SITARAM SYAM NARAIN Vs. ISWARI CHARAN SARANGI

JUDGEMENT

(1.) This is a Letters Patent appeal from a decision of a learned Judge of this Court sitting singly, affirming the judgment of the lower Appellate Court in second appeal dismissing the plaintiff's suit for conversion.

(2.) The plaintiff has a monopoly license for collecting Kendu leaves in a certain part of the Chaibassa forest. The defendants who do not enjoy any such license are proprietors of the village Sarashposh which is on the edge of the forest. The plaintiff employs labourers to gather the leaves and deliver them to his depot and in the course of their journey to the depot they have to pass this village Sarashposh-owned by the defendants. The finding of fact is that the defendants purchased from the labourers leaves which were the property of the plaintiff. They were subsequently found by the Forest Department to be in possession of some 50,000 bundles of leaves. As to these leaves, the case of the defendants was that they were all gathered from plants growing in their own neighbourhood. The Subordinate Judge in his finding of fact by which we are bound has found that some portion of the 50,000 bundles of leaves were those obtained by the defendants wrongfully from the plaintiff's own part of the forest and were not, as the defendants state gathered from plants growing in their own village. The defendants after such finding made no attempt to show what portion of the 50,000 bundles were their own and what portion belonged to the plaintiff. The learned Subordinate Judge in those circumstances thought that as there was no definite evidence as to what proportion of the 50,000 bundles was in fact the property of the plaintiff, came to the conclusion that it was his duty to dismiss the suit although he had specifically found that part of the leaves in suit was the property of the plaintiff.

(3.) The plaintiff came in second appeal before a learned Judge of this Court and he by some accident, possibly by a confusion of the mind caused by the argument raised by the defendants, failed to notice that finding of fact by the learned Subordinate Judge notwithstanding that he quite correctly appreciated the law which was applicable to the circumstances which were found in fact by the Subordinate Judge. The law is well established both by the Common Law and by the Evidence Act. So long ago as the time of Sir. Edward Coke, C. J., the law was well settled. In Warde V/s. Aeyre (1861) 2 Bul, 323 : 80 E R 1107. Lord Coke stated the law as follows: In this case the law is, that if J. S have a heap of come, and J. D. will intermingle his come with the come of J. S. he shall here have all the come, because this was so done by J. D. of his own wrong.