1. This appeal by the defendants, arises out of a suit for recovery of damages for wrongful catching and removal of fish from a tank leased to the plaintiff. The plaintiff claimed Rs. 7,000/-. The claim was decreed to the extent of Rs. 4,500/- with proportionate costs.
2. Plaintiff and defendants 1 to 11 are residents of village Chhelia under Madhapur Gram Panchayat. There is a big tank locally known as Bada Pokhari in village Chhela under the management and control of Madhapur Gram Panchayat. The fishery right of this tank is leased out from time to tune on each occasion for a term of three years, by public auction held by the Gram Panchayat. The lease granted in favour of defendant No. 1 expired on 31-3-62. The tank was put to auction on 5-4-62 and the plaintiff gave the highest bid for a premium of Rs. 33/-per year. He was granted lease for three years, that is 1962-63, 1963-64 and 1964-65 expiring at the end of March 1965. The plaintiff deposited the first year's premium and was granted the patta. But on an application by defendant No. 1, the outgoing lessee, he was allowed time till 20-4-62 to catch the fish reared by him. Thereafter on 21-4-62 the plaintiff putfish fries in the tank. It is alleged that on 8-6-63 the defendants with a malicious intention of putting the plaintiff to loss filed an application before the S.D.O. Cum-Executive Magistrate, first class for taking action under Section 145 Cr. P.C. alleging that the villagers of Chhelia had taken lease of the tank through the plaintiff, but the latter was falsely claiming to have taken lease in his personal capacity. The S. D. O., Cum-Executive Magistrate, first class, by his order dated 29-11-63 initiated a proceeding under Section 145 Cr. P. C. and attached the tank prohibiting both the parties from catching fish. This proceeding was finally disposed of on 30-3-65 just a day before the expiry of the plaintiff's term of lease, declaring the plaintiff's possession over the tank and further observing that with effect from 1-4-65 the Madhapur Grama Panchayat would be at liberty to lease out the fishery right of the tank. Thereafter during the period from 9-5-65 to 23-5-63 the villagers of Chhelia including the defendants 1 to 11 are alleged to have caught and carried away about 60 maunds of fish valued at Rs. 6,000/-. The plaintiff contended that there was still about 10 maunds of fish left in the tank the value of which would be about Rs. 1000/-. His contention was that if he had not been restrained by the preliminary order under Section 145 Cr. P. C. he would have caught the fish from the tank valued at Rupees 7,000/- and that due to the malicious action of the villagers of Chhelia he was deprived of the same. So, he brought the suit for recovery of Rupees 7,000/- from the villagers of Chhelia through the defendants, representing the villagers.
3. The case for the defendants was that the villagers of Chhelia used to take lease of the fishery right of the tank through any one of them and utilised the sale proceeds of the fish for the development of the village school. Accordingly the lease was taken in the name of defendant No. 1 and the term of lease expired on 31-3-1962. But the villagers had not been able to catch the entire fish reared by them. When auction for fresh lease was advertised the plaintiff approached the villagers for taking the lease in his name and undertook to manage the affairs of the school with the income from the lease. The school Managing Committee approved the plaintiff's proposal in a meeting held on 1-4-1962. Accordingly the plaintiff gave the bid on behalf of thevillagers in the public auction held on 5-4-1962 and defendant No. 1 deposited a sum of Rs. 20/- from the village fund towards the bid amount. But subsequently the plaintiff falsely claimed to have taken the lease in his personal capacity. So the villagers had to file the application before the S. D. O. for initiation of the proceedings under Section 145 Cr. P. C. After expiry of the plaintiff's term of lease the villagers with the permission of the Grama Panchayat caught fish weighing three maunds from the tank. It was accordingly contended that the defendants were not liable for damages.
4. The trial court on a consideration of the evidence led by the parties held as follows:--
(1) The plaintiff had taken lease of the land in his personal capacity, not as representative of the villagers.
(2) The defendants were fully aware that the plaintiff had taken lease in his personal capacity and therefore, their action in making an application on false allegations that the lease was on behalf of the villagers and in causing a proceeding under Section 145 Cr. P. C. to be initiated and the tank attached in consequence thereof was malicious.
(3) The plaintiff after taking lease of the fishery right had reared fish fries in the tank in the year 1962.
(4) The villagers caught 60 maunds of fish from the tank in 1965. After deducting 15 maunds towards expenses of catching the damage sustained by the plaintiff was assessed at Rs. 4,500/- at the rate of Rs. 100/- per maund of fish.
(5) The defendants as representing the villagers excepting the plaintiff, are jointly and severally liable for damages to the extent of Rs. 4,500/-.
(6) The suit was not hit by Section 139 of the Grama Panchayat Act.
(7) Defendants 1, 7, and 9 who are office bearers of the Grama Panchayat were sued in their individual capacity, and not in their official capacity. Hence there was no necessity of serving any notice under Section 139 of the Orissa Grama Panchayat Act.
5. Mr. Srikanta Mohanti, the learned counsel appearing on behalf of the respondents contended that the claim for damages is based on wrongful conversion. Since a case for damage in tort for wrongful conversion has not been pleaded in the plaint it is contended onbehalf of the appellants that no relief can be granted on that footing. On 19-1-1976 the respondents filed a petition before this Court for amendment of the plaint by introducing an alternative claim for damages for wrongful conversion and the prayer was rejected by order dated 27-2-1976. It was however urged on behalf of the respondents that in the plaint as filed all the ingredients that are necessary to spell out a claim for damages for wrongful conversion are present.
6. Before the materials on the record on this point are discussed, it is necessary to notice the principle of law bearing on conversion. The tort of 'conversion' consists in an act of wilful interference, without lawful justification, with any chattel in a manner inconsistent with the right of another, whereby that other is deprived of the use and possession of it. (See AIR 1958 SC 274 Dhian Singh Sobha Singh v. Union of India). Two elements are combined in such interference -- (1) a dealing with a chattel in a manner inconsistent with the right of the person entitled to it, and (2) an intention in so doing to deny that person's right or to assert a right which is in fact inconsistent with such right. Winfield in his book on Tort (6th Edition Page 417) defines 'conversion' as 'any act in relation to the goods of a person which constitutes an unjustifiable denial of his title to them'.
7. There are three distinct methods in which one may be guilty of conversion: (1) by wrongly taking a chattel (2) by wrongly detaining it (3) by wrongly disposing of it. In the first case the wrong-doer acquires a possession which is wronfful ab initio. In the second he acquires possession rightfully but retains it wrongfully. In the third case he neither takes it wrongfully nor retains it, but so acts that it is lost to the true-owner. (See Salmond's Law of Torts. 11th Edition, Page 316).
8. To make out a case of conversion in order to claim damages, the plaintiff must allege and prove that at the time of the defendant's act he had (a) ownership and possession of the goods, or (b) possession of them; or (c) an immediate right to possess them, but without either ownership or actual possession. There could be no conversion in law unless the defendants interfered with the plaintiffs possessory right. No such interference could possibly arise in this case because the plaintiff had admittedly nopossession over the tank at the time when the defendants caught the fish. Admittedly, the term of the lease in favour of the plaintiff expired on 31-3-1965 and according to the plaintiff the villagers caught the fish between 9-5-65 and 29-5-1965. After expiry of the lease, the plaintiff had no right to catch fish from the tank. There is no allegation far less any proof that the plaintiff continued to be in possession of the tank after expiry of the terms of the lease. It is in evidence that the villagers caught the fish after obtaining permission of the Grama Panchayat, the real owner of the tank. In our opinion, the plaintiff had neither title nor possession over the fish in question and the defendants having caught the fish with the permission of the real owner the plaintiff had no right to sue them for damages on the footing of conversion.
9. From the plaint allegations and submissions made on behalf of the plaintiff in the trial court it is apparent that the claim for damages was based on the alleged malicious action of the defendants in initiating the proceeding under Section 145 Cr. P. C. The plaintiff's case is that he was unable to catch the fish in question because of the action of the defendants in causing a proceeding under Section 145 Cr. P. C. to be initiated and the loss that he had suffered is attributable to that action. The learned Subordinate Judge in Para 10 of his judgment observed as follows:
'...As I have already set out the case of the plaintiff the whole suit is passed for the malicious act done by the villagers of Chhelia in filing an application intentionally making some false allegations resulting in the starting of proceeding under Section 145 Cr. P. C. and not for catching the fish from the tank.....'.
He seems to have lost sight of the fact that after the defendants had filed the petition (Ext. 9/1) the order that was passed under Section 145 Cr. P. C. was an order of a judicial nature passed by the Magistrate and the attachment of the tank was made after the Magistrate was satisfied that a dispute likely to cause a breach of the peace existed and that he considered it to be a case of emergency, in which it was proper for him to attach the tank. The basis for initiating the proceeding under Section 145 Cr. P. C. was the satisfaction of the Magistrate regarding existence of a dispute likely to cause a breach of the peace. Hedid not take action on the petition itself but waited till the police submitted report after enquiry into the allegations made in the petition. The order of attachment is not referable to any act of the defendants, who merely set the law in motion. The defendants, therefore, cannot be held liable for the consequent loss to the plaintiff on account of the order of attachment passed by the Magistrate. This view finds support from decided cases.
10. In the case of Durvijay Singh v. Muni Narain AIR 1956 All 119 a proceeding under Section 145 Cr. P. C. was initiated at the instance of the defendants and the Magistrate acting under Section 145 Cr. P. C. attached the land in cultivating possession of the plaintiff. As a result of the attachment the plaintiff could not cultivate the land. Ultimately the proceeding terminated in favour of the plaintiff who brought a suit for damages for the loss sustained by him. In dismissing the plaintiff's claim for damages the court held (at p. 120) :--
'The attachment therefore, was made after the Magistrate was satisfied that a dispute likely to cause a breach of the peace existed, and that he considered it to be a case of emergency, in which it was proper for him to attach the plots in dispute. After the defendants had lodged a report alleging that there was a danger of a breach of the peace, it was open to the Magistrate to be satisfied or not to be satisfied as provided in Section 145 Cr. P. C.
He had the jurisdiction to decide as to whether he would take action under that provision of law. His decision, therefore, intervened or came in as it were between the report made by the defendants and the attachment which was subsequently made and due to which the plaintiffs were unable to cultivate the plots.'
A similar case came up before the Calcutta High Court in Rani Mina Kumari Bebi v. Surendra Narain Chakraverty (1910) 14 Cal WN 96. In that case also the proceeding under Section 145 Cr. P. C. was initiated and subsequently an order was passed under Section 146 Cr. P. C. in consequence whereof the plaintiff remained out of possession of the agricultural land and was unable to cultivate it during the pendency of the proceeding. The plaintiff then brought a suit for damages basing his cause of action on his ouster on account of the order passed underSection 146 Cr. P. C. The learned Judges after considering a large number of English cases observed:
'It is well settled that no action will lie against any person for procuring an erroneous decision of a court of Justice. This is even though the court has no jurisdiction in the matter and although its judgment or order is for that or any other reason invalid. A court of justice is not the agent or servant of the litigant who sets it in motion, so as to make that litigant responsible for the errors of law or fact which the court commits. Every party is entitled to rely absolutely on the presumption that the court will observe the limits of its own jurisdiction and decide correctly on the facts and law.'
On the aforesaid view it was held that the plaintiff's suit for recovery of damages would not lie against the defendant upon whose complaint the enquiry leading up to order had been initiated.
In the case of Ammani Ammal v. Sellavi Ammal (1883) ILR 6 Mad 426 a dispute having arisen regarding possession of certain land, an order was passed by a Magistrate prohibiting both the plaintiff and defendants from interfering with the land until either party established his title in a Civil Court. Consequently the lands remained uncultivated in the following year. The plaintiff sued for damages for the loss of profits resulting from non-cultivation of the land. The court held that the damages were not the probable result of the defendant's act but were consequence of a judicial act of the Magistrate.
11. Applying the principles enunciated in the aforesaid cases we hold that the plaintiff's loss of possession of the tank must be attributed to the judicial act of the Magistrate acting within the limit of his jurisdiction and as such de-fondants cannot be held liable for damages,
12. Mr. Srikanta Mohanty, the learned counsel for the respondents cited the cases of Narayan Mudali v. Peria Kalathi AIR 1939 Mad 783 and Adikanta Sahu v. Kasiram Rout (1972) 2 Cut WR 1242. In our opinion these cases can be of no assistance to him. In those cases proceedings under Ss. 144 and 107 Cr. P. C. were initiated and the person affected sued for malicious prosecution. The question for consideration was whether initiation of a proceeding under Section 144 Cr. P. C. under Section 107 Cr. P. C.amounted to prosecution and whether that prosecution was malicious. None of these cases can therefore be said to be authority for the proposition that the party who being prohibited by an order of attachment loses possession of the property is entitled to sue the person at whose instance the proceedings were initiated for damages based on account of such loss of possession.
13. In the premises aforesaid, we are clearly of the opinion that the plaintiff is not entitled to any damages having regard to the nature of his suit. We allow the appeal and set aside the decision of the court below. The plaintiff's suit shall stand dismissed. In the circumstances of the case we direct the parties to bear their own costs throughout.
S.K. Ray, J.
14. I agree.