Thadani, J. -
(1.) THIS is a first appeal from the judgment and decree of the learned Subordinate Judge, Gauhati, dated 18 -8 -49, by which he decreed the plaintiff -respondents' suit for a sum of Rs. 14,000/ - (rupees fourteen thousand only) against the Appellant, the Dominion of India (now the Union of India).
(2.) THE plaintiffs brought a suit for the recovery of a sum of Rs. 17,701/ - as compensation for conversion by the B.A. Railway Administration of large quantity of earth - -some 1,16,675 cubic feet, which was alleged to have been dug and removed from the land belonging to the respondents and laid on the double Railway line of the B.A. Railway. It was the respondents' case that while they were absent from Gauhati, the B.A. Railway caused a large quantity of earth to be dug and removed from their land and had it placed on the permanent way, between January and April 1944 without the consent of the plaintiffs; on their return to Gauhati, they complained to the D. C. Kamrup, who directed the Requisition Officer, Gauhati, to satisfy himself in regard to their allegation; the Requisition Officer reported that 1,16,675 cubic feet of earth from the respondents' land had been dug and removed and recommended that a sum of Rs. 3,500 -4 -0 be paid to the respondents as compensation; the respondents, however, declined to accept this sum as, in their opinion, it was inadequate, and claimed compensation at the rate of Rs. 12/ - per hundred cubic feet, amounting to Rs. 14,001/ -, and a further sum of Rs. 3700/ - as loss of income at the rate of Rs. 100/ - a month from the 1st February 1944 to the 28th February 1947. In due course on 9 -12 -46, the respondents sent 3 notices under S. 80, Civil P.C. - -One addressed to the Governor General in Council, New Delhi, through the Deputy Director, Railway Board, another to the General Manager, B.A. Railway, Calcutta, and a third to the President, B.A. Railway Board, New Delhi. On the 12 -3 -47, the respondents brought the present suit.
(3.) IN the W.S. verified by the Dy. General Manager, B.A. Railway, Calcutta, he stated that he did not know who had dug and removed the earth from the respondents' land, and was not aware that the P.C. had made an offer of Rs. 3,500 -4 -0 to the respondents as compensation; even if he did he had no authority of the Railway Administration to make such an offer; in any case, the quantity of earth removed from the respondents' land was in the neighbourhood of 60,000 cubic feet, and not 1,16,675 cubic feet, as alleged by the respondents. He denied the claim of the respondents for the value of the earth removed and loss of income for a period of 37 months, and stated that in any case the respondents' claim was exaggerated and that the proper amount of compensation payable to them must be assessed at a rate not exceeding Rs. 30/ - per thousand cubic feet. Other defences to the suit apart from formal defences, taken were - -that it was barred by limitation; that the statutory notice was not served on the proper person; that the Union of India was not liable for the claim.;