1. This is an appeal by the unsuccessful plaintiff in a suit for recovery of damages and mesne profits for mischief and wrong done to his land by the defendants. The plaintiff's case in the plaint is that under defendant 3, Apear Collieries Limited, who are the taluqdars of mouza Sitarampur, the plaintiff is an occupancy raiyat in respect of 14 plots of land enumerated in the plaint. Defendant 3 gave a mining lease of the under-ground rights to defendant 2, New Birbhum Coal Company Limited and defendant 2 in its turn granted a sub-lease in favour of defendant 1 Pare Dishargarh Colliery Company. The plain-tiff's case is that the defendants for the purpose of carrying on their colliery work erected a bungalow on one of the plots, laid tram lines on other plots, for the purpose of carrying coal and made roads by throwing cinders. The plaintiff further alleges that the defendants carried on their mining operations in such a way as to cause subsidence of one of the plots. The plaintiff filled up the subsidence with earth but defendant 1 opened an airshaft on that plot by removing the earth. The plaintiff accordingly claimed damages to the extent of Rs. 600 for the purpose of reconditioning the land and making the land fit for cultivation, and also a sum Rs. 195 as mesne profits.
2. The suit was contested by defendants 1 and 2 inter alia on the allegation that the suit was barred by limitation, that the plaintiff had no title to the suit lands, and that the defendants did not encroach upon the plaintiff's land, nor rendered it unfit for cultivation, and that the defendants never agreed to pay any compensation to the plaintiff for any wrong, as alleged in the plaint.
3. The learned Munsif who tried the suit found that the plaintiff had title as an occupancy raiyat to all the plots of land enumerated in the plaint and that the acts alleged by the plaintiff were done by the defendants, but the trial Court dismissed the suit upon the finding that the acts complained of were committed beyond the period of limitation. The trial Court took the view that the Article of the Indian Limitation Act applicable to the facts of this case would be Article 36 under which the period of limitation was two years from the date when malfeasance, misfeasance or nonfeasance took place.
4. On appeal by the plaintiff, the lower appellate Court has affirmed the decision of the Court of first instance upon the findings that the tram lines, pathway, bungalows and other offices were on the land since the time of the defendant and that defendant 2 made the air-shaft at least ten years ago.
5. It is in evidence in this case that defendant 3 granted the lease to defendant 2 in the year 1893, and defendant 2 granted the sublease to defendant 1 in the year 1924. So upon the above mentioned findings arrived at by the Court of appeal below, it is quite clear that the wrongful acts alleged by the plaintiff took place long before the period of limitation prescribed by Article 36.
6. Against that decision of the lower appellate Court, the present second appeal has been filed by the plaintiff and Dr. Sen Gupta appearing in support of the appeal has argued that the acts complained of by the plaintiff in the plaint come under Section 23, Limitation Act, because they are in the nature of continuing wrongs In support of this contention, Dr. Sen Gupta has placed before us various authorities showing what are said to be continuing wrongs within the meaning of Section 93, Limitation Act. Amongst other authorities, Dr. Sen Gupta places before us the decision of the Full Bench of the Lahore High Court in Khair Maham-mad Khan v. Mt. Jannat, 191 I.C. 42: (A. I. R. (27) 1940 Lah. 359 ) where it has been said that in considering whether a particular act complained of constitutes a continuing wrong, it is necessary to keep in mind the distinction between an injury and the effects of that injury; where the injury complained of is complete on a certain date, there is no continuing wrong even though the damage caused by that injury might continue; if however the act is such that the injury itself is continuous, then there is a continuing wrong and the case is governed by Section 23. This principle was also laid down by this Court in Brajendra Kishore v. Abdul Rasac, 22 C. L. J. 283 at p. 269 : (A. I. R. (3) 1916 Cal. 751), where it has been stated that there is a real distinction between continuance of a legal injury and the continuance of the injurious effects of a legal injury.
7. The point raised by Dr. Sen Gupta was not raised by the plaintiff in any of the Courts below, and although Dr. Sen Gupta now makes out the case that the acts complained of constituted isolated acts of trespass, they did not amount to dispossession of the plaintiff and themselves constituted a continuous legal injury, it is impossible to say in the absence of any evidence whether the acts complained of were really of that nature. Moreover, the lower appellate Court has found that according to the admission of the plaintiff, he has been dispossessed from the plaint lands; the plaintiff admits at p. 13 of his deposition that he recovered possession in all the plaint plots, except plot No. 100, after the institution of this suit. Upon this finding, it is difficult to hold that the acts complained of by the plaintiff did not amount to dispossession, but merely to isolated acts of trespass. In this view of the matters as the point raised by Dr. Sen Gupta is a mixed question of law and fact it cannot be decided without fresh evidence, and we cannot allow the appellant to raise this mixed question of law and fact for the first time in second appeal.
8. This appeal is accordingly dismissed with costs.
R.P. Mookerjee J.