RAMCHARAN Vs. SARWAR KHAN

JUDGEMENT

(1.) THE first ground of appeal is that the plaintiff's suit is not maintainable in its present form inasmuch as the claim against the first defendant is based on breach of contract while that against the other two defendants is based on tort. This matter was discussed at some length in the lower Court. The answer is that the word "tort" does not occur in the law administered in India except in eases of actionable wrong, where we have to apply the English Law because no Indian Statute covers them. I have never met such a case, and this is certainly not one; both claims are covered by the two parts of the same section of the Contract Act, Section 73.

(2.) THE suggestion in the petition of appeal, that the contract came to an end eighteen months after it was made and neither party was bound to perform any part of it that was incomplete, has, not bean mentioned in argument. What is urged for the appellants is that they never broke the contract, that all the trees in the forest of the proper size were duly cut except about fifty which the plaintiffs said were of no use to them, and that the plaintiffs were not prevented from taking away any timber at all, but did in fact take away all that was' cut. The evidence that has been held in the lower Court to prove the contrary is so clear and conclusive that it would be a waste of time to discuss it any further.

(3.) BUT there is a simpler and more certain system. The defendants retained property belonging to the plaintiffs, consisting of the timber already cut and of the trees of the proper size still standing; and if we can ascertain the value of that property at the time at which the defendant detained it, the whole question is settled very simply. In the deposition of the plaintiff Sarwar Khan taken on the 17th of September 1923 at the first hearing of this case he gave a list of all the cut and uncut timber, as far as he knew, of which he had been deprived, and the prices at which he could have sold it on the spot. Taking the lowest price given by him in each case and omitting all the timber of which he was unable to give details, the value comes to Rs. 6,400.