Patna High Court
Hemendra Lal Roy And Ors. vs Indo-Swiss Trading Co. Ltd. And Ors. on 10 May, 1955
Equivalent citations: AIR1955PAT375, AIR 1955 PATNA 375
JUDGMENT
1. In order to appreciate the points raised in this appeal, it is better to narrate some of the salient events preceding the institution o£ the present suit. One Haro Lal Saha Roy of Calcutta died leaving behind His widow Sarla Sundari Roy and three sons, Hemendra Lal Roy, Jitendra Lal Roy and Nripendra Lal Roy (present defendants 1 to 3 hereinafter referred to as Roy brothers). Haro Lal Saha Roy left, amongst other properties, a house at Giridih known as Bishram Kutir. The Roys had ancestral family business known and styled as Firm Lalji Mohan Haro Lal Saha Roy. After the death of their father Roy brothers started at 34 Sobhabazar Street, Calcutta, a firm styled as Messrs. Lalji, and Co. (defendant 4). On 14-1-1928, Messrs. Lalji and Co. applied to the Government of Bihar for grant of licence to supply electric energy at Giridih and Pachamba.
Thereafter followed some correspondence between the Secretary to the Government of Bihar on the one hand and Messrs. Lalji and Co. on the other in which at the enquiry of the Government of Bihar as to how the latter proposed to run the undertaking Roy brothers replied that they intended to float a limited liabiliity company the shares of which would be subscribed by them and some of their friends and relations, and, if necessary, they would finance the limited liability company to enable it to run the undertaking. Eventually, on 9-7-1929, the Governor of Bihar and Orissa in Council was pleased to grant to Roy brothers carrying on business in partnership in the name and style of Messrs. Lalji and Co., at 34 Sobhabazar Street, Calcutta, the licence for the supply of electric energy within the limits of the town of Giridih as described in Clause 4 of the license. Soon after the grant of the license Messrs. Lalji and Co. floated a limited liability company which was named and styled as "The Giridih Electric Supply Corporation Limited" (hereinafter called the Corporation for the sake of brevity) with its registered office at Giridih for the supply of electric energy at Giridih under the license originally granted to Roy brothers.
It was clearly and specifically mentioned in the prospectus of the Corporation that the license granted to Roy brothers would be worked by the Corporation and that Messrs. Lalji and Co. would be appointed the managing agents of the Corporation. Thereafter, on 14-9-1929, two agreements (Exs. 8 and 23) were entered into between the Corporation and Messrs. Lalji and Co. Exhibit 8 dealt with the appointment of Messrs. Lalji and Co. as managing agents of the Corporation and Ex. 23 dealt with the provisions for carrying out and executing all the compulsory works for the supply of electric energy at Giridih. Messrs. Lalji and Co. as the managing agents of the Corporation placed orders for the supply of electric equipments with the International General Electric Company and British Insulated Cables Limited. They, in their capacity of being managing agents, executed several promissory notes on behalf of the Corporation for the unpaid price of those equipments. Roy brothers and Messrs. Lalji and Co., also guaranteed the due payment of the dues under the aforesaid promissory notes. The plants, machineries and transmission lines etc. were thus procured and Set. up and the power house and other necessary structures were built and the supply of electric energy was commenced under the license granted to Roy brothers.
2. On 24-6-1932, the British Insulated Gables Ltd. instituted Suit No. 1428 of 1932 before the Calcutta High Court for realisation of the unpaid price of the electric equipments supplied to the Corporation. In that suit the Corporation was made defendant 1 and Roy brothers were made defendants 2 to 4. This suit was decreed on compromise on 22-8-1932, against all the defendants. On 18-1-1933, the International General Electric Co. also instituted Suit No. 218 of 1933 before the Calcutta High Court against the Corporation, Messrs.
Lalji and Co. and Roy brothers for realisation of the unpaid price of the electric goods and equipments supplied to the Corporation. This suit was also decreed on 10-3-1933, against all the defendants. On 12-9-1933, Messrs. Lalji and Co. resigned from the managing agency of the Corpo-ration and the resignation was accepted on 16-9-1933. On the same date Lalji and Co. Ltd., were appointed managing agents of the Corporation.
On the application of the British Insulated Cables Ltd. Roy brothers, carrying on a partnership business in the name and style of Messrs. Lalji and Co., were adjudged insolvents on 17-7-1934, by the Hon'ble Judge in charge of the insolvency matter before the Calcutta High Court. The Official Assignee appointed by the Calcutta High Court thereafter authorised Mr. Nripendra Lal Roy, one of the three Roy brothers, to carry on the business of Messrs. Lalji and Co. at Giridih. As the Corporation also could not meet the demands of their creditors an application was filed before the Patna High Court for its liquidation. On 20-8-1935, the Company Judge of the Patna High Court passed the winding up order. On 6-9-1935, one Mr. B. Gupta was appointed the official liquidator. On the application of the official liquidator the official assignee decided that the power house, plants, machineries etc. described in Annexure A attached to the present plaint were properties of the Corporation and released them all in favour of the official liquidator.
On 25-6-1938, the Government of Bihar granted sanction to the official liquidator to supply electric energy at Giridih under Section 28, Electricity Act. On 2-8-1938, a conditional order of discharge of Roy brothers was passed by the Calcutta High Court. On the application of the official liquidator the Company Judge of the Patna High Court passed an order on 5-1-1940, that the official liquidator do take possession of the undertaking at Giridih. Roy brothers thereafter filed Letters Patent Appeal No. 1 of 1940 against the order of the Company Judge directing delivery of possession to be given to the official liquidator. On 12-1-1940, the official liquidator took possession of the electric undertaking at Giridih. On 9-5-1940 Letters Patent Appeal No. 1 of 1940 was allowed. Roy brothers thereafter filed an application before the Company Judge of the Patna High Court for restitution of possession.
On 16-8-1940, the learned Company Judge of the Patna High Court refused the application of Roy brothers for restitution of possession. On 4-9-1940, they filed Letters Patent Appeal No. 26 of 1940. On 15-8-1941, Indo-Swiss Trading Co. Ltd. (the present plaintiff) purchased at an auction sale the right, title and interest of the Corporation in the electric undertaking at Giridih in pursuance of the order of the Company Judge of this Court. On 3-12-1941, the Government of Bihar granted sanction under Section 28, Electricity Act to the present plaintiff for the supply of electric energy at Giridih. On 8-12-1941, the present plaintiff got possession of the electric undertaking at Giridih. On 26-10-1943, Letters Patent Appeal No. 26 of 1940 was allowed and Roy brothers were held to be entitled to restitution o£ possession. The learned judges who decided the Letters Patent Appeal were, however, pleased to postpone the delivery of possession for three months to enable the official liquidator, who was respondent in that appeal to bring an action if so advised. On 30-12-1943, the Corporation through its official liquidator executed a formal registered deed in favour of the plaintiff.
3. On 10-1-1944, the plaintiff instituted the present suit in which it impleaded as defendants Roy brothers, Messrs. Lalji and Co., Messrs. Lalji and Co. Ltd., the official assignee of Calcutta and the Giridih Electric Supply Corporation Ltd., in liquidation. The suit properties were described in schedules 1, 2 and 3 of annexure A attached to the plaint. Schedules 1 and 2 included as described in the plaint, moveable and immoveable properties appertaining to the Corporation before the auction sale in favour of the plaintiff. Schedule 3 consisted of additions, alterations and improvement to the undertaking made by the plaintiff thereafter. The plaintiff prayed for a declaration of its title to and confirmation of its possession over the suit properties and for permanent injunction restraining defendants 1 to 5 or their servants and agents from taking possession of the said undertaking and its assets or otherwise interfering with plaintiff's possession.
4. The suit was contested by Roy brothers and Messrs. Lalji and Co., defendants 1 to 4, who filed a joint written statement. According to these defendants, they were really the owners of the suit properties. They further stated that the plaintiff had omitted to include in the present suit a number of properties which formed part of the Giridih Electric undertaking. They give a list of these properties in Schedule A attached to their written statement. They pleaded that by a resolution dated 16-9-1933, the Board of Directors of the Corporation had sold their assets to Lalji and Co. They further pleaded that even if the properties in suit be held to have at one time belonged to the Corporation, its title had been extinguished by lapse of time, and, as such, the plaintiff who had purchased the right, title and interest of the Corporation is not entitled to any relief. They further asserted that they could not be permanently restrained from taking possession of the electric undertaking at Giridih which is the subject-matter of the present dispute. They also pleaded that the present suit is barred by limitation.
5. Defendant 7, the Corporation, through its official liquidator, filed a written statement supporting the claim of the plaintiff.
6. The learned Subordinate Judge who heard the suit ultimately decreed it in favour of the plaintiff in respect of the properties mentioned in annexure A, Schedules 1 and 2 to the plaint. He, however, did not decide the question of title with respect to the properties mentioned in annexure A, Schedule 3 to the plaint as the plaintiff did not press his claim with respect to those properties in the present suit. The learned Subordinate Judge passed an order permanently restraining defendants 1 to 4, their servants and agents, from taking possession of the undertaking and assets including lands. Defendants 1 to 4 have therefore, come up in appeal before this Court.
7. Learned Counsel for the appellants attacked the title of the plaintiff on various alternative grounds. In the first place, he submitted that the properties mentioned in annexure A, Schedule 2 to the/plaint, which formed part of the electric undertaking at Giridih really belonged to his client as having been purchased by them. In our opinion, this contention is without any substance.
(Their Lordships discussed the evidence on the point arid proceeded):
8.-15. Oh consideration of the evidence on record and the facts and circumstances mentioned above, we agree with the trial Court that the properties in dispute described in Schedule 2 of Annexure A to the plaint were acquired by and belonged to the Corporation.
16. Mr. Mukherji contended, in the alternative, that if by the agreement, Ex. 23, the undertaking was agreed to be the property of the Corporation, then that agreement was void within the purview of Section 9(2) and (3), Electricity Act. Section 9 of the Act runs thus:
"(1) The licensee shall not, at any time without the previous consent in writing of the State Government, acquire by purchase or otherwise, the license or the undertaking of, or associate himself so far as the business of supplying energy is concerned with any person supplying, or intending to supply, energy under any other license, and, before applying for such consent, the licensee shall give not less than one month's notice of the application to every local authority, both in the licensee's area of supply and also in the area or district in which such other person supplies, or intends to supply, energy:
Provided that nothing in this sub-section shall be construed to require the consent of the State Government for the supply of energy by one licensee to another in accordance with the provisions of Clause IX of the schedule.
(2) The licensee shall not at any time assign his license or transfer his undertaking, or any part thereof, by sale, mortgage, lease, exchange or otherwise without the previous consent in writing of the State Government.
(3) Any agreement relating to any transaction of the nature described in Sub-section (1) or Sub-section (2), unless made with, or subject to, such consent as aforesaid, shall be void."
He submitted that without sanction of the Government of Bihar, Lalji and Co. had no authority to assign their interest in the undertaking in favour of the Corporation, and if they did so by the agreement Ex. 23, then that agreement is void. In, our view the arrangement between the Corporation and the licensee did not attract the operation of Section 9 (2) and (3) of the Act. Section 9(1) of the Act does not debar a licensee's association in the business of supplying energy with a person who intends to supply electric energy under the same license. In fact, it had been brought even to the notice of the Government so far back as 17-4-1929, as is clear from Ex. 7(1) that the undertaking would be run by the Corporation under the same license, and defendants 1 to 4 would finance the Corporation if necessary. The arrangement, therefore, between the Corporation and the licensee by which the former was required to purchase all the necessary equipments and to erect the power house and other structures in order to supply electric energy under the license granted to the Roy brothers was not void. In fact, this arrangement had been communicated to the Government of Bihar by Mr, Mukherji's client themselves in their letter Ex. 7. In our view the owning of the properties mentioned in annexure A, schedule 2 of the plaint, by the Corporation was not in contravention of any of the mandatory provisions of the Electricity Act.
17. Mr. Mukherji next contended that the Corporation lodged a claim before the official assignee in respect of the money spent by it in setting up the electric undertaking at Giridih through Mr. S. C. Chaudhary on 4-3-1935, and in that view of the matter even if Schedule 2 properties were acquired at its cost and expenses, it was entitled only to get that amount from the assets of the insolvents, and not to claim ownership in those properties, which, according, to him, had already vested in the official assignee. In this connection he referred to us resolution No. 2 passed by the Board of Directors in their meeting on 2-9-1934, which ran thus :
"(2) Resolved that opinion of a sound lawyer be taken and the legal aspect regarding the Licensees and the Government's power under the Indian Electricity Act and the Companies Act as to how the undertaking, can be saved be sent to the Government Electric Inspector and the Secretary to the Government of Bihar and Orissa and the Chief Engineer of the Company do see the said Government Inspector and the Secretary without delay. The Secretary of the company in his capacity as a lawyer do help the Managing Agents in this matter."
Mr. Mukherji placed before us in this connection Exs. Y and R. He submitted that in pursuance of the above-quoted resolution Mr. S. C. Chaudhary, who was the Secretary of the Corporation had pressed for payment to the Corporation the sum of Rs. 2,14,666-12-6 representing the money advanced to the insolvent to purchase the machinery etc., of the undertaking. The Court below has held that Mr. S. C. Chaudhary had no authority to make the claim, and that he did it in collusion with the insolvents. It becomes, therefore, necessary to see whether Mr. S. C. Chaudhary had in fact power to prefer this claim in the insolvency proceeding on behalf of the Corporation. (Their Lordships considered the material evidence and concluded:).
18. Thus, it is clear that Mr. S. C. Chaudhary had no authority to prove any debt on behalf of the Corporation in March, 1935, when Ex. Y was filed and in June, 1935, when Ex. R was filed in the insolvency proceeding pending before the Original Side of the Calcutta High Court.
19. Mr. Mukherji next contended that the electric undertaking at Giridih will be deemed to have vested in the official assignee by virtue of the provisions of Section 52(2)(c), Presidency Towns Insolvency Act which runs thus :
"(2) Subject as aforesaid, the property of the insolvent shall comprise the following particulars namely,
(c) All 'goods' being at the commencement of the insolvency in the possession, order or disposition of the insolvent, in his trade or business by the consent and permission of the true owner under such circumstances that he is the reputed owner thereof."
In our opinion, the electric undertaking at Giridih consisting of power house, other structures, plants and machineries, transmission lines etc. which were really fixtures cannot be called "goods" within the meaning of Section 52(2)(c), Presidency Towns Insolvency Act. This was also the view of their Lordships of the Bombay High Court in the case of -- 'N. C. Macleod v. Kikabhoy Khushal', 25 Bom 659 (A). Hence, the undertaking will not be deemed to have vested in the official assignee according to the provision of Section 52(2)(c), Presidency Towns Insolvency Act, and in fact the official assignee also was of the view that it had not vested in him as appears from Ex. 7(b).
20. In reply to this argument of Mr. Mukherji, learned Counsel for the plaintiff, has rightly contended that this question of reputed ownership had not been pleaded in the written statement filed by defendants 1 to 4. Nor was any issue raised on this point with the result that the parties had not led any evidence in this connection, and that no argument on this point was advanced before the trial Court. He urged that in this view of the matter the appellants should not be permitted to raise this point for the first time before this Court. In our opinion, the objection taken by Mr. Dutt to the raising of this new point is not without substance; but even if this point be available to the appellants, it is clear that the properties included in, Schedule 2 of the plaint were not under the reputed ownership of defendants 1 to 4.
In Ex. 7, a letter written by the appellants themselves on 18-8-1932, the properties in question were admitted to have been acquired by the Corporation. Since the time of the erection of the power house etc. the compound of Bisram Kutir was divided into two holdings. From the assessment register of the Giridih Municipality, Ex. 17(a), it appears that the holding containing the power house was recorded in possession of the Corporation. This is clear with reference to the original municipal papers on record, Ex. 17(a) and other connected papers. From Ex. 3 to 3(j) also it appears that the municipality always treated the Corporation as the occupier of the new holding No. 229 on which the power house stood. From papers available on the record it transpires that the Corporation was reputed to be the owner of the undertaking. But as we have already said, that this point cannot be permitted to be raised for the first time in appeal, it is not necessary to deal with this matter any further.
21. Mr. Mukherji next contended that the title of the Corporation, if any, in the plant and machineries etc. had been extinguished under Section 28, Limitation Act long before the date of the auction sale in favour of the present plaintiff and the date of the institution of the present suit. According to him, the suit for their possession was governed by Article 49, Limitation Act which runs as follows :
"For other specific moveable property, orwrongfully taking or injuring or wrongfully detaining the same.
Three years When the property is wrongfully taken or injured or whea the detainer's possession becomes unlawful."
Well, until the power house is dismantled, the machineries etc. which are fixed to the earth are uprooted and until the buildings are demolished the material with which they were constructed cannot be called 'movable property'. Even up to this date the undertaking, which consists of the power house and other connected buildings, plants and machineries, supply mains and lines etc. which are really fixtures, is functioning as one unit. "Movable" "immovable property" has not been defined in the Limitation Act, but in the General Clauses Act (Act 10 of 1897) "immovable property" has been defined in Section 3(25) of that Act in the following way:
" 'immovable property' shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth."
In Section 3(34) of that Act "movable property" has been defined thus:
" 'movable property' shall mean property of every description, except immovable property."
Thus from the definition of "immovable property" quoted above, it is clear that the undertaking is akin to 'immovable property' rather than to 'movable property' and any suit for its possession would not be governed by Article 49, Limitation Act. On the contrary, such a suit would be governed by Article 144, Limitation Act. We have, therefore, to see as to when did the possession of the defendants 1 to 4 become adverse to the plaintiff. From a resolution passed-by the Board of Directors in their meeting held on 21-5-1931, it appears that Mr. N. L. Roy was appointed the Chief Engineer of the. Corporation to be in sole charge of the power house, plants, service lines and the supply of current etc. Thus, the control of the undertaking by Mr. N. L. Roy, who was also one of the partners of the firm Messrs. Laiji & Co., the managing agents of the Corporation, commenced in his capacity as the Chief Electrical Engineer of the Corporation.
The earliest evidence of hostile attitude taken by Roy brothers, according to Mr. Mukherji, was furnished by the letter Ex. Q(1), dated 3-10-1935, but the authenticity of this letter has not been established. According to Mr. Mukherji, the evidence of hostile attitude was also furnished by letters Ex. 7z(2) dated 11-2-1939, and Ex. 7z(3) dated 15-2-1939; but counting from those dates the title of the corporation was not extinguished either on the date of the auction purchase by the plaintiff or on the date of the institution of the present suit.
22. It appears that as in the plaint the properties mentioned in Schedule II have been described as movables. Mr. Mukherji maintained that Article 49, Limitation Act would have applied, in a suit for, possession of such articles. But even if it be held that Article 49, Limitation Act applied, the period of limitation would commence from the time when the possession of the defendants 1 to 4 becomes unlawful. A permissive possession can become unlawful only when the demand for possession is refused as was held in the cases of -- 'Gopalasami Ayyar v. Subramania', 35 Mad 636 at p. 638 (B); -- 'Kuppuswami v. Pannalal', AIR 1942 Mad 303 (C); -- 'Leddo Begam v. Jamal-Ud-Din', AIR 1920 All 353 (2) (D) and -- 'Ma Mary v. Ma Hla Win', AIR 1925 Rang 146 (E). The earliest hostile attitude was expressed by Mr. N. L. Roy in his letter Ex. 7z(3) dated 11-2-1939, when he refused to hand over the undertaking to the official liquidator. Counting from that date a suit for possession by the Corporation could have been instituted by 11-2-1942; but before that date the official liquidator had succeeded in getting possession of the undertaking on 12-1-1940.
After this; it was not necessary for the Corporation to institute any suit for recovery of possession until it was subsequently dispossessed. The period of limitation for bringing a suit for possession will, in that event, commence from the date of the subsequent dispossession as was held in the cases of -- 'Protap Chandra Chatterjee v. Durga Charan Ghose'. 9 Cal WN 1061 (F) and -- 'Girish Chandra Pal v. Baikuntha Nath', AIR 1925 Cal 270 (G). The decision in the case of -- 'Narayan Chetty v. Kannammai Achi', 28 Mad 338 (H), relied upon by Mr. Mukherji is of no assistance on this point. That case really decided whether the period occupied by a suit which ultimately proved infructuous could be excluded under Section 14, Limitation Act. In our opinion, the title of the Corporation was not extinguished either on the date of the auction purchase by the plaintiff or on the date of the institution of the present suit. The point of limitation raised by Mr. Mukherji must also be decided against the appellants.
23. We have next to consider the argument of Mr. Mukherji that the plaintiff was not entitled to a grant of permanent injunction against defendants 1 to 4. According to him, the plaintiff had cleverly claimed this relief so that defendants 1 to 4 may not get the restitution order passed by the Patna High Court enforced. The injunction order, according to Mr. Mukherji, would operate to stay the restitution proceedings arising out of the Company Act case pending before the High Court which is not subordinate to the trial Court. He urged that Section 56 (b), Specific Relief Act was a bar to the grant of such a relief.
24. In our opinion, there is no force in this contention of Mr. Mukherji. The restitution order passed by the Patna High Court in Letters Patent Appeal No. 26 of 1940 (Ex. 12-c was based on the judgment and order passed by that Court in Letters Patent Appeal No. 1 of 1940 (Ex. 12-a). Letters Patent Appeal No. 1 of 1940 arose out of an application made by the official liquidator to get possession of the undertaking in question. On that occasion in a summary enquiry it was held that the official liquidator had failed to bring the case within the provisions of Section 185, Companies Act. But in spite of such an order the Corporation was entitled to file a regular suit for declaration of its title and for confirmation of its possession. In fact, such a right was hinted to even in the judgment in Letters Patent Appeal No. 26 of 1940 (Ex. 12-c). In our view, in face of the decree passed in favour of the plaintiff of this suit for declaration of its title and confirmation of possession defendants 1 to 4 will not be entitled to enforce the restitution order, The intention of the Plaintiff is, therefore, to restrain defendants 1 to 4, their servants and agents from interfering with the possession of the plaintiff. The Court below has on the strength of the decision in the case of -- 'Sheo Nandan Prasad v. Sheo Parsan Pathak', AIR 1942 Pat 349 (I), granted to the plaintiff the relief for permanent injunction. We respectfully agree with the view taken by the learned Judges in the case of 'Sheonandan Prasad (I)', mentioned above and we also hold that Section 56, Specific Relief Act is no bar to the grant of this relief to the plaintiff. Admittedly, the right, tide and interest of the plaintiff has now been purchased by the Government of Bihar during the pendency of this litigation and the Bisram Kutir with its compound has also been acquired by the State Government under the Defence of India Act. Thus, after the acquisition of the Bisram Kutir, defendants 1 to 4 nave no right to go upon the land and interfere with the possession of the State of Bihar which has now stepped into the shoes of the plaintiff.
Mr. Mukherji had submitted that the acquisition by the State of Bihar under the Defence of India Act was void as it had been resorted to simply cripple his clients in their stand against the present plaintiff. In support of his contention Mr. Mukherji "relied on the decision in the case of --'Lahore Electric Supply Co. Ltd. v. Province of Punjab', AIR 1943 Lah 41 (FB) (J). In our view, the facts and circumstances of the present case are different from those of that case. We are satisfied that the State Government has purchased the right, title and interest of the present plaintiff and has acquired the Bisram Kutir and the land surrounding it in the interest of the public and not to whittle down any litigation pending between the present plaintiff and defendants 1 to 4. In our Opinion, defendants 1 to 4, their servants and agents have been rightly restrained permanently from interfering with me possession of the plaintiff. (Their Lordships on consideration of the facts and circumstances held that the power house building was erected at the cost of the Corporation and it was its legal owner. Their Lordships proceeded:)
25.-26. The question relating to the land on which the power house stands, is not free from difficulty. The Board of Directors of the Corporation in their second meeting dated 25-11-1929, resolved to take lease of 3 bighas of suitable land out of the land and premises known as Bishram Kutir from Roy brothers and Messrs. Roy Choudhury & Co. were asked to prepare a draft lease for being placed before the Board at the next meeting. A draft lease was placed before the Board of Directors the fourth meeting dated 17-5-1930, and it was resolved that the copies of the lease be circulated to the Directors and the same be placed before the Board at the nest meeting. In their fifth meeting dated 21-7-1930, the Board of Directors passed a resolution for the execution of the lease as drafted by Messrs. Roy Choudhuri & Co. with certain additions and alterations and Mr. S. C. Choudhuri was authorised to execute the lease on behalf of the Corporation.
Item No. 8 of the agenda of the ninth meeting, of the Board of Directors was with regard to the completion of lease of the land at Giridih, but in the meeting which was held on 22-5-1931, this item of the agenda was withdrawn as being unnecessary. We thereafter do not find any mention about the lease in the subsequent meetings of the Board of Directors of the Corporation. The lease itself is not on the record of the case, and there is no satisfactory evidence to prove that actually a lease was executed. There is, however, an admission of Messrs. Lalji & Co. in their letter Ex. 7, referred to above, that the Corporation took a lease of certain land in Barganda in the town of Giridih and erected a power house building thereon. In this connection Mr. Dutt appearing for the plaintiff-respondent has drawn our attention to the deposition of Mr. Hemendra Lal Roy, one of the appellants, Ex. 18, referred to above, in the insolvency case wherein he made the following statements :
"The electric plant at Giridih was erected on a plot of land which my mother got from my father under his will. That will has been proved. Giridih-Electric Company erected the power house on the land with the permission of the landlady. There was no lease. There was nothing in writing. The permission was oral. I was then the managing director of the Giridih Electric Company & a partner of Lalji & Co., the managing agents of Giridih Electric Co. I and Mr. Roy Chowdhury another director approached my mother and obtained her permission. She is getting a rent of about Rs. 25/-to Rs. 30/- per month. In the properties of Giridih Electric something was said about the land on which the power house was erected. I do not remember it was said that there was a lease. I do not remember if it was said that the land had been acquired. I do not remember if it was said that the land had been acquired on a lease for 99 years."
In the absence of the lease from the record and of any explanation for its non-production, it will not be safe to rely on such admissions alone to hold that actually a lease was executed by Roy brothers in favour of the Corporation.
27. Mr. Dutt, however, has argued that the occupation by the Corporation of the land in suit coupled with the erection of a power house by it with the permission of the appellants tantamounted to a lease and the Corporation will be deemed to be a yearly tenant. Learned counsel for the parties have cited before us various authorities for and against this contention. Mr. Dutt, however, has informed me that as the State of Bihar has subsequently acquired the land in question and purchased the right, title and interest of the plaintiff in the undertaking, it was not necessary for him to press the plaintiff's claim to the land in question. He has also informed us that the plaintiff had not claimed nor does he claim now in the present appeal any compensation in respect of this land which has been awarded to others including Roy brothers. In this view of the matter, the discussion of the various authorities cited before us in this respect is only academic. We, therefore, do not propose to deal with this matter any further in this appeal.
28. Mr. Mukherji contended that we are not entitled to take into consideration the subsequent acquisition of Bishram Kutir and its surrounding lands by the State of Bihar and its purchase or the right title and interest of the plaintiff in the properties in suit. He ugred that this Court is bound to decide the appeal on the basis of the position occupied by the parties on the date of the institution of the present suit. We agree with Mr. Mukherji that that is the general rule, but in exceptional cases, in order to do justice in the case and to shorten litigation, Courts can take into consideration subsequent events also.
By consent of parties Miscellaneous Appeal No. 82 of 1949 has been heard along with this First Appeal No. 60 of 1947. Miscellaneous Appeal No. 82 of 1949 arose out of the Land Acquisition proceeding in which Bishram Kutir with its surrounding land was acquired by the State of Bihar. The present defendants 1 to 4 have not challenged the validity of the acquisition proceeding. On the contrary, they have admitted its validity by claiming compensation under it. The State of Bihar has been added as a respondent on the basis of its having purchased the right, title and interest of the plaintiff during the pendency of this First Appeal. These facts cannot be ignored.
29. It may also be mentioned that the trial Court had disbelieved the witnesses examined by defendants 1 to 4. Learned Counsel for the appellants has not attempted to challenge the view taken by the Court below regarding the witnesses for the defendants. Mr. Mukherji has based his argument on documents only. It is, therefore, not necessary for us to discuss at length the oral evidence in the case.
30. The result is that the judgment and the decree of the Court below regarding the title and possession of Indo-Swiss Trading Company Ltd. with respect to the power house, tanks, etc. standing on the land mentioned in annexure A, Schedule 1 of the plaint and regarding its title and possession over the properties mentioned in Schedule II of the plaint is confirmed. But, in view of the fact that Mr. Dutt did not press the claim of the plaintiff with respect to the land mentioned in schedule I, annexure A, as being its yearly tenant on account of its having been acquired by the State of Bihar, it is not necessary in this appeal either to confirm or set aside the decree of the lower Court with respect to the said land. Any decree with respect to this land will be inexecutable as neither the plaintiff nor the appellants can go to take possession over it.
The dispute between the plaintiff and the appellants with respect to the said land will be deemed to have come to an end in this litigation. The decree for issue of permanent injunction passed by the Court below in respect of the electric under taking at Giridih with its assets is also confirmed.
Thus, subject to the modification with regard to the question of title to the land as stated above, the appeal fails and is dismissed. In the circum stances of this case, however, the parties will bear their own costs of this Court.