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Kumud Kanta Chakraburtty Vs. E. Bignold, Manager, Court of Wards, Mymensingh - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal306,68Ind.Cas.664
AppellantKumud Kanta Chakraburtty
RespondentE. Bignold, Manager, Court of Wards, Mymensingh
Cases ReferredJustin Hull v. Paull
Excerpt:
trespass, civil - unlawful entry, if essential--force, use of, to trespasser, without giving opportunity to withdraw peaceably--cause of action--assault--slight push--damages. - .....has awarded the plaintiff damages amounting to 5 rupees. these findings must be accepted in second appeal, and on these findings we thick that the lower court was perfectly right.2. it is contended that these findings are insufficient for holding that the plaintiff was a trespasser. with that we cannot agree. the plaintiff's case on this issue is based on the facts that there was an implied permission to the public to go to the quarters of one mr. mookerjee which was on the railway land. but it is found that there could be no reasonable claim on the part of the plaintiff that he had the right to take the route he did. it is strongly contended that either under section 122 of the railways act or under the civil law there can be no trespass without an unlawful entry. we are unable to.....
Judgment:

1. This appeal arises oat of what has rightly been described by the learned Counsel for the respondent as a storm in a tea cup. The plaintiff and the defendant are two gentlemen residing at Mymensingh. On the 15th July 1917 the first train from Mymensingh to Netrokona was run across a newly erected bridge On the evening of that day the plaintiff and defendant were both on the embankment leading to this bridge. The defendant was accompanied by two ladies. The plaintiff passed in front of those ladies not noticing that they were there. The plaintiffs conduct caused annoyance to the ladies and the defendant did not realize that the plaintiff's rudeness was unintentional. The defendant had authority from the Agent of the Railway Company to remove trespassers from that place and he went and gave the plaintiff a slight push. He did not go through the formality of asking the plaintiff to go and waiting for his refusal before using physical forte. On these finding the lower Appellate Court has awarded the plaintiff damages amounting to 5 rupees. These findings must be accepted in second appeal, and on these findings we thick that the lower Court was perfectly right.

2. It is contended that these findings are insufficient for holding that the plaintiff was a trespasser. With that we cannot agree. The plaintiff's case on this issue is based on the facts that there was an implied permission to the public to go to the quarters of one Mr. Mookerjee which was on the Railway land. But it is found that there could be no reasonable claim on the part of the plaintiff that he had the right to take the route he did. It is strongly contended that either under Section 122 of the Railways Act or under the Civil Law there can be no trespass without an unlawful entry. We are unable to accept this pro position of law. Section 122 of the Railways Act has no application to the present case. Section 122 defines a specific criminal offence and has no bearing whatever on the rights of an occupier of land to eject trespassers therefrom. But even if unlawful entry were an essential element of trespass the finding we have just quoted amounts to a finding that the entry on this part of the Railway property was unlawful, that is to say, without the consent of the Railway Authorities.

3. As regards damages we think that on there findings it is absurd to contend that the plaintiff has a claim to anything beyond nominal damages. He has certainly not suffered in person, and although the learned Subordinate Judge who tried the case in tie first instance took a more favourable view of the plaintiff's case and held that he was not a trespasser yet be did not find the plaintiff suffered any loss of reputation. The case is one in which the plaintiff has cause of action owing to infringement of civil right but in which no real damage has been caused to him.

4. The last point taken in this appeal was the question of costs. Certain English cases Were sited and also the decision of this Court---Justin Hull v. Paull 58 Ind. Cas. 421 : 24 C. W. N, 352. This is a case of the Original Side of this Court. The practice in the Muffusil is that costs should depend on the remit of the case and it is usual when the suit partly succeeds for proportionate costs to be given. The important difference between cases in England and on the Original Side of this Court and cases in the Muffasil is that in cases in the Muffasil fonts are much more directly proportion's to the amount claimed In the present case we are unable to hold that the learned District Judge in following the usual practice in granting costs exercised an unsound discretion.

5. In the cross-objection it is urged that the mere fact that there was a notice forbidding trespass at the place where the plaintiff war, was sufficient to render any request to withdraw: unnecessary. That contention we are unable to accept. Before force is used even such plight force-as in the present case a trespasser must always be given an opportunity of withdrawing peaceably. It is further contended in cross-objection that the defendant should have been given full costs in the lower Appellate Court as be succeeded in reducing the damages awarded from Rs. 700 to Rs. 5. But for the same reason as we have rejected the appellant's contention as regards costs we reject the defendant's also.

6. We accordingly dismiss the appeal and disallow the cross objection. As both parties failed before us we make no order as to costs in this Court.


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