Patna High Court
Brahmdeo Narain Singh vs Members Of The Notified Area Committee on 19 November, 1964
Equivalent citations: AIR1965PAT179, AIR 1965 PATNA 179
JUDGMENT Mahapatra, J.
1. The appellant brought a suit for recovery of Rs. 20,000/- as damages for breach of contract and for a declaration that the Certificate Proceedings in case No. 138 MC of 1952-53 were illegal, ultra vires and without jurisdiction. Me also asked for an injunction restraining the defendants from proceeding with the certificate case. The defendants were the members of the Notified Area Committee. Mokamah, through the Chairman.
2. The plaintiff had taken the settlement of the Mokamah Ferry from the defendants in the name of Sarjug Singh for the year 1951-52 on an annual rental of Rs. 13,000/-. Daryapur Ferry is a neighbouring ferry under the control of the Patna District Board and it had been settled with another person for that year. On account of some troubles caused by the settlee of the Daryapur Ferry in regard to a part of the area covered by the settlement of the Mokamah Ferry, proceedings under Section 144, Criminal Procedure Code, were started on the 11th of October, 1951. Mr. B. Narayan (P. W. 5) who was then the Subdivisional Officer, Barh, dropped those proceedings on the 11th of October, 1951 but passed orders directing the plaintiff to relinquish a portion of his ferry area from the eastern side of the Mokamanh Ghat Railway Booking Office. The plaintiff accordingly gave up that area and alleged in the suit that this portion was very lucrative and as he was dispossessed from that portion, he suffered great loss in his income from the ferry. He assessed that loss at Rupees 20,000/-.
For the year 1952-53 the area of that ferry included the previously relinquished portion and was again settled with the plaintiff for Rs. 21,000/-. But subsequently, under the orders of the Commissioner that settlement was cancelled though the plaintiff continued in possession of that ferry till December 1952. He paid Rs. 10,000/- at the time of settlement for 1952-53 out of which Rs. 3,500/-was credited towards the rental of that year and Rs. 6,500/- was taken in satisfaction of the area rental due for 1951-52. The plaintiff alleged that he was assured by the Sub-divisional Officer who was the Chairman of the Notified Area Committee, at the time of settlement of the ferry for 1952-58 that he would be given a remission in the rental for 1951-52 and also compensation for the loss suffered by him on account of dispossession from a portion of the ferry area during 1951-52. He served a notice on the defendants without any effect. For the dues for the year 1952-53 from the plaintiff, a certificate under, the Public Demands Recovery Act was filed against the plaintiff. To avoid that and to secure compensation the present suit was ultimately filed.
3. The defendants in their written statement denied that the plaintiff was dispossessed from any lucrative or substantial portion of the ferry on the 11th October, 1951 and bad suffered any loss on that account. The Sub-divisional Officer who was the Chairman of the Notified Area Committee had no authority to give any assurance to the plaintiff either for remission of rent or for payment of compensation in connection with the settlement in 1951-52. The certificate proceedings were claimed to be legal. On these pleadings, sis issues were cast and parties went to trial.
4. The trial Court held that the certificate proceedings were illegal and without jurisdiction in view of the fact that the lease which was the basis had been cancelled but the plaintiff was found not entitled to get any compensation from the defendants as he did not suffer any loss on account of the dispossession from a portion of the ferry for half of the year. Being aggrieved by this judgment and decree, the plaintiff has come in appeal in regard to his claim of compensation,
5. The Mokamah Notified Area Committee was constituted on the 1st of August 1945 and the Mokamah Ferry was transferred to the control of the Notified Area Committee in 1947. The Committee held a public auction for settlement of that ferry in 1951-52 (April 1951 to March 1952) and accepted the highest bid of the plaintiff for Rupees 13,000/-. The defendants issued a Hukumnama (Ext, 7) to the plaintiff's nominee Sarjug Singh on the 1st April 1951 in which the Chairman stated:
"The Mokamah Ganga Ferry Ghat has been settled with you from 1-4-1951 to 31-8-1952. You will have to ferry passengers etc, from both sides of the Ganges and you will have to make all arrangements always as per notice and you will have to publish the rate of ferry on the ghat.
Boundary of Ghat.
West--Boundary of village Chhatarpura. i.e., up to Notified Area.
East--Boundary wall of Mokamah Ghat Railway and the gate of O. T. Railway, i.e., up to the boundary of Notified Area.
An agreement of lease was executed on the 25th May 1951 (Ex. D) but it did not contain the boundaries of the ferry. The plaintiff, however, carried his ferry operations according to the boundaries given in the Hukumnama. That is, on the eastern side he operated up to the boundary wall of Mokamah Ghat Railway and the gate of O. T. Railway, i.e., up to the boundary of the Notified Area, According to the notification dated the 28th August 1947, published in the Bihar Gazette Extraordinary issue dated the 3rd of September 1947, the western boundary of the Daryapur Ghat Ferry was "up to the O. T. Railway Mokamah Ghat Railway station". On the basis of that boundary, the settles of the Daryapur Ghat Ferry succeeded in dispossessing the plaintiff in October, 1951 from the portion between the Mokamah Ghat Railway Station and the boundary wall of Mokamah Ghat Railway and the gate of the O. T. Railway (that is, the eastern boundary of the Notified Area). It is admitted that the boundary mentioned in the Hukumnama (Ex. 7) given to the plaintiff was a mistake. Though in the written statement the defendants denied that the plaintiff was dispossessed from any portion of the ferry area settled with him, during the trial the defendants did not deny that fact. The trial Judge has mentioned it so. Learned Counsel appearing for the defendant-respondents, however, feebly contended that the Mokamah Ferry as determined under the Bengal Ferries Act was settled with the plaintiff and though a mistaken boundary was given in the Hukumnama, the plaintiff was not put in possession of any area except beyond the boundary limit of the O. T. Railway Mokamah Ghat Railway Station. This contention is obviously wrong. The Ex. 7 and the evidence of P. W. 5, who was the Sub-divisional Officer and Chairman of the Notified Area Committee during the disputed period in 1951-52 and also the evidence of the two witnesses examined for the defendants do not leave any doubt that the Mokamah Ferry was settled with the plaintiff in accordance with the boundary mentioned in the Hukamnama and that he was dispossessed in October 1951 from a portion on the eastern side known as "inward Men"
6. Whether the plaintiff is entitled to any compensation on account of the loss suffered by him for that dispossession is the main question to be determined. Under Section 108(c) of the Transfer of Property Act the lessor is deemed to contract with the lessee that he may hold the property during the time limited by the lease without interruption This is a right of quiet enjoyment of the lease property in an unqualified form. The covenant for quiet enjoyment extends against the disturbance of the lessee's possession by the lessor or by persons claiming under him and not to disturbance caused by a trespasser. In other words, the lessee is entitled to enjoy the lease against any lawful entry, eviction or interruption of any person. This right, however, docs not extend against tortuous entries, evictions or interruption. Wrongful acts of trespassers are, no doubt, to be defended by the lessee on his own and the lessor is not liable for damages for that. But if the interruption or dispossession is occasioned by persons claiming by right paramount to the lessor, the covenant for quiet enjoyment in an unqualified form would entitle the lessee to damages from the lessor. Three conditions, however, are necessary to be fulfilled for that purpose; the eviction must be from something actually forming part of the property demised, the party evicting must have a good title and the lessee must have quitted against his will. In the present case all these conditions happened. The portion from which the plaintiff was dispossessed was a part of the ferry settled with him. This is clear from the Hukumnama (Ex. 7) and the order passed by the Sub-divisional Officer on the 11th of October 1951 (Ex. 15) in the case under Section 144 of the Code of Criminal Procedure. That the plaintiff had to leave this portion from his operation against his will is not disputed. The authority that dispossessed him is also not challenged.
It was finally conceded before us and so also was the position during the trial, that the portion known as the "inward area" was wrongly included in the Hukumnama and the plaintiff was rightly asked later (October 1951) to refrain his activities from that portion. The Notified Area Committee had no right or title to give a lease of ferry to the plaintiff in respect of that portion and it is in consequence of this want of title on their part, they failed to secure undisturbed possession to the plaintiff for the lease period. In that case the lessee having been ejected in a lawful manner in a subsequent legal proceeding the lessor, that is, the Notified Area Committee must be held, to have failed to carry out the obligation of securing to the lessee quiet enjoyment of the lease property in an unqualified form and, therefore, would not be entitled to recover rent and would be liable to compensate the plaintiff lessee for any loss sustained by him.
7. In such a situation, the measure of compensation will depend upon the circumstances of the case. The complained loss or claimed damage must be fairly attributable to the breach as a natural result or consequence of the same. The loss must be a real loss or actual damage and not merely a probable or a possible one. In the present case if there was any loss to the plaintiff, it cannot but be the consequence of the failure of the lessor to fulfil the covenant of quiet enjoyment to the lessee. In that view he is entitled to compensation. The burden of proof is on the plaintiff to show how much loss he has suffered.
(After considering the evidence in paras 8 and 9, Court held that the plaintiff had failed to prove the extent of his loss. Non-production of documentary evidence in possession of a party to a litigation raises an adverse inference against him, more particularly when the onus of proof of the extent of loss is on such party. The best evidence in this case had been kept back by the plaintiff without any explanation or justification and the judgment proceeded:)
10. Learned counsel referred to the case of Pravudeyal Agarwala v. Ram Kumar Agarwala, AIR 1956 Cal 41 and contended that a fair estimate should be made by the Court about the extent of loss suffered by the plaintiff. In that case, the plaintiff asked for specific performance of a contract, in the alternative for declaration of title in respect of certain lands the plaintiff and the defendants being partners, or for damages or some other relief. The trial Court held that the plaintiff was entitled to damages which were to be determined in a subsequent proceeding defendant No. 1 came in appeal to the High Court and contended that the plaintiff was not entitled to any relief whatsoever. The plaintiff also filed a cross-objection asking for a large amount of compensation than what had been allowed. Several persons tried to take a settlement from the Khas Mahal in respect of a plot of land belonging to Government for setting up a rice mill in the district of Jalpaiguri and there was a strong competition between the parties, to avoid which the plaintiff, defendant No. 1 and another person entered into a written agreement to the effect that defendant No. 1 alone would submit tender for the settlement of the plot and that would be deemed to be on behalf of all the three persons who would be partners and would contribute their shares of capital within one month from the date of the execution of the settlement deed. A regular deed of partnership for the business including the right over the land to be taken in settlement was agreed to be executed by them later. Defendant No. 1 would have 7 annas share and the other two persons 41/2 annas each.
The Khas Mahal Officer settled the land with defendant No. 1 and a lease was executed for 30 years subject to certain terms and conditions one of which was that the lease would be cancelled if the mill was not set up within six months. A letter intimating the sanction for the settlement mentioned that the lease would be liable to cancellation if the business of rice mill was shared in partnership. Defendant No. 1, therefore, set up the mill himself and invested his capital. When he informed that the partnership had to be abandoned according to the Deputy Commissioners orders, the plaintiff resented. After exchange of correspondence between the two, the suit was filed to enforce the agreement of partnership and other reliefs in the alternative. The trial Court held that the business of the rice mill started by defendant No. 1 slone was not a partnership business and defendant No. 1 himself was responsible for the breach of the contract inasmuch as the plaintiff had not made any contribution so far for taking the settlement or for construction of the mill. The written agreement between the parties did not state the period of partnership, and, therefore, no useful purpose could be served by specific performance of that contract, however objectionable the conduct of defendant No. 1 might have been in the matter.
The trial Court also held that the plaintiff was entitled to compensation for an equitable estate and the damages were to be assessed as indicated in the judgment. With regard to the land in question, the plaintiff had only an equitable estate of 41/2 annas share in It. It directed a commissioner to be appointed to ascertain the amount of damages. Against that the appeal and the cross-objection came to the High Court where it was held that there was an agreement for entering into partnership and it was subsisting when the settlement of land was taken and the rice milt set up. As the deed of partnership had not been executed, the plaintiff could not claim any title in the land which had vested in defendant No. 1 only. The partnership, even if entered into, would have been a partnership at will and if it was specifically enforced, it could be terminated Immediately thereafter. For that reason specific performance of the contract was not allowed.
About damages for the breach of contract by defendant No. 1, it is to be noted that the deed of agreement between the parties mentioned that whosoever would break the contract would be liable to pay to the other partner Rs. 25,000 at liquidated damages. Section 74 of the Indian Contract Act stipulates that the aggrieved party cannot recover simpliciter such an amount whether at penalty or as liquidated damages. He has to prove actual damages he has suffered and it is not necessary for the Court to come to a conclusion that the penalty mentioned in the agreement is an unreasonable one before it can proceed to assess the actual amount of damages. The High Court held that it was convinced that the plaintiff had suffered damages as a direct consequence of the breach of contract by the defendant but it was difficult to calculate the same with mathematical securacy by instituting inquiries. In the absence of specific account of damages the party is to be presumed to have sustained damages which may be liquidated damages and in some cases nominal damages. What is to be the amount of nominal damages, it was observed, depends upon the facts of each particular case and keeping in view the relevant facts and circumstances in that case, the Court allowed Rs. 8,000 as damages to the plaintiff. The amount mentioned in the agreement was said to be, on the face of it, excessive and unreasonable. On the strength of this decision, learned counsel argued that in the present case we should adopt such a course even though the plaintiff has failed to establish the actual loss suffered by him.
11. The foremost thing that can safely be concluded in the present case is that the plaintiff suffered damages as a direct consequence of his dispossession from a portion of the ferry area settled with him. That area was the nearest approach to the place where goods were unloaded from the wagons. The natural tendency of the owners of those goods would be to carry them to the nearest ferry for transhipment to the other side of the river to save cost and labour; may be, some owners would prefer to take them to the place where the Daryapur ferry operated for some reasons or for some other advantages but it cannot be disputed that the plaintiff bad the chance to have a good share of the transhipment of those goods from that area. In that view, the plaintiff is entitled to at least nominal damages. Nominal damages do not connote that a trifling amount is always to be assessed. In the cases of Rolin v. Steward, (1854) 14 CB 595 and Wilson v. United Counties Bank Ltd., (1920) AC 102, substantial nominal damages were awarded. The Calcutta High Court, in the above mentioned case, adopted that principle and awarded Rs. 8,000 as nominal damages to the plaintiff of that case. The measure of damages will vary according to the special circumstances of a particular case. Contracts may be of different types. When it is not possible to calculate accurately or in a reasonable manner the actual amount of loss incurred or when the plaintiff has not been able to prove the actual loss suffered, he (the plaintiff) will be, all the same, entitled to recover nominal damages for a breach of contract. The annual rental of the ferry was settled at Rs. 13,000. That can safely be taken to be the minimum expected net income from the ferry during the year. The "inward area" was, according to the evidence already discussed, the lucrative portion of the ferry and the plaintiff was deprived of that for six months. In view of these circumstances a sum of Rs. 5,000 should be held to be a fair estimate of the nominal damages to be awarded to the plaintiff. He loses the chance of getting a higher damage according to his actual loss because he was unable to give any evidence of that. The Court has to assess damages as best as it could on the materials available and should not decline to estimate them merely because the plaintiff could not adduce the best evidence. There is a distinction between two class of cases (1) where there is absence of evidence which makes it impossible to fix damages, and (2) which presents difficulty in assessing damages because of the nature of the damages proved. Even in a case where nominal damages are only to be awarded, the extent of the same should be estimated with reference to the facts and circumstances involved. The general principle to be borne in mind is that the injured party may be put in the same position as that he would have been if he had not sustained the wrong (see the case of Yarlagadda China Rattayya v. Donepudi Venkatarammayya, AIR 1959 Andh Pra 551.
12. Learned counsel for the defendant-respondents contended that the plaintiff was in possession of the ferry including the 'inward area' for the year 1952-53 till December 1952 as is the finding of the trial Court on evidence, though his settlement for that year was cancelled. This fact, he added, should disentitle him (the plaintiff) to any substantial nominal damages in connection with the previous year. This would not be a correct approach. The certificate proceedings for realisation of dues from the plaintiff for the year 1952-53 had been set at naught. How much he would be liable to pay in connection with that year will be a different matter and should not be mingled up with his claim for damages in respect of the year 1991-82. If the Notified Area Committee would have brought a suit for recovery of the balance portion of the rent for 1951-52 as only Rs. 6,500 had been paid by the plaintiff by the end of that year, they could have been met with a legitimate defence that the Committee would no-t be entitled to any rent as the lessee had been dispossessed from a portion of the lease property and as fair rent for that dispossessed portion had not been determined by the lessor. For whatever reasons, the plaintiff paid the balance of Rs. 6,500 when the settlement of the ferry was made with him for the next year in April 1952. What he was not bound to pay was paid either voluntarily or through persuasion. So nothing remains due from him for that year. In that view the estimated nominal damage should not be reduced.
13. For the reasons given above, the appeal is allowed in part with proportionate costs; the judgment and decree of the trial Court are modified to the extent that the plaintiff's suit is also decreed for Rs. 5,000 with proportionate costs against the defendants. If the decretal dues are not paid by the defendants within three months from today, they will be liable to pay interest on the sum of Rs. 5,000 at the rate of 6 per cent per annum from the date of the decree to the date of realisation.
A.B.N. Sinha, J.
14. I agree.