1. This is an appeal from the judgment and decree of the Subordinate Judge of Burdwan, dated the 10th December 1918. The proceedings were in continuation of a suit brought by the respondent or his predecessor in interest as plaintiffs against the appellants or their predecessors as defendants for the recovery of a lease-hold Colliery known as the Chatterpathat Colliery, In the result, on the 18th May 1914, the Privy Council reversed the decree of the High Court, dated 4th June l912, in favour of the appellants and restored the decree of the Trial Court, dated September 8th 1909, in favour of the respondent Roghunath Das v. Sundar Das Rhetri (1) 24 Ind. Cas 304 : 41 I. A. 251 : 18 C. W. N. 1058; I. L. W. 567 : 27 M. L. J. 150 : 16 M. L. T. 353; (1914) M. W. N. 747 : 16 Bom L. R. 814 : 20 C. L. J. 555 : 13 A. L. J. 164 : 42 C, 72 (P. C.), The question which now arises relates merely to the amount of the indemnity which the unsuccessful party in the contest should pay to the successful party.
2. The respondent, as decree-holder. claims damages from the appellants, as judgment-debtors, first, in the nature of mesne profits and secondly, in the nature of damages for malicious or negligent injury to the Colliery.
3. The application for assessment of these damages was made by the respondent on the 15th June 1915. It appears that the appellants asked for details; and in a petition filed on 19th January 1916, the respondent gave 'details' of the amount of damages and wusilaidamage to the Colliery by cutting pillars, etc, etc.' The damage as then estimated amounted to Bs. 57,577 including four items: (1) Damage to the machineries, plants, tools, etc., estimated at Rs. 14,888; (2) mesne profits with interest, estimated at Rs. 29.000, (3) an item of Rs, 12,000 said to be detailed in Bankim Babu's report which we have not seen; and (4) a small item of Rs 1,089 for stacked coal removed by the defendants.
4. The decree of the Trial Court in the suit provided for the ascertainment of wasilat or mesne profits. The application of 15th June refers to Section 144 of the Civil Procsdure Code, no doubt on the footing that the injurious damages claimed were consequential on the working of the mine by the appellants during their period of possession under the degree of the High Court. No objection was raised on the appellants' behalf in this connection.
5. The learned Subordinate Judge has awarded the respondent a sum of Rs. 14,000 on the ground of damage done by cutting or robbing pillars, and a further sum of Rs. 31,400 on the ground that the appellants maliciously brought about what is called a junction between the river Noonia and the mine. He has farther awarded the respondent a sum of Rs. 76,2 5 on the footing of mesne profits, the calculation being as follows:-Rs 1,21,7:20 for the price of the coal extracted at the pit's mouth less a sum of Rs. 31,255 being the costs of getting, the coal and raising it to the surface and less a further sum of Rs, 14,180 representing the royalties payable under the lease in respect of the period for which the appellants were in possession. The total amount awarded to the respondent comes to Rs. 1,21,685, made up of Rs. 76,285 for mesne profits and Rs, 45,400 as additional damages.
6. A further claim by the respondent on the ground of damage to machinery and counter-claims by the appellant for compensation for the purchase of new machinery and for sinking a new pit have, in our opinion, been rightly disallowed and call for no further mention. As will appear, we shall allow the appellants some compensation for dewatering
7. Mesne profits are claimed in respect of two periods, firstly, from the 2nd September 1908 to the 25th September 1909 inclusive, and, secondly, from the 28th July 1912 to the 22nd May 1915 inclusive. The appellants were not in possession when the respondent's suit was instituted in July 1908, Apparently, however, they had previously been in possession as purchasers of the lease-hold interest in execution of a decree which they had obtained for their royalties and they recovered possession on the 2nd September 1908 under a decree which they obtained in a possessory suit, and held it till they were ousted under the decree of the Trial Court. The appellants, therefore, admit possession during the first of the two periods. As regards the second period, there is no dispute as to the date on which they regained possession under the decree of the High. Court but they assert that, after the Privy Council delivered judgment, they relinquished possession on the 31st May 1914. As a matter of fact, they closed their workings on that date but the respondent argues that their possession must be regarded as having continued until the Court formally delivered possession to him on the 23rd May 1915. The question is of some little importance.
8. It appears that, on the 4th June 1914, the respondent filed a petition in the Court below praying that, until a certified copy of the decree in Privy Council appeal was brought and possession was taken on the basis thereof, a temporary injunction might be issued on the appellants and others restraining them from doing anything detrimental to the disputed pits and disposing of the machineries, pumps, pipes, fittings, etc. On 6th June 1914, the appellants replied by a petition denying the allegations made in the respondent's petition and disputing his right to an injunction. The order-sheet shows that on the same day, the 6th June, the appellants undertook not to remove any moveables. Then, on the 11th June, an order was made stating that the undertaking had been accepted by the respondent and that the prayer for an injunction was, therefore, disallowed.
9. Meanwhile, the appellants had been in communication with the Inspector of Mines. On 6th June 1914, the Inspector addressed a letter to the respondent's Attorney enclosing a report by the Junior Inspector, Mr. Turnbull, dated 5th June, which report stated that the mine in question had been closed on 1st June 1914, in consequence of a decree given against the appellants by the Privy Council. We were not told that any reply was sent to the Inspector's letter by the respondent. On 17th June 1914, Dwarka Nath Khetry, as agent of the appellants, seat to the Chief Inspector of Mince a notice that the workings of the Chatterpathat Colliery had been closed from the 1st instant, asking him to send the necessary forms to be filled up, and further stating that the plan won id be submitted in due time.
10. On the 7th July 1014, the appellant's Solicitor wrote to the respondent's Attorney offering to deliver possession and requesting the respondent to take steps to obtain possession as early as possible. Notice was given by this letter that in case of neglect the Colliery with its machinery and accessories would remain at the respondent's risk; the respondent, however, took no steps to obtain possession till the following year. He waited apparently till the decree of the Privy Council or the records or both reached the Court below.
11. Nearly a year, therefore, elapsed between the date on which the appellants ceased to work the mine and the date on which the respondent took possession. The respondent urges that he is not responsible for the delay because the appellants did not give notice of relinquishment through the Court under Order XX, Rule 12(1) (c) (ii), Civil Procedure Code. It is not, however', disputed that the notice given directly by the appellants to the respondent reached him. He did' not say that be would not accept notice of relinquishment unless it was sent to him through the Court. He remained inactive and did nothing. It may be strange that the appellants said nothing about relinquishment in their reply to the application for an injunction, but the fasts are too clear to make that of moth significance.
12. As no coal was extracted from the mine after the 31st May 1914, we are of opinion that the respondent is not entitled in respect of the subsequent period to damages in the nature of mesne profits. The definition of mesne profits in Section 2 of the Civil Procedure Code includes profits which the defendant 'might with ordinary diligence have received,' But ' mesne profits are in the nature of damages which the Court may mould according to the justice of the case:' Grush Chunder Lakiri v. Shoshi Shikharreswar Roy 27 C. 951 at p. 967 : 27 I. A. 110 4 C. W. N. 631 : 10 M. L. J. 356 : 2 Bom. L. R, 709 : 7 Sar P. C. J. 667 : 14 Ind. Dee (N. S.) 632, Mining differs from agricultural operations on the surface. The coal which the appellant might have got is still there and now belongs to the respondent under the lease. The question, therefore, whether, under the provisions of the Civil Procedure Code, the omission to give notice through the Court left the appellant liable for mesne profits does not arise.
13. As regards the effect of the delay in taking possession on the other damages claimed, it cannot be contended with success that the delay has not prejudiced the respondent. The relinquishment or stoppage of work with notice to the respondent was not in itself an improper or negligent act and the delay has made it impossible or difficult for him to say that the condition of the mine when he took it over was due to any impropriety in the mode in which it had been worked by the appellants or to any act of intentional malice on their part.
14. The report of the Serishtadar who gave the respondent possession on behalf of the Court has appended to it a note signed by Sudhir Mohon Chatterjee, a First Class Colliery Manager, to the following effect:
'There are two subsidences perhaps due to pillar robbing and the whole of the mines are now full of water'.
15. This note seems to be attested by certain persons who were present on behalf of the1 appellant. But, however that may be, though' Sudhir Mohon was not called as a witness, because, we are told, he was in England at the time, it may be accepted that when the Colliery was taken over on the 23rd May 1915, these two subsidences bad already occurred and the working parts underground were full of water.
16. It is obvious, however, that a coal mine in this country which is left to look after itself for nearly a year may sadly deteriorate, The further comment must be made that1 as the pits were full of water no attempt' seems to have been made to have them examined in detail by an expert. Such examination was probably impossible.
17. Now, let us turn back for a moment to January 1914. In that month the mine was visited by Mr. David-a Mining Inspector-and we have his report, dated the 17th January, to which both sides referred. He says: 'This Colliery is at last working again,' raising having started just about a year ago.... 'The coal', he goes on, 'is being *****raisod from Nos, 2 and 5 pits and men enter by No, 1 incline. The old workings consist of pillars now not math more than 12, 15. feet square with roads of like size. No fresh work has been done yet, as the water has not been got oat entirely, and so work has been confined to dressing pillars.' Then he says a bout the work: 'It has been carried on with practically no regard to safety.' He adds that he is addressing the owners very strongly on this subject. Farther on, again, he says: 'The old pillars are being dressed, and practically no timber is being used to support the roof either in the working places or in the travelling roads. This work is probably just as dangerous as pillars extraction and is likely to bring about a much more dangerous state of affairs and if carried too far it will be bound to bring on creep.' Ali things considered, the roof has stood remarkably wall bat the travailing roads and working places should be tampered.' We do not know whether the word 'tempered' is a technical term, or whether it is a misprint for 'timbered.'
18. Passing to another subject, the Inspector continues:- Another danger which must be carefully watched is the workings under the Nooniajore which are close to the outcrop. A plan and section showing levels should be made to see what cover there is and no work should be done in dressing these pillars. Water is making in small, quantities from the coal at this point.'
19. The Inspector concludes as follows:- The Manager, H. H. Banerjee, was absent, he lives at Dobalia Colliery and was said to have gone to his house as Kalikapur in the morning. He holds a first class certificate 'and where-ever he has been Manager I have always had to complain of the vary bad state of affairs.' The gentleman so unfavourably mentioned is Harihar Banerjee who appears to have been the Manager up to January 1914. He was not called as a witness by the appellants, but they called his successor, Nidarsan Banerjee, who was Manager till the appellants ceased working at the end of May 1914.
20. There are two observations which it occurs to us to make on this report. The first is that there is no mention in it of any subsidences. The respondent's application of June 1914, for an injunction is equally silent on this subject. It is probable, therefore, that the two subsidences noticed in May 1915, occurred during or after the rainy season of 1914.
21. The second observation is that the appellants seem to have taken the Inspector's report to heart. They got rid of Harihar Banerjee of whom the Inspector had complained, and there is also the evidence of Harihar's successor that he did a certain amount of timbering as the Inspector had recommended.
22. The Subordinate Judge who dealt with the present claims appointed a Commissioner to make a local investigation. Ha prepared a useful plan of the surface land of the Colliery. It shows that, in addition to the larger sabsidences noticed in May 1915, other subsidences of a slighter character had subsequently occurred. The Commissioner's report, dated the 6th November 1918, is of very little value except so far as it shows that the pits ware not even then in a condition in which they could be examined to any purpose. The Subordinate Judge himself made a local inspection of the Colliery on the 9th December 1918. His note of his inspection, however, is principally concerned with the incursion of river water into the mine.
23. It is clear, therefore, that up to the date of the trial no proper examination of the pit had been made. The only underground plan we have is apparently the plan submitted by the appellants or their agent in pursuance of the latter's letter of the 17th June 1914 to the Chief Inspector.
24. Some attempt was made to raise a question of jurisdiction in connection with the Commissioner's proceedings. The terms of his commission were not placed before as, but as his report is confined to come observations about the subsidences, the junction with the river, and the underground conditions so far as they could be observed, we can only conclude that he was instructed to investigate the actual condition of the Colliery with reference to the allegations of malice and negligence brought against the appellants. He seems, however, to have taken it upon himself to examine witnesses at length on the whole case. The whole of the oral evidence printed in the paper-book was recorded by him, very much as if he had been appointed an arhitrator. It is unsaticfactory that these charges of improper working should have been decided on evidence taken in this way. But what happened was this. The appellants made some initial objection to the witnesses being examined by the Commissioner at the Colliery and they may have subsequently repeated the objection. Bat when the case same before the learned Subordinate Judge he appears to have been willing to take the evidence over again himself. He states in his judgment that, at the request of the Pleaders of both parties, he 'agreed to determine the amount to which the decree-holder might be entitled on the evidence recorded by the Commissioner as also on the report relating to the local inspection.' The report referred to seems to be the learned Subordinate Judge's note of his own inspection. The parties having thus accepted the evidence recorded by the Commissioner as evidence duly taken in the cause, it is idle now for the appellants to take exception to that evidence. The evidence must be treated as evidence recorded by a Commissioner appointed for the purpose of examining witnesses. It is open to parties to agree as to the materials to be placed before the Judge for, his decision, and if the Judge acts on such agreement, he does not thereby delegate his functions as a Judge.' We accept in their entirety the principles laid down in the cases of Shadhoo Singh v. Ramancograha 9 W. R. 83 at p. 86, aid Ram Narain Singh v. Odindra Nath 13 Ind. Cas. 440 : 17 C. W. N. 369 : 15 C. L. J. 17, but the present case is distinguishable on the facts from those cases. No question of jurisdiction or material inregularity arises here and we declined to allow the learned Vakil for the appellant to raise any objection to the proceedings of the Commissioner which were not urged in the Court below.
25. We come, then, to the specific awards made by the Subordinate Judge. As to the amount awarded for the ingress of river water into the mine, we are of opinion that the evidence entirely fails to support the charge of malice or the charge of negligence on which the learned Vakil for the respondent preferred to rely before us. The existence of any channel between the river and the mine was apparently not suspected by the respondent himself till February l918. We know nothing of the state of the mine at the spot where the water enters subsequent to January 1914 when the Inspector of Mines noticed some per***eclation of water. It is surprising that it never terms to have occurred to the learned Subordinate Judge, that the formation or erjar***gement of the channel may have been doe to natural causes. The Subordinate Judge teems to attribute great importance to the Commissioner's report and his own inspection note. But the fact that a bamboo can be pushed through only proves the existence of the channel. It does not prove that the channel was artificially made or that up to the time when the appellants closed their workings they had not taken such precautions as were necessary. The result is, that, we disallow the damages awarded in this connection.
26. As to the damages awarded for improper working by robbing pillars which is said to have led to the subsidences of the surface, the evidence may be somewhat stronger, but is still, in our opinion, insufficient to justify the award. The question was not argued with reference to any terms of the lease. The appellants were dealing with their own property and the only clause of the lease to which reference was made was Clause 13, which provides that' if there be inconvenience to your business, or if you so wish, or if the coal be exhausted, you will be able to relinquish these properties at the proper time and according to law.' That clause was referred to in reply to the argument that it was not to the interest of the appellants as grantorc of the lease to do anything likely to injure the Colliery. It was suggested for the respondent that they might have intended to force the respondent to surrender the lease. We can see no sufficient reason for attributing to them any such sinister motive and we are not satisfied that the responsibility of the appellants for the subsidences has been made out. The underground workings have not been examined; at any rate, they have not been properly examined. It is not clear that the principal subsidences are above the area worked by the appellants They may be due to old workings-or, again, they may be due to the fact that the Colliery was left unattended after the appellants relinquished possession. In January 1914, it was, at any rate, possible to explore the interior of the pits. Up to that time or till they ceased working, it is not, in our opinion, established that the appellants were guilty of any improprieties of working entitling the respondent to damages. From the respondents' evidence it would appear that no pumping was done after he re gained possession till May 1917. The award of damages under this bead must also he disallowed.
27. As regards the mesne profits, we find in reference to the second period of possession that the appellants raised no coal before January 1913 or after the 31st May 1914. The evidence of Srikanta Banerjee as to the period before January 1913 is corroborated by Mr. David's report. In regard to the amount of coal raised, we agree with the Subordinate Judge that the average should be taken to be 600 tons a month. We are not impressed with the appellants' raising book or accounts. The coal raised during the first period of possession may not have been as much but the appellants have not given us material on which we can say that definitely. We accept the Subordinate Judges' findings as to the price of coal at the pit's mouth and as to the cost of severing and bringing to the surface. The award on this head must be modified by the disallowance of mesne profits for the period from 28th July to the end of December 1912 and for the period after the 31st May 1914. But inasmuch as the time between 28th July 1912 and the end of the year was spent in do watering the mine and getting it into walking order, the appellants are entitled to some compensation on that amount. We assess that compensation at Rs. 4,000. The appellants are entitled to the deduction of the royal, ties due under the lease in respect of the whole of the two periods in respect of which the respondent claims.
28. As the appellants were in possession under a bona fide claim of title and not 'without any colour of title' or in a manner wholly unauthorised and unlawful' we are of opinion with the Subordinate Judge that they are entitled to the allowances which we have mentioned. The authorities are conveniently collected in MacSwinney on Mines (4th Edition, pages 537-540). In India there is no reason why the measure of damages hould depend, as it appears to do in England, to some extent on the nature of the remedy sought, or why any distinction should be made in this respect between a suit foe damages for trespass and a suit, for instance for accounts.
29. No claim to an allowance for trade profits was made in the Court below and we cannot allow any such claim.
30. The decree of the Court below will be modified in the manner indicated. The parties, we think, should pay their own costs of this appeal and of the Court below.