C.C. Ghose, J.
1. The suit, out of which this appeal has arisen, was instituted by the plaintiff on 14th May 1924 in the Court of the Subordinate Judge at Asansol against Messrs. Oosman Jamal & Sons Limited, for damages for breach of contract for the sale and purchase of certain lands with mining rights thereunder in mouza Khandra in the district of Burdwan, for recovery of khas possession of certain properties of which possession had been given to the said defendants pending completion of the contract and particulars whereof are given in the plaint, and for an account of certain quantities of coal which had been raised by the said defendants or, in the alternative, for specific performance of the said contract and for other reliefs as stated in the plaint.
2. More than 2 years after the institution of the suit, namely, on 30th June 1926, an order for compulsory liquidation of Messrs. Oosman Jamal & Sons Limited was passed by this Court on its original side and a Mr. R. Ray, chartered accountant, was appointed liquidator, The liquidator was thereupon added as a defendant to this suit on 13th July 1926. On 21st August 1926 the present appellants Messrs. Currimbhoy & Co. Ltd. (hereinafter called Currimbhoys) applied to the learned Subordinate Judge to be added as defendants to this suit. In their application for addition as defendants, Currimbhoys stated that Messrs. Oosman Jamal & Sons Ltd. (hereinafter called Jamals) undertook sometime in September 1922 to provide for them a coal mining property' known as Khandra colliery comprising about 400 bighas of coal bearing lands in one block with all rights, buildings, shafts, machinery, plant and that implements for the proper working of a colliery, and that pursuant to that agreement they had advanced to Jamals a large sum of money amounting to about five lacs of rupees, with part of which the said colliery had as a matter of fact been developed; that the said colliery had 'long' been managed by Jamals on their behalf as managing agents, and that they were the real owners of the said colliery. They further stated that in these circumstances, although no conveyance of the said colliery and lands had been executed in their favour, they were the only persons interested in the property which was the subject matter of the litigation, and that as the pecuniary condition of Jamals had then become precarious, they had been obliged to take over direct possession and management of the said colliery from 7th May 1926.
3. The plaintiff at first strenuously objected to Currimbhoys being added as defendants to this suit and the grounds upon which such objection was based were set out in the plaintiff's petition dated 18th September 1926. On these grounds the plaintiff denied all the allegations of fact relied upon by Currimbhoys. Currimbhoys' application, however, was not disposed of by the Court till 28th July 1927, when, as appears from the order sheet, the plaintiff having agreed to their being added as defendants to this suit without prejudice to his objections, an order was made by the learned Subordinate Judge adding Currimbhoys as defendants. Thereafter Currimbhoys filed their written statement on 12th August 1927, but the issues arising on the pleadings as they then stood wore not finally settled till 21st August 1928. The suit eventually was disposed of by the learned Subordinate Judge by his judgment and decree dated 12th October 1928.
4. In Schedule 1 to the plaint the plaintiff described the lands and the minerals thereunder in respect of which he prayed for khas possession. The plaintiff adduced considerable evidence showing the raising of coal since 19th February 1923. On consideration of this evidence and of the other evidence bearing on various other points in the case, the learned Subordinate Judge passed the following decree in favour of the plaintiff:
The plaintiff do get khas possession of all the lands (surface or underground) now owned by the defendant in mouza Khandra described in Schedule 1 of the plaint; defendants do pay to the plaintiff Rs. 5,49,445 plus costs of the suit. The defendants are directed to remove their structures, boilers, machinery, etc., within 2 months from this day. On failure, the plaintiff will be entitled to apply in the execution proceedings for their removal and disposal and will get the costs which he will have to incur. The decree will boar interest at 6 par cent per annum till realization. The plaintiff do pay deficit court-fees on Rs. 3,49,445, on or before 30th November 1928. On failure, the decree will be prepared on the basis of damages at 2 lacs for which court-foes have bean paid.
5. Against this decree, the present appeal has been brought by Currimbhoys; there is no appeal by Jamals as represented by the liquidator. Now, in order to understand the various contentions which have been advanced before us on behalf of Currimbhoys and which are hereinafter referred to, it is necessary to set out at some length the facts involved in the present litigation and a short history of the plaintiff's title to the lands in suit, and I will, therefore, now proceed to do so.
6. Mouza Khandra within touzi 12 of the Burdwan Collectorate consisting of 5,545 bighas appertains to the zamindari of the Maharajadhiraj of Burdwan. The entire area is subdivided as follows : (A) Khandra proper; (B) Kismat No. 1; (C) Kismat No. 2; (D) Chuck Talabanka; (E) Bajeapti lands and (F) Khas Khalasi lands. It appears that many years ago, the Maharaja of Burdwan granted a patni lease of (A) and (B) to certain gentlemen who are known as the Ukhra Babus. The last named persons in their turn granted a darpatni of (A) to certain persons who are known as the Sahays of Arrah. Thereafter the Maharaja of Burdwan granted a mining lease of (A) to the said Sahays of Arrah; and apparently sometime previously, certain people known as the Buxis had taken a patni lease of (C) and (D) from the Maharaja. On 8th January 1915 the Maharaja of Bnrdwan and the said Sahays granted a prospecting lease or amalnama to one Kangal Chandra Mandal for the purpose of examining the 'coal lands' in and of mouzah Khandra for a period of three years on certain terms and conditions specified in the lease which is marked Ex. 3217. From the boundaries set out in the schedules thereto it would appear that the lease in question covered the entirety of mouza, Khandra and it was expressly agreed between the parties that at the end of the said period of three years, the lessee would be entitled to obtain a mining lease of mouzah Khandra for a period of 999 years. On 9th March 1915, Kangal Chandra Mandal sold a moiety of his right, title and interest under the said prospecting lease for a sum of rupees twenty-five thousand to one Taranath Dutt (Ex. 18). On 28th October 1915, the Maharaja of Burdwan granted a mining lease of (B) to Rai Pulin Behari Lal Sinha, Handay Bahadur and two others. On 17th December 1918, the lessee Kangal Chandra Mandal, ignoring the grant he had already made in favour of Taranath Dutt, purported to grant a prospecting lease for a period of eight months commencing from 1st January 1919 of the whole of mouzah Khandra in favour of one F.D. Boga (Ex. T).
7. It appears that sometime thereafter the plaintiff L.A. Greet, who had acquired some sort of interest in and was in possession of certain Bajeapti and Khas Khalasi lands i.e., lands in (E) and (F), got into touch with the said F.D. Boga and entered into an agreement with him on or about 7th May 1919 to purchase his right, title and interest under the grant in his favour by Kangal Chandra Mandal. It appears that the latter had not been able to obtain from the Maharaja and the Sahays a mining lease of mouzah Khandra within the time limited as above, but what he had done was this; he had succeeded in obtaining an extension of time from his lessors up to the end of Pous 1326, to apply for a mining lease on payment to his lessors of certain sums of money which he had obtained as advances from Taranath Dutt. The plaintiff Creet, who had heard of Taranath having been left out, wanted to make his position secure, and accordingly he entered into an agreement with Taranath Dutt on or about 28th July 1919 under which he became entitled to prospect for coal in mouzah Khandra up to the end of Pous 1326 corresponding with 14th January 1920. The terms and conditions under which the said prospecting lease was obtained from Taranath Dutt are set out in Ex. (329). On 29th July 1919 Kangal Chandra Mandal obtained a mining lease of mouzah Khandra from the Sahays : see Ex. (3218).
8. The Maharaja of Burdwan, who was to have joined the Sahays, however, refused to sign the lease; and the result was that Kangal Chandra. Mandal had to institute a suit against the Maharaja for specific performance of the contract with him. That suit was disposed of on 14th April 1927. The decree in that suit directed that the Maharaja of Burdwan should execute a lease as prayed in favour of Kangal Chandra Mandal on payment by him of a sum of Rs. 14,000 within four months from the date of the decree and that in default, the plaintiff Kangal Chandra Mandal would be entitled to have the lease executed by the Court for and on behalf of the Maharaja of Burdwan. As a matter of fact, the lease was not executed by the Maharaja but was ultimately executed by the Court in terms of the decree of 1st November 1927 on deposit of a sum of Rs. 14,000. As regards Taranath Dutt, he had instituted a suit against the Maharaja of Burdwan and others to enforce his rights. This suit was, however, dismissed for default on 12th April 1927. Now, as regards the Ukhra Babus; the properties belonging to them had been partitioned and, as a result thereof, Pulin Behari Singh became entitled to (B). Pulin granted a mining lease of (B) to one Haridas Mukherji and the latter, in his turn, granted a similar lease of (B) to the plaintiff L.A. Creet on 21st November, 1920 (Ex. 3-f). It was stated before us that the lease covered an area of 200 bighas approximately. Now, as regards the Bajeapti and khas Khalasi lands : It appears that the plaintiff Creet was able to get mining leases in respect of certain of the areas comprized therein, but he had not succeeded in acquiring the interest of one Jyotish Chandra Sircar and some of his cosharers. There was some contention raised as to whether the holders of the Bajeapti and khas Khalasi lands were entitled to the minerals thereunder or whether the Maharaja of Burdwan, as the zamindar, was entitled to the same. Be that as it may, it appears that the plaintiff Creet succeeded on 18th October 1921 in obtaining from the Maharaja of Burdwan a mining lease of 825 Bighas of Bajeapti and khas Khalasi lands in the said mouzah Khandra see : Ex. 3210. So much for the title as regards the property which is the subject matter of the present suit.
9. Two other matters must be mentioned. The plaintiff alleged that Jyotish Chandra Sircar and his cosharers who were interested in certain Bajeapti lands had entered into a contract with him to grant a mining lease. This was not admitted by the Sircars, and the plaintiff had to institute a suit against the Sircars for specific performance of the said alleged contract. The suit was dismissed by the Subordinate Judge of Asansol on 25th June 1927 and it has been stated before us that the decree dismissing the suit has since been affirmed by this Court on appeal. Creet also instituted a suit against Boga and others for specific performance of the agreement of 7th May 1919. This suit also was dismissed by the Additional Subordinate, Judge of Asansol on 30th April 1928 and it is said that an appeal against the decree is now pending.
10. Now, in the early part of May 1920, Jamals were carrying on business in Calcutta, and were on the lookout for coal lands in and near about Raneegunge. They had in their employment a mining Engineer named H.C. Reid who was on friendly terms with the plaintiff Creet. Reid, acting on behalf of Jamals, got into touch with Creet and his object was to acquire mining rights for Jamals from, or with the instrumentality of, the plaintiff. On 18th April 1920 Creet, who had paid selamis to owners of various bajeapti lands for the purpose of acquiring mining rights thereunder and had got possession of certain bajeapti lands, writing to Reid proposed certain terms which were to the effect that Jamals should advance to him a sum of Rs. 50,000 immediately, and that when he got mining leases from the bajeapti holders and succeeded in winning the suit which was then pending against Boga and in acquiring Boga's title and further succeeded in obtaining a mining lease from Taranath Dutt after the latter had managed to obtain title from the Maharaja of Burdwan, he Creet would assign the rights hereinbefore mentioned to Jamals in consideration of Jamals paying Rs. 90 per bigha as selami in addition to the royalties etc. payable to the superior owners and that when Jamals title was finally completed, the said Rs. 50,000 would be taken into account. There were various other matters mentioned in the letter of 18th April 1920, but the above is, I think, a fair and an intelligible account of the material terms proposed by the plaintiff, Creet, who is an Armenian, does not write correct English.
11. On 20th April 1920 Jamals made a counter offer which, however, was not accepted by the plaintiff. On 26th April 1920 Jamals intimated to the plaintiff that they had agreed to consider his terms. On 13th May 1920 Jamals proposed that they should take over 'this place' (meaning the area where mining operations had already been begun by the plaintiff) immediately for the purpose of 'sinking and opening out' under the supervision of their Manager, Mr. Seth Ram and that this should be done subject to 'ratification' by their solicitors 'as arranged for the acquisition of the property' from Creet : see Ex. 1(d). On 13th May 1920, Messrs. Morgan & Co., who were Jamals' solicitors, put in writing what they understood to be the terms on which the advance of Rs. 50,000 was to be made by Jamals, and a copy of Messrs. Morgan & Co.'s letter dated 13th May 1920 was for warded by Jamals to the plaintiff, and the plaintiff was asked whether he agreed to act on the opinion of Messrs. Morgan & Co. The letter of 13th May 1920 from Jamals was acknowledged by Creet on 15th May 1920, and the plaintiff authorized Jamals to start work at once. On 15th May 1920 the plaintiff wrote again and informed Jamals that he was agreeable to act on the opinion of the solicitors (Messrs. Morgan & Co.) if they were also agreeable. On 17th May 1920, Jamals wrote to the plaintiff as follows:
Yes, we are agreeable to act on the opinion of the solicitors and since you are agreeable also, we shall get in touch with Messrs. Morgan & Co. today and ask them to draw an agreement on the terms agreed upon.
12. On 18th May 1920, Jamals informed Greet that payment would be made on the agreement being signed and registered and that they would try and persuade Messrs. Morgan & Co. to do this as soon as possible. As a matter of fact, the agreement was not drawn up then or for some time thereafter; but on 1st June 1920 Jamals were allowed to take possession of the property which was briefly described in the correspondence as 'Khandra.' Nothing was done in the matter of the execution of the agreement in 1920 or for the matter of that in 1921; but it appears that Jamals paid to Creet on various dates between 25th June 1920 and 28th November 1920 several sums aggregating Rs. 30,000. In November 1921 Jamals received a bill from Creet for Rs. 4,000 on account of minimum royalty, surface rent and selami and they wrote to Creet to say that they would pay the amount if Morgan & Co. were prepared to pass the title and get the documents ready. A demand was also made by Creot for payment of a sum of Rs. 3,641-15-9 on account of certain expenses which Creet had been put to and which, it was understood, Jamals would pay. Jamals paid the said two amounts in question to Creet on or about the 27th November 1921 although no progress had been made in drawing up the agreement hereinbefore referred to. It appears that the examination of Creet's title was for various reasons not proceeded with rapidly'and completed, although Messrs. Morgan & Co. reported on 27th February 1922 that Creet had got title to 106 bighas of bajeapti lands, 200 bighas of mal lands and 825 bighas of bajeapti and khas khalasi lands under the lease from the Maharaja of Burdwan. Creet was requested to complete his acquisitions of bajeapti and khas khalasi lands so as to make up a block of 600 bighas; but Creet stated that there was no such understanding, and that Jamals had agreed to take such lands, whether in one block or otherwise, as he could get.
13. There were interviews and correspondence in 1922, and it appears that on 13th October 1922 Creet wrote to Jamals saying that if Morgan & Co. did not approve of the title, then they, Jamals, should stop raising coal at once. On 9th October 1922, Narendra Mohan Chatterji, pleader, Asansol, who was acting on behalf of Creet, wrote to Jamals reminding them of the balance duo by them of Rs. 20,000 and calling upon them to pay the said sum as also another sum of Rs. 40,000 and suggesting that they should place a further sura of Rs. 1,50,000 in deposit with their Solicitors Messrs. Morgan & Co. 'for settlement of the disputes regarding the property' which were going on. A lengthy reply to this letter of Mr. Chatterjee was sent on 17th November 1922 by Jamals in which they gave their version of what they understood to be the contract between the parties and of what had happened since then. Jamals asked that there should be a conveyance of the mining rights already acquired by Creet and covered by the documents which had been deposited by Creet and that Creet could go on acquiring further mining rights in areas under titles which were to be approved by their solicitors.' On 8th January 1923 there was a meeting between Reid, Creet, Ashraf Jamal of Jamals and Jamals manager, Seth Earn at the Century Colliery and certain terms, according to Jamals, were agreed upon at the said meeting. Those terms are to be found in a letter dated 10th January 1923 from Jamals to Creet : see p. 117, Vol. II, Part. II. On 15th January 1923 Jamals sent to Creet a draft conveyance of 1025 bighas which had been drawn up by Messrs. Morgan & Co. see : Ex. L Creet, however, was not prepared to accept the draft conveyance and he forwarded the same to his lawyer for his corrections. The lawyer referred to is Narendra Mohan Chatterji, and instead of sending the draft conveyance after correction by him Chatterji sent on 23rd January 1923 a draft agreement which according to Greet had to be first executed by Jamals before the question of the execution of the draft conveyance could be taken up. Meanwhile, Chatterji prepared a draft conveyance which is Ex. M and which was sent to Jamals, and on 2nd February 1923 he, Chatterji, fixed fifteen days time for the completion of the transaction, that is, for the execution of the agreement and the conveyance. Various difficulties thereafter arose with the result that Greet through his pleader gave notice on 19th February 1923 asking Jamals to stop all work and stating that inasmuch as Jamals 'had failed to obtain title from him' they would be regarded as trespassers.
14. A suggestion was made by Messrs. Morgan & Co. in June 1923 that there should be a settlement of outstanding disputes, and on 30th July 1923 Creet opened correspondence with Jamals 'without prejudice.' On 23rd November 1923 Messrs. Orr Dignam & Co. who were then advising Creet, made certain suggestions to Jamals for settlement of the disputes. The main points were that Jamals should execute the agreement prepared by Chatterji (which is Ex. 2 in this case) subject to such modifications as might be approved by Messrs. Orr Dignam & Co.; that Jamals should undertake to pay all minimum royalties and rents to the superior landlords as from the date 'n which they commenced to be payable with interest thereon at 15 per cent per annum, and that they should also pay all costs of the acquisition of surface lands with like interest and further should undertake to pay a royalty on all bricks manufactured, and to take over and acquire the twenty odd bighas of surface land taken up by Mr. Boga at a solami of Rs. 100 per bigha and an annual rent of Rs. 10 per bigha. These points were re-stated by Messrs. Orr Dignam & Co, in their letter of 18th December 1923 and were accepted by Jamals on 28th December 1923. The only question which then remained outstanding was the preparation of the necessary documents. It appears, however, that instead of the documents being got ready, correspondence was embarked upon between Messrs. Orr Dignam & Co. and Jamals which led to no useful result, and the latter were finally served with notice that until the transaction was completed by 31st March 1924, Creet would cancel the 'arrangement' i.e., the contract. Nothing was done and finally, as stated above, the present suit was instituted on 14th May 1924.
15. As stated above Currimbhoys came into this suit more than two years after the institution thereof; but although they were added as defendants in July 1927 and were allowed to file a separate written statement, the plaint, as it was originally filed, remained unamended. On this appeal it was vigorously argued by the learned Advocate-General on behalf of Currimbhoys, when this appeal was opened before us, that the plaintiff had no title and had acquired no title to the lands, khas possession whereof was prayed for by him, and that in any event, having regard to the fact that Jamals were invited by the plaintiff to go into possession of the property and had spent money thereon for the purpose of raising coal and further that Currimbhoys had advanced a large sum of money to Jamals on the security of the property and the colliery thereunder and were in possession of the same through Jamals as their Managing Agents, they were entitled to obtain specific performance of the contract, at any rate to the extent of 400 bighas, they waiving all questions as regards Creet's title thereto and their right to claim compensation or abatement. The learned Advocate-General argued that if on the correspondence between the parties between 18th April and 18th May 1920 the Court came to the conclusion that there had been a concluded agreement between the parties and that such agreement was still subsisting, there was no reason why specific performance of the agreement to the extent claimed by Currimbhoys should not be granted. The learned Advocate-General further argued that if, contrary to his submission, the Court came to the conclusion that there had been no such concluded agreement, the Court ought to consider the agreement arrived at between the parties and embodied in the letter of 10th January 1923 referred to above, and decree specific performance thereof in favour of Currimbhoys. He further argued that if the Court was of opinion that the terms set out in the letter of 10th January 1923 had not been accepted unconditionally by Creet, there could, however, be little doubt that the letters of 23rd November 1923, 18th December 1923, and 28th December 1923, taken together, did amount to a concluded agreement and that Currimbhoys were, at any rate, entitled to obtain specific performance of that last mentioned agreement. It was also contended on behalf of the appellants that in the events which had happened and having regard to the state of Mr. Creet's alleged title to the property in suit, the decree for damages made by the Court below should be discharged.
16. Before I deal with the above contentions and with the elaborate argument which has been addressed to us by Mr. Pugh, who appeared for the plaintiff-respondent Creet, I must state shortly what the position of Currimbhoys was in this matter. It appears that two shafts had been sunk in a place called Karabagan. Certain persons known as the Sircars (i.e., Jyotish Sircar and his cosharers) had a half anna share in Karabagan. Creet had been trying to negotiate with the Sircars for a mining lease but Jyotish Sircar and some of the other Sircars were standing out. Jamals, who were carrying on the mining operations in Karabagan had not, however, the necessary finance wherewith to carry on such operations. They were, however, friendly with Messrs. Currimbhoys & Co. Ltd. of Bombay of which company Sir Fazulbhoy Currimbhoy (who was connected with Ashraf Jamal of Jamals) was a director. Jamals succeeded in inducing Currimbhoys to lend to them on or about 3rd November 1921 as a short period loan a sum of Rs. 4,00,000 bearing interest at the rate of six per cent per annum. The loan was not repaid in proper time as promised by Jamals, and on 11th September 1922 Jamals proposed to Currimbhoys that they would be prepared to transfer to them 400 bighas of the Khandra property together with all mining rights etc., as also all machinery then lying on the property, provided it (i.e. such transfer) was applied to the liquidation of the account between Jamals and Currimbhoys. Jamals stated that the proposal was an advantageous one, and that while the cost of raisings could be taken that Rs. 5-8 ans per ton, the sale price would be about Rs. 12 and that this would leave a margain of Rs. 6-8 annas per ton as clear profit. Apparently Currimbhoys fell in with Jamals suggestion and it was agreed on or about 13th September 1928 between Jamals and Currimbhoys that the debt due by Jamals would be wiped off by the transfer of 400 bighas of Khandra with the colliery and machinery etc. and that the colliery would be managed on behalf of Currimbhoys by Jamals on a 5 per cent profit commission basis. Currimbhoys thereupon instructed Messrs. Morgan & Co. to draw up necessary documents giving effect to the agreement to transfer the said 400 bighas of Khandra with a colliery and machinery etc. It is to be noticed that at this date Jamals had not obtained any title from Creet except the right to be in possession; but it has been argued that there can be little doubt from a consideration of the documents set out on pp. 175, 176, 177, 178, 179, 181, 182, 183, 184, 188, 189, 192, 193, 194, 195, 200, 203, 204, 205, 206, 216 and 227 of Vol. 2, Part 2 of the paper-book, that Currimbhoys were in possession of the property including the colliery from September 1922 through Jamals as their managing agents, and that they (Currimbhoys) have spent a large sum of money for the purpose of developing the property. It was also contended that such money was spent by Currimbhoys on the footing that there was a subsisting agreement between Creet and Jamals which they could adopt and of which they obtained an assignment and in respect of which they were entitled to claim specific performance.
17. Before I proceed further, I think it will be convenient if at this stage I dispose of the contention of the learned Advocate-General that Currimbhoys are entitled to claim specific performance of, at any rate, one of the three contrasts referred to above. For the reasons which I am about to state, in my opinion, this contention must be negatived.
18. I start with the contract of April-May 1920. The contract, if any, was contained in certain letters which passed between Creet and Jamals. Now, where it is sought to establish a contract by correspondence, the rule is that the whole of the correspondence relating to the matter in question must be looked at for the purpose of finding out at what stage there was, if at all, a complete contract between the parties. There are numerous authorities in support of his proposition. It has been held that where the cardinal points of a proposed contract are definitely agreed upon by letters, the mere fact that in the course of the correspondence, reference has been made to a more formal agreement for subsidiary non-essential stipulations, twill not prevent the Court from considering the agreement arrived at by the letters as concluded : see Cayley v. Walpole  39 L.J. Ch. 609.
19. It is also clear that if once a definite offer has been made and it has been accepted without qualification and it appears that the letters of offer and acceptance contain all the terms agreed on between the parties, the complete contract thus arrived at cannot be affected by subsequent negotiation. : see Bellamy v. Debenham  1 Ch. 412; Perry v. Suffield  2 Ch. 187. Again it is equally clear that where certain letters are stated as constituting the agreement, no testimony aliunde is admissible and subsequent letters cannot be referred to to aid in construing the contract contained in the material letters : ses Lewis v. Nicholson  18 Q.B. 503. Bearing in mind the rule laid down in the above cases and also that the question whether the terms contained in a correspondence amount to a binding contract between the writers is one of law : Cheveley v. Fuller  13 C.P. 122, I am of opinion that even if there was a complete contract between the parties i.e. Creet, and Jamals in April-May 1920, such contract was put an end to by the consent of the parties : see per Lord St. Leonards in Carolan v. Brabazen  3 Jones & Lat. 200, and the only contract which ultimately emerged from the correspondence as having been made by and between the parties and was in force was the contract which was contained in the letters of 23rd November 1923, 18th December 1923 and 28th December 1923.
20. I am of opinion that there was no contract concluded between the parties in January 1923 as it is quite clear that the terms embodied in the letter of 10th January 1923 were not accepted by Creet at any time. The position, therefore, being that the only contract between Creet and Jamals which mattered was the contract in December 1923, let us next see what happened after that date. As I read the correspondence from December 1923 onwards no time, was ever agreed or insisted upon by the parties for the performance of the contract contained in the letters of 23rd November 1923, 18th December 1923, and 28th December 1923. In these circumstance the contract in question had to be performed within a reasonable time from the date of the contract by Jamals. Whether in the present case a reasonable time had elapsed between the date of the contract is question and the date of the institution of this suit is a matter now of academic interest in view of subsequent events. I will assume for the purposes of argument that the contract in question was subsisting even at the date of the institution of the suit. Jamals, however, went into liquidation in June 1926 and a liquidator was appointed to wind up Jamals compulsorily. What was the effect of Jamals having gone into liquidation on this contract? It is not disputed that the effect of a company going into liquidation while a contract entered into by the company before liquidation is subsisting is the; same as when a party to a contract becomes bankrupt or insolvent. Now, the bankruptcy or insolvency of a party may not alone necessarily result in such an incapacity to perform the contract as to entitle the other party at once to treat it as broken and to claim damages : see Brooke v. Hewitt  3 Ves. Jr. 253; as it may be for the benefit of the bankrupt or insolvent or of his estate to complete the contract and the representatives of his estate may be authorized to do so : Exparte Stapleton  10 Ch. D. 586.
21. Thus where a banking company after giving a letter of credit undertaking to accept bills to be drawn against bills of lading stopped payment before it was used, it was held that there was no breach for which the holder of the letter could prove damages in the winding up, because there had been no refusal to accept this and the liquidator might be authorized to carry out the contract and accept them : Ex parte Tendeur  37 L.J. Ch. 121, nor does bankruptcy or insolvency alone entitle the other party to rescind the contract; but a notification by a party of his insolvency may be taken as presumptively importing an offer to rescind which the other party may accept : and it would at least justify a refusal on his part to complete the contract unless the insolvent or his representatives should prove his ability and readiness to complete his part : Ex parte Chalmers  8 Ch. 289. If the bankrupt before bankruptcy has contracted to sell or mortgage, the trustee in bankruptcy takes it subject to an obligation to fulfil the contract : see 2 Halsbury 156.
22. If, for instance, it is a contract to grant a lease, the trustee in bankruptcy may obtain specific performance of the contract if he agrees to be personally bound by the covenant : see Powell v. Llyod  1 Y. & J. 427. As to the position of a trustee who completes the contract see Drew v. Josolyne  2 Ch. 187. The contract, however, has got to be performed by the trustee in bankruptcy, if he chooses to perform it at all within a reasonable time; and if it is not performed within a reasonable time the other contracting party may treat the contract as having been abandoned : see Laurence v. Knowles  5 Bing. N.C. 399; Morgan v. Bain  10 C.P. 15; Ex parte Stapleton  10 Ch. D. 586. The position therefore being that the trustees of a bankrupt may disclaim an onerous contract or may perform all that the bankrupt was neglecting to perform at the time when he was bound to perform them, and the bankruptcy having no other effect on the contract than to put the trustee in the place of the bankrupt neither rescinding the obligation on either side nor imposing new ones, nor anticipating the period of performance on either side, if the trustee does all that the bankrupt ought to have done, he may recover against the contracting party the damages which the bankrupt, himself could have recovered if he had performed the contract or if he omits to do so and neglects to perform the contract, he loses the benefit of the contract and the other party has his remedy against the bankrupt's estate : see per Parke B in Gibson v. Carruthers  8 M. & W. 321.
23. The law does not require that the trustee in bankruptcy should give express notice within a reasonable time after the date of the bankruptcy of his adoption of the contract. The law only requires the trustee in bankruptcy to perform the bankrupt's part of it as and. when he should have done it himself; see per Parke B. in Gibson v. Carruthers  8 M. & W. 321 at p. 334. It may be stated, in passing that Mr. Pugh on behalf of Greet did not ask before us for specific performance of the contract in question as he recognized that specific performance of a contract by a bankrupt to buy a property is not ordinarily granted against the trustee in bankruptcy of a vendee without his consent : see Holloway v. York  25 W.R. (Eng.) 627 Fry on Specific Performance, 6th Edn. pp. 446-447; see however Ex parte Rabbidge  8 Ch. D. 367, Pearce v. Unstable  2 Ch. 122; as to the position of a trustee in a bankruptcy of a vendor. Further Greet who had treated the contract as at an end could not in any event claim specific performance. Bearing the above observations in mind, it is impossible to escape from the conclusion that reasonable time for performance of the contract in question in this case had long elapsed long before the date of the compulsory liquidation of Jamals. The contract, therefore, was at an end and the liquidator could not take advantage of it. But assuming that the contract was subsisting on 30th June 1926, it is common ground and manifest that the liquidator did not take any steps whatsoever to perform the contract or oven to offer to perform the contract within a reasonable time thereafter or at all. Therefore, so far as Jamals and their liquidator were concerned, the contract had boon abandoned and was at an end and no question of the specific performance of the contract, could possibly arise. What that was the position of Currimbhoys in the events which had happened
24. On the date when Currimbhoys were added as parties defendants to this suit, they had not obtained any title from the liquidator of Jamals. The only document of title which Currimbhoys obtained from the liquidator was on 25th January 1928 which is marked Ex. K : see Vol. 1, Part 2, p. 399. There is in this document no reference whatsoever to the contract between Greet and Jamals in December 1923; and as I read the document it is insufficient, in my opinion, to confer any title upon Currimbhoys upon which they could rest for the purpose of enforcing any rights whatsoever under the contract of 1923 against Greet. The ultimate position therefore, is that at no time there was any privity of contract between Greet and Currimbhoys and Currimbhoy's position could not in any way be bettered, and was not bettered in fact or in law, by the conveyance from the liquidator dated 25th January 1928. The claim, therefore, on the part of Currimbhoys for specific performance of the contract must fail.
25. Specific performance of the contract in question at the instance either of the plaintiff or of Currimbhoys being therefore out of the way, the next important matter for consideration is with regard to the plaintiff's claim for damages, and whether Currimbhoys had taken possession of the property and, if so, on and from what date. Incidentally, the question has to be faced as to what was the effect of Currimbhoys being added as defendants to this suit on 28th July 1927 vis a vis the plaintiff. Mr. Pugh has contended before us that on the documentary evidence in this case the conclusion is irresistible that Currimbhoys had taken possession of the property in suit from September 1922, and had since then been in possession, and he laid special stress in this connexion on the contents of the application made by Currimbhoys before the learned Subordinate Judge on 21st August 1926 to be added as defendants. Mr. Pugh further contended that the addition of Currimbhoys as defendants to this suit was made under Order 22, Rule 10, Civil P.C. and that the moment Currimbhoys were added as defendants to this suit, they adopted everything what had previously been done in this suit and undertook to make themselves responsible for what ultimately happened in this suit; in other words, Mr. Pugh's contention was that Currimbhoys agreed to abide by the result of this suit and made themselves liable for all the damages which the plaintiff Greet had sustained in the events which had happened.
26. On the ether hand, the learned Advocate-General, apprehending that our conclusion might be to the effect that there was no privity of contract between Creet and Currimbhoys and that the claim made by Currimbhoys for specific performance of the contract in question might have to be negatived, argued that the documents showed that although on paper Jamals wore representing that from September 1922 they were holding possession of the property in suit as-managing agents on behalf of Currimbhoys there was as matter of fact no legal transfer of title of any sort in favour of Currimbhoys till 25th January 1928 when the liquidator transferred to Currimbhoys such right, title and interest of Jamals (if any) as was then-subsisting and that the possession (such as it was) of Currimbhoys prior to 7th May 1926, assuming that it amounted to what is called equitable possession, should not be seized upon for the purpose of fastening on them a liability for damages. The learned Advocate General further reiterated his contention that in order to succeed in a claim for khas possession and damages the plaintiff Greet had to show that he had acquired title, and that it was quite clear on the documentary evidence that he had failed to show such title. He further contended that the claim in ejectment i.e. for khas possession must fail because it was clear that at any rate from 25th November 1924 Currimbhoys had been cosharers of the plaintiff in this property, and, if that was so, the claim for damages for the period subsequent to 25th November 1924 must also equally fail. The learned Advocate General clinched his argument by saying that the only possible claim that could come up for real consideration and necessary adjudication in this case was for damages for a period of three years prior to the date when Currimbhoys were added as defendants to this suit, namely, 28th July 1927; and that even so, from such period would have to be deducted the period between 25th November 1924 and 28th July 1927. In other words, the learned Advocate-General pointed out that the only period for practical consideration in this case in respect of the claim for damages in the events which had happened was the period between 28th July 1923 and 25th November 1924.
27. The questions thus raised require treatment from a broad point of view and cannot, in my opinion, satisfactorily he disposed of on a mare consideration from a technical point of view of the effect of the addition of Currimbhoys as defendants to this suit on 28th July 1927. I will therefore attempt to state and define the position of Currimbhoys from at any rate, 25th November 1924, and in doing so I will first of all look at the question from the point of view that Currimbhoys might be regarded as trespassers when they first obtained possession, and consider the question as to whether Greet was entitled to maintain tin action in ejectment in the events which had happened against Currimbhoys.
28. Now, what is trespass to land? Trespass is a wrong to another's possession; it is an injury to a possessory right and therefore the proper plaintiff in an action for trespass to land is the person who is in actual or constructive possession of the land i.e., entitled to immediate possession. The gist of the action of trespass must be and is the wrong to the right of the plaintiff's possession. The right to possession is all important in an action for trespass; and a more right of property without a right to possession is not sufficient to support the action. Right to possession is one of the constituent elements of the complete right of property; and it has been laid down from very old times that a person with a right to possession can always maintain an action of trespass against a wrongdoer. So also in the case of a person in actual possession. Such a person has against a mere stranger or wrong-doer the same remedies as if ho had the right to possession and he can as against the stranger maintain trespass and in general the stranger who violates his possession cannot justify the violation by showing that the possession was without title or even by showing that it was wrongful, unless he further proves not only that a third, person was entitled to the possession but that he, the stranger, had acted with the authority of the said third person : see Pollock Write on Possession in the Common Law pp. 145-147. The fact of possession in the sense referred to above therefore is prima facie evidence of title, and is alone sufficient to sustain the plaintiff's case against a mere wrong doer : see Bullen & Leake, 3rd Edn. pp. 801-802; see also Dicey on Parties p. 333 et seq. If therefore Creet had actual possession, or had a right to immediate possession, in other words, if Creet can prove a possessory title, he must be held to be entitled to maintain an action of trespass against all persons who trespassed on the property in question. Now so far as I can make out from the voluminous record before us, there can be no doubt that Creet had a sufficient possessory title to Karabagan, where the colliery in question is situate. He had an undisputed title to possession of the major portion of Karabagan, which is included in the bajeapti lands. I do not think it is necessary or incumbent on me, having regard to the course which the argument before us has taken to go in detail through the various leases, surface and underground, of the bajeapti lands for the purpose of demonstrating that Creet had acquired what is called a possessory title to the major portion of the bajeapti lands. And indeed I am relieved of the necessity, because the learned Advocate General, in answer to a specific question on this point, did not dispute this fact but his point was that at the time when Jamals went into possession, he had only acquired the surface rights in respect of a very small area.
29. The question then resolves into this : whether Creet, as a cosharer in respect of the bajeapti lands, with which we are concerned, was entitled to maintain an action of trespass against the trespassers, i.e. Currimbhoys. On principle I do not see why a cosharer cannot by himself maintain an action of trespass against a wrongdoer. The early English cases are not against this view; indeed they support this proposition but it is sufficient for me to observe that this question has recently been the subject of debate and decision in Madras and in Bombay. In the case of Ahmed Sahib v. Magnesite Syndicate Limited  39 Mad. 501, it was held by Seshahiri Ayyar, J. and Kumaraswami Sastri, J., that one of several co-owners can maintain an action in ejectment against a trespasser without joining the other co-owners as parties to the action. Again in Maganlal v. Bhudar A.I.R. 1927 Bom. 192, it was held by Shah and Fawcett, JJ., that the rule laid down in the last mentioned case should be followed. They observed as follows:
The reason of the rule which requires one fresh and common volition of co-owners to put an end to that which commenced under their common volition, docs not apply to a case where what commenced under a common volition has come to an end and whore the person concerned requires a fresh common volition to continue in possession. The case of a person, who is a tenant on sufferance, is akin to the case of a trespasser. It has boon hold in the case of Shutari v. Magnesite Syndicate Ltd.  39 Mad. 501 that one co-owner can maintain an action to eject a trespasser who has been holding over wrongfully.
30. I do not to wish to burden this judgment with a discussion of the earlier authorities to be found in the reports in India, but reference may be made by the curious investigator into this branch of the law to the cases Mooktakeshee Debee v. Oomabutty  14 W.R. 31; Alum Monjee v. Ashad Ali  16 W.R. 138; Hulodhur v. Gooroo Doss  20 W.R. 126; K.P. Kanna Pisharody v. V.M. Narayanan  3 Mad. 234; Balkrishna v. Municipality of Mahad  10 Bom. 32; Radha Proshad v. Esuf  7 Cal. 414; Dakhyani v. Mono Raut  19 C.W.N. 407; Balkrishna v. Moro  21 Bom. 154; Harendra v. Moran  15 Cal. 40; Kabil v. Chunder  20 Cal. 590; Sri Thakurji v. Hiralal A.I.R. 1922 All. 408; Secretary of State v. Girjabai A.I.R. 1925 Bom. 197 and Kamal Kumari v. Kiran  2 C.W.N. 229. If what have stated is the law, it is difficult to see why Creet was not entitled to maintain an action in ejectment against Currimbhoys whom I have taken to be trespassers for the purposes of this argument, in my view, Greet was entitled to maintain such an action.
31. The next important question is this : If Currimbhoys were trespassers, did they cease to be trespassers on 25th November 1924 when they obtained a conveyance of Jyotish Sircar's interest in the bajeapti lands which as stated above included Karabagan? The document referred to is a conveyance by Satish Chandra Sircar, Jyotish Chandra Sircar, Srish Chandra Sircar (sons of Protap Chandra Sircar deceased), Satnarendra Nath Sircar, Arabindra Nath Sircar and Tripurendra Nath Sircar (sons of Bash Behari Sircar deceased) to Currimbhoys of their interest in 100 bighas of bajoapti and khas Khalasi lands in mouzah Khandra, surface and underground the lands being particularly described in the schedules thereto. This conveyance is Ex. 16 and is on p. 805, Vol. 1, Part 2 of the paper book. As regards the right of the co-owners of mining properties to convey without reference to the other co-owners there seems to be no doubt that they have such sight: see Bentley v. Bates  4 Y & C 182. The position, therefore, was that on and after 25th November 1924 Currimbhoys had become cosharers of Creet. No question, therefore, could arise from and after 25th November 1924 as regards the right of Currimbhoys to remain on the land and work the mines in Karabagan. Thus there is an end to Creet's claim for ejectment and with it there must necessary fail his claim for damages for the period subsequent to 25th November 1924. It is settled law that each co-owner is entitled to work the mines provided ho does not take more than his share of the minerals nor work the same wastefully. A person who is a co-owner of a mine with another or others, whether as joint tenant, tenant-in-common or coparcener, can enter upon and work the mine, or license another person to do so, subject only to the restriction that he shall not take more than his share : see Cockburn on the Law of Coal and Ors. Minerals p. 82; Job v. Potton  20 Eq. 84; Wilkinson v. Haggarth  12 Q.B. 837; Glyn v. Howell  1 Ch. 666; Denys v. Shuckburgh  4 Y. & C. 42; Mahesh v. Nowhat  32 Cal. 837 and Chandra Kishore v. Diseswar Pal : AIR1928Cal216 .
32. This being the true position in law, und Greet having never expressed the desire or taken any stops to work the mines himself unless Greet is in a position to show that Currimbhoys have taken more than their share of the minerals he can claim nothing from them or against them after 25th November 1924. But we are not concerned with such a claim. The present suit is not a suit for partition or for an account against Currimbhoys nor has the present suit been conducted on such a footing. If Greet had or has any rights against Currimbhoys in respect of the period commencing on 25th November 1924, his rights will in no way be prejudiced by reason of this judgment.
33. I have just said that Creet's claim for recovery of khas possession must fail and with it also his claim for damages for the period subsequent to the 25th November 1924. In order that there may not be any misunderstanding I desire to make it plain that my observations relating to the failure of Greet to recover khas possession apply only, and. are limited to the property, surface and underground, which is covered by the conveyance of 25th November 1924 (Ex. 16). In respect of all areas, surface and underground, other than the subject matter of the said conveyance the plaintiff Greet will be entitled to recover khas possession. I understand that there have been no raising of coal from underground except in Karabagan - and that no profit can be obtained otherwise from the lands in suit. If that is so ay indicated above, the claim for damages for the period subsequent to 25th November 1924 fails.
34. Mr. Pugh, however, has argued that Currimbhoys went into possession on 13th September 1922 and that it is not a fact that they went into possession at a later stage namely on 7th May 1926 as alleged by them in their application to be added as defendants to this suit. According to Mr. Pugh, in the events which had happened, Section 116, Evidence Act came into play and the appellants cannot be allowed to raise any objection to the title of Greet. Further, in the circumstances, Mr. Pugh contended that Currimbhoys having come into this suit must be taken to have agreed to abide by the result of the suit, and must be held responsible in damages during the period of their possession, at any. rate, up to 25th November 1924.
35. It may be convenient to dispose of the last point at once. Mr. Pugh's contention is that the addition of Currimbhoys as defendants to this suit on 28th July 1927 was made under the powers conferred on the Court by Order 22, Rule 10, Civil P.C., and that so far as Currimbhoys are concerned the suit in which they were added as defendants was and is no new suit at all. In support of this contention Mr. Pugh relied on the case of Chunni Lal v. Abdul Ali  23 All. 331. He also relied on the cases of Chorlton v. Dickie  13 Ch. D. 160, and Borneman v. Wilson  28 Ch. D. 53. First of all we must ascertain whether the addition of Currimbhoys as defendants to this suit was made trader Order 22, Rule 10, Civil P.C. As will have been gathered from what has been stated above on the date on which Currimbhoys were added as defendants to this suit they had not obtained any assignment whatsoever of any sort from the liquidator of Jamals; in other words, there had not been any assignment, creation or devolution of any interest in favour of Currimbhoys upto the date of their addition as defendants and it is to be borne is mind that before Jamals went into liquidation there had been no assignment, creation or devolution of any interest in favour of Currimbhoys. Further, in the events which had happened i.e., the contract of December 1923 having been abandoned and being at an end there was nothing in respect of which there could be an assignment, creation or devolution of any interest in favour of Currimbhoys. I am, therefore, of opinion that the addition of Currimbhoys as defendants to this suit was not made and could not have been duly made under Order 22, Rule 10, Civil P.C. : see in this connexion Manindra Chandra v. Ram Kumar A.I.R. 1922 P.C. 304. As regards the two cases in England cited by Mr. Pugh, chorlton v. Dickie  13 Ch. D. 160, affords no assistance.
36. In the case of Borneman v. Wilson  28 Ch. D. 53, an interlocutory order for injunction and receiver having been made against the defendants in an action they gave notice of appeal and shortly afterwards became bankrupt. An order was made, for carrying on the proceedings against their trustee. The trustee gave notice to the plaintiff that he should not proceed with the appeal. Shortly after this the trustee entered an appearance and called for the statement of the case. He declined to pay the costs of the appeal incurred by the plaintiff before the notice that the appeal would not be proceeded with and the question for decision was as to the coats which had been incurred. It was held that the appeal must be dismissed with costs to be paid by the trustee, for, having adopted the defence of the bankrupts ho had placed himself in their place as to the whole of the action and could not reject part of the proceedings in it. As I read the case of Borneman v. Wilson  28 Ch. D. 53 it does not carry Mr. Pugh home having regard to the special facts of the present case. I am inclined to the view that the addition of Currimbhoys as defendants to this suit was made under the provisions of Order 1, Rule 10, Civil P.C., and, if that is so, the proceedings in this suit must be taken to have commenced as against Currimbhoys on the date when they were so added as defendants namely, 28th July 1927.
37. As indicated above Currimbhoys have admitted that they went into possession of the colliery on 7th May 1926; but since that date for the reasons given above (i.e., Currimbhoys having become cosharers of Creet in Karabagan), no relief against Currimbhoys can be given in favour of Creet. I have also considered whether Creet is entitled to any relief against Currimbhoys for the period between 25th November 1924 and 7th May 1926. I have proceeded on the assumption that Currimbhoys were in possession of Karabagan between those two dates and for the same reasons I have been obliged to negative Creet's claims to any relief in this suit against Currimbhoys in respect of the period between those two dates.
38. I have now got to consider whether Currimbhoys were in possession of Karabagan between 13th September 1922 and 15th November 1924. I have set out in an earlier portion of this judgment the references to the material documents bearing on the question of Currimbhoys' possession of Karabagan within which is the disputed colliery, and I will not again refer to these documents. Towards the close of the argument before us, there arose an acute controversy between the parties as to whether Currimbhoys had gone into possession before 7th May 1926. Mr. Pugh on behalf of the plaintiff Creet drew pointed attention to the statements contained in Currimbhoy's application to the Court to be added as defendants, to the statements made by them in their written statement, to the correspondence between Jamals and Currimbhoys and also between Morgan & Co. and Currimbhoys, to the entries in Jamals books, and to the payments made from time to time in respect of the said colliery by Currimbhoys, and he argued that on this body of evidence the conclusion was irresistible that Currimbhoys were in possession before 7th May 1926. On the other hand the learned Advocate General, without in any way abandoning the contentions advanced by him when he opened this appeal before us, contended that the true conclusion on the facts was that there was merely an agreement between Jamals and Currimbhoys as regards the acquisition by Currimbhoys of this colliery, that Currimbhoys were not in possession as is proved by the renewal of the promissory notes for Rs. 4,00,000 from time to time and by the claim put forward by Currimbhoys before the liquidator of Jamals.
39. The problem is not an easy one to solve and our difficulties have mainly arisen because of the conflicting statements made from time to time by Currimbhoys but on the best consideration that I have been able to bestow on this matter both while the argument was in progress and afterwards, I am clearly of opinion on the documentary evidence adduced in this case and not disregarding entirely the oral evidence that Currimbhoys were in possession of the disputed colliery from September 1922. In the view which I have taken it is not necessary for me to consider the application of Section 116, Evidence Act on the facts of this case.
40. For what period then prior to 25th November 1924, must Currimbhoys now pay damages? As has been stated above, Currimbhoys were added as defendants on 28th July 1927 and therefore the suit must be taken to have been commenced against them on that date. The plaintiff Greet therefore is entitled to recover damages against Currimbhoys for a period of throe years, prior to the date of commencement of the suit against Currimbhoys i.e., for the period between 28th July 1924 and 28th July 1927. But for the reasons given above the period between 25th November 1924. and 28th July 1927 cannot be taken into account. There therefore remains the period between 28th July 1924 and 25th November 1924 during which the damages sustained by Greet have to ho ascertained for the purposes of this suit.
41. Mr. Pugh referred to the case of Laird v. Pim  7 M. & W. 474, and contended that the measure of damages should be that which was adopted in that case. Now, if the contract had been a subsisting one and if Jamals or their liquidator bad appealed, we should have had to consider the question raised in Laird v. Pim  7 M. & W. 474. In that case a party had been let into possession of lands under a contract of purchase but did not complete the purchase and refused to pay the purchase money and no conveyance was executed. It appeared that after the vendees had boon let into possession they had taken from the land and sold a quantity of brick clay. Baron Parke held that the measure of damages in such a case was the injury sustained by the plaintiff by reason of the defendants not having performed their contract and the question was how much worse off was the plaintiff by tin diminution in the value of the land, or the loss of the purchase money in consequence of the non-performance of the contract. It was held that the defendants were liable to pay the interest on the purchase money up to the commencement of the action and the value of the clay taken away. It is apparent therefore that the position in the present suit so Car as Currimbhoys are concerned is far away from Laird v. Pim  7 M. & W. 474, for there was no privity of contract between them and Creet.
42. The measure of damages in a case like this is the fair market value of the coal be it remembered that Greet was a part owner of the coal-at the pit mouth at the time when it was severed 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 (2) 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. The harsher rule, only allowing the expense of bringing to bank, has been applied where the misconduct has been of a substantial character; e.g., where the wrongful working has been wilful and fraudulent : see Martin v. Porter  5 M. & W. 352, Morgan v. Powell  11 L.J.Q.B. 263 also see Lord Macnaughten's remarks in Peruvian Guano Co. v. Dieyfus  A.C. 166 or the workings have been continued by a person in possession after it was known that a lease would not be granted and that ho had no title and had no right to expect a title : see Trotter v. Maclean  13 Ch. D. 574. So, also where the working has been unauthorised and without mitigating circumstances : see Wild v. Holt  9 M. & W. 672, wholly unauthorised and unlawful : see Llynvi Coal Co. v. Brogden  11 Eq. 188 the decree herein it may be noted is the model form fraudulently concealed, or continued after negotiations for purchase had fallen through : see Phillips v. Homfray  6 Ch. 770; negligent, and notwithstanding that the employers relied on their certificated manager and had no personal knowledge or notice of the wrongful working: see Joicey v. Dickinson  45 L.T.N.S. 643, malicious, and with full knowledge that wrong is being done : see Per Curiam Livingstone v. Rawyards Coal Co.  5 A.C. 25, furtive and in bad faith. The reason why allowances are made in favour of an innocent mistaken trespasser and disallowed as against a wilful and intentional trespasser, is because the latter must not 'qualify' his own wrong : see Per Lord Blackburn, id. But the milder rule, allowing the deduction of the expense of working and severing the coal as well as of bringing it to bank, will be applied where the wrongful working has not been done with a guilty or negligent mind, or sinister intention e.g., where the wrongful working has been done without fraud or negligence, but fairly and honestly : see Wood v. Morewood  3 Q.B. 44, inadvertently and under a bona fide belief of title : see Hilton v. Woods  4 Eq. 432, as that a lease which had in fact expired was still continuing, see Jegon v. Vivian  6 Ch. A. 742, without the express authority, bhough with the knowledge of the rightful owner : see Ashton v. Stock  6 Ch. D. 719 under a mere mistake and without any suggestion of fraud : see Be United Merthyr Colliery Co.  15 Eq. 46, neither tortious, nor negligent, but in the assertion of a right : see Job v. Potton  20 Eq. 84. So, if the workings were continued on the fair expectation that a lease would be granted: see Trotter v. Maclean  13 Ch. D. 574, or have been innocent, and in ignorance, and with as little negligence or carelessness as possible, and in the belief that it belonged to the trespasser : see Livingstone v. Rawyards Goal Co.  5 A.C. 25.
43. I will not now discuss the evidence showing how and under what circumstances Currimbhoys got into possession of the colliery in suit, but if ever there was a case where the milder rule ought as a matter of justice to be applied it is this case and I am of opinion that Currimbhoys should be allowed as against the price of coal raised from 28th July 1924 to 24th November 1924 the cost of working and severing as well as of bringing the coal to bank.
44. The result, therefore, is that in my opinion the decree against Jamals must stand; as against Currimbhoys there can be no decree for khas possession of the lands covered by the conveyance from the Sarkars in their favour dated 25th November 1914; in respect of all other lands surface and underground, Creet is entitled to khas possession; as against Currimbhoys the decree for damages made by the learned Subordinate Judge must be discharged; there will be a declaration that Creet is entitled to recover damages to the extent of his share in the lands at Karabagan during the period from 28th July 1924 to 25th November 1924, that such damages must be calculated on the following basis, namely, from the price of the coal raised during the period from 28th July 1924, to 25th November 1924, Currimbhoys would be entitled to deduct the cost of working and severing as well as of bringing to bank.
45. On the evidence adduced in this case documentary and oral, I find that during the period last mentioned 5,500 tons of coal were raised and the price thereof taking Rs. 11 per ton as an average amounted to Rs. 60,500 and that the cost of working and severing as well as of bringing to bank the said quantity of coal amounted to Rs. 8,937. The net. balance due in respect of the said quantity of coal is Rs. 51,563 but Creet would not be entitled to the entirety of the last mentioned sum; he would be entitled to the extent of his share in Karabagan. Creet, however, would be entitled to interest on the amount payable to him at 6 per cent from 28th July 1924 down to the date of realization. Unless the parties agree among themselves as to> this there will be a remand to the Court below to find out the extent of Creet's share and to calculate the amount payable to Creet by Currimbhoys accordingly. So far as I can make out the ultimate sum payable to Creet will be a substantial amount; as this has been a divided success, there will be no costs in this Court. The order made by the Court below as regards costs will stand.
46. I agree.