1. The action which has given rise to this appeal is for the recovery of compensation for the subsidence of a tank purchased by the plaintiff from one Uchit Gorain. The subsidence has been caused by the removal of pillars of coal in the coal mine belonging to the defendant. The trial Court decreed the suit while it was dismissed by the learned District Judge in appeal. He has held that the purchase by the plaintiff from Uchit Gorain was a speculative one, that a fictitious value was put in the sale-deed and that the plaintiff has acquired no title by his purchase, because the tank was a part of Uchit Gorain’s raiyati holding and consequently not saleable under Section 46 (2), Chota Nagpur Tenancy Act. He has further held that the suit is barred by limitation.
2. In appeal it is urged that the learned District Judge, was wrong in considering that the consideration money was not, in fact, paid to the vendor, and that a view of invalidity of the sale has been taken by him by the admission of fresh evidence which should not have been taken, especially, in view of the fact that this plea had not been taken by the defendant in the Court below. It is further contended that the suit is governed by Article 120, Limitation Act, and, even if the subsidence which caused damage had taken place in 1918 or in 1919, the suit instituted in December, 1923, was in due time.
3. Exception is taken by the learned Counsel on behalf of the appellant to the following expression used by the learned District Judge:
The defendants are in my opinion entitled to show that a fictitious value was put on the tank solely with a view to obtain a large sum of damages from them and that the consideration money was not in fact paid to the vendor.
4. It is settled law that a stranger cannot question an assignment on the ground of inadequacy of price or on the ground of non-payment of consideration, but the learned Subordinate Judge considered that; “the value stated in the deed of sale must be considered to be binding on the parties to the sale-deed and also on the defendant, who was only a trespasser.”
5. The learned District Judge really meant to controvert this statement of the learned Subordinate Judge who allowed a compensation of Rs. 2,000, because this was the price stated in the deed for the tank. In order to show that this price should not be accepted he showed the nature of the transaction, namely, that it was a speculative one and that a fictitious value was pat and came to the conclusion that there was no reason why the defendant’s valuation of Rs. 100 should not be accepted. There may have been some loose expression used by the learned District Judge but this has not at all affected the decision of the case.
6. The real question in the case is whether the suit is barred by limitation. According to the view taken by the Appellate Court the subsidence was complete in September, 1919, because he accepts the testimony of defendant’s witness No. 1, who was the late manager of the colliery and who has retired to Benares after severing : his connexion with the company. If, Article 120, Limitation Act, would apply then this suit is not time-barred on the finding of fact by the learned District Judge. But it is urged by the learned Advocate for the respondent that the suit is governed by Article 36, Limitation Act. In reply it is pointed out by Mr. S.P. Sen, appearing on behalf of the appellant, that this Article cannot apply, because the plaintiff’s right to sue accrues not from the date when the malfeasance or misfeasance takes place as provided for in this Article, but from the date when specific injury was suffered and reliance is placed on Section 24, Limitation Act; and on Lightwood on the Time Limit on Actions (1909 Edition) at pages 204 and 205. The argument really is this that inasmuch as the suit for compensation, though for malfeasance or misfeasance, arises out of injury to the plaintiff’s tank and Article 36, Limitation Act, provides for a suit for compensation from the date when the malfeasance or misfeasance takes place, his is a case which is not provided for by any Article of the Limitation Act and, therefore, the residuary Article 120 will be applicable. This argument is, in my opinion, based on a complete misapprehension of Section 24, Limitation Act.
7. Section 3 provides that every suit instated after the period of limitation as prescribed by Schedule I subject to the provisions contained in Sections 4 to 25 shall be dismissed. Section 6 extends the period of limitation for a suit in case of legal disability, thereby the Article of the Limitation Act for a particular kind of suit is not altered, but the period counts from the cessation of legal disability. Similarly, in Section 18, time reckons from the discovery of fraud, not that a particular kind of suit is taken away from the appropriate Article which would govern it. Similarly Section 24 merely affects the time from which the time would run. All that it says is that in a suit for compensation for an act not actionable without special damage, the period of limitation shall be computed from the time when the injury results. Therefore, the effect which this section causes in the operation of the Statute of Limitation is not to extend or to restrict any period of limitation, but to modify the date or time from which the cause of action arises. That is to say, if a suit is for compensation for any malfeasance or misfeasance independent of contract, and not otherwise provided for, the limitation will be two years, not from the date of the malfeasance or misfeasance, but from the time when the injury results.
8. The trial Court held that the suit is governed by Article 36, Limitation Act. The Appellate Court has not mentioned the Article specifically but has apparently proceeded on the same basis. The question will, however, arise whether the suit is governed by this Article. It is no doubt a suit for compensation for a malfeasance or misfeasance, but is it one independent of contract? There is an implied covenant running with the land that the surface owner has an inherent right of support from the owner of the underground mines. In that view, it may be stated that this is not a wrong independent of contract, and, therefore, Article 36 will not apply. If this Article be not applicable then undoubtedly the suit will be governed by Article 115 which is the residuary Article for actions ex contract. When a suit for damages for malfeasance or misfeasance or for negligence is not covered by any special Article it must fall under Article 36 or 115, according as the liability is ex delicto or ex contractu. In any view the case cannot fall under Article 120. The view indicated in Light-wood that action may be brought within six years of the damage cannot apply to India where a special Act of Limitation provides for this class of cases. The period of limitation is three years under Article 115 from the time when injury was caused, namely from September, 1919, and, therefore, the suit is evidently barred by limitation,
9. A point was argued by the learned Advocate for the respondent that what was purchased was a right to sue for compensation and that this cannot be transferred. Under Section 6, Clause (e), Transfer of Property Act, the prohibition is against the transfer of a mere right to sue. The word “mere” implies that the transferee acquires no interest in the subject of transfer other than the right to sue. But in the present case what has been purchased is the tank and along with it any covenant running with the land has passed to the plaintiff and by virtue thereof the plaintiff brings this action. It cannot, therefore, be stated that what has been purchased is a mere right to sue. The test to be applied is pointed out in Glegg v. Bromley (1912) 3 K.B. 474 : 81 L.J.K.B. 1081 : 106 L.T. 825, quoted with approval in Jay Narain Pandey v. Kishun Dutt Misra 78 Ind. Cas. 705 : 3 Pat. 575 : 5 P.L.T. 581 : A.I.R. 1924 Pat. 551 : 2 Pat. L.R. 306.
The question was whether the subject-matter of the assignment was, in the view of the Court, property with an incidental remedy for its recovery, or was a bare right to bring an action either at law or in equity.
10. Applying that principle it cannot be asserted that what was assigned to the plaintiff was a bare right to bring a suit. I am unable to accept the contention put forward on behalf of the respondent in this respect.
11. In the view taken on the question of limitation it seems unnecessary to consider whether the decision of the learned District Judge on the point that the purchase was invalid by reason of Section 46, Chota Nag-pur Tenancy Act is sustainable or not. If really the tank purchased is a part and parcel of the raiyati holding of Uchit Gorain it is indisputable that the plaintiff has acquired no right. Sub-Section 1, Section 46, provides that no transfer by a raiyat of his right in his holding or any portion thereof by sale, shall be valid to any extent, and it is provided by Sub-section 3 that no transfer in contravention of Sub-section 1 shall be in any way recognized as valid by any Civil Court. The learned District Judge arrived at the finding that the tank is a part of the raiyati holding on the basis of the Record of Rights, and certain other papers connected with its preparation and produced before him at the appellate stage. The Record of Rights came to be finally published after the decision of the trial Court and under the authority of Hill v. Satan Singh 50 Ind. Cas. 857 : 4 Pat.L.J. 312 : (1920) Pat. 4 this is an admissible piece of evidence as it came into existence subsequently to the filing of the appeal. Bat the learned Counsel complains that he should have been given an opportunity of adducing rebutting evidence. The plaintiff asserted in the plaint that Uchit Gorain had maurasi niskar right in the Bandh (or the tank) in question. This allegation was not specifically traversed in the written statement nor was it mentioned that the property was not alienable as being the part of a raiyati jote. Therefore, the plaintiff may legitimately complain that he ought to be allowed an opportunity of meeting the case that was put forward in the Court of Appeal, and met with success.
12. It is pointed out by the learned Advocate on behalf of the respondent that the plaintiff himself, in a dispute between the Settlement Authorities prayed for jalsasan right in the tank in dispute. But as provided in Section 31, Evidence Act, admissions sare not conclusive evidence of the matters admitted. Then, though jalsasan right may, perhaps, be taken as a right belonging to a cultivating raiyat the plaintiff was not allowed an opportunity of meeting this kind of defence. Be that as it may, remand is unnecessary in the case, in view of our decision that the suit is barred by limitation.
13. In the result the appeal fails and is dismissed with costs.
14. I agree.