P.C. Mallick, J.
1. This is a suit for a declaration of rights of the plaintiff under a contract with the defendant Corporation, injunction to prevent a breach thereof by the defendants, for damages andfor other reliefs. The plaintiffs case is that by an Indenture dated 25-10-1951 the defendant Corporation granted a licence to the plaintiff whereby the plaintiff acquired the sole and absolute right to draw and remove sludge from the Pruss Sedimentation Tank at Bantalla including the lagoons and to utilise and convert the same into manure and sell it as a commercial product. For such purpose the plaintiff acquired the right under the agreement to occupy 20 bighas of land. The agreement was for 10 years commencing from 9-1-1949 with an option for further period. Ever since the plaintiff proceeded to work out the said licence, market the sludge and had acquired a well-established reputation and created a goodwill of considerable value. The defendant Corporation during the subsistence of this agreement wrongfully allowed the State of West Bengal to encroach on the plaintiff's rights and to remove sludge from the area leased out to the plaintiff, to construct railway lines around the lagoons all over the land leased out preventing the plaintiff access to the lagoons and sedimentation tanks and thereby preventing the plaintiff to draw and remove sludge from the lagoons. These are the wrongful acts alleged to have been committed by the defendant State in collusion and conspiracy with the defendant Corporation. Full knowledge of the agreement subsisting between the plaintiff and the Corporation has been imputed to the State. The defendants have failed and neglected though called upon to desist from these wrongful acts. Hence the suit has been instituted for declaration of rights of the plaintiff under the agreement, for injunction and for damages against both the defendants.
2. The defendant Corporation in its written statement denied that the plaintiff acquired sole and absolute right to draw and remove sludge from the sedimentation tanks and/or the lagoons, that there was no agreement to extend the period of licence. It is pleaded that though 20 Bighas of land is mentioned in the agreement, the land has not been described or defined and that there is no schedule to the said Indenture. All allegations of conspiracy and wrongful conduct have been denied. It is pleaded that no exclusive license having been given to the plaintiff to draw and remove sludge from the sedimentation tanks and/or the lagoons, the defendant Corporation acted within its rights in allowing the defendant State to remove sludge from the lagoons. The defendant Corporation was within its right to allow the defendant State to construct railway lines along the lagoons and the plaintiff having no right over the lagoon this construction of railway lines did not in any way affect the plaintiff's right under the agreement. It is denied that the plaintiff had any possessory title to the lagoons and that removal of sludge from the lagoons docs amount to trespass on the part of the defendant on which an action for damages would lie. In short the defence is that the plaintiff acquired no exclusive right under the agreement, no right to receive sludge from the lagoons, in fact, no right to the lagoons and that there has been no infringement of the agreement on the part of the defendant Corporation. It is pleaded that the plaintiff and not the defendant was guilty of breach of contract. It is submitted that the plaintiff had no cause of action to institute the suit and that the suit is mala fide, vexatious and speculative and should be dismissed with costs.
3. In the written statement of the defendant State, it is pleaded that the Indenture in suit pur-ports to create rights in immovable property and is inadmissible in evidence in the absence of registration. Knowledge of the contract between the plaintiff and the defendant Corporation has been denied. It is denied that the plaintiff has any right in respect to the lagoons or that the defendant State has affected the plaintiff's rights unlawfully. All allegations of conspiracy and wrongful acts have been denied. It is denied that the plaintiff has suffered any damages. It is pleaded that in any event the damage claimed is excessive. It is contended that this court has no jurisdiction to entertain this suit, it being a suit for land. It is submitted that the suit should be dismissed with costs.
4. After the opening of the case, a point was taken by Mr. Dev the learned counsel appearing for the State that as against the State this court has, in any event, no jurisdiction to entertain this suit. If it is a suit for land, this court cannot entertain it, the whole of the land being outside the jurisdiction of this court. If, on the other hand, it is not a suit for land, then also the jurisdiction of this court cannot be invoked, because the State cannot be said to reside or carry on business at its seat of Government, which only is situate within the jurisdiction of this court. Mr. Subimal Roy learned counsel for the plaintiff concedes that if it is a suit for land, this court cannot-entertain this suit, the land being wholly outside the jurisdiction of this court. He further concedes that on the present state of authorities, the State cannot be said to carry on business at Calcutta the seat of its Government. These authorities being binding on this court, it is no use arguing the point in this court. But he reserved the right to challenge the authorities should the matter go up. As matters stand therefore it must be conceded that this court has no jurisdiction to entertain this suit as against the defendant State. Mr. Roy, therefore, abandoned the plaintiff's claim as against the second defendant and intimated that he would proceed only against the defendant Corporation. As against the State, therefore, the suit was dismissed and the suit thereafter proceeded only against the defendant Corporation. Mr. Das learned counsel appearing for the Corporation made it clear when the suit was dismissed against the defendant State that he would contend that the suit is not merely liable to be dismissed only against the defendant State but also against the Corporation as well. Mr. Das's contention is that in respect to suits not for land, if there are more defendants than one, each and every defendant must reside or carry on business or work for gain within the jurisdiction of this court so as to give jurisdiction to this court under Clause 12 of the Letters Patent. The point therefore remains still to be decided whether tbe suit is liable to be dismissed as against the defendant Corporation on the ground of jurisdiction. After the dismissal of the suit against the defendant State the following issues were settled:
1. (a) Is this a suit for land?
2. (a) Is the contract in suit liable to be registered?
(b) If so, what is the effect of non-registration on this suit?
3. Did the Corporation of Calcutta grant exclusive right in favour of the plaintiff to draw sludge as alleged?
4. If so, has the Corporation committed breach of the terras of the said grant?
5. Has the plaintiff suffered any damage? If so, how much?
6. To what relief, if any, is the plaintiff entitled?
5. The plaintiff tendered the evidence of Naren Banerjee one of its Directors. The defendant tendered the evidence of four witnesses. Apart from this a large number of documentary evidence has been tendered. I indicated to the parties that I will decide the liability first and will not decide the quantum of damages now. But should a decree be passed the damages will be determined in a reference. Evidence as to quantum of damages therefore has not been tendered before me.
6. The plaint as it was filed and as it stands now indicates that this is an action in tort. The plaintiff's case is that the defendants in collusion and conspiracy have done wrong to properties acquired by the plaintiff under the Indenture dated 25-10-1951, that the defendants have trespassed into plaintiff's rights and as such both the defendants are liable in tort. The allegations are that both the defendants are guilty of wrongful or tortious acts and for these wrongful and tortious acts both of them are equally liable in damages. Apart from this claim for damages in tort, two declarations are claimed, one positive to buttress the plaintiff's title and another negative to destroy the title of the State in respect to the sludge in the tank and the lagoon and the land appurtenant thereto.
'(a) A declaration that the plaintiff is entitled exclusively as the sole licensee to the possession of the land secured under the said agreement and/or to remove and market the sludge of Bantola Pruss Sedimentation Tanks and more particularly mentioned in the agreement referred to above for a period of 10 (ten) years commencing from the 9th January, 1949.
(b) A declaration that the State Government of West Bengal are not in respect of the right secured under the said agreement in the plaintiff's favour or otherwise entitled to remove and market the sludge or work in the said area or to license or permit other persons and/or their servants and agents from doing so.'
7. Injunctions have also been claimed to prevent the violation of the plaintiff's rights.
8. In paragraph 1 of the plaint it is alleged that the plaintiff acquired the right under the agreement to additional area of 20 bighas of land. The! nature and extent of the area are specified and demarcated in the plan hereto and marked 'A'. In other paragraphs, facts in support of the above-prayers have been pleaded. After the abandonment of the claim of the plaintiff as against the defendant State, has the character of the suit altered? Mr. Subimal Roy submitted that the plaintiff is entitled at any stage of the suit to abandon its claim as against any defendant under Order 23, Rule 1 of the Code of Civil Procedure. In the instant case the plaintiff has done it. It follows that all averments in the body of the plaint in support of the claim against the defendant State are gone. His further argument is that though the averments in the plaint amount to a case of damages for tort against both the defendants, yet the same averments do amount to a case of damages for breach of contractual obligation as against the defendant Corporation. As a result of the abandonment of the case against the defendant State, the case now before the court is simpliciter a suit for damages against the defendant Corporation only for breach of obligation under the contract dated 25-10-1951.
9. Mr. Roy has not only abandoned his claim against the defendant State but also his claim against the defendant Corporation to a certain extent. He no longer wants a declaration that 'the plaintiff is entitled to possession of the land under the said agreement' and wants that prayer (a) of the plaint be truncated accordingly. He wants to abandon these prayers as well as against the defendant Corporation also. This abandonment of the claim for possession of the additional land amounting to 20 bighas necessitates that the averments in paragraph 1 of the plaint as to the right of the plaintiff to the possession of land be treated as non-existing,
10. The net result of the abandonment of the claim wholly as against the defendant State and partly against the defendant Corporation is that the plaint should be read as follows:
(i) The last portion of paragraph 1 of the plaint as indicated below has to be deleted:
'and for such purpose they also acquired the right under the said agreement to occupy additional area of 20 bighas described in the schedule to the said agreement for a period of 10 years commencing from 9-1-1949 on the conditions contained in the agreement. The nature and extent of the area are specified and demarcated in the plan hereto and marked 'A'.
(ii) Paragraph 9 to be completely deleted.
(iii) The prayers (b), (d) and (e) to be completely deleted, and prayers (a) and (c) to be modified as under:
(a) A declaration that the plaintiff is entitled exclusively as the sole licensee to remove and market the sludge of Bantalla Pruss Sedimentation tank and more particularly mentioned in the agreement referred to above for a period of 10 years commencing from 9-1-1949.
(c) An injunction restraining the defendants and each of them and/or their agents and servants and licensees from lifting, taking or carrying awav or marketing sludge from the said Bantalla Pruss Sedimentation tank.'
11. No formal application for amendment was made. Nor even there was an oral application to that effect. Mr. Roy seems to be of the opinion that this would be the result of the abandonment of the claim as indicated above and no amendment of the plaint is necessary.
12. Mr. Das the learned counsel for the defendant Corporation opined that this is indeed a darine and major surgical operation which Mr. Hoy had to make to save the suit. In Mr. Das's submission neither is it permissible nor can the suit survive this operation.
13. The allegations against the defendants are that they are joint tort-feasors having done wrong to the plaintiff's right to properly. The liability of the tort-feasors it joint and several. If it is joint and several, then the plaintiff could have instituted two separate suits against the two defendants claiming damages for tort against the defendants separately. The Civil Procedure Code however permits the joinder of defendants and different causes of action against different defendants in a single suit. It therefore follows that in a case where different causes of action against different defendants are joined in a single suit under the provisions of Order 1, Rule 3 and Order 2, Rule 3,there are in substance and in fact two suits rolled into one. Under Order 23, Rule 1 the plaintiff is entitled to withdraw his claim in whole or in part against all or any of the defendants. The plaintiff in the instant case is abandoning his claim wholly against the defendant State and partly against the defendant Corporation. There cannot be any doubt that the plaintiff has the right to withdraw and abandon the case against the State. I have indicated before that joint tort-feasors are jointly and severally liable in damages for tortious acts. If the liability of joint tort-feasors is joint and several, then the person damnified is entitled even after the institution of a suit against both on such tort, to abandon his claim against one and proceed against the other. This was done in a Calcutta case reported in Gokuldas v. Chaganlal, AIR 1928 Cal 887, to be noticed later. Again, as against the defendant Corporation the claim of the plaintiff may very well be treated as 'Ex Con-tractu'. I do not think therefore that as a result of the abandonment of the suit against the State, the suit against the Corporation would fail. The Suit may very well proceed against the Corporation defendant even after the plaintiff's abandonment of the case against the State, resulting in the consequential dismissal of the suit as against the State. This, of course, is subject to this court having jurisdiction to entertain the suit as against the Corporation.
14. Can the part of the relief claimed against the Corporation defendant be similarly abandoned? On a parity of reasoning, it would seem that the plaintiff is entitled to abandon some of the reliefs claimed against the defendant Corporation as well. The plaintiff seeks now to limit the prayers for declaration and injunction with respect to its right to draw and market the sludge only and completely eliminate the claim for possession of land. The plaintiff has two-fold right under the agreement dated 25-10-1951, namely, (i) sole and exclusive right to draw sludge from the sedimentation tank, utilise and convert the same into manure and sell the same in the market as a commercial product, (ii) right to occupy additional area of land for a period of 10 years and access to the land through the private road of the Corporation. The plaintiff has in the plaint claimed a declaration of this twofold right and injunction claimed was also to protect this twofold right. Now the second right, namely, right to occupy additional land for a period of 10 years is being abandoned and the terms of declaration and injunction prayed in the plaint are suitably modified. The point is important because it has an important bearing on the determination of the nature of the suit, namely, whether it is a suit for land.
15. Mr. Das has submitted that without a proper amendment the plaintiff should not be allowed in contend at the conclusion of the trial during the argument stage that the decree should be not in terms of the prayers of the plaint but otherwise. Nor should the plaintiff be allowed to contend during argument that certain averments in the body of the plaint which are very material for the purpose of determining the nature of the suit and the jurisdiction of the court be treated as non-existing. This argument of Mr. Das has very great force. If may perhaps be permissible in allow the plaintiff to give up some of the reliefs claimed in the plaint. No injustice may result to the defendant if it is allowed and if it is recorded that such and such relief claimed has been abandoned. But this is different from what is being asked byMr. Subimal Roy. He has not abandoned certain prayers but he is seeking to substantially alter or modify the prayers and seeking to eliminate from the body of the plaint certain averments in the plaint which is mixed up with other material averments. There are provisions for amendment of the plaint in the Code of Civil Procedure which could have and should have been taken recourse to by Mr. Roy's client. Without a formal amendment a party should not be permitted to ask the court to make a declaration and pass a decree for injunction in terms different from what is stated in the prayer -- more particularly when the terms of declaration and injunction now asked tend to seriously affect the nature of the suit and the jurisdiction of the court. The point of jurisdiction has therefore to be decided on the basis of the plaint as it stands and not on the basis contended for by Mr. Roy, as if some of the averments in the plaint are not there and as if the prayers are different from what they are in the plaint.
16. Jurisdiction of this court to entertain this suit has been prescribed under Clause 12 of the Letters Patent. It divides suits into two broad categories, namely (i) suits for land and (ii) other suits. To invoke the jurisdiction of this court in respect to suits for land, the land must be situate either wholly within the jurisdiction of this Court or if in part provided previous leave of the court has been obtained. In the case of other suits, jurisdiction can be invoked if either the defendants reside or carry on business or personally work for gain within the jurisdiction of the court or if the cause of action arises either wholly or partly within the jurisdiction of the Court. In cases where the cause of action arises in part within jurisdiction, previous leave is imperative.
17. There is considerable divergence of judicial opinion as to what is meant by 'suit for land' in Clause 12 of the Letters Patent. Different Judges have given different meaning to it. The legislature up till now has failed to intervene and the last decision of the Supreme Court is not such as to set the controversy at rest. The confusion is still at large. But this much is beyond controversy that a suit for possession is a suit for land. So also is a suit for a declaration that the plaintiff has a right to possession. It would therefore follow that in so far as the instant suit seeks a declaration as to right to possession of land, it is a suit for land. The land in the instant case being wholly outside jurisdiction, this court has no jurisdiction to declare in the instant suit the plaintiff's right to possession of 20 bighas of land, and to issue any injunction to prevent an infringement of this right But this is not all the declaration claimed in the suit. The other declaration claimed is the exclusive right to draw sludge from the sedimentation tank including the lagoon and the exclusive right to sell the same in the market as a commercial product. There is further the claim for damages for infringement of this right. Provided the 'sludge' is held not to he movable property, can the instant suit he regarded as a suit not for land, in respect to nil the reliefs claimed in the suit except the declaratory relief and injunction in respect to the right to possession of 20 bighas of land? Mr. Roy contends that in respect to the other reliefs claimed in the plaint the suit is not a suit for land and the defendant Corporation having its office within the jurisdiction of this court, this court is competent so far as the other reliefs are concerned to entertain the suit and pass a decree thereon. This is all the more so becausein the instant case the plaintiff has expressly abandoned its claim to possession of land and injunction to protect that right. Mr. Roy has further argued that even if the abandonment of the claim is not allowed without amendment of the plaint as affecting the jurisdiction of the court, the court should reject the claim for declaration of the plaintiff's right to possession of 20 bighas of land and the claim for consequential injunction in Support of the right as being outside its jurisdiction, but the court can and should try the remainder of the suit. This point requires careful consideration.
18. A suit may be filed on a single cause of action or there may be a joinder of several causes of action in a single suit. This is provided for in Order 2 Rule 3 of the Code. Without the leave of the court however no cause of action shall be joined with a suit for recovery of immovable property subject to certain exceptions set out in Order 2, Rule 4 of the Code. The character of a suit is determined by the cause of action and the reliefs claimed. It is possible to join in one suit several causes of action which would make the suit a suit for land with respect to one cause of action and relief claimed and a suit for land with respect to the other. The simple and obvious example is a suit for recovery of possession of land and arrears of rent. Suit for recovery of possession of land is undeniably a 'suit for land' and a suit for recovery of rent is equally a suit not for land. Here is a case of joinder of two causes of action which is permissible under the Code of Civil Procedure. If the land in such a suit is outside jurisdiction but the defendant resides within jurisdiction, the question would arise whether the entire suit is liable to be dismissed on the ground of jurisdiction or whether the court while dismissing the claim for possession would assume jurisdiction in respect to the claim for arrears of rent, hear the suit and grant a decree for arrears of rent. The Court adopts the latter course. There 'is nothing therefore to prevent a suit being a suit for land and a suit not for land at the same time for the purpose of Clause 12 of the Letters Patent. Such a suit is not liable to be dismissed as a whole if the land is situate outside wholly. The court in such a case would dismiss the suit in so far as it is a suit for land and proceed to hear and determine the rest, if the defendant is within jurisdiction and/or if the cause of action arose within jurisdiction so as to vest the court with jurisdiction to hear the suit on the basis that it is an 'other suit' within Clause 12 of the Letters Patent. In the cases of Jairam Narayan v. Atmaram Narayan, ILR 4 Bom 482; Punchanun Mullick v. Shib Chunder, ILR 14 Cal 635; Balaram v. Ramachandra, ILR 22 Bom 922; Sheshagiri Rau v. Rama Rau, ILR 19 Mad 448: Abdul Karim v. Badniddin ILR 28 Mad 216; and Hongkong and Shanghai Banking Corporation v. Official Assignee of Calcutta, 63 Cal WN 316: : AIR1959Cal616 , the court only dismissed the suit in so far as it relates to land outside jurisdiction but tried the rest of the suit i. e., except in so far as it is a suit for land outside the jurisdiction of the court. When the suit is one for partition of an estate consisting of both movable and immovable properties the fact that the estate consists in part of movable property does not make the suit any the less a suit for land. But this is only a suit for land in so far as it is a suit in which a share of house and land is claimed. It would he wrong to think that the entire suit is a suit for land and the court is bound to dismiss such a suit in its entirety if the land is outside jurisdiction on the ground of jurisdiction. Mr. Dasrelies on Jairam Narayan's case, ILR 4 Bom 482, in support; of the proposition that the entire suit is liable to be dismissed as being a suit for land. A close study of the judgment however indicates that the court did not dismiss the entire suit but dismissed it in so far as it related to immovable properties outside jurisdiction, Mr. Das relied on the case of Kara Lall v. Nitambini Debi, ILR29 Cal 315. It is a suit in which the plaintiffclaimed title to properties movable and immovable on the construction of his grand-father's will for administration and accounts. All the immov-able properties were situate outside the jurisdiction of the court. The jurisdiction of the court was invoked on the basis that it was not a suit for land, the movable properties being situate within the jurisdiction of the court. It was contended that as such, part of the cause of action arose within jurisdiction and the defendant being within the jurisdiction the court was, therefore, competent to entertain the suit. In the written statement it Was contended that neither the defendant resided within jurisdiction nor was there any movable property belonging to the estate within the jurisdiction of the court. Whether there was any movable property within the jurisdiction or not, the object of the suit was to establish the plaintiff's right to possession of the estate consisting of immovable properties. It seems to me that the plaintiffs were only concerned with the establishment of their right in respect to immovable properties and the question that the court was called upon to decide was whether it was a suit for land having regard to the fact that it relates not only to immovable but to movable property as well and that though the declaration sought affected immovable properties, there were the ancillary prayers for administration and accounts against the executrix, Harrington J,, held that the suit wassubstantially a suit for declaration of right with respect to immovable property outside jurisdiction and the claim for administration and accounts against the executors was ancillary and dependenton the declaration claimed. On such finding he held that it was a suit for land and as such dismissed the suit. Neither the parties invited the court to decide the plaintiffs title to movables nordid the court decide that in respect to the movables the court had no jurisdiction. The plaintiff appeared to be only interested in getting possession of the immovable properties and having failed toestablish his title to the immovable properties did not bother about the movables, perhaps, because it did not exist as contended by the defendant or if it did exist, was so insignificant that it was not worth the suit. This case does decide that when the subject-matter of the litigation is both movable and immovable properties the suit as a whole cannot be called 'other suit' under Clause 12 of the letters Patent but it does not decide as it was not invited to decide whether in respect to the movables, it was not a suit for land. The decision of Sen J. in the case of Bepin Behary v. Mohit Kumar : AIR1942Cal496 , cited by Mr. Das is hardly of any assistance to him. In that case Sen, J. was called upon to decide in execution proceedings the legality of a decree passed in a mortgage suit when the mortgage covered two properties oneof which was outside jurisdiction and no leave under Clause 12 was obtained. Sen, J. held that the executing court was not competent to fashion a new decree out of the old one by imposing the entire burden of the mortgage debt on one property leaving out the outside properties. The difficulties inthe matter were pointed out by the learned Judge at p. 497 in the following terms:
'The decree which is sought to be executed is the decree passed in the suit and the executing court has merely to execute or refuse to execute that decree. It is not to pass a new decree for the purpose of execution. The decree makes all the properties liable for the payment of the mort-gage dues. The executing court cannot vary it and make only a portion of the properties so liable. Even in the suit the plaintiff could not have asked for a decree regarding part only of the mortgaged property. The entire property both outside and within jurisdiction was burdened with the mortgage debts. The Court could not have imposed the entire burden on only part of the property. I know of no procedure which would permit the Court to increase the burden on a portion of the property in this way. If this were done it would disturb the rights of third parties who may have purchased the equity of redemption or taken a mortgage on some portion of the property already mortgaged. It would disturb the course of marshalling and contribution laid down in Section 81, T. P. Act. I hold, therefore, that the decree cannot be split up and that the entire decree passed is without jurisdiction. The decree is therefore a nullity. This answers the first question.'
The learned Judge refers to the judgment of Tre-velyan J. in ILR 14 Cal 835 and expressly points out the distinction between the cases like the one reported in ILR 14 Cal 835 in which the Court did assume jurisdiction in respect to a part of the suit and the ease decided by him.
19. The Indenture dated 25-10-1951 which is the foundation of this action gives the plaintift really two rights: (1) exclusive right to draw and re-move sludge from the sedimentation tanks which it is claimed includes the lagoons and exclusive right to sell if as a commercial product and (2) right to possession of 20 bighas of land, to enable the plaintiff for carrying on its operations. Violation of each right would give the plaintiff a cause of action to institute a suit. The averment in the plaint is that there was violation of both the rights. Hence the declaration claimed in the plaint is with respect to both the rights. Injunction claimed is also to safeguard both the rights. Though the rights in favour of the plaintiff are derived from the same indenture, the causes of action are different. The plaintiff could have instituted this suit to enforce one right only abandoning the other. In the instant case the plaintiff could have abandoned its claim arising out of the infringement of the plain-tiff's right to possession of 20 bighas of land. If the plaintiff could have done it at the time of the institution of the suit, I do not see any reason why the plaintiff cannot abandon it at a subsequent stage, on the realisation that the claim has been improperly included in the plaint. For the same reason, the plaintiff is entitled to claim that the relief claimed with respect to its right over 20 bighas of land may be dismissed on the ground that the Court had no jurisdiction but that the Court should try the other case of the plaintiff based on its exclusive right to draw and remove sludge from the sedimentation tanks and its exclusive right to market the same as a commercial product. If the sludge is not immovable property, then the Court is competent to entertain this claim.
20. Mr. Das has argued that the contract is one and the twofold right given to the plaintiff by the indenture of 25-10-1951 is so inter-dependent that one is not severable from the other. This right to draw sludge from the lagoon and to convertit into manure requires the use and occupation of land. The right to possession of land is indispensable if the plaintiff is to exercise the right to draw sludgy from the lagoons and manufacture and sell it as a commercial product. That is how the two rights are not severable, one from the other and the suit cannot be restricted in its scope so as to leave out the right to possession of the land. The argument would have been of great force had the suit been a suit for specific performance of the agreement. In such cases, it could be contended with reason that the contract was not severable and hence not capable of being specifically enforced in part. The point as to whether the contract is severable and/or as to whether different rights are so inter-dependent as can only be enforced as a whole would have important bearing in a suit for specific performance. But would the same argument hold good in the case of a suit in which the plaintiff seeks relief for breach of one out of several covenants or rights under a contract by claiming damages or otherwise? I do not think so. The fact that in such a case there has been violation of other covenants or rights is immaterial, because if the plaintiff does not claim all reliefs in the suit even arising out of the same cause of action, the penalty is not dismissal of the suit but that he is debarred from claiming the excluded reliefs in a subsequent suit. Violation of each covenant or tight, however, gives an independent cause of action to a party to a contract and entitles the plaintiff to institute different suits, though under the Code he can and should combine them in a single suit. In my judgment, the rule relied on by Mr. Das has no application to the class of cases we are considering now. In the instant case, there are allegations of violation of both the rights. If the plaintiff seeks his remedy in respect to both the rights in a single suit, the competent Court is where the land is situate, and in the instant case this is not the Court. But if he seeks to enforce his exclusive right to draw sludge, manufacture and sell the same in the market as a commercial product, this Court, within the jurisdiction of which the defendant Corporation has its office, is a competent Court in which such a suit can be filed, provided it is held that 'sludge' is movable property.
21. The question now to be considered is whether sludge is movable or immovable property. Sludge in the sedimentation tank and just when drawn out of the sedimentation tank cannot conceivably be characterised as immovable property, Nor has it been contended before me that it is immoveable property. But the contention of Mr. Das is that when it is drawn out of the sedimentation tank and accumulated in the lagoon, it becomes part of the lagoon and as such is nothing but immovable property. The Transfer of Property Act does not state what immovable property means, but expressly excludes standing timber, growing crop or grass. The definition in the General Clauses Act is also not exhaustive, but it expressly provides that it 'shall include land, benefits arising out of land and things attached to earth.' Sludge when dried is used as manure and looks very much like earth. For the determination of the question whether 'sludge' referred to in the contract is movable or immovable property, the points to be considered are : (U whether the subject matter of the contract is sludge in the sedimentation tank only or sludge both in the tank and in the lagoon and (2) whether the sludge accumulated in the lagoon for some time becomes land and ceases to be the subject matter of the agreement.
22. By the indenture of 25-10-1951 the Corporation granted to the plaintiff full permission todraw and remove sludge from the Pruss Sedimentation tank at Bantola. It is the plaintiff's case that the Truss Sedimentation tank' includes the lagoons. The lagoon is situated at some distance from the tank itself. Sludge is pumped from the sedimentation tank and carried into the lagoon by a pipeline. That the 'sedimentation tank' and the 'lagoon' are separate and situate at a distance from one another can hardly be doubted. Lagoon is the place where in the first instance, the sludge in the semi-solid state is discharged and stored. It is the outfall of the sedimentation tank. One may be treated perhaps as complementary to the other. The entire sewage system of Calcutta carries the sewage in the sedimentation tank. From this sedimentation tank the sludged has to be pumped out and this is a continuous operation. Without continuous pumping out of tile sludge from the sedimentation tank, the sedimenta-tion tank and along with it the entire sewage sys-tem of Calcutta would choke. The lagoon is the outfall of the sedimentation tank, in which the sludge is discharged from the sedimentation tank, in the first instance. The sedimentation tank and the lagoon, therefore according to Mr. Roy, should be treated as a single unit and it was so treated by the parties. In the agreement, therefore, the sedimentation tank should be read as including the lagoon. This is, how Mr. Roy made his case on behalf of Ithe plaintiff. On the other hand, it has been argued by Mr. Das that the two are visibly and palpably different and that if the parties did intend to include in the agreement not merely the sludge (Co be drawn out of the sedimentation tank but the sludge taken out and stored in the lagoon as well, the parties would have said so. The plaintiff was given the right to draw sludge from the sedimentation tank only and not any right on the sludge stored in the lagoon.
23. The subject matter of the license granted by the Corporation is sludge which is being deposit-eel continually in the sedimentation tank and has to be continually pumped out of it to prevent the sedi-mentation tank and the entire sewage system of Calcutta from being choked. In point of fact, long prior to the agreement, this sludge was being pumped out of the sedimentation tank and discharged and stored in the lagoon by a pipeline. The lagoon is situate at a place conveniently near the tank. It is undoubtedly the outfall of the sedimentation tank. It seems to me that no distinction can be made between sludge taken straight from the tank and sludge discharged in the lagoon, in the first instance, There is, in fact, evidence that though the plaintiff had installed its own diversion pipe, it was using sludge taken from the lagoon for its own purpose without any objection on the part of the Corporation Not very much weight, however, is to be attached to the last point, because there was sludge in such abundance lying there that the Corporation did not bother whether some were being taken away by the plaintiff. I am apt to think that the sludge referred to in the agreement and which was the subject matter of the agreement, is sludge not merely when drawn out from the sedimentation tank but included the sludge deposited in its outfall -- the lagoon --as well. Though the lagoon is not a part of the sedimentation tank, the sludge covered by the agreement includes sludge pumped into the lagoon during the period of license. Mr. Das argued that the creation of a diversion pipe to take sludge in the plaintiff's factory tends to show that the plaintiff was given the right to take sludge not from the lagoon hut from the sedimentation tank. There is indeed a diversion pipe to take sludge to the plaintiff's place of work. The plaintiff's Director gave this explanation that this diversion line was laid to enable the plaintiff to carry on experiment of manufacturing gas from the sludge. The explanation may or may not be fullyacceptable, and I accept the argument of Mr. Das that it is not convincing. I am however, not sure that the explanation should be outright rejected. In any event, I am unable to hold that the establishment of a diversion pipe proves that the plaintiff was given the right on the sludge to come out of the diversion line only and not on the sludge which goes through the main pipe into the lagoon. The plaintiff for its own convenience wanted a diversion pipe' and I am unable to hold that it thereby debarred itself from the remainder of the sludge. The plaintiff at the time of the erection of the diversion pipe was admittedly working on a small experimental scale and it might have been more convenient for it that the sludge was diverted to its workshop for its own) purpose and to allow the rest to be disgorged in the lagoon as before. The establishment of the diversion pipe does not, in my judgment, disprove the plaintiff's contention that not only the sludge directly taken out of the tank but also sludge discharged in the outfall of the tank, i.e. the lagoon, was also the subject matter of the contract in suit. I am not considering now whether exclusive right is being given to the plaintiff by the agreement over the sludges in the lagoon.
24. The next point to consider is whether sludge when accumulated in the lagoon becomes a part of the lagoon. The sludge when dried is used as manure to enrich land. It is very much akin to earth or land. But this does not make it a part of the land and as such 'immoveable property' in law if a large quantity of sludge is stored on a land, it does not lose its character as sludge and become land, unless it is allowed to remain there for so long a time that it becomes a part of the land. Mr. Das has cited the case of Morgan v. Russel and Sons 1909-1 KB 357. In this case the subject matter of the agreement for sale was slag and cinders which had been in deposit on the demised land for about 50 years and had become part and parcel of the land. The question was whether it is a sale of goods or sale of immovable property, for if latter, the suit would fail in the absence of registration of the document of sale. The trial Judge held 'that it had become part of the ground or soil and were not definite or detached heaps resting so to speak on the ground.' The Appeal Court held that this finding was binding on the Appeal Court and as such the sale must be) held not So be a sale of goods but a sale of land. The instant case is different. It may be considered to be a definite and detached heap resting on land, even though dried sludge is very much akin to soil or earth. It is not intended to remain long enough in the lagoon to lose its characteristic as sludge and become a part of the land in the lagoon. The fact that vegetation on the sludge within a short time does not, in my judgment, make it a part of land. Sludge when collected in a godown with concrete floor having no touch with land will grow vegetation all the same within a short time if left in the open, and even if it is kept in cover, nobody would in such cases characterise it as land. In the instant case, the Government took huge quantity of sludge from the lagoon and it was taken as sludge and not as land. In my judgment, the sludge when stored in the lagoon retains its character as sludge and cannot be treated in law as immovable property. It follows that this suit in so far as it relates to the plaintiffs right in respect to sludge cannot be treated as a suit for land. For the purpose of jurisdiction, the situs of the sedimentation tank or the lagoon is not, therefore, relevant.
25. It is contended by Mr. Das that even if the instant suit cannot be treated For the purpose of jurisdiction as a suit for land and must be treated as 'other suit', this- Court has no jurisdiction to entertain it, because, out of two defendants, one is within and one is outside jurisdiction. It has been conceded by Mr. Roy that so far as the State of West Bengal is concerned, according to the present state of authorities, it must be held by this Court that the Government does not carry on business within jurisdiction and on that footing Mr. Roy submitted to the dismissal of the suit as against the State. Mr. Das' argument is that if jurisdiction is to be invoked on the ground that the defendant resides or carries on business within jurisdiction and there are more defendants than one, all must reside or carry on business within jurisdiction. Of the defendants, if there is one who resides or carries on business or personally works for gain outside jurisdiction, then the Court under Clause 12 of the Letters Patent is not competent to entertain the suit and the suit is liable to be dismissed, not merely against the outside defendant but also against the defendant who resides or carries on business within jurisdiction. Clause 12 of the Letters Patent provides that the High Court
'shall be empowered to receive, try and determine suits .... if the cause of action shall have arisen .... within the jurisdiction of the Court or if the defendant at the time of the commencement of the suit shall dwell or carry on business or personally work for gain within such limits.' In Mr. Das' submission 'defendant' in this clause means all the defendants where there is more than one defendant. It is not sufficient that one of the defendants dwells or carries on business within jurisdiction. It is submitted that the language used! in Clause 12 is significant, namely 'at the time of the commencement of the suit' and also 'receive, try and determine suits', so that if there are more defendants than one when the suit is filed and one of them is outside jurisdiction, the Court is not empowered not only to try and determine it but also to receive it. It follows that if an the date of the presentation of the plaint the Court had no jurisdiction to receive, try and determine the suit because o one of the defendants not residing or carrying on business or personally working for gain within jurisdiction, then this initial defect cannot be cured by abandoning the suit against such outside defendant. Mr. Das relies on the case of Hadjee Ismail v. Hadjee Mahomed, 13 Beng LR 91, in support of his argu-ment that the defendant in Clause 12 means all the defendants if there are more than one. Mr. Das emphasised that this old decision of this Court is held as authoritative even now and has been invariably followed by all Courts and has never been dissented from. Mr. Das has also relied on the decision of Sen, J. in the case of : AIR1942Cal496 and noticed before, in support of his argument that the important question to consider as to whether the Court! has jurisdiction to entertain the suit is -- Was the suit as framed entertainable when the suit was filed? On the strength of this authority, Mr. Das argued that if the Court was not competent to entertain the suit by reason of the fact that one of the defendants was outside jurisdiction at the time when the suit was filed or that there are paragraphs in the plaint or reliefs claimed in the plaint when originally filed which make it a suit for land and the land is outside jurisdiction, then the Court cannot be clothed with jurisdiction by removing the offending defendant or the offending paragraphs and prayers in the plaint. This is not permissible, because in determining whether the Court has jurisdiction, the point of time to be taken into consideration is the time of the institution of the suit and not the time when the suit is being heard. The language used in Clause 12 is that the Court is empowered 'to receive, try and determine the suit' and the word 'receive' used in Clause 12 of the Letters Patent cannot be ignored. So alsothe words used are that 'at the date of the commencement of the suit the defendants reside or carry on business within jurisdiction.' It seems to me that the proposition submitted by Mr. Das for acceptance is too broadly stated. On a correct construction of Clause 12 of the Letters Patent, not all suits in which there are more than one defendant, not all of them being within jurisdiction, are liable to be dismissed as against all including those who reside or carry on business within jurisdiction. Again, it is not correct to say that in a case in which the plaintiff abandons his claim either wholly or in part against some of the defendants, for determining the nature of the suit and the jurisdiction of the court, the court is to look at the plaint as originally filed and not as it -stands after the claim has been abandoned as against some of the defendants wholly or in part. Neither reason nor authority warrants such a proposition. If the suit is on a single causa of action and there are more defendants than one, then all the defendants being necessary parties, having regard to the nature of the claim and the! reliefs sought, then all the defendants must be within jurisdiction in order that the court can entertain such a suit. In such a Suit the court cannot pass a decree against one and dismiss the suit as against the other. The liability being joint, either the decree must be against both or against none. This 5s Hadjee's case 13 Beng. LR 91, relied on by Mr. Das. There was a single cause of action and joint liability and all the defendants were necessary-parties. The court held that all the defendants must be within jurisdiction in order that the court may 'receive, try and determine' the suit. It docs not follow that if the cause of action is joint and several or if there are different causes of action against different defendants, the same rule would apply as in Haji's case. In such cases, the liabilities against different defendants being different, the suit must be treated as different suits rolled into one and if the suit fails as against one for lack of jurisdiction, there is no reason why the suit against the others should also fail, eves though the court 3s fully clothed with jurisdiction to try the suit as against the other defendants. Mr. Subimal Roy cited and strongly relied on the case of Gokuldas v. Chaganlal decided by the Appeal Court and reported in : AIR1928Cal887 . In this suit the plaintiff instituted a suit against five defendants for damages for wrongful conversion of a house at Punjab in which the plaintiff had a share. All the defendants except one were outside jurisdiction, The suit was dismissed in the trial court on the ground of jurisdiction. The plaintiff in the Appeal Court abandoned his case against all outside defendants and wanted to proceed against the only defendant who resided or carried on business within jurisdiction. It was submitted, on the authority of Haji's case, that all the defendants not being within the jurisdiction of the court the court had no jurisdiction and the suit must be dismissed against all including the defendant who resided within jurisdiction. This submission was overruled. Buckland, J. pointed out in the opening paragraph of his judgment the difference between Haji's case and the case under consideration in the following terms (p. 889).
'A suit against several defendants all of whom are necessarv for the determination of the questions which have to be decided in the suit must be distinguished from a suit against several defendants in which all the defendants are not necessary for the purpose of giving the plaintiff the relief which he prays and against any one or more of whom it is open to the plaintiff at his option to proceed. The case of 13 Beng LR 91 was a case of the former description'.
Overruling the decision of Page, J. who dismissed the suit on the ground of jurisdiction, His Lordship observed at p. 890:
'But, on the question of law, treating this suit as a suit for damages for conversion in which the plaintiffs have proceeded eventually exclusively against one of the tortlessors, I am of opinion that the judgment of the learned Judge cannot be sustained and the appeal must be allowed and the suit sent back for trial, as my learned brother has directed.'
This decision negatives both the propositions contended by Mr. Das, namely (1) that when jurisdiction of the court is invoked on the ground of residence or place of business, all the defendants must have residence or place of business within the jurisdiction of this court; and (2) that by abandoning the claim ag;;inst some defendants, the initial detect of the suit as to jurisdiction cannot be cured.
26. It is convenient, at this stage, to consider the contract which is the foundation of this action. The contract is dated 25-10-1951. The plaintiff is described as a licensee. The indenture recites that the licensee made a proposal to the Corporation for lemoval and disposal of sludge from the Pruss Sedimentation Tank at Bamtola and utilisation thereof as manure; that by the resolution of the Corporation dated 9-1-1946, the Corporation agreed to grant license to the plaintiff on terms and conditions set out in the said resolution; that the matter has been delayed; that by the subsequent orders of the Administrative Officer including the one dated 25-7-1949 the granting of license was sanctioned on slightly altered terms for a period of ten years commencing from 9-1-1949; that all dues upto 9-1-1949 had been paid by the licensee. The operative portion of the indenture which makes the grant and records the covenants is very important. The grant is in the following terms :
'. . . that in consideration of the premises and the rents or fees hereby reserved and the covenants and conditions hereinafter contained on the part of the licensees to be paid, observed and performed by the licensees, the Corporation doth hereby give and grant upto the licensees only the license and full permission to draw and remove sludge from Pruss Sedimentation Tanks at Bamtola and utilise and convert the same into manure and sell them and also to use and occupy all that the land containing an area of 20 bighas particularly described in the schedule hereunder written for putting up necessary plants etc., hereinbefore mentioned and for carrying on the operations of removal and disposal of the sludge as aforesaid for a term of ten years commencing from the 9th day of January, 1949.' Immediately following the grant there are eight covenants. The first covenant gives right to the licensee 'to draw, remove and work the sludge from the Pruss Sedimentation Tank at Bamtola by means of necessary plant and machinery erected and installed for the purpose and utilise and con-vert them into manure.' The second covenant entitles the licensee to use and occupy free from any rent or charge land measuring 20 bighas more or less. The third covenant entitles the licensee to erect and instal plant and machinery for the purpose of drawing, removing and working of sludge from the sedimentation tanks and carry on all operations connected therewith. The fourth covenant provides for payment by the licensee of the fee. The fifth covenant provides for audit. The sixth covenant provides that on the determination or expiration of the license, the licensee is required at its own cost to remove the plant and machinery and deliver peaceful possession of the land used and occupied for the purpose of the scheme. It is provided that in default of removal of the plant and machinery within three months, they will become the propery of the Corporation. The seventh covenant provides that in case of default in the payment of rent and failure to observe the terms and conditions, the Chief Executive Officer after notice will be entitled to cancel and determine the license and enter into and take possession of the land. There are two clauses in the seventh covenant which are important and read as follows :
'(a) The licensees shall be entitled to free passage of motor cars and lorries over the Corporation private road from point A to Bamtola for transport of their materials to and from Bamtola.
(b) On the expiration of the said term the Corporation shall have the right to dispose of the sludge in any way they like. . . . .'
The eighth covenant is the covenant of quiet and peaceful possession during the period of license, on the licensee paying the rent reserved and performing the terms of the tenancy.
27. The first point to consider is whether this indenture is a lease or a license. Though the indenture is described as license, it may nevertheless be a demise, if in substance it purports to give exclusive possession of the land to the so-called licensee. Whether a particular indenture is a lease or a license is not a matter of words but of substance. The language used in the instrument is not clear at all. The grantee is described as a licensee, though some of the terms are apt to suggest that it is an indenture of lease. By the indenture the grantee is given the right to occupy 20 bighas of land and also given the right to set up machinery and factories thereon. After the expiration or termination of the license, the grantee is given the right to take the machinery and goods away within a specified period. It is also provided that the grantee is to deliver peaceful possession after the termination or expiration of the license. Again, on the happening ol certain events, viz., breach of covenant by the grantee, the grantor is empowered to terminate the! agreement and revoke the grant and then enter into and occupy the land occupied by the licensee. So also the grantor covenants that during the subsistence of the grant and on the grantee performing and observing the terms 'shall quietly and peacefully possess and enjoy the righis hereby granted during the said term without any interruption or disturbance.' The language used does suggest that the instant instrument is a lease. On the other hand, it is to be noted that though right to peaceful possession during the continuance of the agreement and making over peaceful possession after determination do indicate that the grantee was intended to use and occupy the land measuring 20 bighas, nowhere in the document do we come across any indication that the grantee shall have exclusive right to possession. Again, the land is to be enjoyed free from payment of any rent or charge and the grantee is entitled to 'use and occupy only'. No description of the land is given which the grantee is to 'use and occupy' there being neither a schedule nor a map annexed to the indenture. These are very important indications that the grantee by this instrument is not given exclusive enjoyment of 20 bighas of land and that no demise was made in favour of the grantee. Again, it is emphasised that this right to use and occupy is given for the purpose of drawing, removing and working the sludge from the sedimentation tank and carrying on all operations connected therewith and for no other purpose whatsoever.' It seems that though the grantee is given permission to use and occupy the land for the particular purpose specified, the grantor retained possession and control over the land toitself and no exclusive possession was given to the plaintiff by this instrument. In view of the fact that no exclusive possession is given to the plaintiff, it must be held that the contract in suit is not a lease but merely a license. Exclusive possession is essential for a lease, otherwise it becomes a license. (See Seeni Chettiar v. Santhanathan Chettiar, ILR 20 Mad 58; Secretary of State v. Karuna Kanta, ILR 35 Cal 82; Baldeoprasad v. Rewaram, AIR 1950 Nag 107; Frank Warr & Co. Ltd. v. London County Council (1904) 1 K. B. 713.) In the last mentioned case, there was a contract between the lessees of a theatre and the plaintiffs. It was agreed that the plaintiffs should have exclusive right for a term of years to supply refreshments to the theatre and for that purpose should have the necessary use of the refreshment rooms, bars and wine cellers of the theatre and that they should have exclusive right to advertise and let spaces for advertisement in certain parts of the theatre. It was held by the Court of Appeal consisting of Collins, Romer and Mathews, L.JJ that it did not amount to demise or interest in land, but that it was a mere license, even though exclusive right is given to the grantee. In my judgment, the instrument under consideration is not an indenture of lease but is what it claims to be, namely, a mere license to draw and remove sludge from the sedimentation tank and to convert the same into manure and sell it as a commercial product and to use and occupy 20 bighas of land for that purpose and for no other purpose. The Corporation retained full possession and control over the land.
28. It must, however, be recognised that there is force in the argument of Mr. Das that land is to be given to the plaintiff to 'instal on the land such plant, machinery, apparatus and equipment as may be necessary for the purpose of drawing, removing and working sludge from the sedimentation tank and carrying on all operations connected therewith.' In other words, the plaintiff was entitled to establish a factory on the land and instal costly machinery and equipment on such land. It has been argued by Mr. Das with force that the nature of the act to be done by the plaintiff clearly indicates that the plaintiff should be in exclusive possession of the land. It is reasonable to infer that the plaintiff was not expected to set up a factory and instal costly machinery in such factory, unless it was to be given the exclusive right to the possession of the land on which the factory is to be constructed. This provision in the instrument is undoubtedly an indication of the fact that exclusive possession was intended and, if so, it cannot be construed as a mere license. Had the land been clearly delineated and the map annexed, this argument of Mr. Das would have been irresistible. But the document neither delineates the land nor gives a map of the land on which the plaintiff was to carry on its operations. The document, therefore, is nothing more than evidence of an agreement on the part of the Corporation to give exclusive possession of 20 bighas of land to the plaintiff. In order that there may be a lease, the subject matter must be ascertained and clearly defined. If the land is yet to be ascertained and carved out of a larger parcel of land, then there can not be a demise. In the instant case, a plot of 20 bighas out of the Corporation land is yet to be carved out. delineated and described in a map over which the plaintiff will be given the right of exclusive possession. The instant indenture, therefore, falls short of the actual transfer or demise of 20 bighas of land to the plaintiff. The indenture, in that view, can be construed as not merely, a license to draw sludge and manufacture it into manure and sell the same as a commercial product, but also an agreement on the part of theCorporation to grant lease of 20 bighas of land to the plaintiff. The other terms may perhaps be ascertained from the indenture, but the identity of the land cannot be ascertained and in the absence of identification of the land, it cannot be held to be anything more than an agreement to grant lease of 20 bighas of land yet to be ascertained and delineated. Such an agreement in Indian law does not require registration.
29. Mr. Das contended that even if the indenture dated 25-10-1951 does not amount to a lease, it at least creates or grants an interest in immovable property to the plaintiff. Right to draw sludge from the lagoon is a profit a prendre and as such amounts to an interest in, land. The plaintiff tinder the indenture acquires a right to enter the lagoon in possession of the Corporation as its owner and to take away sludge which should be treated as part of the lagoon indistinguishable from its soil. If that is the position, then under the indenture the plaintiff acquires profit a prendre. What the plaintiff is entitled to take is not a part of the soil in the lagoon but sludge pumped from the sedimentation tank into the lagoon by human agency. What the parties intended was that a portion of the sludge which was not straight transferred through the diversion pipe into the plaintiff's factory but would be discharged into the lagoon, the plaintiff would be entitled to convert into manure and sell as a commercial product. This could never be treated as a part of the soil in the lagoon and, therefore, no profit a prendre or, profit out of the land. I have held that sludge is movable properly. Even when it is stored for some time in the lagoon, it does not become a part of the lagoon. Sucb a movable property can never be the subject matter of profit a prendre. Mr. Das cited the decision of the Supreme Court in the case of Smt. Shanta Bai v. State of Bombay : 1SCR265 . The document in the cited case conferred a right on the petitioner to enter on the land in order to cut down and carry away not merely the standing timber but also trees that were not in a fit state to be pulled at once. Bose, J. held that the grant was, therefore, not in respect tn movable property but immovable property as well and hence required to be compulsorily registered. The other members of the Bench, namely, Chief Justice S. R. Das. Venka-tarama Aver, S. K. Das and A. K. Sarkar, JJ. considered it unnecessary to examine the document minutely to determine its real character, because in any view of the matter the petition must fail. 1 do not think that this case is of any assistance to Mr. Das. Right to take timber after felling down trees cannot be equated to taking sludge discharged in the lagoon from the sedimentation tank. Reference has also been made to certain paragraphs of Halsbury's Laws of England (Lord Simond's Edition) Vol. XII paragraphs 1348, 1349, 1350 and 1364. I do not think it necessary to discuss it.
30. Properly construed, the document, according to Mr. Roy, is a license coupled with a grant. The grant is to take sludge from the lagoon. Mr. Roy concedes that if sludge is immovable property, this document must be held to create an interest on immovable property. If, however, the sludge in the lagoon cannot be considered to be immovable property, then the grant is in respect of movables and the document in the instant case cannot be taken to create any interest in immovable property. Reference may be made in this connection to the observation of S. R. Das, C.J. in the case of Dominion of India v. R. B. Sohan Lal, AIR 1950 EP 40, paragraphs 11, 12 and 13. In that case Das, C.J. has pointed out the nature and legal incidence of a bare license, license coupled with a grant andthe remedies of the licensee when his right is infringed. In the view I have expressed in the earlier part of this judgment that sludge in the lagoon is movable property, the grant in the instant case cannot be taken to create an interest in immovable property.
31. Mr, Das has finally argued that the plaintiff is entitled to free passage o motor cars and lorries over, the Corporation private road for transport of their materials to and from Bantala. According to the definition of immovable property as given in Section 2(6) of the Registration Act, 'right of way', is itself an immovable property for the purpose of Registration Act. The indenture of 25-10-1951 gives a right of way to the plaintiff and as such to be an effective document in law, it must be registered. In the absence of registration, the document is neither admissible in evidence nor can it be the foundation of an action for damages or otherwise. A private right of easement may be defined as a right to utilise the servient tenement as a means of access to or egress from the dominant tenement for some purpose connected with the enjoyment of the dominant tenement, according to the nature of that tenement. This right may originate either by express grant or prescription. It appears from the definition given above that such a private right of way presupposes the existence of a dominant tenement and a servient tenement. If there is no dominant tenement, as in the instant case, (there being no demise or lease in favour of the plaintiff but a mere license to take away sludge), can it be said that a private right of way has been granted to the plain-tiff by the instrument? If only a license is granted to the plaintiff by the instrument dated 25-10-1951, then the free passage of motor cars and lorries over the Corporation private road granted to the plaintiff by the indenture in suit would appear to be nothing more than a mere license to use the road for a certain purpose. There being no dominant tenement for the enjoyment ot which this right of passage may be necessary, no easement is created, but merely a license to the use of private road of the Corporation was granted. In my judgment, no easement is created in the instant case. Mr. Das has relied on a decision of the Court of Chancery in England in the case of Lavery v. Pursell. (1888) 39 Ch. D. 508. It was a suit on a contract for the sale 'of the building materials' of a house with a condition that all materials were to be taken down and cleared off the ground within 2 months 'after which date any material then not cleared will be deemed to be a trespass and become forfeited and the purchaser's right of access to the ground shall absolutely cease.' The question for consideration was whether it was a sale of an interest in or concerning land within Section 4 of the Statute of Fraud. The suit was by the vendor or the owner of the house against the purchaser and the auctioneer who effected the sale, for specific performance of the agreement, injunction restraining the defendant from removing the building materials and having access to the premises and damages. The defendant did not remove the building materials within the stipulated time. The question of law argued, inter alia, was whether the contract was within the Statute of Fraud and in the absence of registration whether it was an enforceable agreement. Chitty, J. held that the subject matter was a hereditament and not movable or chattel and the right of access to this hereditament granted was an interest in land. The land on which the building was standing, accordinp to Chitty, J. could not be considered to be a 'mere warehouse of the building materials' so long as the building was not demolished. Before demolition at the time of contract it was a hereditament and the right of access is also an access to a hereditament or immovable property. Accordingly, the contract did effect a transfer of immovable property and as such was within the Statute of Fraud. This case would be an authority in support of Mr. Das' contention, if sludge is treated as immovable property. In that case, the tight of access would also amount to an interest in immovable property, This is made abundantly clear when the learned Judge is distinguishing the cited case from Marshall v. Green (1875) 1 C.P.D. 35. In the last-mentioned case the subject matter of contract was standing trees fit to be cut as timber and it was held not to be a contract with respect to hereditament but a contract with respect to movables and the right of access given is for the removal of movables. In the instant case the right is with respect to sludge which I have held to be movable property, even after it is transferred to the lagoon. The lagoon may well be compared to a warehouse for the sludge discharged therein and removed from the sedimentation tank, over which the plaintiff has been given a right under the contract in suit.
32. The next case cited by Mr. Das is the case of Sital Chandra v. Mrs. Alien J. Delanney decided by a Division Bench of this court, and reported in AIR 1917 Cal 681. It was held in that case that the easement of way has not been dealt with by the Transfer of Property Act but by the Easements Act and it need not be in writing under the Easements Act. It was further held 'that Section 2(6) ef the Registration Act defines 'immovable property' and this definition, for the purpose of the Act, expressly' includes 'right of way'.' Where, therefore, a right of way is created in writing the writing may require registration, but not if the value of the right is less than Rs. 100/-. In the earlier portion of the judgment at page 684, it is observed :
'She must, therefore, prove a right of way of grant which she would be in a position to assert. It 4s not sufficient for her to show that she used the way by leave and license of the landlord.' It, therefore, follows that according to this authority oaly when 'a right of way' amounts to an easement and the grant of a right of way is embodied in a document, that registration is necessary. Not so, however, when the right of way is nothing more than a license. In the instant case, the indenture is a license to draw sludge, convert it into manure and sell it as a commercial product and for that purposes the plaintiff was given a license to use and occupy 20 bighas of land. The right to free passage of motor cars and lorries over the Corporation private road for transport of these products provided for in the indenture in favour of the plaintiff must also be construed as nothing more than a license. On such construction the right of passage cannot be considered to be an easement and as such the deed need not be registered.
33. Though I have recorded my decision against Mr. Das on this point, I feel that I may well be wrong and Mr. Das may be right in his submission that the right of way granted to the plaintiff through the private road of the Corporation is itself an interest in land and requires to be registered under the Indian Registration Act. What is the effect of nonregistration of the document? The definition of immovable property as given in Section 2(6) of the Registration Act expressly includes 'right of way'. Section 17 of the Act makes registration of such a document compulsory, if the value exceeds Rs. 100/-. The document in suit, therefore, is required to be registered, so that there might be a grant of the right of way effective in law. In the instant case, this was not done. What is the legal consequence of this non-registration? Section 49 of the Registration Act lays down the effect of non-registration of a document required to be registered under Section 17 of the Registration Act or any other provisions of the Transfer of Property Act. Such an unregistered document, under Section 49, shall not affect any immovable property comprised therein, nor shall it be received as evidence of any transaction affecting such) property. There is a proviso to the section which states, inter alia, that such an unregistered document is admissible as evidence of any collateral transaction not required to be effected by a registered instrument. The contract in suit does not purport to affect any immovable property, except giving a right of way to the plaintiff over the Corporation private road, which is 'immovable property' as defined in Section 2(6) of the Registration Act. The grant of a license to draw sludge, to convert it into manure and sell it as a commercial product as also the grant of a license to use 20 bighas of land for that purpose can well be effected by an unregistered instrument. The only effect of non-registration of this document is that the plaintiff cannot claim right of way through the Cor-poration private road. Save as aforesaid, the other rights of the plaintiff under the agreement remain unaffected and the document is admissible in evidence to prove those rights and can well be the foundation of an action for breach of license. The plaintiff does not seek to enforce its right of way in this suit, nor does it seek to protect this right by asking for an injunction against the defendant s violation, nor does it claim damages for breach of this right. Section 49 of the Registration Act is, therefore, not a bar to this suit and the plaintiff cannot be non-suited because of the fact that the Indenture of 25-10-1951 is not registered according to law.
34. There remains to be considered now the controversial question as to the quantum of the right given to the plaintiff under the Indenture dated 25-10-1951. The plaintiff's case is that exclusive right was granted to him for a period of 10 years on all sludge pumped out of the sedimentation tanks whether it is taken by the diversion pipe to its workshop or discharged in the lagoon. Under the agreement the plaintiff acquires a monopoly on all sludge even with respect to those in the lagoon. The defendant's case is that no such monopoly was given to the plaintiff. The plaintiff had been given no right on the sludge in the lagoon and even if any right was given on the sludge in the lagoon, no exclusive right was given. This is the most important point of controversy on the merits of the case.
35. The grant is in these terms : 'The Corporation doth hereby give upto the licensee only the license and full permission to draw and remove sludge from the sedimentation tank at Bantalla . . .' Mr. Roy's contention is that the word 'only' after licensee indicates that the plaintiff would be tha 'only licensee' and nobody else would be given similar right to draw sludge. He further points out that! it is provided that on the expiration or determination of the plaintiff's term under the license, if the plaintiff fails to remove the plant and machinery and make over peaceful possession within three months, the plant, machinery and other products belonging to the licensee and the products manufactured by them shall absolutely vest in and belong to the Corporation who shall thereafter be entitled to dispose of the same in any way they like without being liable for payment of compensation to the licensee. This clearly indicates, according to Mr. Roy, that during the subsistence of the agreement the licensee had full property in all sludge, which the plaintiff will forfeit only if it fails to remove within three months from the expiration or determination of the licence. Mr. Das in his turn submits that the word 'only' does not qualify 'licensee' and it cannot be held ona true construction of the document that an exclusive license had been given. The words 'exclusive right' would have been used in the grant had there been in intention to grant monopoly light to the plaintiff.
36. An agreement has to be read in the background of facts prevailing at the time when the agreement was entered into. History of the agreement is undoubtedly one of the facts to be taken into consideration for the purpose of construction. In the instant case, the contract has a history and pointed attention to this history has been drawn by Mr. Roy. The Corporation as the grantor of the license is a public body and the history o the grant is to be found not only in the correspondence between the parties but also in the report of the Corporation officials, minutes of the various committees, sub-com-mittees and of the Corporation itself. The plaintiff claims 'exclusive right* from the very beginning. The 'question of exclusive right is very essential' according to the plaintiff's letter dated 25-7-1944. This is also being emphasised in the plaintiffs letter dated 24-8-1944. The Corporation sends its terms on 23-40-1944 and Clause 4 of the terms reads as follows :
'The Corporation reserves the right to retain for their own use not more than 1/3rd of the total output.'
The plaintiff suggested in its letter dated 24-11-1944 that if the Corporation had occasion to dispose of 1/3rd the plaintiff should have the right to take it. This grant became the subject matter of a report of the Outfall Engineer and other officers of the Corporation. It was then considered by the Estate and General Purposes Committee on 19-2-1945 and 13-12-1945. In the minutes all the reports of the several officers and the committees are to be found. The committee sanctioned the issue of a licence on 13-12-1945 and it was confirmed by the Corporation on 9-1-1946. The Law Officer then drafted the licence which draft was approved by the plaintiff by its letter dated 11-7-1946'. The right of the Corporation to retain 1/3rd was in this draft and the plaintiff agreed to it.
37. The second chapter opens with the plaintiff's application dated 21-1-1949 for a cram of license for further ten years. In the application it is slated that the scheme is still in experimental stage and would require some time to reach perfection. Then after some correspondence, draft agreement is sent. Ultimately the agreement was finalised and executed on 25-10-1951, In this draft the word 'only' after licensee in the operative portion of the agreement has been added and the provision in the draft finalised in 1946 to the effect that 'the Corporation reserves the right to retain for their own use not more than l/3rd of the total output' has been deleted. The omission of this clause and the addition of the word 'only' after license are, according to Mr. Roy, very significant. This broadly is the history of the agreement, which I am invited to consider as a surrounding circumstance relevant for the purpose of construction of the contract in suit. There are other surrounding circumstances relevant for the purpose of construction to which reference has been made by learned counsel on either side. The other surrounding circumstances to be taken into consideration are stated now. In 1944 the plaintiff conceived the idea of converting sludge that comes out of the Pruss Sedimentation Tank into manure and sell it as a commercial product. The plaintiff thought that it had great commercial possibilities. It applied for a license and was permitted by the Corporation to carry on experimental works. The license is dated 25-10-1951, but it is deemed to have commenced on 9-1-1949. Prior to the issue of the license in 1951, Government wanted the sludge in connection with the Grow More Food Campaign and the Corporation granted the Government permission to take away sludge from 1948. First the Government began removing the sludge by lorries and then in order to facilitate transport of the sludge Government constructed a railway line by the side of the lagoon. It is not clear from the evidence whether it was constructed just before or shortly after 25-10-1951. But this much is certain that it was near about the period, The removal of sludge by the Government prior to October 1951 was within the knowledge of the plaintiff. I am apt to think that the quantity removed was not very great and possibly because of this the plaintiff did not protest then. There is much to be said in favour of the argument of Mr. Roy that till the actual grant of licence in October 1951 the plaintiff had no right to protest and, therefore, they did not protest. It was after the construction of the railway line that the Government began taking large quantity of sludge and began selling it on the bazar according to the plaintiff, at subsidised rate. Then the plaintiff protested for the first time in February 1952 claiming exclusive title to the sludge. At the material period the plaintiff was working on very small scale with a modest factory which was manufacturing about 100 mds. of manure at the time--a very small fraction of the daily output of sludge from the lagoon. The company did spend not an insignificant sum in experimental purposes with the hope and expectation that if the? experiment proved successful, it would not only recoup the loss but make a profit out of it. If similar licence was granted to a rival then the rival would get the benefit of the plaintiff's experiments and the plaintiff would be at a disadvantage in competition. Mr. Roy pointed to the analogy of a prospecting license in the case of mining leases. In such leases there is a clause that during the period no license is to be given to anybody else and there is a further provision that the licensee would be given the mining lease if the prospector who invests money in prospecting proves successful in getting minerals. In the case of a prospecting license, the right of the prospector is expressly protected. There is no such express provision in the license in the instant case. It is however true that the license granted to the plaintiff in the nature of things implies that the same license would not be given to two persons at the same time. Another fact which, according to Mr. Das, has to be taken into consideration is that the share capital and other resources of the plaintiff was not such as to enable it to exploit the entire daily output or a substantial portion of it into manure at the date of the grant in 25-10-1951. The share capital and resources of the plaintiff could however be increased to meet the new needs. Mr. Das further emphasised that unless the sludge from the lagoon was cleared, there was a danger of the sedimentation tank and indeed the entire sewage system of Calcutta being choked. Having regard to the fact that the plaintiff did not at the time and would not within near future utilise the entire output, the Corporation could not but retain its right over the unutilised sludge in the lagoon, to save the sewage system of Calcutta. The alternative was absolute disaster.
38. In my judgment, on a proper construction of the Indenture of 25-10-1951, in the light of the surrounding circumstances it must be held that the-word 'only' in the license was added in the final license to indicate that during the period of license the licensee will have the exclusive right on the sludge to be drawn out of the sedimentation tank during the period of license. It is to the licensee only that the right on the sludge was given for a period of 10 years. The only other construction being the construction contended for by Mr, Das, is that the right was restricted to withdrawing sludge from the sedimentation tank 'only' and not over sludge which had been taken out of the sedimentation tank and deposited in the lagoon. If that was the intention of the Corporation the word 'only' should have been placed after the sedimentation tank so that the language would have been as follows :
'The Corporation doth hereby give and grant unto the licensee the license and full permission to draw and remove sludge from pruss sedimentation) tank only.....'
The position of 'only' being where it is in the indenture of 25-10-1951, I am ape to think that the plaintiff was given exclusive right on the entire sludge to come out of the sedimentation tank, Having regard to the fact that in the agreement in suit there has been a deliberate omission of the clause in the 1946 agreement whereby the Corporation retained for its own use not more than 1/3rd of tile total output of sludge, I am unable to hold that the Corporation retained its right on any portion of the sludge to come out of the sedimentation tank for the period of license. The Corporation on a proper consideration of the agreement granted exclusive right to the plaintiff on the entire output of the sedimentation tank during the period of 10 years.
39. If the construction contended for by Mr. Das is correct, then the plaintiff would not be the only party entitled to draw and remove the sludge from the sedimentation tank. Nobody was expected to carry on experiment and incur heavy costs with such a bleak prospect that any rival would! carry on the same business in competition after the experiments carried on by the plaintiff had become successful. Nor did Mr, Das press this contention except indirectly. His argument is, no doubt the plaintiff had the right to draw and remove the entire sludge from the sedimentation tank but if the entirety is not drawn and removed by the plaintiff to its own factory straight from the sedimentation! tank, then in respect to that portion of the sludge which is discharged in the lagoon, the plaintiff acquires no right. His main reason for such construction is, otherwise the entire sewage system of Calcutta would choke. I agree that unless the sludge that accumulates out of the sewage water in the sedimentation tank is continually pumped out of the tank the sedimentation tank and, indeed, the entire sewage system of Calcutta would choke. But I do not agree that the sewage system of Calcutta would choke if the sludge is allowed to accumulate in the lagoon. Indeed the tank and the sewage system did not choke even though there has not been substantial or for the matter of that any removal of sludge from the lagoon, except very small quantity by the plaintiff right from the inception of the sedimentation tank. Whether the sludge is stored at the plaintiff's factory or the lagoon is a matter of equal importance in its effect on the sewage system of Calcutta. This argument pressed, by Mr. Das therefore loses much of its force. His next objection is that the Indenture gives the plaintiff right to draw sludge from the sedimentation tank and not from the lagoon and the lagoon cannot be treated as part of the tank-The relevant and important point to consider is whether the plaintiff had been given exclusive right over the sludge to come out of the sedimentation tank and undue emphasis should not be laid as to where the sludge was to be stored. If the plaintiff was given the right on the entire sludge to come out of the sedimentation tank, the right is not lost when a portion of it had to be stocked for sometime in the lagoon because of the plaintiff's inability to stock the entire sludge in its own factory through the diversion pipe. The limited construction contended for by Mr. Das can only be reasonably accepted, if I can persuade myself to hold that the plaintiff was not given a right on the entire sludge to come out of the sedimentation tank. I am conscious that prior to the agreement in suit the Government had been given the right to take the sludge accumulated in the lagoon. There is, however, no evidence that the Government was given the entire sludge which would be in the lagoon. Had there been such evidence then it would have a very important bearing to negative the construction contended for by Mr. Roy. If the Government had been given the right to remove whatever sludge-there was in the lagoon, then the Corporation could not have granted the right to the plaintiff to takeaway any sludge from the lagoon and the right of the plaintiff would have to be limited to draw sludge from the sedimentation tank only. There is no evidence however that such exclusive right was given to the Government to take sludge from the lagoon. The fact that the Government was given the right to take sludge from the lagoon does not imply that the Government was not merely given the right to remove sludge which had already accumulated in the lagoon prior to 9-1-1949, hut also to remove the sludge to come out of the sedimentation tank after 9-1-1949 into the lagoon. There cannot be a conflict between the two unless it is established that the grant in favour of the Government covers the entire sludge which had already accumulated and which would also accumulate in the lagoon after 9-1-1949. In that view of the matter I am unable to hold that the fact that the Government was in fact allowed to take sludge from the lagoon runs counter to the plaintiffs case. It undoubtedly runs counter to the case that the plaintiff was given exclusive right on the entire sludge in the lagoon, but not to the sludge discharged in the lagoon after 9-1-1949 unless the Government was given exclusive right to take all the sludge from the lagoon. In my judgment the plaintiff has acquired an exclusive title in the sludge to come out of the sedimentation tank for a term-of 10 years whether the sludge is taken to the plain-tiff's factory straight by the diversion pipe or whether it is discharged through the main pipe into the lagoon. The plaintiff however has been given no right on the sludge already accumulated in the lagoon prior to 9-1-1949. This being the plaintiff's right, has there been a breach or invasion on the plaintiff's right of property on the sludge pumped out of the tank into the lagoon after 9-1-1949? There is evidence that the Government removed sludge from the lagoon and that in large quantities. But there is no evidence that the Government has removed sludge pumped out into the lagoon after 9-1-1949. The plaintiff has proceeded on the footing that it has been granted a monopoly on all sludge not only on those to come out of the sedimentation tank but also on the entire sludge lying in the lagoon. The plaintiffs case is that the lagoon is a part of the sedimentation tank. I have held however that the plaintiff had no monopoly to draw and remove all sludge from the lagoon. Its right is limited to the sludge to be discharged in the lagoon after 9-1-1949. If that is the limited right of the plaintiff, then the evidence tendered to the effect that the Government had removed sludge from the lagoon would not amount to an invasion on the plaintiffs right unless it is proved further that the sludge removed had been discharged in the lagoon after 9-1-1949. The burden of proof of this breach is on the plaintiff. There is evidence that the plaintiff's men have never been prevented from taking sludge from the lagoon. It seems to me that no breach has been proved in this case nor has it been proved that there has been any invasion on the plaintiff's right to take away sludge from the lagoon nor any trespass on the plaintiffs sludge lying on the lagoon.
40. The period of license has now expired. Had it been subsisting, the plaintiff would have been entitled to a declaration in teems of prayer (a) with modification. So also the plaintiff would have been entitled to a decree for injunction in terms of prayer (c) with modification. There was undoubtedly a threat to the plaintiff's right by reason of the Government's claim to take sludge from the lagoon. To protect the plaintiff's right, injunction is an appropriate remedy. Unfortunately, at the date of the trial, the period had expired and it would be useless either to make a declaration and issue an injunction as claimed with necessary modification. The only case now before the court is against the Corporation only and that for damages for breach of contract and/or for trespass on plaintiff's property. The plaintiff has failed to prove breach or trespass and as such is not entitled to any damages.
41. In the result, no decree can be passed in this suit now that the period of license has expired. The suit is therefore dismissed.
42. In the facts and circumstances of this case the proper order to make as to costs is that the parties will bear their own costs.