H.N. Sen, J.
1. This appeal by the plaintiff is directed against the judgment and decree dated December 10, 1965 passed by the learned Subordinate Judge, Sixth Court, Alipore in Money Appeal No, 158 of 1964 arising out of the judgment and decree of the learned Munsif, fifth court at Alipore in Money suit No. 208 of 1961. The learned Munsif held that by unlawfully interfering with the exercise of the property rights of the plaintiffs the defendants committed an act in the nature of trespass to the property and they were, therefore, liable for damages. In the result, the learned Munsif decreed the plaintiff's suit in part allowing damage to the time of Rs. 100/- for the trespass and disallowing the claim for damages at 50 paise per diem for loss of use of the property. The defendants appealed and the plaintiff filed a cross-objection, The lower appellate court allowed the defendants' appeal and set aside the judgment and decree of the trial court and rejected the cross-objection of the plaintiff/respondent. It is against the aforesaid order of the lower appellate court that the present second appeal had been preferred.
2. A short point has been canvassed by Mr. Bhaskar Bhallacliavya for Mr. Radhakanta Bhattacharya appearing for the appellant. The point raised before me by Mr. Bhattacharya was that the judgment was not proper judgment of reversal inasmuch as the appeal was decided on the Division Bench decision re ported in ILR (1944) 2 Cal 358 : (ATR 1944 Cal 289) and not on the case of the earlier Division Bench decision of this High Court reported in (1912) 16 Cal LJ 34, in spite of the fact that the earlier Division Bench decision had not been overruled and the facts of that earlier decision were on all fours with the present one.
3. The plaintiff/appellant brought the suit for damages on the allegation that the defendants filed a suit claiming easement right of way over the plaintiffs land, being. .04 decimal in dag No. 123-124 of mouza Sahapur to the West of the tank in Dag No. 122. The other allegation was that the defendants wrongfully obtained temporary injunction against him in T. S. No. 259 of 1956 of Munsif, 1st Court, at Alipore which was finallly dismissed. The claim for damages was based on the defendants' wrongful interference with the exercise of his properly rights and preventing the plaintiff from making construction on the said land by the order of injunction obtained by the defendants in their suit. The defendants opposed the claim denying all material allegations of the plaint and stating, inter alia, that title suit No. 259 of 1956 was a bona fide suit and the interim order of injunction obtained by him in that suit was made absolute on a contested hearing and as such no claim for damages could be maintained in a Civil action,
4. Trial proceeded on such facts and the matter was disposed of by the learned courts below as indicated above. The trial court based its decision on the principles enunciated in the case of Bhutnath Pal Mistry v. Chandra Benode Pal Chowdhury reported in (1912) 16 Gal LJ 34 in which it was held that unlawful interference with the exercise of the property rights of a person would result in an act in the nature of trespass to property and it would not be necessary for the plaintiff to prove any malice or want of reasonable and probable cause in a suit for damages on that score. Factually, when the suit was ultimately dismissed the trial court held that the plaintiff would be entitled to damages on the ground of unlawful interference by the defendants with the exercise of the plaintiff's property rights. The lower appellate court, however, based its decision on a later decision of the Division Bench reported in ILR (1944) 2 Gal 358 : (AIR 1944 Cal 289) (Bhupendra Nath Chatterjee v. Trinayani Dasi) which dissented from the earlier Division Bench decision reported in (1912) 16 Cal LJ 34 and where it was held that in a suit where a party claimed damages for the loss of property on account of improper order of injunction issued against him, it was incumbent on him to prove that the defendants acted maliciously and without reasonable or probable cause.
'.......... On no conceivable principle,therefore, the taking out of the injunction itself could amount to trespass in law, and that it would only come under the category of malicious abuse of the court's process and it was incumbent upon the, plaintiff to prove that the defendant acted maliciously and without reasonable cause'.
The lower appellate court further reached the conclusion that on the factual position the plaintiff had failed to make out a case that the defendant acted maliciously or without any reasonable or probable cause, in the matter of obtaining the order of injunction in the suit filed by the defendants.
5. In the case of Bhutnath Pal Mistry v. Chandra Benode Pal Chowdhury reported in (1912) 16 Cal LJ 34 Sir Ashutosh Mukher-jee J. in delivering the judgment observed as follows :
'Upon the merits the plaintiff is clearly entitled to succeed. The dimsissal of the previous suit shows that the injunction was improperly obtained; in other words, the defendants have unlawfully interfered with the exercise of property rights of the plaintiff. The defendants have thus committed an act in the nature of trespass to property (Clissold v. Cratchley) reported in (1910) 2 KB 244 and are consequently liable in an action for trespass; it is not necessary for the plaintiff to prove any malice or want of reasonable or probable cause'. In the case of Clissold v. Cratchley the judgment upon which the writ was issued was satisfied and was of no effect on the date when execution was taken out. In that case there was actual seizure of the plaintiff's goods which was essential in an action for trespass. In the case reported in ILR (1944) 2 Cal 358 : (AIR 1944 Cal 289) it was held that the injunction order in Bhutnath Pal Mistry's case might have been improper as the subsequent result of the suit indicated. But nonetheless it was not a void order and there was no actual entry upon, or interference with the plaintiff's property. Viewed in that context, the taking out of the injunction itself could not amount to trespass in law. At the most it could come under the category of malicious abuse of the court's process, and it would, therefore, be necessary for the plaintiff to prove that the defendant had acted maliciously and without reasonable or probable cause. In this later Division Bench decision it was further held that the decision of the earlier Division Bench in the case of Bhutnath Pal Mistry v. Chandra Benode Pal Chowdhury had no longer any binding authority in view of the principles enunciated or approved by the Privy Council in two decisions, namely, Bonnan v. Imperial Tobacco Co. of India report ed in 33 Cal WN 1034 : (AIR 1929 PC 222) and the case of Ramanathan Chelty v. Meera Saiba Marikar repotred in AIR 1931 PC 28. Even in the case of Bonnan v. Imperial Tobacco Co. of India mentioned above (AIR 1928 Cal 1) Rankin C. J., while dissenting from the principle enunciated in the case of Bhutnath Pal Mistry v. Chandra Benode Pal Chowdhury observed as follows: 'Apart from malice or want of probable cause, a plaintiff can recover damages in an independent suit upon mere proof that an injunction was granted to restrain him from doing what has since been held to be within his rights -- this too is a proposition I dissent from .......... It proceeds upon a misunderstanding of such cases as Clissold v. Cratchley which are cases where trespass was committed and the defendant unsuccessfully set up as his justification an order of the court which was disregarded before it was irregularly obtained by the defendant. To speak of an injunction as on a par with such a case as being an act 'in the nature of trespass to property is merely to obscure matters by false analogy or else to beg the question'. As there was an undertaking for payment of damages the Appeal Bench held that the proper remedy of the plaintiff was to file an application before the court which tried the suit to enforce the undertaking in damages given by the defendant/company and the Bench permitted to treat the suit itself as an application of that character and directed an enquiry as to the sum to which the plaintiff was entitled to damages for the loss caused by the injuntcion. The matter went up to the Privy Council. The point was not expressly decided by the Privy Council. But the appeal was dismissed and the decision of the Appeal Bench of this High Court was affirmed. If the act of the defendant in taking out an injunction against the plaintiff by itself amounted to trespass in law the question of malice and want of reasonable cause would have been perfectly irrelevant, so that in the later Division Bench decision of this Court it was held that it must be taken, therefore, that the Privy Council expressly approved of the view taken by the court of appeal that it was easential in such a case to prove malice and want of reasonable and probable cause. Then with reference to the Privy Council decision in the case of Ramanathan Chetty v. Meera Saiba Marikar mentioned above a distinction between an action of trespass and a malicious abuse of the process of the court was drawn. In that case the Privy Council held that a distinction must always be drawn between acts done without judicial sanction and acts done under judicial sanction improperly obtained. In other words, the difference lay between the act of a party without judicial sanction and the act of the party done under judicial sanction though improperly obtained. Where it is the act of the party having no judicial sanction it would amount to trespass in law but not in the case where it is done under judicial sanction even though improperly obtained and in the latter case not only malice was to be proved but as well that there was want of reasonable or probable cause. Following the two aforesaid Privy Council decisions the later Division Bench decision of this High Court reproted in ILR (1944) 2 Cal 358 : (AIR 1944 Cal 289) held that the decision in Bhutnath Pal Mistry v. Chandra Benode Pal Chowdhury could no longer be looked upon as a binding authority. In fact Sir Lancelot Sanderson C. J. and Duval J. in the case of Narendra Nath Koer v. Bhusan Chandra Pal reported in 31 Cal LJ 495 : (AIR 1920 Cal 357) (FB) doubted the propriety of the decision in Bhutanath Pal Mistry v. Chandra Benode Pal Chowdhury and while referring the case for decision to a Full Bench it was observed by their Lordships that the injunction obtained by the defendant was a judicial order which was not void for want of jurisdiction and consequently, the act of the defendant could not amount to trespass in law. The Full Bench disposed of the reference by a short judgment which has been quoted in the case of Bhupendra Nath Chatterjee v. Trinayani Dasi reported in ILR (1944) 2 Cal 358 : (AIR 1944 Cal 289) as follows: 'There are two sets of decisions in the report. In one set it is laid down that the person, who unlawfully interferes with the exercise of property rights of another commits an act in the nature of trespass to property and is liable for damages in an action for trespass. In the other series of cases it is laid down that no suit lies for damages against defendant for maliciously and without reasonable and probable cause, instituting a civil action. Whether a particular case would come within the purview of one principle or other would depend upon the facts of each particular case'. The Full Bench, therefore, referred the matter back to the Division Bench for final disposal in accordance with the two sets of decisions to which reference was made. When the case was ultimately heard by a Bench of this Court it was held that the case was one of trespass and fell within the principle laid down in Clissold v. Cratchley; but the contention raised on behalf of the plaintiff that the detention of the property being under orders of the Court the plaintiff was protected from an action of trespass was however negatived on the ground that the root of the mischief was the wrongful attachment effected at the instance of the defendant. The facts of that case were entirely different from the present one. There it was the direct act of the party in the matter of making a wrongful attachment of the plaintiff's goods and not of the court. The position would be different where, as in the present case, the court after hearing both parties made an interim order of injunction absolute restraining the plaintiff from doing certain acts which might have the effect of preventing the successful party from exercising their rights of easement in the nature of a right of way over the property so that it was an order having the judicial sanction and was not an act of the party as it was in the case of Narendra Nath Kaor v. Bhusaa Chandra Pal.
6. The result is that the lower appellate court was correct in basing its decision on the later Division Bench decision of this Court reported in ILR (1944) 2 Cal 358 : (AIR 1944 Cal 289), and in holding that in an action for damages it was incumbent on the plaintiff to prove malice as also that the defendant acted without reasonable and probable cause and having failed to prove that as a fact the lower appellate court quite rightly dismissed the plaintiff's claim in the suit by rejecting the cross-objection filed by the plaintiff who was respondent before the lower court and allowing the appeal preferred by the defendants,
7. Before concluding I may note that Mr. Bhattaoharya appearing for the appellant strenuously contended that where there are two conflicting decisions by different Division Benches the earlier Division Bench decision was to prevail and in support he cited before me the case reported in AIR 1955 Pat 124. The question really does not come up for consideration at all when Privy Council decisions bearing on this question sufficiently indicated that the earlier Division Bench decision of this Court reported to (1912) 16 Cal LJ 34 had no longer any binding authority and when in particular in connection with another case there was a reference to the Full Bench.
8. For the reasons indicated above, I have no hesitation to hold that the plaintiff/appellant cannot succeed in this appeal. The appeal, therefore, fails and is dismissed. The judgment and decree of the lower appellate court are hereby affirmed, There will, however, be no order as to costs in this appeal.