Chandra Reddi, J.
1. This second appeal arises out of E. A. No. 188 of 1946. in O. S. No. 103 of 1940 in the Court of the District Munsif of 'Visakapatnam, for restitution.
2. In a suit for partition instituted by the sons of one Goteti Subba Rao, the present first respondent was directed to put the appellants in possession of 44.3/4 cents of land which was found to be in excess of the property to which he was entitled and which, according to the trial Court, belonged to the appellants. An appeal was filed by the present first respondent against this direction which was dismissed by the Subordinate Judge of Vizagapatam. But this Court in S. A. No. 2154 of 1944, reversed the decisions of the Courts below holding that
'those portions of the lower Court's decree which do not relate to the plaintiffs shall be deleted and the rights of the defendants inter se be and hereby-are left to be adjudicated upon, if necessary, in a different litigation.'
3. Consequently, the first respondent, in addition to applying for redelivery of that property, inter alia, claimed a sum of Rs. 2000 as the value of 2 lakhs of bricks and 2 lakhs of tiles prepared by the present appellants from out of the earth dug from the 44.3/4 cents of land.
4. Dealing with this claim the trial Court held that the only relief which the present first respondent could get was a direction to the present appellants to fill up the pits dug in the land at their cost within 15 days from the date of the order.
5. The first respondent herein who was aggrieved by this order, filed an appeal to the Subordinate Judge of Vizagapatam. The lower appellate Court, which confirmed the findings of the trial Court on other issues, held that the proper direction in working out the rights of the parties, so far as the claim for damages in respect of the pits dug on the land of the first respondent, was concerned, was to direct the present 'appellants to pay the money value or the compensation for the earth dug and utilised by them and allow the present first respondent to fill up the pits in the manner he thought best as it thought that there were various difficulties in working out the. direction of the trial Court as regards the filling up of the pits. But in valuing the earth dug and utilised by the appellants the lower appellate Court took into consideration the net profits realised by the appellants by the sale of the bricks and the tiles which were manufactured out of the earth dug from the land in question.
6. In this appeal filed against the order of the learned Subordinate Judge, Mr. Venkatesam, the learned counsel for the appellants urges that the basis adopted by the lower Court in assessing the value of the earth was erroneous, that the profits realised by the appellants have no bearing - or relevancy on the question of the value of the earth utilised by them in manufacturing the bricks. It is argued by Mr. Venkatesam that the proper measure of damages to be awarded in cases like this is either the value of the earth dug out of the land or the value of the depreciation that was caused by the act of his clients, viz., the digging of pits in the land, and that in any event the first respondent is not entitled to the net profits derived by his clients from the sale of the bricks.
7. In support of his contention he places reliance on a judgment of Govinda Menon J. in 'Periyayya Moopan v. Marudai Konar', S. A. No. 1341 of 1947 (Mad). In dealing with the question as to how a person that js put to loss by the act of the parties against whom damages are sought should be compensated, the learned Judge observed: 'I am of opinion that at the utmost the first defendant would be liable to pay the price of the mud and silt at the time he utilised them for manufacturing the bricks.' The learned Judge also stated that the net. profits of the bricks manufactured out of the mud and silt would not represent the value of the mud and silt used for manufacturing the bricks.
8. Mr. Ramanarasu, learned counsel for the respondent relies upon a decision of Raghava Rao J. in 'V. Anantharaman v. A. Subba Reddi', S. A. No. 2249 of 1947 (Mad), in support of his plea that his client is entitled to the net profits made by the appellants in this case. It was laid down by Raghava Rao J. in that case that the defendants who trespassed upon the land of the plaintiff, dug out earth from that land and utilised the same for manufacturing bricks, were liable to pay the net profits made by them to the plaintiff. It is very doubtful whether the principle enunciated by the learned Judge in that case is applicable to a claim arising under Section 144 of Civil P. C., for in an application for restitution only such damages as would restore the person seeking restitution to the position which he would have occupied but for the wrong decree should be directed to be paid. It could not be said that if the wrong decree was not passed by the trial Court in this case, the person seeking restitution would have made this amount. Even otherwise with respect I must express my disagreement with the view taken by the learned Judge in that case, as it does not seem to be in consonance with the principle applicable to such cases.
9. Mr. Ramanarasu next cited to me a decision of the Calcutta High Court in 'Cerritt Moran & Co. v. Manmatha Nath', I.L.R. (1941) 1Cal 285, I do not think this decision carries him very far. There the point which the learned Judges were considering was wheher a person who committed trespass, plucked tea leaves from the estate, manufactured them and transported the same, was entitled to deduct the cost of plucking, manufacturing and transporting the tea, in a claim for damages by the plaintiff against the trespasser. The learned Judges held that the defendant, who was guilty of fraud or negligence, would not be entitled to a deduction of the expenses incurred by him for the process of plucking, preparing and transporting them for sale but the only reasonable deduction to which he was entitled was the commission paid by the defendant trespasser to the brokers. In support of his conclusion Derbyshire C. J. with whom Lort-Williams J. agreed relied upon the following passage in the judgment of Lord Sankey L. C. in 'Banco De Portugal v. Waterlow and Sons Ltd.', (1932) A. C. 452 , which in my opinion does not countenance the contention put forward by Mr. Ramanarasu:
'It was similarly stated by Lord Blackburn in the House of Lords in 'Livingstone v. 1952 Mad. 83 Hawyards Coal Co', (1880) 5 A. C. 25 , in these words 'Where any injuryis to be compensated by damages, in settling the sum of money to be given for reparation of damages, you should as nearly as possible get at that sum of money which, will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting' his compensation or reparation. There is no doubt as to the law .....'
The test to be adopted in awarding damages even in cases of trespass is laid down in several decisions of English Courts and also of Indian Courts. In Volume 10 of Halsbury's Laws of England, Hailsham Edition, at page 134 the following passage occurs:
'In respect of injuries done to the land by trespass the measure of damages is the depreciation in the selling value of the land, or in the selling value of the plaintiff's interest in it, and not the amount required to put the premises in repair......The amountrecoverable, however, will not necessarily be the cost of reinstatement, the true measure of 'damage being the difference between the money value of the owner's interest before and after the injury.'
In support of this statement of law the learned author relies upon a number of English decisions which it is unnecessary for mo to refer now. In the same volume at page 137 the learned' author says:
'If the defendant was guilty of fraud or negligence, the plaintiff is entitled to recover the vajue of the minerals at the time they first became chattels--that is, their value at the pit's mouth -- allowing for the cost of raising them to the surface. If the defendant acted honestly and without negligence, the plaintiff is only entitled to the value of the minerals at the pit's mouth after allowing for the cost of getting them as wen as that of raising them to the surface.'
These passages were quoted with approval not only by Govinda Menon J. in 'Periyayya Moopan v. Marudai Konar', S. A. No. 1341 of 1947. but also by a Bench Of the Calcutta High Court In 'Krishnalal v. Radhika Mohan'. : AIR1931Cal462 .
10. In Salmond on the Law of Torts, tenth Edn. at page 210 the learned author says:
'When a trespass has caused physical damage to the land, the measure of damages is the loss thereby caused to the plaintiff, which in all ordinary cases is measured by the resulting diminution in the value, of the property. The measure of damages is not the cost of reinstatement-the cost of restoring the land to the condition in which it formerly was--a cost which may greatly exceed the actual diminution in the value of the land.'
In 'Currimbhoy & Co. Ltd. v. L.A.Creet'. 57 Cal 170, the measure of damagesto be awarded to a co-owner who dug outmore than his share of the coal was considered.At page 201 the point is dealt with thus:
'The measure of damages in a case like thisis the fair market value of the coal (be itremembered that Creet was a part owner ofthe coal) at the pit mouth at the time whenit was served subject to just allowances.
As to what allowances there shall be depends on the conduct of the parties and the other circumstances of the case. There are two Rules--(1) the harsher, under which only the cost of bringing the coal to bank is allowed and (ii) the milder under which the expense of hewage and haulage, i.e., the cost of working and severing as well as of bringing to bank is allowed.'
In that case the milder rule was applied as the learned Judges thought that the co-owner was not guilty of misconduct of a substantial character.
11. On this discussion it follows that the basis adopted by the learned appellate Judge for arriving at the value of the earth was wrong.
12. Mr. Ramanarasu maintained that the value of the earth dug out from the land belonging to the first respondent would not represent the true measure of. damages in a case like this and that his client would be restored to the position which he would have occupied but for the wrong decree only if he is paid the value of the depreciation sustained by him as a result of the action of the present appellants. Mr. Venkatesam concedes that this is the fair basis of allowing restitution in a case like this.
13. Consequently the order of the lower appellate Court has to be set aside and the case remanded to the trial Court for an enquiry as to the value of the depreciation. For this purpose the parties are at liberty to adduce such evidence as may be necessary to prove their respective cases. The enquiry is to be confined to the value of the property before the digging of the pits and value thereof immediately after the digging. The costs of this second appeal will abide and follow the result of the enquiry in the trial Court.
14. The memorandum of cross-objections is (SIC) pressed and is dismissed without costs. (Leave refused).