1. This is a suit brought by the plaintiff company against the defendant, Bipiu Bihari Bose, to recover first of all the sum of Rs. 90,902-8, or for an enquiry as to the amount of the plaintiff company's coal raised by the defendant and sold to the plaintiff company and the moneys so realized by the defendant with such proper deduction as the Court may direct; and, secondly, for discovery from the defendant of the quantity of the plaintiff company's coal so raised or disposed of; thirdly, for interest by way of further damages; fourthly, for Rs. 1,21,012-6 as damages for breach of contract and injury to the plaintiff company's colliery; and, fifthly, unless the defendant should undertake to protect and secure the plaintiff company's workings by masonry buttresses to be erected to the satisfaction of the plain till' company's servants and surveyors, for a further sum of Rs. 1,000 as damages.
2. Now, in the first paragraph of the plaint it is set out. that the plaintiff company is the proprietor of a colliery and is the owner under a permanent mokurari pottah or lease of mouza Lodna in Manblum subject as to a portion thereof to an underlease or dur-mokurari pottah granted by predecessors in title of the plaintiff company in favour of one Golab Chandra Sircar of a portion on the north-west of the said mouza. In the second paragraph is set out that by the terms of the said underlease, dated the 7th Assin 1303 B.S., corresponding with the 22nd September 1896, it was agreed that the boundary should be demarcated between the portion of the said mouza retained, by the grantors and the portion underleased as aforesaid and that a 'barrier or block of coal 30 feet in width should be maintained between the two portions of the said mouza and that neither party should work 15 feet of coal on each side of the boundary line, and that if either party encroached on the barrier and in consequence the other party should sustain any loss then the encroaching party should make good the other's loss. The third paragraph alleges that no such boundary was actually laid down by and between the original parties to the said underlease but subsequent to the purchase of the said mouza and an assignment of the pottah under which the same was held on the 5th June 1897 to Alfred Morrison Turner, George Hampson Morrison, Henry Blois Hawkins Turner, and Charles Edward Smyth, the boundary was on the 20Hi July 1897 delineated, laid down, and marked by the agents and representatives of the said A.M. Turner, G.H. Morrison, H.B.H. Turner and C.E. Smyth on the one hand and of the said Golab Chandra Sircar on the other hand, and a plan showing the said boundary was signed by both parties. In the fourth paragraph the plaint alleges that the plaintiff company is' the assignee of those named gentlemen. Then in the fifth paragraph the plaintiff company alleges that Golab Chandra Sircar assigned his rights in or granted an underlease of his portion of the said mouza so delineated as aforesaid to one Ram Lal Singh, and that the said Ram Lal Singh granted an underlease of the same portion of the mouza to the defendant who there carries on a colliery known as the North Burrakar Colliery. In the sixth paragraph it is alleged that the plaintiffs and defendant dwell and carry on business and personally work for gain in Calcutta. The seventh paragraph alleges that the defendant has so conducted his mining operations at the North Burrakar Colliery that he has cut into and removed portions of the coal forming the barrier agreed to be left between his North Burrakar Colliery and the plaintiff company's Lodna Colliery, and has cut and carried away coal from the 15 feet agreed to be left on the north of the boundary line in breach of the agreement contained in the said underlease, and has also cut and carried away coal from the south or plaintiff company's portion of the barrier, and has farther cut through the said barrier, and cut and carried away the plaintiff company's coal on the said side of the said barrier. Then the eighth paragraph alleges that the plaintiff company is unable to state the exact dates and times when the defendant cut into and through the said barrier, but the fact that an encroachment had been made was only recently discovered by the plaintiff company and the plaintiff company believes and charges that all the said conversions of the plaintiff company's coal and trespasses in the plaintiff company's property and the defendant's breach of contract is not maintaining the said barrier, have taken place within two years prior to the filing of the plaint. Then the 9th paragraph alleges that the plaintiff company had an arrangement under which the plaintiff company bought from the defendant the whole of the output of the defendant's colliery at prices which during the last two years were Rs. 4-12 in 1909 and Rs. 3 in 1910, and the plaintiff company alleges that they are entitled to charge the defendant for the coal belonging to the plaintiff company abstracted by the defendant from the plaintiff company's property and sold to the plaintiff company at the highest rate paid by the plaintiff company for such coal during the past two years. In the 10th paragraph it is alleged that the amount of coal, so far as the plaintiff company has been able to ascertain, amounts to 17,314 tons of steam coal and 5,774 tons of slack, and the plaintiff company claims from the defendant the sum of Rs. 90,902-8 in respect of the same which is the first amount claimed in the prayer. Then the 11th paragraph says that by reason of the wrongful act of the defendant in cutting through the said barrier the plaintiff company has further sustained loss and damages in that it has become necessary for the safety and preservation of the plaintiff company's colliery to leave another barrier of coal as shown on the plan thereto annexed to the south of the coal belonging to the plaintiff company worked out by the defendant, of the width of 30 feet. By reason of the wrongful acts of the defendant and the necessity for leaving a new barrier, an area of land containing approximately 32,641 tons of steam coal and. 10,849 of slack of similar qualities to that raised by the defendant and sold to the plaintiff company has become unworkable and cannot be utilized by the plaintiff company. The value of such coal and slack, less the cost of working and raising it, is Rs. 1,21,012-6, and the plaintiff company claims the said sum as damages inasmuch as the plaintiff company's colliery has been injured and damaged by the defendant to that extent. In the 12th paragraph of the plaint is set out that at one portion of the defendant's colliery where his workings adjoin the plaintiff company's workings and the defendant has cat through to the plaintiff company's workings, there is a portion where the plaintiff company's workings can only be rendered safe by the insertion of puce a buttresses at a cost of about Rs. 4,000. In the 13th paragraph it is alleged that the plaintiff company's causes of action arose at Lodna on dates within three years.
3. Now the question that has been argued at the present stage is, does this plaint disclose a cause of action, which this Court can try? In my opinion it does not. First of all, the case as to the carrying away of coal is founded on the ordinary case of a trespass quare clausum fregit, that is, the defendant broke through and entered the plaintiff company's mine or land and carried away coal belonging to the plaintiff company. That it seems to me is the nature of the suit. Now a suit of that nature seems, so far as I can gather from the decisions of this Court, to be one that would be considered as a suit for land or immoveable properties within the meaning of the Clause 12 of the Letters Patent of this Court. I think there is a great deal to be said if the matter could be treated as res integra in the argument put forward by Mr. Knight; but suits for land are well defined by the decisions of this Court. The Bombay High Court has taken the other view; and it seems to me to be a much more likely one in respect of suits for land or other immoveable properties. But the matter has been considered over and over again in this Court.
4. Now, applying the principles laid down in the decisions of this Court to the suit in question, it seems to me that in so far as the plaintiff seeks to recover damages for the defendant having broken into his close and carried away his coal it will become necessary that the title in respect of that coal must be gone in to, whether the defendant had the right to break through or not. In so far as that portion of the case is concerned, I do not think that having regard to the decisions, that have been dealt with very fully and with great ability by both Mr. Sinha and Mr. Knight, that I can decide otherwise than that this is a suit for land. The decisions of the Appellate Court are binding upon me, and I cannot go behind them. It seems to me that so far as the same is a suit to recover damages arising out of an action for trespass to land, that is a suit for land; in one of the cases cited, Garth C.J. expressly refers to a suit for trespass as being a suit for land. In England it has always been considered as a suit for land. The case of Rajmohun Bose v. East Indian Railway Co. (1872) 10 B.L.R. 241 which Mr. Knight has relied on, was a very different case. In that case a man sued the East Indian Railway Company for carrying on a forge and other works on land adjoining his. That was not a suit for trespass to land, but it was really a suit in respect of nuisance, and that case is wholly distinguishable. In so far as this suit seeks to recover damages by reason of the defendant having broken into close and carried away the plaintiff company's coal, I am of opinion this is a suit for land.
5. The other point put forward by Mr. Knight was that in the original underlease Golab Chandra Sircar had covenanted that lie would leave the barrier as was provided in the underlease. Now Golab Chandra Sircar according to the allegation in the plaint had either assigned his rights in or granted an underlease to one Ram Lai Singh and Ram Lai Singh granted an underlease to the defendant. That is the allegation in the plaint. So whichever way we take it there is no privity of contract or estate between the defendant and the plaintiff company. The plaintiff company obviously could not sue the defendant on any covenant contained in Golab Chandra Sircar's underlease, either on the ground of privity of estate or otherwise. Another point might arise if the defendant were the assignee of Golab Chandra Sircar, and that is whether that would be a suit for land. So far as I remember it was always held in England that the venue of a suit on a covenant by reason of a privity of estate was local. The defendant is not personally liable on any of the covenants contained in the underlease to Sircar. It seems to me that so far as it is a suit founded upon the terms contained in the underlease, the plaint does not disclose any cause of action, because the defendant is not personally liable to perform the terms of the underlease to Golab Chandra Sircar. That would dispose of the case so far as the plaintiff's claim for breach of contract is concerned.
6. The next portion of the case is as to a sum of Rs. 4,000 which is claimed as damages that the plaintiff will be put to in erecting masonry buttresses unless the defendant erects such buttresses to the satisfaction of the plaintiff company's servants or their surveyors. That sum is claimed on the footing that damage has been caused by reason of the wrongful act of the defendant in cutting through the said barrier, that stands on the same footing as the carrying away of the coal. It depends on the question, was the defendant justified in cutting through the barrier and carrying away the coal in the same manner suggested? That is the way it is claimed and that is the only ground on which the defendant can be made liable. It seems to me that the sum of Rs. 4,000 stands on exactly the same footing as the sum of Rs. 90,902-8 which is claimed in respect of the coal which the defendant is alleged to have carried away from the plaintiff's land. That being so, that portion of the action in so far as it seeks to recover the sum of Rs. 4,000, comes within the meaning of a suit for land. The Court could not be able to award the plaintiff that sum of Rs. 4,000 without deciding the question of the title to the barrier of coal which the defendant is alleged to have broken through and so caused damage to the plaintiff company. On this ground I think the plaint in this suit does not disclose any cause of action which this Court is competent to try. The plaint must therefore be returned to the plaintiff company. As to costs, the plaintiff company must pay the costs of these proceedings as of a hearing. The plaintiff company will pay the defendant the costs of this suit including all reserved costs on scale No. 2.