KHUSHALRAO Vs. BAPURAO GANPATRAO MARATHE

JUDGEMENT

(1.) THIS appeal raises a very interesting point of law and one which, despite very numerous decisions, urges one to attend to the prayer of Ajax quoted by Lord Dunedin in Sorrell v. Smith 1925 A.C. 700 , at least say something clear to help in the future Clarity demands that, as a first step, the essential facts be stated. A number of persons, now represented by the appellants and respondents, were in partnership in 1925. The partners, not as partners in that firm, but as separate persons, executed an agreement (hereafter referred to as a licence its being a licence to enter a forest, cut trees and carry away timber) dated 30th August 1925 which gave them the right to cut wood in a certain forest on certain terms. The proprietor of the forest also executed that licence on that date. By an undated order the Deputy Commissioner gave leave to the proprietor to lease the forest under certain stated conditions. This was admittedly after the above licence had been granted. A new agreement by way of lease was drawn up in accordance with the conditions imposed but the partners who, through their servants and agents, had commenced the work of felling declined to execute the lease which, as they rightly observed, introduced important differences to their disadvantage. In particular it altered the period from three years to 21 months. Their manager was told to stop cutting; he referred the matter, to whom is not quite clear but there is some evidence that it was to an agent of the present plaintiff, and he got instructions to go on cutting. He went on cutting for 16 months. Then the landlord sued all the partners for damages for trespass and obtained a decree as follows: It is ordered and decreed that the defendants do pay to the plaintiff the sum of Rs. 5000 and that the sum of Rs. 1285-6-0 be paid by the defendants to the plaintiff on account of costs of this suit.

(2.) EXECUTION was taken out against the present plaintiff alone. He paid the whole. He now sues his co-defendants for contribution and is met with the defence founded on Merryweather v. Nixan (1799) 8 T.R. 186. It is quite clear that all knew or should have known that the work was going on and that all have received a share of the moneys received from the sale of timber out. It is not necessary to consider how a grantor who had wrongfully granted a licence in violation of Section 202, Land Revenue Act, (the violation being that the grant was made without sanction) came to recover damages against these injured grantees and thereby was put in a better position than she would have been in had she obtained sanction. It is, however, desirable to advert to those proceedings and the facts which preceded that suit in order to see whether these persons were in any sense jointly liable in tort or joint tort-feasors within either the strict rule in Merryweather v. Nixan (1799) 8 T.R. 186 or the modified rule herer after to be mentioned.

(3.) WE also infer that all these persons knew that the reason why they were asked to accept a lease on different terms was that Government had only consented on those terms. We note that the requirements of the Act do not seem to have been complied with by the Court of the Deputy Commissioner when passing the undated order. In the first place it is very desirable that the order should bear a date, it is also desirable that the date when the matter was commeneed in which the order was passed should appear. These, however, are details compared with the main criticizm which is that the rules made under the Act and operative at the time provide: