Mining Department to work and raise manganese ore through underground by connecting it with the first pit. It was alleged that the plaintiff was put to a cost of Rs. 24,860/-for opening the pit EFGH. It was further alleged that towards the end of March 1959, the defendants N,os. 1 and 2 wrongfully trespassed upon the plaintiff's pit EFGH shown in red, and started extracting manganese ore therefrom, during the period commencing from April 1959 till the end of March 1960, and that they wrongfully extracted and removed about 1,800 tons of manganese ore, thereby putting the plaintiff to a loss of more than Rs. 50,000/-.

6. On these allegations, the plaintiff claimed a decree for damages of Rs. 50,000/- by way of loss of profits, or in the alternative, Rs. 24,860/- as damages by way of reimbursement of the cost of digging the pit EFGH against all the defendants, jointly and severally or against such of them as may be held liable.

7. The dispute between the parties resulted in proceedings under Section 145 of the Code of Criminal Procedure, and the Sub-Divisional Magistrate, Sausar by his final order dated 30-12-1960, Ex. D-3, declared the defendant No. 1, the late M. F. Foujdar, to be in actual possession of the disputed pit EFGH on the date of the preliminary order i.e., on 6-7-1959, and two months next before the date of such order. During the pendency of these proceedings, the Collector, Chhindwara, apparently in his capacity as the District Magistrate held a spot inspection, along with the Superintendent of Police, Chhindwara, on 22-6-1959, vide his spot inspection report dated 26-6-1959 Ex. D-7, wherein he recorded that the pit EFGH was initially worked by the plaintiff for sometime, on a misunderstanding that the disputed pit was covered, in fact, in his lease hold area, though the pit did not fall within the leased area of the plaintiff, and that the pit EFGH was at that time being worked by the defendant No. 1.

8. The defendant No. 1, the late M. P. Foujdar filed a written statement denying the plaintiff's claim and pleaded,inter alia that the disputed pit EFGH was included within his Kachhidhana Mine No. 5. He, however, died during the pendency of the suit and his widow. Mst. Parveen Foujdar, the respondent No. 1, though noticed refused to accept the summons and, therefore, suit proceeded ex parte against her. The defendant No. 2, Babulal Poddar, beyond filing the written statement, took no further steps in the suit, which, also proceeded ex parte against him. They have not put in appearance in the appeal.

9. The appeal is mainly directed against the respondent No. 3. the State of Madhya Pradesh, and the whole object of the plaintiff appears to be to secure a decree against the State Government. It is, therefore, necessary to deal with the written statements filed on behalf of the defendants Nos. 3, 4 and 5 in some detail.

10. The defendant No. 3, the State of Madhya Pradesh and its two officials, defendant No. 4 N. H. Chourey. the then Sub-Divisional Officer, Sausar and defendant No. 5 J. P. Kishorey, Assistant Superintendent of Land Records filed separate written statements, contesting the plaintiff's claim. They denied the correctness of the plaint map, Ex. P-l. and pleaded that the alleged demarcation certificate, Ex. P-2, issued by the Revenue Inspector to the plaintiff was not correct and not binding or conclusive, as under the Mining Rules the demarcation of leasehold areas is required to be done by Assistant Superintendent of Land Records and not by Revenue Inspector, and therefore. Assistant Superintendent of Land Records alone was competent to issue such certificate. They admitted that the plaintiff had erected pucca pillars at various places, but denied that the pillars were on the boundary line of Mines Nos. 4 and 5. They also denied that the plaintiff had put up any barbed wire fencing over the alleged boundary line.

11. While admitting that a theodolite survey of the leasehold area of the plaintiff was carried out by a survey party under the directions of the Director of Land Records, Nagpur, in 1955 and that the Director of Land Records had thereafter sent a blue print of the theodeolite survey to the Deputy Commissioner, Chhindwara, they alleged that the survey party found a mistake in the demarcation made by the Revenue Inspector in 1952-It was alleged that Ratansingh. Surveyor in the establishment of the Director of Land Records, who made the thedeolite survey of the leasehold area, found that the demarcated area bounded by the pillars erected by the plaintiff actually measured 34.98 acres as against the area of 34.07 acres leased out to him i.e., it was in excess by 0.91 acre. Consequently, it was pleaded that the common boundary between the Mines Nos. 4 and 5 had notbeen finalised, and that the pillars erected by the plaintiff did not actually show the correct leasehold area of the plaintiff. The State Government also pleaded that the plaint did not disclose any cause of action against it and that even otherwise, it was not liable for the alleged acts and omissions, if any on the part of the defendants Nos. 4 and 5, and further that the notice sent by the plaintiff under Section 80 of the Code of Civil Procedure was invalid inasmuch as there was no identity of the plaintiff i.e., between the person who save the notice and the one who brought the suit, and, therefore, the suit was liable to be dismissed for want of a valid notice under Section 80 of the Code.

12. In addition, the defendant No-5, J. P. Kishorey, also pleaded that he had re-demarcated the common boundary under the orders of the Collector, and submitted his report to the Collector, who ordered the defendant No. 4, N. H. Chourey, to verify the correctness of the survey on the spot, and that the latter after verifying the same, had reported the same to the Collector.

13. The findings recorded by the learned trial Judge are that: (i) under the orders of the Deputy Commissioner, the plaintiff's area was ascertained and demarcated by the Revenue Inspector along with Kunjbiharilal, Patwari (P. W. 3). and they had indicated the boundary marks between Mines Nos. 4 and 5 and accordingly, the plaintiff raised permanent boundary pillars of bricks at the very points indicated by the Revenue Inspector and thereafter, issued the demarcation certificate, Ex. P-2, dated 23-12-1952, showing the correct area, as per the land Plan to the parties, (ii) though there is no reference to any map in Ex. P-20, the interim agreement, executed by the State Government, the map Ex. P-3, which is signed by the Collector Shri Parmanand and also bears his official seal, must be taken to be authentic as there is nothing suspicious about it, (iii) the plaint map, Ex. P-1, which the plaintiff Durga Prasad (P. W. 7) traced from the map Ex. P-3 must, therefore, be taken to be correct and accordingly it must be held that the pit EFGH falls within the plaintiff's leasehold area, (iv) the plaintiff had opened the pit EFGH for raising manganese ore and was in possession thereof till about end of March 1959. (v) it was not proved that the pit EFGH was within the area leased out to the defendant No. 1 or that this factual position was admitted by the plaintiff. Nor was he bound by the demarcation carried out by the defendant No. 5 in 1959 as per his demarcation certificate dated 27-1-1959, Ex. D-7, indicating that the pit EFGH lay in the area leased out to the defendant No. 1. (vi) the plaintiff had incurred anapproximate expenditure of Rs. 17,388/-for digging the pit EFGH in two stages, but he was not entitled to recover the same from the defendants Nos. 1 and 2, (vii) the defendant No. 1, the late M. F. Foujdar, had wrongfully extracted 1,800 tons of manganese ore from the pit EFGH from April 1959 to March 1960, and thereby put the plaintiff to a loss of about Rs. 36,000/-, (viii) it was not proved that the Collector had either asked the plaintiff not to carry on mining operations in the pit EFGH or had instigated or abetted the defendant No. 1 in any wrongful extraction or sale of manganese ore, (ix) it was also not proved that the defendants Nos. 4 and 5 had acted illegally or had instigated or abetted or in any way helped in any wrongful and illegal acts of the defendants Nos. 1 and 2 in trespassing and illegal mining upon the pit EFGH of the plaintiff and wrongful extraction and sale of manganese ore raised therefrom, (x) consequently, there was no question of fastening any vicarious liability on the defendant No. 3, the State of Madhya Pradesh for the alleged tortious acts of the defendants Nos. 4 and 5, (xi) the defendant No. 3 cannot also be made liable for breach of Section 108(c) of the Transfer of Property Act because the covenant of quiet enjoyment embodied therein does not protect the tenant against any tortious acts by trespassers, and his remedy lies against the actual wrong-doers and not against the lessor, (xii) the failure of the plaintiff to bring a suit to set aside the final order dated 30-12-1960 passed under Section 145 of the Code of Criminal Procedure by the Sub Divisional Magistrate, Sausar, declaring the defendant No. 1, the late M. F. Foujdar, to be in actual possession over 263 acres out of Khasra No. 21 i.e., including the pit EFGH, did not affect the plaintiff's suit for damages and he could not be non-suited on that account. (xiii) the notice under Section 80 of the Code of Civil Procedure complies with the legal requirements and, therefore, the suit was not bad for want of a valid notice, the suit was not governed by Article 14 of the Limitation Act, 1908 but by Article 48, and even assuming Article 47 or 49 or Article 109 was applicable, the suit was not barred by limitation.

On these findings, the learned trial Judge, accordingly, decreed the plaintiff's claim for damages amounting to Rupees 36,000/- as against the defendant No. 1, Mst. Parveen Foujdar, with interest at 4% per annum thereon from the date of decree i.e., from 25-7-1970 till realisation, and dismissed his claim against the other defendants.

14. The points that arise for consideration in this appeal are:

(1) Whether the learned trial Judge was right in holding that the authenticityof the map, Ex. P-3, which was signed by the Collector Shri Parmanand and also bears his official seal, is beyond question and. therefore, the plaint map Ex. P-l which the plaintiff Durga Frasad (P. W. 7) traced from it, must be taken to be correct ?

(2) Whether the learned trial Judge was right in holding that the pit marked EFGH in the plaint map, Ex. P-l, falls within the plaintiff's leasehold area ?

(3) Whether the defendants Nos. 4 and 5 purporting to act as servants of the defendant No. 3 acted illegally and contrary to the Mining Rules and Regulations and far in excess of their powers in discharge of their official duties and, therefore, the defendant No. 3 was vicariously liable for the alleged wrongful acts and omissions on their part, if any, as alleged in para. 15 of the plaint.

(4) Whether the defendants Nos. 4 and 5 in any way abetted, instigated and aided and/or not only connived at but also encouraged, as alleged, in the illegal and wrongful acts of the defendant No. 1 in trespassing upon the plaintiff's pit EFGH towards the end of March 1959 and in extraction and removal of 1,800 tons of manganese ore therefrom from April 1959 till the end of March, 1960 ?

(5) Whether the plaintiff's suit is barred by Section 27 of the Mines and Minerals (Regulation and Development) Act, 1957?

(6) Whether the plaintiff not having appealed against the dismissal of the suit against the defendants Nos. 4 and 5, the appeal against the defendant No. 3 is not maintainable ?

(7) Whether the failure of the plaintiff to bring a suit to set aside the final order of the Sub-Divisional Magistrate, Sausar, passed under Section 145(6) of the Code of Criminal Procedure rendered the suit as framed not maintainable?

(8) Whether there was breach on the part of the defendant No. 3, the State of Madhya Pradesh, of the covenant of quiet enjoyment implied in Section 108(c) of the Transfer of Property Act ?

(9) Whether the document Ex. P-20 was a lease and, therefore, the parties stood in the relationship of lessor and lessee and the plaintiff's suit was a suit founded on contract?

(10) Whether the defendant No. 3, the State of Madhya Pradesh, as a lessor, was liable for the tortious acts of the defendant No, 1, the late M. F. Foujdar, being a person claiming under the defendant No. 3, i.e., the lessor

15. Before dealing with the contentions on merits, it is necessary for us to state a few facts. The plaintiff administered interrogatories on the defendant No. 3 under Order 11, Rule 1 of the Code of Civil Procedure, to obtain admissionsfrom it to facilitate the proof of his own case. In answer to the interrogatories served, the defendant No. 3 filed an affidavit of J. K. Verma, Mining Officer, Chhindwara, dated 18-4-1964 to the effect:--

(i) The Revenue Inspector demarcated the plaintiff's leasehold area under the orders of the Deputy Commissioner.

(ii) The Deputy Commissioner informed the plaintiff by his memo dated 21-4-1960. Ex. P-4, that the theodolite survey done on the basis of the certificate furnished by the Revenue Inspector was not according to rules and hence it could not be accepted as correct.

(iii) The Revenue Inspector, Sausar had pointed out the boundary of the plaintiff's leasehold area and consequent-ly the plaintiff got the pillars erected. The certificate issued by the Revenue Inspector dated 23-12-1952, Ex. P-2, was erroneous because the Revenue Inspector had demarcated the leasehold area of the plaintiff as 34-98 acres for 34.07 acres. This fact was discovered in the theodolite survey of the plaintiff's leasehold area.

(iv) By amendment No. 108 dated 20-7-1942 for sub-para (iv) in S. I. 2 under M. Rule 50 (iv), it was provided that a certificate in the prescribed form should be signed by an officer not lower in rank than Assistant Superintendent of Land Records. These instructions are followed from 1942 up-to-date.

(v) Without reference to the plotted sheet of the leasehold area of the plaintiff prepared by Ratansingh, surveyor deposited in the office of the Settlement Commissioner, Madhya Pradesh. it is not possible to say what part of the area bounded by the pillars constructed by the plaintiff was in excess by 0.91 acre, as pointed out by Ratansingh as pleaded in para. 7 of the written statement.

(vi) As there was appreciable difference of 0.91 acre in the certificate issued by the Revenue Inspector and the theodolite survey in the leasehold area of the plaintiff and since there was dispute regarding the common boundary of leasehold areas of the plaintiff and the defendant No. 1, the Deputy Commissioner, Chhindwara ordered that the common boundary of the leasehold areas of the plaintiff and the defendant No- 1 be correctly demarcated.

16. To clarify the point No. (v), i.e., the area bounded by pillars, which was in excess of 0.91 acre, as disclosed on the theodolite survey carried out by Ratansingh, surveyor, by reference to the plotted sheet of the leasehold area prepared by him, the defendant No. 3 filed a supplementary affidavit of P. C. Agarwal, Mining Officer, Chhindwara dated 31-7-1964, the material portion of which reads:--

'The excess of 0.91 acre was pointedout by the Traversor Shri Ratansinghtaking into consideration the boundariesas given in the lease plan and arrived atby Theodolite survey on the plotted sheet,by black lines with dots. Lease plan boundary is marked in red pencil and the difference is marked with green pencil. Thedifference is due to shifting of boundariesas pointed out in the plotted sheet marked with black lines with dots as under:--

1. From pillar No. 1 to 3

... Boundary shifted towards west. ..... ..... ..... ..... ..... .....

The total difference in the lease plan and the plotted sheet was thus 0.91 acre.

17. Thereafter the plaintiff served the defendant No. 3 with a notice under Order 11. Rule 12 of the Code, for discovery and production of certain documents. In answer to the notice, the defendant No. 3 filed an affidavit of the Collector stating:--

'I have carefully considered the relevant documents and have come to the conclusion that the same is unpublished official record, relating to affairs of State and their disclosure will be prejudicial to public interest for the following reason:

List of documents summoned.

Record of Mining lease No. 31 of 1951 regarding Manganese Ore granted to Messrs. Kishanchand and Co., Dhau Colliery of Mouza Palaspani area 34.07 acres, Tahsil Sausar, District Chhindwara with the demarcation certificate dated 27-1-1959. I do not, therefore, give permission to any one under Section 123 of the Indian Evidence Act. 1872, to give in evidence and said documents or to give any evidence derived therefrom.

Solemnly affirmed at Chhindwara this day of 22-12-1965.

Sd/- P. Parmanand,

Collector, Chhindwara.'

18. The learned Judge did not apply his mind to the application before him and merely accepted the affidavit in which it was claimed that the documents were unpublished official records relating to the affairs of the State. The provisions of Order 11, Rule 19 (2) of the Code of Civil Procedure, must be read subiect to Section 162 of the Evidence Act. He should, therefore, have determined whether upon the material before him the documents were, in fact, of the class which could be said to relate to the affairs of the State. The law on the point is laid down by the Supreme Court in State of Punjab v. Sodhi Sukhdev Singh. AIR 1961 SC 493. What documents can be said to relate to the affairs of the State was discussed by the Supreme Court in the aforesaid case, and their Lordships after observing that the 'affairs of the State' would ordinarily refer to mattersof political or administrative character relating for instance, to the national defence, public peace and security or good neighbourly relations, whose disclosure would be prejudicial to public interest, they further remarked:

'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 or 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, opinions expressed, or reports made, and gist of official decisions reached in the course of the determination of the said questions of policy.'

It would, therefore, appear that the defendant No. 3 was justified in claiming privilege against the production of the relevant file concerning the grant of the mining lease, as it contained letters written by the Head of the Department to the subordinate officers of the Department and vice versa and between that Department and other Departments and they were, therefore, unpublished official records and were secrets of the State.

19. The defendant No. 3 was, however, not justified in withholding the production of the reports of the two theodolite surveys carried out in 195/5 and 1959 and the papers connected therewith, by claiming privilege that they relate to affairs of the State, pr that their disclosure would be prejudicial to public interest. That claim of privilege has rightly not been pressed before us, end we think the learned Judge was justified in holding that the non-production of the documents would warrant the drawing of an adverse inference. Nothing, however, turns on this because the map prepared by Ratansingh, surveyor in the theodolite survey, Ex. D-9, as also the plotted sheet of the leasehold area of the plaintiff prepared by him, Ex. D-10, and the demarcation certificate dated 27-1-1959 issued by the defendant No. 5 in favour of the defendant No. 1, under S. I. 1, M. Rule 50 (iv) of the Mining Manual, are on record, and they were referred to by the parties at the hearing, on the basis that they were public documents. There is, therefore, material on which it could be found whether or not the Revenue Inspector had wrongly demarcated the plaintiff's leasehold area as 34-98 acres for 34.07 acres as per the grant, contrary to the orders of the Deputy Commissioner, Chhindwara and against S. I. 1. M. Rule 50 (iv), or whether or not the demarcation certificate dated 23-12-1952, Ex. P-2, issued by him in favour of the plaintiff was, therefore, incorrect.

20. The provisions of M. Rule 50 (iv) of the Mining Rules, and the material portions of S. I. 1 and 2 thereunder read as follows:

'M. Rule 50 (iv). The lessee shall at his own expense erect and at all times maintain and keep in repair boundary marks and pillars according to the demarcation to be shown in a plan annexed to his lease.

S. I. 1. Under this rule the Local Government has laid down the following condition with regard to boundaries which shall be binding upon every applicant accepting a lease:--

(a) The lessee will be required to erect as soon as possible after the execution of his lease suitable boundary marks and pillars of a permanent nature along the boundaries of the lands covered by the lease at every angle in the line of the boundary and at intervals of not more than 660 yards along the boundary. These marks and, pillars will be shown on the plan of the said lands attached to the lease at the time of its execution. ....If the lessee is unable to demarcate his concession correctly without skilled assistance, the Deputy Commissioner will arrange to have the places at which marks are required pointed out by the land record staff and the Revenue Inspector shall in that event certify to the Deputy Commissioner that the concession has been correctly demarcated.

(b) Where the boundaries of the area assigned by a lease have not, at the- time of the execution of the lease been ascertained by theodolite survey, the lessee shall be bound to execute a survey agreement, in the form prescribed in Part A, Appendix B, page 143. This survey agreement shall be signed by both parties and shall be registered.

S. I. 2. ..... In such cases afterthe lease and survey agreement have been executed and the boundary marks and pillars erected in accordance with the foregoing instruction, the Deputy Commissioner should address the Director of Land Records to arrange for the survey, forwarding-

(i) a tracing showing the exact location of the area to be surveyed;

..... ..... ..... ..... ..... ..... (iii) a statement in acres of the area to be surveyed;

(iv) a certificate in the following form which shall be signed by an officer not lower in rank than Assistant Superintendent, Land Records:--

I certify that the demarcation on the spot of the mining lease held by .....in village ..... tahsil ..... (areaapproximately ..... acres) agrees generally with the plan attached to the mining lease and that suitable intervisible pillars have been erected by the lessee atevery angle in the line of boundary and at intervals of not more than 660 yards. 2. The following traverse marks will be required to form the basis of the proposed survey. Of these all are in order except the following .....'

21. The suit having been dismissed against the defendant-respondent No. 3, the State of Madhya Pradesh, it is entitled to support the decree on grounds decided against it. We now proceed to deal with the contentions advanced by the parties.

22-26. (After dealing with points I and 2 and holding that the plaint map Ex. P-1 was not correct and the finding of the learned Judge that the pit marked EFGH fell within the plaintiff's leasehold area was not correct, his Lordship proceeded).

27. Point No. 3: The plaintiff'ssuit as framed, tries to hold the defendant No. 3 vicariously liable, for the alleged wrongful acts and omissions of the defendants Nos. 4 and 5 in the discharge of their official duties. Independent of this, there is no claim against the defendant No. 3. The only plea against them is that contained in para. 15 of the plaint, which reads:

'15. That the defendants 4 to 5 purporting to act as servants of the defendant No. 3 acted illegally and contrary to the Mining Rules and regulations and far in excess of their powers in discharge of their official duties and abetted, instigated and aided in the wrongful and illegal acts of the defendants 1 and 2 in trespassing and illegal mining upon the pit of the plaintiff and in extraction and removal of ore. By their unwarranted actions, the defendants 4 and 5 not only connived at but also encouraged the illegal and wrongful acts of the defendants 1 and 2 resulting in considerable loss to the plaintiff. The defendants 4 and 5 are, therefore, liable to compensate the plaintiff. The defendant No. 3 as a lessor Government and as employer of the defendants 4 and 5 in commercial functions is liable for official acts of commission and omissions of their servants. The defendants 3, 4 and 5 are therefore impleaded as defendants.'

It will be noticed that there is no allegation of any act on the part of the defendant No. 3, which caused interference with the plaintiff's enjoyment of the lease or prevented him from working the mine or extracting minerals therefrom. It will also be noticed that there is no allegation that the defendant No. 3 passed any order to facilitate the wrongful extraction and sale of manganese ore by the defendant No. 1 from the pit marked EFGH in the plaint map, Ex. P-l.

28. The defendants Nos. 4 and 5 undoubtedly acted in lawful exercise oftheir powers, functions and duties under the Mines and Minerals (Regulation and Development) Act. 1957, and the Mineral Concession Rules, 1949, framed thereunder. It is needless to stress that due compliance of the terms and conditions of the lease is also liable to be checked by the Officers of the Mining Department The document, Ex. P-20, i.e., the interim agreement provides, inter alia, by Clause (ii) that the lessee shall observe and conform to the requirements of the Mineral Concession Rules. 1949. One of the conditions is the maintenance of correct boundary pillars. This is envisaged by Rule 4l (vi) thereof, which runs:--

'The lessee shall, at his own expense, erect and at all times maintain and keep in good repairs boundary marks and pillars necessary to indicate the demarcation shown in the plan annexed to his lease.'

29. The acts now complained of by the learned Counsel for the appellant on the part of the officers and servants of the defendant No. 3, were:

(i) Spot inspection by Shri S. K. S. Chib, Collector, Chhindwara, made on 22-6-1959,

(ii) theodolite survey of the leasehold areas carried out by the defendant No. 5 in 1958, and

(iii) issue of certificate of demarcation dated 27-1-1959 by the defendant No. 5 of the leasehold area of the defendant No. 1 under S. I. 2, M. Rule 50 (iv) of the Mining Rules.

These alleged acts are said to furnish a cause of action to the plaintiff. It is said that the issue of the aforesaid demarcation certificate to the defendant No- 1 was the root cause of all the trouble. The learned Counsel has frequently referred to this document, treating it to be a public document. Even assuming that to be so we think that the issue of the demarcation certificate, by itself, does not furnish any cause of action to the plaintiff. The document reads as follows:

'Certificate of Demarcation of the mining lease as prescribed in S. I. 2 M. Rule 50 (iv) page 48 of the mining lease.

I certify that the demarcation of the spot of the mining lease held by Shri M. F. Foujdar in village Palaspani, tahsil Sausar (area approximately 28.34 acres) agrees generally with the plan attached to the mining lease and that suitable in-tervisible pillars have been erected by the lessee at every angle in the line of boundary and at intervals of not more than 660 yards.....'

The document is self-explanatory. It only certifies that the area enclosed by the defendant No. 1 by his boundary pillars conforms to the area leased out to him. The theodolite survey conducted by the defendant No. 5, or the demarcation cer-tificate issued by him, were acts done by virtue of the authority conferred on him as Assistant Superintendent of Land Records, under the Mining Manual. The learned trial Judge has rightly found that the defendants Nos. 4 and 5, as servants of the defendant No. 3, had not acted illegally and contrary to the Mining Rules and Regulations and in excess of their powers in discharge of their official duties and, therefore, the defendant No. 3 was not vicariously liable for any alleged acts or omis-sions on their part.

30. Point No. 4: The learned trial Judge has also found on issue No. 8 that the defendants Nos. 4 and 5 had not instigated or abetted or in any way helped the defendant No. 1 in wrongful extraction or sale of manganese ore raised from the pit EFGH. That finding can hardly be assailed. Nothing has been brought to our notice which persuades us to take a different view. It has already been stated that there is no allegation in para. 15 of the plaint, of any act on the part of the defendant No. 3 which resulted in wrongful extraction and sale of manganese ore by the defendant No. 1 from the pit EFGH. It is noteworthy that therein, there is also no allegation of any act on the part of the Collector. At the stage of evidence, however, the plaintiff Durga Prasad (P. W. 7) tried to assert that Shri S. K. S. Chib, the then Collector, during his spot inspection of the site held on 22-6-1959, orally ordered that he should not remove any manganese ore from the pit EFGH. This is nothing but an afterthought. There is no foundation laid in the plaint, and that assertion of his cannot be accepted, for want of a plea. That inspection was held by the Collector in his capacity as the District Magistrate during the pendency of the proceedings under Section 145 of the Code of Criminal Procedure resulting from the dispute between the parties as to possession of the pit EFGH, giving rise to an apprehension of breach of the peace. That it was so is amply clear from the fact that the Collector was accompanied by the Superintendent of Police. Even assuming that Shri Chib acted in his capacity as the Collector, the spot inspection held by him was an act done in the discharge of his official duties. Under Rule 41 (xi) of the Mineral Concession Rules, 1949, the area leased is liable to be inspected by any officer authorised by the Central or the State Government. There can be no doubt whatever that the Collector is an officer so authorised.

31. There is not an iota of evidence that the defendants Nos. 4 and 5 in any way connived at or encouraged the illegal and wrongful acts of the defendant No. 1 in trespassing upon the pit EFGH towards the end of March 1959 and inextraction and removal of 1,800 tons of manganese ore therefrom from April 1959, till the end of March 1960. Nothing has been brought to our notice to bear this out. This point must, therefore, fail.

32. Point No. 5: According to Section 27 of the Mines and Minerals (Regulation and Development) Act, 1957, no suit lies against any person for anything which is in good faith done or intended to be done under the Act. The section runs as follows:

'27. Protection of action taken in good faith:-- No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act.'

The defendants Nos. 4 and 5 undoubtedly acted in the discharge of their official duties. No suit, therefore, lies against them, much less against their employer, i.e.. the defendant No. 3. That being so, the suit is1 clearly barred by Section 27 of the Mines and Minerals (Regulation and Development) Act, 1957. The appeal against the defendant No. 3 must, therefore, fail on that account.

33. Point No. 6: As hereinbefore adumbrated, the case of the plaintiff is that the defendant No. 3 is vicariously liable for the alleged wrongful acts and omissions of the defendants Nos. 4 and 5 in the discharge of their official duties. The acts complained of on their part, if any, were indubitably acts performed by them by virtue of authority conferred on them under the Mines and Minerals (Regulation and Development) Act, 1957 and the Mineral Concession Rules. 1949 issued thereunder, as also the Mining Manual.

34. The finding of the learned trial Judge, as already stated, is that it is not proved that they committed any illegal acts or instigated or abetted or in any way helped the defendant No. 1 in wrongful extraction or sale of manganese ore raised from the pit EFGH and, therefore, they were not answerable for the plaintiff's claim. The suit against the defendants Nos. 4 and 5 was accordingly dismissed. The plaintiff not having appeal-led against the dismissal of the suit against the defendants Nos. 4 and 5, the appeal against the defendant No. 3 is not maintainable.

35. Point No. 7: The appeal must also fail because the suit as framed was not tenable due to the failure of the plaintiff to bring a suit to set aside the final order of the Sub-Divisional Magistrate, Sausar. made under Section 145(6) of the Code of Criminal Procedure on 30-12-1960. The plaintiff had to bring a suit based on title within three years therefrom as provided for by Article 47 of the Limitation Act. The present suit is not a suit of that kind, and admittedly theplaintiff has brought no such suit The failure of the plaintiff to bring such a suit resulted in the extinguishment of his right to the property i.e., the disputed pit marked EFGH in the plaint map, Ex. P-1, by reason of Section 28 of the Limitation Act. The section is an exception to the general principle that limitation bars 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. (See Hem Chandi v. Pearey Lal, AIR 1942 PC 64).

36. 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. (See Rajah of Venkatagiri v. Isakapalli Sub-biah, (1903) ILR 26 Mad 410 Jagatram v. Pitai, 26 Nag LR 160 = (AIR 1930 Nag 142), Jaidevi Kuari v. Dakshini Din, AIR 1937 All 300 and Sankaran Parameswaran Namboori v. Veeramani Pattar Narayana Pattar, AIR 1957 Ker 117.

37. No doubt, the present suit by the plaintiff for recovery of damages was brought on 19-3-1962. i.e., before the expiry of the period of three years provided by Article 47 of the Limitation Act. But that hardly makes any difference because the suit as framed was not of the kind contemplated by Article 47. The decision in Maharam Ali v. Mobarak Ali, (1942) 46 Cal WN 551 relied upon, is distinguishable on facts. There the period mentioned in Article 47 expired during the pendency of a suit for possession based on title. If that were so, there would be no difficulty.

38. The decision of Mohinuddin, A. J. C. in Jagatram v. Pitai (supra), is a direct authority for the proposition that where the right to property is extinguished by reason of Section 28, due to the failure of the unsuccessful party to bring a suit under Article 47 of the Limitation Act. he cannot elude the operation of Article 47 by framing a suit as one for damages. There, the final order under Section 145(6) of the Code of Criminal Procedure was passed on 23rd February, 1922, and the unsuccessful party ought to have filed a suit under Article 47 of the Limitation Act on or before 23rd February, 1925 to recover the property, comprised in the order. On 12th August, 1926, he, however, brought a suit for the recovery of mesne profits. Mohiuddin, A. J. C. held that a person whose right to recover possession is extinguished, his right to recover damages also disappears. The decision of the learned Judge proceeded on the underlying principle that the right to claim damages is an adjunctof, and flows from the right of ownership and, therefore, is not separate from the right to claim possession. In dealing with the question, Mohiuddin. A. J. C. stated:

'No such suit was filed in this case, and therefore the respondent's right to possession was extinguished under Section 28 of the Limitation Act. On failure of the unsuccessful party to sue to get rid of the order within three years under Article 47 of the Limitation Act, the person in possession acquired a title tq the property under Section 28 of the Limitation Act.'

'The right to claim damages is not separate from the right to claim possession or joint possession and therefore the respondent had no subsisting right to claim his share of the produce of those fields, whose possession he could not recover. The respondent cannot elude the operation of Article 47 of the Limitation Act by framing his suit as one for damages of his share of the produce. Though in this case the right of the respondent was extinguished in 1925, the extinguishment takes effect retrospectively, and therefore he cannot maintain a suit for recovery of his share of the produce, derived by the appellant from the land before the extinguishment of the right.'

39. It is, however, urged that the decision Jagatram v. Pilai (supra) is distinguishable. It is said that the distinction lies in the fact that there, the suit for mesne profits was filed after the expiry of three years under Article 47 and, therefore, the person in possession had acquired a title to the property under Section 28 of the Limitation Act whereas in the instant case, the suit for damages was brought by the plaintiff before the expiry of that period- The submission is that on 19-3-1962 i.e., the date of institution of the suit, 'the right to such property' within the meaning of Section 28 had not been extinguished and, therefore, the plaintiff had the right to recover damages. It is also said that the suit as framed should be regarded as a suit under Article 47 inasmuch as the minerals lying in the pit EFGH had disappeared and, therefore, the only relief that could be claimed by, or was available to, the plaintiff, was one for damages. It is further said that the defendant No. 3, the State of Madhya Pradesh, wag not a party to the proceedings under Section 145 of the Code of Criminal Procedure and was, therefore, not bound by the final order passed therein. There is no substance in any of the contentions.

40. There would have been some substance in the contention that the suit having been brought within three years, the plaintiff's right did not stand extinguished after expiry of that period, or that the suit should be regarded as one underArticle 47, if the plaintiff had sought the relief of possession. It is futile to contend that the plaintiff could not claim the relief of possession. The whole object of a suit contemplated by Article 47 of the Limitation Act is for the establishment of rights by the unsuccessful party. The plaintiff was certainly interested in preserving his leasehold interest against encroachment by a trespasser over a portion of the area leased. He, therefore, had the duty to bring a suit under Article 47 within three years from the date of the final order under Section 145(6) of the Code of Criminal Procedure. The failure of the plaintiff to bring such a suit within that period, must entail the consequence set forth in Section 28 of the Limitation Act. That was a consequence which ensued during the pendency of the suit, and the right to recover the property encroached upon was lost and, therefore, the suit for damages was not maintainable. There is also no substance in the assertion that the minerals had disappeared, in view of the averments in para. 14 of the plaint that the claim for damages for wrongful extraction and sale of manganese ore amounting to Rs. 50,000/- was limited for the period till the end of March 1960. The extinguishment of right takes effect retrospectively. That being so, the plaintiff could not be awarded any damages, and the appeal must fail.

41. Points Nos. 8, 9 and 10: These involve a common question and, therefore, it would be convenient to deal with them together.

42. The most crucial point urged in the appeal is that there was breach on the part of the defendant No. 3, the State of Madhya Pradesh, of the covenant of quiet enjoyment implied in Section 108(c) of the Transfer of Property Act. Counsel for the appellant claims to recover damages on the basis that this suit was a suit founded in contract, and not in tort. He strenuously argues that the obligation of the State Government as a lessor to ensure the covenant of quiet enjoyment which is implied in Section 108(c) of the Transfer of Property Act, is a contractual obligation because the relationship of lessor and lessee was a matter of contract. It is said that by virtue of that relationship, a duty arose on the part of the defendant No. 3 not only to put the plaintiff into possession of the leasehold area but also to secure his quiet enjoyment. The submission is that the document, Ex. P-20, is a lease. It is urged that by virtue of the so-called lease, Ex. P-20, the plaintiff was put in possession of 30.07 acres as demarcated by the Revenue Inspector vide his demarcation certificate dated 23-12-1952, Ex. P-2, and the area so demarcated was bounded by the boundary pillars raised by the plaintiff under S. I. 1, M. Rule 50 (iv). The plaintiff's posses-sion as demarcated, whether rightly or wrongly, continues to be valid until there was a fresh theodolite survey, and till then the demarcation by the Revenue Inspector as certified to the then Deputy Commissioner was final. It is also said that the defendant No. 1, the late M. F. Foujdar, was a person claiming under the defendant No. 3 i.e., the lessor, and, therefore, the plaintiff was entitled to recover damages from the defendant No. 3 not only for any wrongful acts and omissions on the part of its servants in the discharge of their official duties, i.e., the defendants Nos. 4 and 5, but also for the wrongful act of trespass by the defendant No. 1 upon the plaintiff's pit EFGH, in March 1959, and his wrongful extraction and removal of manganese ore therefrom from April 1959 till the end of March 1960. In support of the contention, reliance is placed on Naorang Singh v. A. J. Meik, AIR 1923 Cal 41 and Narayan v. Gokuldas, ILR (1946) Nag 568 = (AIR 1947 Nag 48).

43. The fallacy of the arguments of Counsel for the appellant is apparent. The document, Ex. P-20, is not a mining lease. The terms of the document are clear enough. It is not a lease but a licence. The document is styled as an agreement, and embodies the grant of permission for the working of the leased area i.e., for commencing mining operations, pending the execution of a formal lease in accordance with the Mineral Concession Rules, 1949. It is now accepted before us that the mining lease was, in fact, not executed till the year 1965.

44. The reason for the delay lay in the fact that the Mineral Concession Rules, 1949 did not prescribe the form of a mining lease. Nonetheless, the standard form of a mining lease was provided in the Mining Manual of the Central Provinces and Berar, Fourth Edition, pp. 121-142. These Rules were replaced by the Mineral Concession Rules. 1960, Rule 31 whereof provided:

'31. Lease to be executed within six months:--

(1) Where, on an application for the grant of a mining lease an order has been made for the grant of such lease, a lease deed in Form K or in a Form as near thereto as circumstances of each case may require shall be executed within six months of the order or within such further period as the State Government may allow in this behalf, and if no such lease deed is executed within the said period due to any default on the part of the applicant, the State Government may revoke the order granting the lease and in that event the application fee shall be forfeited to the State Government.

(2) The date of the commencement of the period for which a mining lease isgranted shall be the date on which the deed is executed under Sub-rule (1).'

Form K prescribed thereunder was substantially the same as the standard form of a mining lease given in the Mining Manual. We are aware of the view taken in the State of Madhya Pradesh v. M. Hassonjee and Sons, AIR 1957 Madh Pra 135 that in the absence of any rules having been framed the question of conformity of a lease with the rules does not arise. That, however, is of no avail to the plaintiff. At best, the document, Ex. P-20 could only be regarded as an agreement to lease, coupled with a licence i.e., permission for working of the leased area. Whether the document operates as a lease or as an agreement to lease is a matter of construction and intention. When a document, though in form an agreement to lease, finally ascertains the terms of the lease, and gives the 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- There are no such terms in the document. Ex. P-20. Nor was there any present demise. On the contrary, the parties contemplated the execution of a formal deed. 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. (See Shamji-bhai v. Jagoo Hemchand Shah, ILR (1949) Nag 581). It is a matter of construction in every case, and more so when no terms of technical significance, as here, are found to be present. The use of the words 'lessor' and 'lessee' in the document, Ex. P-20, was not determinative of the nature of the transaction. There was no actual demise by the document, Ex. P-20. The distinction between a lease and an agreement to lease is well known.

45. The commencement of a lease must be certain in the first instance, or capable of being ascertained with certainty afterwards, so that both the time when it begins and the time when it ends, is fixed. If the lease commences jn the future, it is sufficient if it is capable of being definitely ascertained when the lease takes effect. There is no term as to the duration in the document, Ex. P-20. The mere fact that a mining lease was executed in the year 1965 hardly makes any difference. The law is stated in Mulla's Transfer of Property Act, Sixth Edition at pp. 645-6 thus:

'A lease may commence either in the present or the future..... If it isexpressed to commence from a past day, that is only for the purpose of computation, and the interest of the lessee begins from the date of execution. Thus, in Bird v. Baker, (1858) 1 El & El 12, by a lease dated the 19th July, 1851, premises were demised 'to hold from the 25thDecember, 1849 for and during and until the full end and term of fourteen years thence next ensuing' with a proviso enabling the demise to be determined at the expiration of the first seven years thereof, and it was held that the seven years were to be reckoned from the 25th December, 1849. But the reference to that date was only a method of calculation and did not convey an interest before the date of execution. Before execution no interest passes; and conversely, the lessee is not liable for breaches of covenants before execution.'

It must, therefore, be held that there was no lease in existence till 1965, and prior to execution of the mining lease in that year, the parties did not stand in the relation of lessor and lessee and consequently the defendant No. 3 was not liable for any breach of the covenant of quiet enjoyment implied in Section 108(c) of the Transfer of Property Act.

46. That apart, the plaintiff has made no proper foundation for a claim based on contract. His claim for damages is based on the impropriety of the action of the defendants Nos. 4 and 5. The plea, as contained in para. 15 of the plaint, is vague and indefinite, lacking in particulars. Under Order 6, Rule 2 of the Code of Civil Procedure, the plaintiff should have stated material facts. 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, In the Union of India v. Pan-durang Kashinath, AIR 1962 SC 630 their Lordships have stated:

'It is well known that when an improper conduct is alleged, it must be set out with all particulars. In Wallingford v. Mutual Society, (1880) 5 AC 685 (697). Lord Selborne observed:

'with regard to fraud, if there be any principle which is perfectly well settled, it is general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice.' We think what was said about fraud would equally apply to any improper conduct: (See Bharat Dharma Syndicate v. Harish Chandra, 64 Ind App 143 = (AIR 1937 PC 146)).'

The principle behind this rule is well known. To take the present case, if a plea, as contained in para. 15 of the plaint, is considered sufficient where it is merely stated that the defendants Nos. 4 and 5 purporting to act as servants of defendant No. 3 acted illegally and contrary to the Mining Rules and Regulations and far in excess of their powers in the discharge of their official duties, it would be impos-sible for the defendant No. 3 to adequately meet the allegation, unless there were particulars of the acts complained of. The allegations contained in para. 15 of the plaint are, therefore, to be struck out.

47. The plaintiff's suit, as framed, against the defendant No. 3 is not a suit based on contract, but a suit in tort. It is sought to be made vicariously liable for the wrongful acts and omissions on the part of its employees i.e., the defendants Nos. 4 and 5, on the allegation that they acted contrary to the Mining Rules and Regulations and far in excess of their powers in the discharge of their official duties. There is no allegation anywhere that the defendant No. 1 was a person acting under the defendant No. 3. Nor is there any allegation of any breach of the covenant of quiet enjoyment implied in Section 108(c) of the Transfer of Property Act. The plaintiff's case, therefore, rests on tort, not on the wrongful acts of the defendant No. 1 but on the plea that the defendants Nos. 4 and 5 instigated or abetted in the commission of those acts, without any particulars thereof.

48. We think that an accurate statement of the law is best set out in the judgment of Greer. L. J., in Jarvis v. Moy, Devies, Smith, Vandervell and Co., (1936) 1 KB 399 at p. 407 which is given below:

'The distinction in the modern view, for this purpose, between contract and tort may be put thus: 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.'

49. The determinations in a cause should be founded upon a case to be found in the pleadings or involved in or consistent with the case thereby made. The appellant cannot, therefore, set up a new case for which there is no foundation in the pleadings. The plaintiff's suit, as framed, was a suit based on tort seeking to hold the State Government liable for the tortious acts of its servants. As already stated, there is no allegation of any breach of the covenant of quiet enjoyment implied in Section 108(c) of the Transfer of Property Act. The covenant implied therein provides for quiet enjoyment by the lessee without interruption by the lessor or by any other person or persons rightfully claiming by, from or under him. It does not, however, extend to tortious acts of strangers. The law is stated in Mulla's Transfer of Property; Act. Sixth Edition, pp. 691-2:

'The covenant implied by Section 108(c) protects against lawful, and not tortious interruptions; and this is so both in English as well as in Indian law. This is explained in the following classic passage in the judgment of Vaughan, C. J., in Hayes v. Bickerstaff, (1675) Vaugh 118 at pp. 119, 123: 'By covenant in law, the lessee is to enjoy his lease against the lawful entry, eviction, or interruption of any man, but not against tortious entries, evictions or interruptions, and the reason of law is solid and clear, because against tortious acts the lessee hath proper remedy against the wrong-doers'.'

That being the frame of the suit, the plaintiff's claim, as laid, must fail.

50. The decision of the Privy Council in Lewis Pugh Evans Pugh v. Ashutosh Sen, AIR 1929 PC 69 furnishes a complete answer to the plaintiff's claim. The question before their Lordships was as to whether the lessor was jointly and severally liable, as a joint tort-feasor, as to wrongful working by his lessee i.e., conversion by one of specific moveable property viz., wrongful extraction of coal from the area leased to the others. In dealing with the question, their Lordships observed:

'In their Lordships' opinion the learned Judges in both Courts have misapprehended the question they had to try viz., whether the appellant was a joint tort-feasor, with Bagchi and Pilcher and Co., Ltd., respectively. Neither the fact that he was their lessor assuming, contrary to their Lordships' view, that he was a lessor in the proper sense of the term nor that he 'encouraged' the wrong-doers, whatever this may mean, would be sufficient by itself to support a finding that he was a joint tort-feasor.'

It follows that in an action for conversion, neither the fact that a person was the lessor nor that he encouraged the wrongdoers would be sufficient, by itself, to support a finding that he was a joint tort-feasor.

51. The principles are well settled, but the difficulty, however, lies in their application to the facts of the present case. In Narayan v. Gokuldas, (supra), J. Sen, J., observed:

'The words 'without interruption' are not qualified in any way and have been understood to mean what in England is known as a covenant for quiet enjoyment in an un-qualified form which would include the eviction of the lessee by a title paramount. This clause has been a subject of interpretation in numerous judicial decisions: Vithilinga Padayachi v. Vithilinga Mudali, (1892) ILR 15 Mad 111, 121; Tayawa v. Gurshidappa, (1901) ILR 25 Bom 269 at pp. 273, 274: Udav Kumar Das v. Katyani Debi, ILR 49 Cal 948, 956,957 = (AIR 1922 Cal 87 at p. 90); Nao-rang Singh v. A. J. Meik, ILR 50 Cal 68, 72, 74 = (AIR 1923 Cal 41 at p. 43); Ayyana v. Gangayya, AIR 1933 Mad 465; Keshav Chander v. Sher Singh, AIR 1937 Lah 930; Surendra Nath v. Bhudar Chan-dra. AIR 1938 Cal 690 and Sundera Bai v. Pandharinath, AIR 1938 Nag 441: The propositions deducible from these cases are that the covenant protects the lessee against all disturbance by the lessor whether lawful or not, save under a right of re-entry, but, as against other persons, it protects the lessee only against lawful disturbance and that the covenant does not cover tortious entries, evictions or interruptions by trespassers.'

52. In Naorang Singh v. A. J. Meik (supra), Sir Ashutosh Mookerjee J., observed that the expression 'claiming under him', in Section 108(c) of the Transfer of Property Act must be restricted in its meaning to claiming a right under him i.e., the lessor, to do the particular act complained of. Placing that construction, the eminent Judge stated.

'There must be some limit and we are of opinion that the limit indicated by Lord Esher in Harrison v. Muncaster. (1891) 2 QBD 680, is reasonable. It comes to this, that the lessor becomes bound for any act of interruption by himself or by any person whom he has expressly or im-pliedly authorised to do the act.'

That decision, instead of supporting the appellant, is against him.

53. It must accordingly be held that the defendant No. 3, the State of Madhya Pradesh, was not liable for damages for any breach of covenant of quiet enjoyment implied by Section 108(c) of the Transfer of Property Act.

54. The result, therefore, is that the appeal fails and is dismissed with costs. Hearing fee, as per schedule.


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