Orissa High Court
Orissa Fisheries Development ... vs Sudhansu Sekhar Sahu And Anr. on 23 June, 1993
Equivalent citations: AIR1994ORI158, AIR 1994 ORISSA 158
JUDGMENT A.K. Padhi, J.
1. The Orissa Fisheries Development Corporation, defendant No. 1 in Title Suit No. 1 of 1966 is the appellant in First Appeal No. 66 of 1974. State of Orissa through the Collector, Cattack, defendant No. 2 in Title Suit No. 1 of 1966 is the appellant in First Appeal No. 74 of 1974. In both the First Appeals the judgment and decree passed in Title Suit No. 1 of 1966 are challenged. Therefore, both the First Appeals were heard together and this judgment is passed in both the appeals.
2. Plaintiff filed the suit seeking for declaration of right, title and interest in the disputed water channel and damages to the tune of Rs. 4,61,001/-. Assertions in the plaint are that Balia river fishery Sairat comprising an area of A.271.96 decs was available to be leased out. On 17-2-1958, plaintiff applied to the Tahasildar, Jujanga for lease of the water channel for pisciculture which was settled on him for a period of six months on payment of Rs. 1,600/-. On 8-1-1960, there was a public auction for three months and plaintiff took it on auction and the same was extended up to 30-6-1960. On 25-6-1960 again fresh auction was held in which plaintiff was the highest bidder and the Fishing Sairat was settled in his favour. On 1-7-1961, a registered lease deed was executed in favour of the plaintiff for a period of five years and possession was delivered to the plaintiff and the lease deed so executed by defendant No. 2 was valid upto 30-6-1966.
The terms and conditions of the lease deed were to clear the weeds within two years, failing which the lease was to be determined. The rents were to be paid within 30 days from the commencement of he fishery year, i.e. the 1st of July of each year and that the lessee is not to sublet the subject matter of the lease or transfer it.
The Director of Orissa Fishery Development Corporation invited the plaintiff to enter into an agreement for development of pisciculture. Negotiation, offer and counter offer continued from both the sides but the agreement between the plaintiff and defendant No. 1 never materialised. On 24-1-1963, defendant No. 1 suggested for fresh terms but the plaintiff did not agree to the same. As the defendants intended to oust the plaintiff, a complaint was filed before the R.D.C. Ultimately the opposite parties forcibly evicted the plaintiff from the lease hold property, i.e. Balia river. Defendant No. 1 in collusion with defendant No. 2 dispossessed the plaintiff on 1-3-1963 for which he suffered irreparable loss and could not catch fish. With these averments plaintiff filed the suit seeking for declaration of title and recovery of possession of the water channel from defendant No. 1 and damages against the defendants to the tune of Rs. 4,61,091/-.
3. On notice, defendant No. 1, Orissa Fisheries Development Corporation Ltd. filed its written statement. While admitting that the disputed area had been leased out to plaintiff for a period of five years from 1-7-1961, the stand of defendant No. 1 is that after the lease was executed in favour of plaintiff, the Corporation entered into an agreement for taking possession of the area for the development of fishery with consent of defendant No. 2, State of Orissa, as plaintiff was incapable of making any investment to work out the fishery Sairat. There was a discussion in the presence of the then Chairman, Orissa Fisheries Development Corporation Ltd., its Managing Director and the plaintiff in the office room of the Chairman on 19-12-1962, after which the plaintiff and the Managing Director on behalf of the Corporation came to certain terms by way of agreement and the same was reduced to writing and in token of their acceptance of this agreement the plaintiff and the Managing Director on behalf of the Corporation signed the same on 20-12-1962. In continuation of this agreement there was another discussion on 23-12-1962 between the plaintiff and the Managing Director, and another agreement was reduced to writing and signed by both of them on 28-12-1962. In paragraph 15 of the written statement it has been specifically averred that in pursuance of the agreement between the parties on 20-12-1962 and 28-12-1962 the plaintiff was assured that he would be allowed to get 1/4 th of the sale proceeds of the catch of existing fish after deduction of the expenses met by the Corporation, during the renovation period. After the renovation an area of 100 acres of Fisheries Sairat was to be settled with the plaintiff. In pursuance of the agreement between the parties plaintiff had surrendered the lease hold properties to the Corporation for his own benefit. Defendant No. 1 had never trespassed into the water channel nor had forcibly evicted the plaintiff at any point of time and, therefore in short, the submission of defendant No. 1 is to the effect that with the consent of the plaintiff in order to improve the fishery Sairat and for the benefit of both for the plaintiff and for defendant No. 1 and in pursuance of agreement between the parties, defendant No. 1 had entered into possession and had done renovation to the fishery Sairat. It has been also asserted that in pursuance of the contract that the plaintiff has to get 1/4th of the catch of the firsh, defendant No. 1 had given a cheque to plaintiff on 15-4-1963. Plaintiff did not come forward to take over 100 acres of Fishery Sairat as he was financially incapable. Defendant No. 1 had invested huge amount of money and had also incurred loss as the scheme failed. Assertion of the plaintiff that defendant No. 1 had forcibly evicted plaintiff, has been specifically denied. The stand of defendant No. 2 is that plaintiff though was given lease of the river in question was incapable of de-weeding of the river and have pisciculture. There was an agreement between defendant No. 1 and plaintiff in pursuance of which defendant No. 1 possessed the Sairat for the purpose of pisciculture and carried out de-weeding and reclamation operation. Plaintiff also failed to pay the rent fixed under the lease deed. On 31-3-1963, plaintiff surreptitiously deposited the rent. Agreement with plaintiff is also violative of Article 299 of the Constitution and, therefore, was void ab initio.
4. On pleadings of both the parties the trial court framed as many as seven issues which are as follows :--
1. Has there been any valid service of Section 80, C.P.C. notice on defendant No.2?
2. Was the plaintiff a valid lessee of the Balia River Fishery from 1-7-61 till 30-6-66? Did he surrender the lease to the Collector, Cuttack?
3. Did the plaintiff violate the terms of the lease, and if so, did defendant No. 2 waive the same?
4. Did the plaintiff make any investment in that fishery?
5. Is the plaintiff entitled to damages as claimed in the suit? Is the quantum of damage excessive?
6. Did the defendant forcibly dispossess the plaintiff from the fishery?
7. To what relief, if any, is the plaintiff entitled?
Trial Court came to the finding that there was notice as visualised under Section 80, C.P.C. and answered Issue No. 1 accordingly.
Taking up Issue Nos. 2 and 3, together, trial Court has given the findings that the plaintiff was lessee of the Balia River Fishery from 1-7-1961 till 30-6-1966 and that he never surrendered the lease and plaintiff, though viooted the terms of the lease in not depositing the rent for the year 1962-63 in time, the lease was not determined for violation of this term, as defendant No. 2 never served any notice as required under Section 111(g) of the T.P. Act.
Issue Nos. 4 and 5 were taken up together. Under those two issues trial Court gave the findings that resting not gain of plaintiff would have been rupees two lakhs and he had invested Rs. 1,00,216/-for pisciculture. Therefore, plaintiff is entitled to a sum of Rs. 3,00,216/- as damages.
Under Issue No. 6, trial court came to the conclusion that defendant No. 1 in collusion with defendant No. 2 illegally and unauthorisedly took possession of Balia River Fishery during the subsistence of lease in favour of the plaintiff and, therefore, plaintiff is entitled to damages as decided under Issue Nos. 4 and 5.
Issue No. 7 was held not to be proved.
5. Challenging the judgment and decree, Mr. B. Rath, learned counsel for defendant No. 1 appellant in First Appeal No. 66 of 1974 submitted that:
(a) possession of defendant No. 1 was permissive and not forcible. Therefore, the plaintiff is not entitled to recovery of any damage;
(b) conclusion of the trial Court that plaintiff had invested Rs. 1,00,216/- towards pisciculure is based on no evidence, and, therefore, plaintiff is not entitled to recover Rs. 1,00,216/- towards investment charges for pisciculture in Balia River; and
(c) finding of the trial Court that net gain of plaintiff would have been two lakhs rupees had defendant No. 1 not forcibly dispossessed plaintiff, is based on no evidence and, therefore, the plaintiff is not entitled to the same.
Learned Advocate General, on behalf of defendant No. 2, appellant in First Appeal No. 74 of 1974 submitted that as the plaintiff was incapable of making de-weeding and pisciculture in Balia River he sought for the assistance of defendant No. 1 and, therefore, with the permission of plaintiff and defendant No. 2, defendant No. 1 took the de-weeding operation and pisciculture. Defendant No. 1 also became incapable of pisciculture operation. Plaintiff suffered loss due to his own incapability of pisciculture in Balia River and also due to incapability of defendant No. 1, plaintiff is not entitled to any damage from defendant No. 2.
6. Moot questions which arise for consideration are:--
(i) Whether the lease in favour of plaintiff was valid from 1-7-1961 to 30-6-1966 or he had surrendered the lease hold property in favour of any of the defendants?
(ii) Whether defendants Nos. 1 and 2 or any of the defendants had forcibly evicted the plaintiff from Balia river in question as a result of which plaintiff sustained loss? In other words whether plaintiff is entitled to damages for the tortuous action of the defendants?
(iii) If the plaintiff is entitled to any damage, what will be the quantum?
7. Question No. (i):
Coming to the question as to whether plaintiff was a lessee during the period in question it is seen that Ext. 21 unequivocally proves that there was a valid lease in favour of plaintiff from 1-6-1961 to 30-6-1966 and prior to 1-7-1961 plaintiff was in possession of the Balia River shairat from 8-1-1960 by the auction dated 8-1-1960 which was for three months extended up to 3-6-1960 and thereafter, by the auction sale dated 25-6-1960 for a period of one year. Therefore, conclusion of the trial court that plaintiff was in continuous possession of the Balia River fishery from 8-1-1960 and his lease deed was valid up to 30-6-1966 is correct and is hereby confirmed. Defendant No. 2 never determined the lease in favour of plaintiff and no notice as contemplated under Section 111(g) of the Transfer of Property Act was over served on the plaintiff. No document has been placed before us to prove that plaintiff ever surrendered the lease in favour of either defendant No. 1 or defendant No. 2. Finding of the trial court that plaintiff had not surrendered his right in favour of any of the defendants is correct and is hereby confirmed.
8. Question No. (ii):
Coming to the next question, it is to be seen as to whether during the subsistence of the lease period defendant No. 1 with connivance of defendant No. 2 forcibly trespassed into the lease hold area and whether on that account plaintiff sustained any loss. To decide this question, averments in the plaint are important.
Cause of action and the infraction of the right of the plaintiff as stated in paragraphs 8, 9 and 12 of the plaint are as follows :--
"That thereafter there was a meeting on 20-12-62, wherein the Chairman and the Managing Director of the defendant No. 1 and the plaintiff were present and a tentative talk was held as to what the parties would do for the development of the said fishery. That it was also agreed that an agreement would be entered into between the plaintiff and the defendant No. 1 in future to give effect to preliminary talk."
"That thereafter there was a second discussion between the plaintiff and defendant No. 1 on 28-12-62 to the effect that the plaintiff, would surrender his lease and the defendant No. 1 would secure a lease from the defendant No. 2. That the tentative terms were discussed and it was agreed that the same would be given effect to after a proper document."
"That the defendant No. 1 is illegally catching fish from the said fishery since August, 1963 at different times without any permission from the plaintiff and without entering any agreement with him. That the officers of the defendant No. 2 have colluded and are colluding with the defendant No. 1 in the exploitation of the fishery by the defendant No. 1. That the right, title and interest of the plaintiff in the said fishery still subsist up to 30th June, 1966. That the defendant No. 1 has illegally trespassed into the fishery at different times and has caught fish from the fishery and derived other ad vantages, illegally."
Cause of action as stated in paragraph 15 of the plaint is as follows:--
"That the cause of action of this suit first arose on 1st August, 1963 and on several dates thereafter....."
With the above averments plaintiff has prayed for damages of Rs. 4,61,091/-.
While denying the assertions made in the plaint, specific stand of defendant No. 1 in paragraphs Hand 15 of the written statement is as follows:--
"..... There was a discussion in the presence of the then Chairman, Orissa Fisheries Development Corporation Limited and its Managing Director and the plaintiff in the office room of the Chairman on 19th December, 1962. After which the plaintiff and the Managing Director on behalf of the corporation came to certain decisions by way of agreement and the same was reduced to writing and in token of their acceptance of this agreement the plaintiff and the Managing Director on behalf of the Corporation signed the same on 20-12-62. In continuation of this there was another sitting on 28-12-62 by a further discussion between the plaintiff and the Managing Director, they entered into a further agreement which was reduced to writing and signed by both of them on 28-12-62. Thus, the plaintiff's averment that there was only a tentative talk took place and that tentative terms were discussed are not correct it is equally wrong to say that merely the tentative terms were discussed and it was agreed that the same will be given effect to after a proper document." .
"That the plaintiffs averment in para-10 of the plaint does not state true state of affairs. The letter dated 24-1-63 simply reiterated the agreement arrived at between the parties on 20-12-62 and 28-16-62 and the said letter was simply explanatory in character and was accordingly conveyed to the plaintiff. In view of the agreement dated 20-12-62 and 28-12-62, the plaintiff was assured that he would be allowed to get 1/4 of the sale proceeds of the catch of old existing fish after deduction of the expenses met by the Corporation, during the renovation period, and that assurance as confirmed by the defendants and the same was conveyed to the plaintiff in the letter dated 24-1-63 and the plaintiff did accept the terms stated in para-1 of this letter and accepted his 1/4 of the share of the sale proceeds of the entire catch of old existing fish which was paid to him by a cheque on 15-4-63."
In paragraph 17 of the written statement it has been stated that plaintiff had given up possession and the Corporation had already taken possession by January, 1963 and the allegation that the Corporation with the help of local people started to take forcible possession of Balia River in August, 1963 has been specifically denied.
In paragraph 21 of the written statement it has been stated that cause of action as stated in paragraph 15 is imaginary and false. In paragraph 26 of the written statement it has been stated that as per the terms of the agreement between the parties the Corporation took over possession on 1-1-1963 and in pursuance of the agreement between the parties 1/4 th share of catch of the old existing fish was given to the plaintiff. The Corporation started its de-weeding operation and reclamation as per the agreement and after de-weeding and reclamation, plaintiff was to be handed over 100 acres of Fishery Sairat for pisciculture, but he being financially incapable, did not come forward to enter to an agreement with defendant No. 1. Subsequently, defendant No. 1 even offered 52 acres and thereafter 25 acres. That also plaintiff did not volunteer to take possession. According to defendant No. 1, on account of his incapability, plaintiff could not undertake the pisciculture operation.
Defendant No. 2 has also asserted that due to incapability of plaintiff as well as defendant No. 1, the scheme of pisciculture in Bali River failed.
9. Trespass to immovable property means unjustifiable interference with possession of a person entitled to possess the same. An entry upon another's property is tortious if the entrant without permission enters into it knowingly. Trespass as stated in Law of Torts by Salmood (Fifteenth Edition) at page 5 :--
"..... The term trespass has been used by lawyers and laymen in three senses of varying degrees of generality. (1)In its widest and original signification it includes any wrongful act -- any infringement or transgression of the rule of right. This use is common in the Authorised Version of the Bibla, and was presumably familiar when that version was first published. But it never obtained recognition in the technical language of the law, and is now archaic even in popular speech. (2) In a second and narrower signification its true legal sense the term means any legal wrong for which the appropriate remedy was a writ of trespass viz., any direct and forcible injury to person, land, or catties. (3) The third and narrowest meaning of the term is that in which, accordance with popular speech, it is limited to one particular kind of trespass in the second sense viz., the tort of trespass to land (trespass square clausum fragit).
In this case, plaintiff has called upon the defendants to pay damages for the loss suffered by him on account of their forcibly evicting the plaintiff from the Balia River Fishery. There can be no doubt that if proved, this action of the defendants would be tortious and forcible eviction of the plaintiff from the Balia river Fishery Sairat which he had taken on lease from defendant No. 2 would make the defendants liable to pay damages to plaintiff.
10. In order to get damages plaintiff is to prove that by forcible eviction by the defendants or by any of the defendants be suffered loss. Mere suffering of loss on the part of the plaintiff will not entitle him to get damages from the defendants if there is no trespass as claimed, trespass by the defendants coupled with the loss sustained by the plaintiff entitles him to get damages for the tortious action of the defendants.
11. Though it is pleaded in the written statement that there was written agreement, no document has been exhibited by defendant No. 1. The other documents which are relevant for the purpose of deciding as to whether defendant No. 1 took over possession with permission of the plaintiff or it evicted plaintiff forcibly from Balia river in question are as follows:
Ext. D, exhibited by defendant No. I, is a letter dated 4-10-1962 written by plaintiff to defendant No. 1. The relevant portion of the document reads as follows:--
"As discussed with you on 29-9-62 at Kajanga and today at Cuttack, I am prepared to come to an agreement with you in connection with surrendering my lease of Balia river on your behalf. Your terms and conditions may be offered to me before the end of October, 1962, so that I will consider the same and concede to your request."
Ext. B is a letter dated 26-11-1962 from the Director of Fisheries to the Secretary, Government of Orissa, Planning and Co-ordination (Sic) which indicates that Balia river was seryeyed and plans had been submitted.
Ext. P is a public notice, the English translation is as follows:--
That it is brought to the notice of the public that as per the order of the Collector, Cuttack, Balia river is proposed to be transferred to Fisheries Development Corporation. If any body has any objection, the same should be made before 15th of December, 1962.
Ext. 46 is a letter dated 24-1-1963 written by the Managing Director of Fisheries Development Corporation to plaintiff. This letter indicates the proposed terms and conditions of agreement between the parties and thus is material to resolve the controversy. This letter reads as follows:--
"After careful consideration the Government have been planned to accept the following terms under which you will have to enter into an agreement with this Corporation, along with surrender of your lease. An early action in the matter will be highly appreciated.
(1) During the period when renovation of the river will be done. Shri Sahu will be entitled to enjoy 14th of the sale proceeds of the catch. The entire catch should be taken over by the Corporation for marketing and 1/4th of the sale price will be given to Shri Sahu. The notting expenses should be excluded from the total cost before 1/4th of the sale proceeds is given.
(2) After renovation, 100 acres should be stocked by the Corporation and Shri Sahu should be entrusted with the management of the farm of 100 acres as a lessee for 3 years under the Corporation. During the period of lease, Shri Sahu should guarantee to pay to the Corporation an income of Rs. 400/- per acre annually. He should also agree to market the entire catch through the Fisheries Corporation. On an approximating gross income of Rs. 700/- per acre as against an investment of about Rs. 2,000/- per acre made by the Corporation, this would leave for the lessee (sic) Rs. 300/- per acre annually. The lessee should be responsible for maintenance and operation of the farm and he will have to incur these expenses. If he is in need of funds, the Corporation may be prepared to give a suitable loan to him at a rate of interest not below 5 1/2%.
(3) The lease for management may be for 3 years' after renovation and after expiry of 3 years the lease may be renewed on such terms and conditions as the Government and the Corporation may decide.
(4) On the above arrangement, Shri Sahu should surrender his present lease to the Collector, Cuttack and the Collector should be approached to give fresh lease in favour of the Corporation."
Ext. 47 is a letter dated 19th of August, 1963 written by plaintiff to the Managing Director of defendant No. 1. Since this letter is very important for adjudication of controversy between the parties, the relevant portion is extracted :--
"I have since been discussing for work the above fishery in co-operation with you and have allowed you to start experimental reclamation work and to rear fish spawn pending finalisation of the lease agreement."
Plaintiff relies upon the letter dated 22-8-1963 (Ext. 48) written by the Managing Director to him. The entire letter is quoted as below:--
"Please refer to your letter dated 19th August, 1963. In this connection, I would like to inform you that in spite of my repeated requests you have not come forward with your concrete programme of stocking, maintenance and other financial investment is the portion of the farm proposed to be given to you, although the occasion is already going to be over. Without hearing from you and any definite programme, it is not possible to finalise any agreement with you. During your last visit to Orissa I have repeatedly requested you to go to Balia farm and concentrate there with your man and money for successful implementation of the scheme. It is unfortunate that you have not cared to do any thing in the matter so far sincerely. I am giving you time upto 4th September, 1963 to meet me personally at Cuttack on previous appointment with a concrete programme of your work and financial solvency for undertaking pisciculture in the portion of the farm, if at all to be allotted to you falling which it will be presumed that you are no longer interested in the work."
This letter is in reply with letter dated 19th of August, 1963.
Ext. S, exhibited by defendant No. 2 is the office copy of the letter dated 22-3-1963 written by the Tahasildar, Kujanga to the plaintiff. This letter reads as follows:--
"It is learnt that you have already surrendered the Balia river fishery to the Managing Director, Orissa Fishery Development Corporation, Cuttack.
You are therefore directed to inform the date from which you remained (illegible) from operating the said (illegible) within a week of the receipt of this letter."
Ext. K-1 indicates that this letter was received by the plaintiff on 8-5-1963.
Ext. C. is the debit voucher dated 15-4-1963 which indicates that plaintiff received Rs. 614.12 ps. from defendant No. 1 towards his share from the sale proceeds of fish caught from Balia river. Ext. B is letter dated 22-5-1963 written by the plaintiff to the Managing Director of Orissa Fisheries Development Corporation, which reads as follows :--
"With due respect and humble submission I pray that the Contractors are not de-weeding at Pepurgauda, Paikasta and other areas. So I am quite unable to catch fish from Pepurgauda in due time. My fishermen staff is not willing to stay there.
Therefore you will kindly enquire those areas and clear those areas for catching fish from namely Pepurgauda and Paikasta and other portipns as soon as possible. To delay for deweeding is loss of fishers."
12. Mr. Mishra, learned counsel for the plaintiff vehemently argued that plaintiff might have permitted defendant No. 1 to have experiment in the Balia river fishery, but that did not give defendant No. 1 the right to dispossess the plaintiff from the entire area. We do not find any evidence either oral or documentary that defendant No. 1 was per-mitted by the plaintiff for experiment, in any specific portion of Balia river. Tracing (sic) the letters which are contemporaneous, we have no manner of doubt that in pursuance of some sort of agreement with the implied permission of the plaintiff, defendant No. 1 had entered into possession of Balia river for experimenting piciculture for ultimate benefit of plaintiff who was not able to operate the piciculture. Defendant No. 1, therefore, can be termed as a licencee.
13. Question arises as to whether defendant No. 1, a licencee has committed trespass. Sir Fredik Pollak has defined a licencee as, "That consent which without passing any interest in the property to which it relates the acts for which consent is given from being wrongful."
Licence normally gives only a right inpersonam against the licencer. A person cannot be stated as trespasser if he is on the property with the permission express or implied of the possessor. If plaintiff knowingly stood by and made no objection when defendants invaded his right and permitted the defendants to continue, then the plaintiff is not entitled to damages.
14. Since defendant No. 1 has entered into possession with implied consent of the plaintiff, defendant No. 1 did not any act of trespass, therefore, had not done an tortious action and, therefore, plaintiff is not entitled to any damage.
15. Question No. (iii) :
In view of our earlier findings, plaintiff is not entitled to any damage. Though both the sides are vehemently argued regarding the actual loss suffered by the plaintiff and had argued that the calculation of the trial Court is wrong since we are of the opinion that the plaintiff is hot entitled to any damages, the question of actual loss suffered by the plaintiff need not be calculated.
16. Before parting with the case we record our appreciations to Mr. B. Rath, learned counsel arguing for defendant No. 1, learned Advocate General and Shri Bidyadhar Mishra, arguing for the plaintiff who had taken pains in placing all the documents before us.
17. In the result, appeals are allowed and the judgment and decree of the trial Court are set reversed. Suit is dismissed. In the circumstances of the case, parties shall bear their own costs throughout.
S.C. Mohapatra, J.
18. I agree.