Patna High Court
Ambalal Khora And Anr. vs Bihar Hosiery Mills, Ltd. And Ors. on 6 May, 1937
Equivalent citations: 172IND. CAS.19, AIR 1937 PATNA 657
JUDGMENT
1. This appeal is by the defendants and arises out of an action in which the plaintiffs claimed damages against the defendants for working their colliery in such a manner as to cause the surface to subside. The learned Judge in the Court below has decided the case in favour of the plaintiffs but allowed damages to the extent of Rs. 61, 349-13-3 only out of a total claim of Rs. 1,09,500. The plaintiff is a company in liquidation engaged in the manufacture of hosiery, the factory being situate on survey plots Nos. 458, 463, 465 and 467. The proprietor of the land and of the colliery interest was the Jharia Raj. In August 1895, the coal mining rights were demised to one Bhoja Dhanji. The patta was in respect of coal mining rights in plots Nos. 458 and 463 which were 135 bighas in area under villages Fatepur and Jharia. Another 6 bighas were demised to the same person in June of 1901. In 1901 and 1902 Bhoja Dhanji sold 45 bighas to one P. D. Hamid and Gangi Dosha and 2 1/2 bighas to the said P. D. Hamid; the remaining 93 1/2 bighas were transferred by a deed dated November 17, 1902 to Khora Ramji deceased who was the father of defendants Nos. 1 to 3. There was an exchange in 1911 between Khora Ramji and the Jharia Raj under which Khora Ramji got 12 1/2 bighas in exchange for 12 1/2 bighas out of 93 1/2 bighas held by him. But in the meantime on January 17, 1923, Khora Ramji acquired mineral rights with regard to an additional 32 bighas. The subsided area is confined to about 3 acres of which plots Nos. 458 and 463 have completely subsided and plot No. 465 has subsided in part. Plot No. 467 has not sunk. The plaintiffs acquired the surface rights by a registered deed (Ex. 2-h) from persons described as the Bauris and Malliks who were labourers.
2. It has been one of the contentions of the defendants that the plaintiff had no title to the land and that, therefore, the present action is not maintainable. The Record of Rights describes the predecessors-in-title of the plaintiffs as persons in possession rent-free, and it is the finding of the learned Judge in the Court below that there is nothing on the record which would indicate that the Bauris and Malliks had not such a permanent" interest. The Judge in the Court below has entered into a some what elaborate examination of this point and has come to a conclusion in favour of the plaintiffs. It is true that the Record of Rights is not conclusive of the title of the predecessors of the plaintiffs, but in the absence of any evidence on the part of the defendants, especially with regard to any objection on the part of the Jharia Raj, in my judgment the plaintiffs have disclosed a sufficient title to enable them to claim damages in this suit if they have otherwise established their right.
3. There is no dispute about the subsidence, and apart from the question with which I have already dealt, the case was confined in the Court below and in this Court to the, question whether defendants Nos. 1 and 2 were liable in damages to the plaintiffs. The facts as regards the position of the defendants are as follows : The father of defendants Nos. 1, 2 and 3 died in the year 1923, Defendants Nos. 1 and 2 were born in 1916 and 1918 and were, therefore, minors at the time of the death of their father. As far back as 1908 defendant No. 3 separated from his father, and it was the contention of defendants Nos. 1 and 2 that neither defendant No, 3 nor defendants Nos. 4 to 9, who claimed at one time to have been partners in respect of a 10 anna share in the colliery business with the defendants father, had any interest in or in connection with this colliery. This has been accepted by the Judge in the Court below and now no question arises as to this. When the colliery business was started, it appears as I have stated that defendants Nos. 4 to 9 were share-holders to the extent of 10 annas, and of the remaining six annas share of the father, two annas were given to defendant No. 3. In February 19215, this two annas snare was sold to the mother of defendants Nos. 1 and 2 as their guardian and again in 1927 the share of defendants Nos. 4 to 9 was purchased by defendants Nos. 1 and 2. At the time of the action defendants Nos. 1 and 2 owned the 16 annas interest in the colliery by reason of these purchases and the death of their father in 1923. In these circumstances the liability of defendants Nos. 1 and 2 alone arises.
4. In the written statement it was averred that the colliery under the land in question had not been worked for about 10 or 12 years. The action having been brought in 1930, that would mean that no work had been done since about ly20. Expert and other evidence has been called and the result has been that the learned Judge in the Court below has held that the working of the colliery which caused the subsidence was prior to 1923, the date of the death of the defendants' father. It is as a result of that finding (which is not disputed in this Court ) that the question of the liability of defendants Nos. 1 and 2 arises. In addition to the above finding the Judge in the Court below Has hold that the pillars which were left to support the surface were at the time thought to be sufficient but proved to be insufficient, and that even if small quantities of coal were taken subsequently from the pillars, such working was insignificant and insufficient to contribute to the subsidence.
5. This being the case and it being thus established that the working which caused the subsidence was done in the life-time of the father of defendants, and not during the time in which the defendants were in possession, it was contended on their behalf, both in the Court below and in this Court, that they could not be held liable for damages. There is no contention on their behalf that the absence of any evidence that the working was negligent in any way assists them as it is admitted that the owner of the surface has a right to support, but the nature of that right is questioned. Nor is it contended that the weight of the buildings erected by the plaintiffs caused the subsidence. Leaving for the moment the question whether the defendants, although minors at the time, but being members of a joint Hindu family are liable as such, it is contended by the defendants on the authority of the cases in Greenwell v. Low Beechburn Coal Co. (1897) 2 Q.B. 165 : 66 L.J.Q.B. 643 : 76 L.T. 759 and Hall v. Duke of Norfolk (1900) 2 ch. 493 : 69 L.J. Ch. 571 : 82 L.T. 836 : 48 W.R. 565 : 64 J.P. 710 : 16 T.L.R. 413 that as the defendants were not in possession at the time of the workings and not having worked the colliery since the death of their father, they cannot be held liable in damages for the subsidence which took place in 1930. It is clear that if the defendants were not responsible for the working of the colliery which caused the subsidence, they are not liable in damages to the plaintiffs. The cases to which I have referred and which are relied upon by the appellants, are authorities for that proposition. The Subordinate Judge has held that the cause of action was the breach of an implied contract under which the defendants were under the obligation to support the surface and was of the opinion that the action was not in tort. Accordingly he has held that the principle actio personalis moritur cum persona did not apply and that, therefore, the defendants were liable for the payment of damages to the extent of the assets of the father which came into their hands on his death. The Judge is in error on this point and the question whether the action against the father died with him or not is irrelevant in the circumstances of the case, and in any event the Judge is clearly wrong in holding that the action is not in tort. The owner of the surface may have a right in law of support, or to put it in the words of Lord Cranworth in the House of Lords in Backhouse v. Bonami (1860) 9 H.L.C. 503 : 34 L.J.Q.B. 181 : 7 Jur. (N.S.) 809 : 4 L.T. 754 : 9 W.R. 769, "in truth his right is a right to the ordinary enjoyment of his land" but the infringement of that right is tortious. A sufficient, authority for that, if authority were needed, is found in Lamb v. Walker (1878)3 Q.B.D. 389 : 47 LJ.Q.B. 451 : 38 L.T. 643 : 26 W.R. 775, at p. 402 referred to by Bruce, J. in Green well v. Low Beechburn Coal Co. (1897) 2 Q.B. 165 : 66 L.J.Q.B. 643 : 76 L.T. 759. But the question does not arise. There was no right of action against the father at the time of his death as nothing had happened which gave rise to any; he had done nothing other than that which he was entitled to do, namely, work his colliery, and no damage had resulted therefrom. This working did not become actionable until after his death, that is to say, when the subsidence took place in 1930. On this view of the case, unless the defendants can be held to have done something to cause the subsidence, they are not liable to the plaintiffs. But it is said that as the subsidence was the cause of action and as that took place during the time of the possession of the defendants, they are personally liable. This argument is based on the decision in Backhouse v. Bonami. This argument was discussed in the two cases to which I have already referred and upon which the defendants relied for another branch of their argument and, in the light of those decisions, the argument is untenable.
6. In connection with the general argument as to the liability of the defendants, it is contended that as the damage claimed is confined to the loss which the plaintiffs have sustained by the destruction of the buildings and the machinery therein, there being no proof that the plaintiffs have acquired an easement of support, the buildings not having been in existence for 20 years and upwards, the plaintiffs cannot recover: Dalton v. Angus (1881) 6 A.C. 740 : 50 L.J.Q.B. 689 : 44 L.T. 814 : 30 W.R. 191 : 46 J.P. 132. However, a direct authority against this contention is found in Brown v. Robins (1859) 4 H & N 186 : 28 L.J. Ex. 250 : 118 R.R. 382. When it is established that the erection of the buildings on the land has not in any way contributed to the subsidence of the buildings, the damages recovered may include their value. Another argument as to the liability of the defendants was that as they are now in possession of the land and the benefits of the original patta granting coal-mining rights to Bhoja Dhanji, they are liable under one of the clauses contained in the said patta The document is Ex. El in the case and reliance is placed upon Clause 14 which is' in these words:
That if any land and house, etc., or any other valuable property, is destroyed or rendered useless on account of your work, you will be bound to pay proper damages therefor; and if any occurrence takes place within the leasehold land, you will be wholly answerable therefor
7. Quite apart from the question whether the defendants not being parties to this lease are liable thereunder, or whether the covenant is a covenant which runs with the land and the defendants being in possession are liable, it seems to me that the clause adds nothing to the liability of any person bound thereby for whatever reason. The clause deals with the 'liability to valuable property' which may be destroyed or rendered useless, it in no way deals with the support of the surface although it goes without saving that in the majority of cases buildings would be rendered useless unless the surface were supported. On the other hand, it might be said that the clause would make the persons bound thereby liable whether the damage was caused by subsidence or for any other reason. We have already dealt with the question of liability for buildings and this clause has not been used by the respondents except for the purpose of 6xing the liability on the defendants for the subsidence. We are, therefore, not concerned with the question whether it has the wider application which I have suggested. In so far as the liability for subsidence is covered by the clause, it adds nothing to the defendants' liability at. common law in other words, their liability would be just the same whether that clause existed or not.
8. We now come to the matter which we mentioned in the earlier part, of our judgment. It was contended that the defendants being members of a joint Hindu family at the time of the working of the colliery by their father (the karta of the family) were bound by the acts of the karta and were, therefore, liable, On the other band defendants urged that this was not so much as suggested in the lower Court. As a, matter of fact the plaint made no distinction between one defendant and another as regards the liability for damages, but merely spoke of the "wrongful, negligent and improper working of coal by the defendants from the subjacent and adjacent areas", even denying that the defendants had any right at all to work the coal. In their written statement defendants Nos. 1 and 2 set out ''the right of these defendants to work" the coal under the conveyance of 1902 in favour of their father (and later documents) and claimed that other defendants had been unnecessarily made parties. In para. 15 they denied removing any pillar coal (while claiming the right to do so) and said that they did not work coal in the affected area during the last ten or twelve years. They went on to repeat that they had kept substantial pillars for supporting the surface and worked in a workmanlike manner and with due care and attention; and they denied that they had at all contributed to the subsidence, adding that the subsidence was not due to any act en their part. It is clear that these defendants Nos. 1 and 2 did not deny working subjacent coal before "the last ten or twelve years", though they denied negligence in such working and claimed to have left substantial pillars for supporting the surface. Nor was there any issue framed or any finding recorded in the lower Court on the point whether defendants Nos. 1 and 2 were or were not responsible for the working of the coal before 1923. There was no dispute on the point; it was probably not realized that on subsidence liability to damages would arise even without any negligence in the original working of the coal though the pillars may not have been improperly interfered with. Defendant No. 10 was added as a party by an application to amend the plaint which was filed long before the written statements of defendants Nos. 1 and 2 and which prayed for his addition as a member of an undivided Hindu Mitakshara family taking an interest in the colliery "from his very birth". The learned Judge says that it is mentioned in Ex. E-2, a deed of family arrangement which has not been placed before us, that at the separation between Khora Kamji and defendant No. 3 in 1908. or 1909, properties other than those given to defendant No. 3 were retained by Khora Ramji for himself and his other sons or such sons as might be born to him in. future, and that no share in the coal lands of the colliery now in question was given to defendant No. 3. The colliery would thus appear to have been kept by Khora Ramji as joint family property. It was open to him to do so as the head of the family, even though the business may not have been ancestral : see Annabhat Shankerbhat v. Shivappa Dundappa 52 B 376 : 110 Ind. Cas. 269 : A.I.R. 1928 Bom. 232 : 30 Bom. L.R. 539 and Venkatdsami Naiker v. Palaniappa Chettiar 52 M. 227 : 117 Ind. Cas. 716 : A.I.R. 1929 Mad. 153 : 56 M.L.J. 380 : 28 L.W. 762 : Ind. Rul. (1929) Mad; and if debts had been contracted in the course of this business, the other members of the family would have been bound by them. The extraction of the coal, so far as Khora Ramji was a party to it, was in the interest of the joint family of which he was the karta and into which defendants Nos. 1 and 2 were born in 1916 and 1918. It was not tortious perse, but a liability for damages arose on the subsidence which occurred in 1930, long after Khora Ramji's death, but at a time when defendants Nos. 1 and 2 were the sole surviving members of the joint family that bad extracted the coal and were in sole possession of the family interest in the colliery and had further bought out defendant No. 3 and defendants Nos. 4 to 9.
9. The learned Judge below says that it appears that Khora Ramji was carrying on the business of this colliery with some partners who had a ten-anna share in the business and that defendant No. 3 given a two-anna share out of his father's six-anna share in the profit and loss of the business. Later on, he comes to the conclusion that defendant No. 3 never had any share in the coal lands but only a two-anna share in the profit and loss of the colliery business from the date of his separation from his father up to the date he transferred his interest to defendants Nos. 1 and 2 in 1926. This finding is accepted by the appellants before us. The exact nature of Khora Ramji's partnership with defendants Nos. 4 to 9 does not appear. The learned Judge refers to the fact that the coal land was acquired by Khora Ramji and as regards the ten-anna share in the business he says that there is no evidence who the partners that owned his share were, though there is some indication that they were defendants Nos. 4 to 9 or their predecessors-in-interest. He did not regard the matter as one of any practical importance because the plaintiffs gave up their claim against these defendants towards the end of the hearing on the ground, as their learned Advocate has shown, that they had been unable to prove the liability of these defendants. Upon this it was contended before us that the release of defendants Nos. 4 to 9 meant the release of defendants Nos. 1 and 2 as well; but this was not a case of release by way of accord and satisfaction and did not in any way destroy the cause of action, nor was it the case of defendants Nos. 1 and 2 that defendants Nos. 4 to 6 were in any way liable for damages for the subsidence. We do not know enough of the partnership which was only alleged by defendants Nos 3 and 10 (claiming, however, as the learned Judge puts it) that " the working under the affected area were made subsequent to 1926 and that pillars were also robbed from the subjacent soil and from below the adjacent lands" by defendants Nos. 1 and 2, to say how defendant No. 3 was given a share in it or what the relation of Khora Ramji was to the ten-anna partners. Probably defendants Nos. 1 and 2 who, as Mr. Mazumdar for the appellants informed us, took the entire family interest in the colliery by survivorship, were no parties to the partnership such as it was; but this will only prevent contractual relations from arising between them and the ten or twelve-anna partners in the course of the partnership without affecting their liability to others as members of the joint family of which their father was the karta and which had a six or four anna interest in the colliery from 1908 or 1909 to the death of Khora Ramji. The liability that is sought upon defendants Nos. 1 and 2 is limited to what the learned Judge has called "the assets of their father's estate that has devolved on them by inheritance". The description is not quite accurate, and the learned Judge really meant no more than the assets of the joint family by Khora Ramji at his death. It is thus clear that the joint family represented by the karta was concerned in the working of the coal, whether or not it did so in partnership with others; and the joint family still continues in spite of the death of Khora Ramjt in the persons of defendants Nos. 1 and 2. They cannot, therefore, escape liability on the ground that it was a personal liability of Khora Ramji, though the learned Judge is in error in holding them liable on the ground of an implied contract to keep up the surface.
10. A half-hearted attack was made by the appellants on the findings of the learned Judge as regards the quantum of damages. Damages have been awarded on three out of six accounts claimed. These include damages to furniture to the extent of Rs. 1,150 odd, as to which the learned Judge refers to certain ledgers and balance-sheets which have not been printed. It has been urged that the balance-sheets are no evidence against the appellants. Rupees 25,000 has been awarded as damage to machinery, and it has been contended that no evidence was given as to this damage. Plaintiff's first witness, however, did say in reply to a Court- question that the damage to the Mill Machinery was Rs. 18,000 and that to the machinery given by Government Rs. 7,000. As to this it was urged that the lower Court should not have put the question. But it is not suggested that the appellants were prevented from cross-examining the witness on the point after he had replied to the Court-question. Rupees 37,000 odd was awarded as damage on account of land and buildings. This is based on a sale deed (Ex. 2-h) for Rs. 34,000 and vouchers for Rs. 5,000 or more for subsequent additions to the properties purchased besides the balance-sheets of the plaintiff company. Here again it is said that the balance-sheets are no evidence against the appellants. But the balance-sheets, whether in this connection or in connection with the furniture account, can be regarded in the light of claims made by the plaintiff company against the appellants, and it does not appear that the appellants could not have subjected these claims to cross-examination. In our opinion there is no room for interference with the quantum of damages awarded by the lower Court The result is the appeal is dismissed with costs.