MANGOBINDA SADHU Vs. KUMAR BRAHMA NIRANJAN CHAKRAVARTY; MURLIDHARI MARWARI

JUDGEMENT

(1.) The question in this appeal is whether defendants Nos. 1 to 7, who for the sake of convenience may be called the Sadhu defendants and who are the appellants before us, are liable for the wrongful extraction of coal by their lessees, defendants Nos. 8 and 9, who may be described as the Marwari defendants: in other words whether the Sadhus are liable as joint tortfeasors with the Marwaris.

(2.) The facts are these. In the year 1261 Fasli being 1854, the plaintiffs granted a palni lease to the predecessors of the defendants, of whom the Sadhus are the successors, of Mauza Palasthali appertaining to taluk Kendua Kasta in parganah Kundahit Kareya bearing tauzi No. 551 of the Santal Parganahs. In the year 1915 the plaintiffs commenced an action against the Sadhus claiming a declaration of their rights to the minerals and a permanent injunction restraining the Sadhus from working the coal, which it appears they had been doing. This action after a varied history was ultimately decided by the Subordinate Judge in 1924, granting the declaration and the injunction prayed for; an appeal to the High Court by the defendants failed in 1928. Whilst this action was pending, the Sadhus in the year 1921, granted mining rights to the, Marwari defendants, and in this action, the Sadhus filed a petition to the Court praying that the Marwari defendants should be joined. This prayer was refused and in 1929 the suit out of which this appeal arises was commenced against the Sadhus and on April 1, 1930, at the instance of the plaintiffs, the Marwaris were joined as party defendants. Their claim in this action was for an account to ascertain the amount of coal cut and wrongfully taken away from the Mauza, during the period from August 6, 1926, till March 31, 1929, the date upon which they ceased working. The Judge granted a decree against the defendants for a sum of Rs. 15,030; a decree as against the Sadhu defendants for a sum of Rs. 4,028 for the period from August 6, 1926, till March 31, 1927, holding that the Marwari defendants were not liable for this amount, as they were not joined until April 1, 1930. The Judge held that as regards the balance that is to say, Rs. 11,002 all the defendant, were liable jointly and severally. Interest was also awarded from the date of the decree till realization.

(3.) But in this appeal we are not concerned with the quantum of damages. The only question is whether the Sadhus could be held liable for Rs. 4,028 and for the balance of Rs. 11,002. It is the Sadhus contention that they did not themselves extract the coal(which is a face)and that they are not liable for the acts of their Sub-lessees, the Marwaris. As regards this question, the learned Judge in the Court below has held the Sadhus to be joint tort feasors with their Sub-lessees, and, for the purposes of this decision has relied upon the terms of the Sub-lease between the Sadhus and the Marwaris. The Sub-lease, as I have said, was granted pendente lite; the premium paid by the Marwaris was Rs. 33,000 and a sum of Rs. 1,500 per annum was reserved as the minimum royalty. There were certain other benefits under the Sub-lease accruing to the Sadhus, but with those we are not concerned. In the lease, the facts of the litigation, which I have stated was commenced in 1915, was recited, and, under the lease the Marwaris had agreed to bear all the expenses of the case and to conduct an appeal up to the Privy Councils the Sadhus being bound to render all assistance to the Marwaris in the matter. It was agreed that if the litigation failed, there should be a refund of the premium of Rs. 33,000. As the learned Judge has pointed out, by the terms of the lease the Marwaris were bound to work the coal and the wrongful extraction of the coal was bound to continue. The Sadhus, if they had called upon the Marwaris to stop work after the injunction had been granted, would have been liable to return the premium and of course would not, in those circumstances, receive their minimum royalty; on the other hand, the Marwaris felt constrained to go on in order to recoup themselves as far as possible the premium which they had paid for the right of extracting the coal.