Authored By : L.H. Jenkins, J.G. Wooddroffe, L.H.Jenkins, L.H. Jenkins, L.H. Jenkins, L.H. Jenkins, L.H. Jenkins, J.G.Wooddroffe

L.H. Jenkins, C.J.

1. At the time the Charter was passed the Code of CivilProcedure of 1859 was in force. The section in that Code referring to"suits for land" was subsequently replaced by similar sections insuccessive codes. Section 16 of the present Code describes what was meant by"suits for land."

2. It is submitted that the Codes subsequent to that of1859 Varied the rule therein contained and did not enact the section in anamplified form. The mere fact that a question of title may arise for decisiondoes not oust this Courts jurisdiction. Whether this Court hart jurisdictionor not, depends on the nature of the relief sought.

J.G. Wooddroffe, J.

3. Can you by claiming a particular form of relief by aside-wind get this Court to determine a question of title

4. There is nothing to prevent me. The Charter does notprevent this Court from trying a suit in which an issue relating to titlearises. The test is whether by means of the suit the plaintiff seeks either toacquire a right or control over land or any interest in land, or to prevent thedefendant from doing acts which if persisted in, will eventually deprive tireplaintiff of land Or some interest in land. Nearly all the authorities becomereconciled if this view be adopted: East Indian Railway co. v. Bengal Coal Co.I. L. R. (1875) Calc. 95. Delhi & London Bank v. Wordie I. L. R.(1876)Calc. 249. Kellie v. Fraser I. L. R. (1877) Calc. 445. where the Court enforcedan award affecting land at Darjeeling, Sreenath Roy v. Cally Doss Ghose I. L.R.(1879) Calc. 82. which was a suit for specific performance, Peary MohunGhosaul v. Haran Chunder Gangooly I. L. R. (1885) Calc. 261. where a claim fordamages for trespass to land, was held not to be a suit for land.

L.H. Jenkins, C.J.

5. That was a Small Cause Court suit and the decisiondepended on the consideration of the particular sections of the Small CauseCourts Act.

6. See also Krishna Prasad Nay v. Maizuddin Biswas I. L.R. (1890) Calc. 707. Land Mortgage Bank v. Sudurudeen Ahmed I. L. R.(1892)Calc. 358. which was a vendors suit for specific performance of a contract forthe sale of land and for damages for broach of such contract, where thedecision turned on the nature of the relief sought, Bapuji Raghunath v. KumarjiEdulji Umrigar I. L. R. (1890) 15 Bom. 400. Crisp v. Watson I. L. R. (1893) Calc.689. was a decision under the Civil Procedure Code and is only an authority forthe proposition that a claim for damages is not enforceable by personalobedience. If the Code requires that the infringements of rights to Immovableproperty should be redressed loyally, it does not follow that the Charterregarded suits for compensation for infringement of such rights as suits forland. In Bag-ram v. Moses (1863) 1 Hyd 284 the Court exercised jurisdiction.

L.H. Jenkins, C.J.

7. That was a decision of the Supreme Court, winchexercised the jurisdiction of an English Court.

8. It has always been treated as an authority. In thecase of a nuisance, this Court exercised jurisdiction, though the land was inHowrah: Rajmohun Bose v. East Indian Railway Co. (1872) 10 B. L. R. 241.Helford v. East Indian Railway Co. (1874) 10 B. L. R. 1. Chintaman Narayan v.Madhavrao Venkatesh (1869) 6 Bom. H. C. App. 29. English Courts foreclose landsoutside the jurisdiction: Paget v. Ede (1874) L. R. 18 Eq. 118. The distinctionin England between local and transitory actions has no application here. TheEnglish system is highly technical. Rules regarding venue and choice of Courtsin which suits should be brought were peculiar to the English system: SmithsLeading Cases, 11th edition, Vol. I, p. 608, per Lord Mansfield in Mostyn v.Fabrigas (1774) 1 Cowp. 161 also Shelling v. Farmer 1 Strange 645., LodnaColliery Co., Ltd., v. Bipin Behari Bose I. L. R.(1912) Calc. 739. on which thedecision in the present case is based is distinguishable: the question ofpossession was bona fide hi issue in that case. On a proper construction of thepleadings in the present case, no question of title or possession is put inissue. The defendants deny having cut into the plaintiffs barrier: this denialassumes that the barrier was the plaintiffs, and relates to the factum ofcutting into it. The demarcation by boundary pillars is admitted by thedefendants: the only question to be ascertained is whether the undergroundworkings of the defendants are on this side or that of the line of pillars. InJuggodumba Dossee v. Puddomoney Dossee (1875) 15 B. L. R. 318. jurisdiction wasexercised on the ground that "no provision of any land is claimed and nodecree bearing directly upon land or any interest in land has been given."

9. Even if it be held that a suit for compensation fortrespass to land is a suit for land, the plaintiffs were entitled to a decreefor the value of their coal removed by the defendants. This is a cause ofaction in trover and such a suit has never been regarded as local; seeHalsburys Laws of England, Vol. XX, pp. 538, 1372, 1373, 1376, also Powell v.Rees (1837) 7 AE. 426. The circumstance that in order to give effect to a claimfor money, the title of land may be required to be incidentally decided, doesnot make the suit one for land.

10. Sir S. P. Sinha (with him Mr. A. K. Sinha), for therespondents. It is true the defendants admit that the boundaries between theproperties are demarcated by pillars, but the pillars are wrongly shown on theplans. The boundaries are in dispute. The expression "suits for land orother Immovable property" in Clause 12 of the Charter has the same widesignificance as in Section 16 of the Code and includes all suits mentionedtherein [Nalum Lakshimikantham v. Krishnasawmy Mudaliar I. L. R (1903) Mad.157.] with the possible exception of Clause (f). A distinction is drawn betweenlocal and transitory actions in the Code---the former referring to laud, thelatter including other actions. Actions of a "real" nature fallwithin the purview of Section 16 of the Code---actions of a transitory natureunder Section 20. At the time of the passing of the Code of 1859 and theCharter of 1861, a distinction was drawn between local and transitory action inEngland and it was this distinction which it was intended to impress on theCode and the Charter. "Suits for land" must mean suits of a localnature, which must be brought where the venue is. The principle of thedistinction has greater force in this country than in England, as here the HighCourt has no jurisdiction over land say in Manbhoom, whereas in England, theSinges Courts of Justice have jurisdiction over all land in England, in BritishSouth Africa Company v. Companhia de Mocambiqae (1893) A. C. 602 the plaintiffsrested their case on a claim for damages, admitting that they could not get adeclaration of title to land. The suit was dismissed. This Court has no morejurisdiction over Land in Manbhoom than the English Court had jurisdiction overland in South Africa. In view of the, English authorities, it cannot becontended that Clause 12 of the Charter cannot include the class of suitsindicated by Sub-clause (e) of the Code, namely, suits for compensation forwrong to Immovable property: see Vaghoji v. Camoji I. L. R. (1904) 29 Bom. 249.The argument that so long as the Court can act in personam, it hasjurisdiction, is unsound, even English Courts of Equity refused to recognisethat doctrine. Equity did not give relief in personam unless priority was establishedby contract, fraud or trust. Section 16 of the Code reproduced the lawgoverning the jurisdiction of the English Courts even after the extension ofthe Courts of Equity. The jurisdiction of the High Court on its Original. Side,under Clause 12 of the Charter, is the same as that of Mofussil Courts underSection 16 of the Code and the same as that of English Courts. The earlierauthorities tire discussed in Zulekabai v. Ebrahim Haji Vyedina I. L. R. (1912)37 Bom. 494 [LQ/BomHC/1912/135] . The substantial question in dispute, in the present case, iswhether the strip of coal land which the defendants are working, belongs tothem or the plaintiffs, is that not substantially a suit for land It does notalter the nature of the suit, by the plaintiffs purporting to claim not thelaud, but the price of the land. Ebrahim Ismail Timed v. Provas Chander MitterI. L. R. (1908) Calc. 59. is a direct authority for the proposition that nosuit will lie where damages are churned for trespass. The last mentioned casesupplies the answer to the argument based on assumpsit.

L.H. Jenkins, C.J.

11. Referred to Vinayak v. Krishnarao I. L. R.(1901) 25Bom. 625.

12. Kellie v. Fraser I. L. R. (1877) Calc. 445. is not inconflict with Delhi (and London Bank v. Wordie I. L. R.(1876) Calc. 249: seeWoodroffes Civil Procedure Code, p. 157, note 4.

13. Mr. Bagram, in reply. In British South Africa Companyv. Companhia de Mocambique [1893] A. C. 602. the reason why the House of Lordsdismissed the suit was that the English Court would not assume jurisdiction inthe case of an invasion of right depending on a foreign rule of law affectingland, such right being unknown to the English law: the Lord Chancellor adoptedthe argument of Sir H. James that it was a matter of procedure.

L.H. Jenkins, C.J.

14. It appears to me that the test proposed by Clause 12is not one of form but one of substance. A suit brought in trespass for thepurpose of having title to land tried, is a suit for land.

15. In Ilderton v. Ilderton (1793) 126 Engl 476 the EnglishCourt entertained a suit for dower, although incidentally it had to decide theissue of the validity of a Scotch marriage see also Norris v. Chambers (1860)29 Bcad. 246 In passing the Charter, the Legislature intended to distinguishnot between local and transitory actions, but between real and personalactions. Whitaker v. Forbes (1875) L. R. 10 C. P. 583 Sydney Municipal Councilv. Bull [1908] I. K. B. 7, 12 In re Hawthorne, Graham v. Massey (1883) L. R. 23Ch. D. 743 2 Duder v. Amsterdamsch Trustees Kantoor [1902] 2 Ch. 132. were alsoreferred to.

L.H. Jenkins, C.J.

16. This is an appeal from a judgment of Mr. JusticeFletcher who has dismissed the suit with costs. This was done on a preliminaryhearing upon settlement of issues, find the only question involved is whetherthis is a suit for land or other Immovable property within the meaning ofClause 12 of the Let tern Patent. That clause was intended to define theoriginal jurisdiction of the High Court as to suits, and it empowered the Court"to receive, try and determine suits of every description, if, in the caseof suits for land or other Immovable property, such laud or property shall besituated . . . . . within the local limits of the ordinary originaljurisdiction of the High Court."

17. The matter in dispute here relates to a miningproperty outside the jurisdiction so defined. But on behalf of the plaintiff itis contended that having regard to the pleadings it cannot be said that it in asuit for land or other Immovable property. The question is what was intended bythat expression. It appears to mo that it was not a mere formal test that wasproposed---a test to be determined by the precise form in which a suit might beframed; but that regard was to be had to the substance of the suit, and Icannot help thinking that the particular expression was used, because there wasits equivalent in the Civil Procedure Code of 1859, Section 6. Indeed, it is amatter of common knowledge that the Secretary of States despatch forwardingthe Letters Patent to this Court makes special reference to that circumstance.The course of decisions on the Charter shows that the description cannot belimited to suits for the recovery of land in its strict sense, and as to thatthere can be no dispute: and, running on parallel lines with that, we find theCode of Civil Procedure of 1859 developed in 1877, so as to embrace a number oftopics which perhaps would not in. strictness be regarded as suits for land,and it is instructive to observe what they are. They are suits for the recoveryof Immovable property (with or without rent or profits), suits for thepartition of Immovable property, suits for foreclosure, or redemption of amortgage of Immovable property, suits for the determination of any other rightto or interest in Immovable property and suits for compensation for wrong toImmovable property. This appears to me to be in accordance with principles ofgeneral if not universal, application according to which suits for land in itsstrict sense must come before the Court where the land is situate. The systemon which our procedure is based, the English procedure, regards a suit fordamages for trespass to land in the same way, and, it is interesting to noticethat Chancellor Kent in his commentaries on American Law states that an injuryto real property is local as to jurisdiction, and trespass on real propertysituated in one State cannot be sued for in another. Therefore, it seems to methat we are not giving a construction that is opposed to the general trend oflegal thought, if we hold that suits for land at any rate extend to a suit ofthis kind, which is a suit for compensation for wrong to land, when, as I holdto be the case here, the substantial question is the right to the land. In myopinion, the suit is one to which Clause 12 of the Letters Patent applies inthe sense I have indicated and therefore it was rightly dismissed. The appealshould therefore be dismissed with costs.

J.G. Wooddroffe, J.

18. I agree.

.

Sudamdih Coal Co. Ltd.vs. Empire Coal Co., Ltd.(04.02.1915 - CALHC)