KATAKOOL NATUVLAPURAYIL MOIDIN KUTTI Vs. POTTARKULAR KOMAN NAIR

JUDGEMENT

(1.) THIS is a suit for damages sustained by the plaintiff by the defendants unlawfully setting fire to and destroying pepper vines or his land. Both Courts have found that the act assigned by the plaintiff was committed at the instigation of the 1st defendant by the 5th defendant, a tenant of his. It is contended that there is no legal evidence to support the finding of instigation by the 1st defendant. THIS observation is only correct in the sense that there is no direct evidence of any one who actually saw the act of instigation. There was strong circumstantial evidence against the 1st defendant and we must accept the concurrent findings of the Courts below that it was proved against him. The Subordinate Judge reversing the District Munsif s decree dismissed the suit on the ground that it was barred by limitation. He applies Article 36 of the Limitation Act which provides for "compensation for any malfeasance, misfeasance or non-feasance independent of contract and not herein specially provided for." It is clear that the Article can apply only to cases of malfeasance, misfeasance and nonfeasance not provided for by other Articles. The appellant contends that the case really falls within the purview of Article 39 for compensation for trespass upon immoveable property. We are of opinion that his contention must be upheld. We are entirely unable to agree with Mr. Ryru Nambiar s argument that trespass consists only of unlawful entry upon another man s land. It certainly includes the mischief which the trespasser commits after entering on the land. The majority of the Full Bench of the Calcutta High Court held in Mangun Jha v. Dolhan Golab Koer 25 C. 692 : 2 C.W.N. 265, that a suit for damages for cutting crops on the owner s land would come within Article 39. See also Surat Lall Mondal v. Umar Haji 22 C. 877. Maclean, C.J., was inclined to hold that even if the crops cut were carried away, the same Article would apply. Fishing in the owner s tank without his permission was held to be trespass Lukhimoni Dasi v. Karuna Kant Moitro 3 C.L.R. 509. Entry of the defendants cattle on plaintiff s land and the causing of damage thereby was regarded as trespass Boyle v. Tamlyn 6 B. & C. 329 : 9 D. & Rule 430 : 5 L.J. (o.s.) K.B. 134 : 30 R.R. 343. Rampini, J., no doubt, held in several cases that the doing of an unlawful act by a person, who has already wrongfully entered on another s land, would not be trespass within the meaning of Article 39, but a malfeasance coming within Article 36. We can only say with respect to the learned Judge s opinion that it ignores the well understood signification of trespass in law. It is unnecessary to consider whether if a trespasser carries away anything from the land, a suit for damages for the loss of what is carried away would not fall within Article 49. That Article itself provides that a suit for an injury to moveable property might be instituted within three years, such a suit would not, therefore, fall within Article 36. It would be carious if the period of limitation for suing for compensation for injury to immoveable property should be less than that for compensation for injury to moveable property. We entertain no doubt that Article 39 is the proper one to be applied in this case. Mr. Ryru Nambiar contends that the plaint does not allege that the defendants trespassed on his land. The allegation in the plaint is that the defendants set fire to his pepper vines. The plaintiff s case, undoubtedly, was that they did so, having entered on the land for the purpose. He asked for permission in the Court of first instance to make a specific allegation in the plaint. To that effect leave to amend was refused. We agree with the Court of first instance that the plaint, properly read, does charge trespass against the defendants. We do not consider any amendment is necessary. With regard to the amount of damages, we see no reason to differ from the award made by the District Munsif. The appeal will, therefore, be allowed, the Subordinate Judge s decree set aside and the Munsif s decree restored. The claim for an amount larger than that allowed by the Munsif must be disallowed. The parties will pay and receive proportionate costs in this Court and in the lower Appellate Court.