JUDGMENT
William Watkin, J.
1. The plaintiff has brought these suits against the defendants for damages for malicious prosecution. The plaintiff and the 1st defendant are brothers ami owners of the North Vallur zemindari in respect of which the 1st defendant had filed a partition suit which was going on at the time of this suit, having been filed in 1919. The other defendants are the tenants of the estate who filed complaints against the plaintiff for illegal distraint of their property for non-payment of rent. In the course of the partition suit the plaintiff and the 1st defendant entered into a compromise which provides for a large number of matters and inter alia, entrusts the management of the estate to the plaintiff. That provision is, however, qualified by Clause 5 which says that the plaintiff should be the manager of the estate until the business mentioned in para. 3 is completed. The third paragraph refers to effecting division by metes and bounds and casting lots regarding the respective shares and after the shares are determined it recites ‘that within a month’s time after they are given thus, the defendant namely, the present plaintiff, should select each lot he likes and take it without raising any objection in the matter of such lots’. When therefore, these lots had been cost and a definite share allotted to each of the brothers Clause 5 would apparently come into effect and each of the brothers would manage his own share. It is admitted that so far as kamatam lands which were divided about March, 1920, are concerned this course was adopted and the first defendant did take possession of his share, but the contention for the appellant-plaintiff is that in respect of cultivated lands which were divided about August, 19.20, vide Ex. XXVIII (a) possession was not given to the first defendant but remained with the plaintiff. There is, however, considerable evidence to show that the first defendant did actually take possession. On the 31st of August the first defendant appointed one Venkatappiah as the thanedar of his share and on the 2nd of September one Narasimham, who had been managing the property under plaintiff directed the amaldag for Maddur village, which fell to the first defendant’s share, to hand over all cash, account-books etc, and we also have other documents Exs. XXX, XXX (a) and XXVIII, which tend to show the first defendant’s possession of his share. In Ex. X the Tahsildar of Bezwada recognises the first defendant’s possession and the value of that document is sought to be discounted on the ground that the document refers to a house site, but we have been shown no reason why any difference should have been made in handing over kamatam lands and house sites as opposed to lands under cultivation by the tenants. Again Ex XV (a) is a petition by a contractor agreeing to give up certain lands to the first defendant. Exhibit I(a) is another document to show that the first defendant was the person to whom the tenants applied for leases. All these facts taken together show clearly that the first defendant must have been in possession of his share and this view is considerably strengthened by the fact that in the plaintiff’s accounts, Ex. XX, he transferred a sum in respect of the first defendant’s share from the joint account in September, 1920, and two months later he re-credited it to the joint account, apparently intending to put forward the claim that he was still the manager in possession of the whole of the zemindari. In this state of affairs we have’ to consider whether the second defendant in each of the four complaints filed his complaint without reasonable and probable cause and maliciously. On 7th December, 1920, the plaintiff and his men, including a constable went to the village of Chodavaram and demanded rent from these defendants. They say that they informed the plaintiff that they had already paid the rent to the first defendant, and we have here receipts which show that payments were made in November, 1920. Distraint was, however, effected and cattle were taken away from the houses of these defendants one of whom was the village Munsif. They at once went to Bezwada and, whether before or after consulting the first defendant is immaterial, filed complaints through a Vakil, one Kambhotlu P.W. No. 11, before the Sub-Divisional Magistrate. These complaints purport to be complaints of an offence under Section 212 of the Estates Land Act and the fact that in the complaints it is stated that the acts of the accused would amount to robbery does not constitute a complaint under Section 392, Indian Penal Code. This is clear from the fact that the Sub-Divisional Magistrate at once transferred the complaint as being one under Section 212 of the Estates Land Act to a Magistrate who had no jurisdiction to try a case under Section 392, Indian Penal Code. These complaints were eventually dismissed as false. The judgment in that case is filed here as Ex. G. The first thing that the plaintiff has to prove is that the complaints were filed without reasonable and probable cause. If, as has been pointed above, the first defendant was in possession of the lands cultivated by those tenants and had collected rent from them they would be perfectly justified in refusing to pay rent to the plaintiff and would naturally be annoyed at property being distrained in respect of money they had already paid. It is contended that under the Estates Land Act the plaintiff being the registered proprietor of the estate was the person entitled to collect the rent and that, therefore, the tenants were bound to pay rent to him. Even if, from a strictly legal point of view, there was this liability to pay him the fact that they had paid the rent to a person who was in possession of the lands as owner, with the permission of the registered proprietor, would certainly be sufficient justification for their taking action to prevent this being charged twice over and it cannot be said in these circumstances that there was no reasonable and probable cause for the complaints filed by them; ryots in a village cannot be held to have complete egal knowledge and to be aware of the strictly legal rights of the plaintiff, if they really do exist in law.
2. It may also be mentioned that the plaintiff and the first defendant were joint owners of the estate and under the compromise between them the plaintiff was to be the sole manager, but in accordance with the terms of that compromise it would appear that that management was to continue only until the shares were divided. In this view the question whether the first defendant was the actual prosecutor in these complaints does not arise, for he would be entitled to the benefit of the same arguments as have been put forward for the ryots, the other defendants.
3. I have omitted to mention some evidence in support of the first defendant’s possession, that is, the oral evidence of P.W. Nos. 3, 5, 6, 8 and 13 of whom P.W. No. 6 actually admits the collection of rents by Venkatappiah, the thanadar appointed by the first defendant to manage his lands including the plaint lands.
4. Taking, therefore, the evidence as a whole it is clear that the complainants in the criminal cases had justification in filing the complaints and no malice could be inferred merely from the fact that such complaints were made. There is no other evidence of malice on the part of the second defendant in each of the suits and, although admittedly the plaintiff and the first defendant are bitter enemies, that alone would not make the first defendant liable.
5. A further argument has been put forward for the respondent which is dealt with by the Subordinate Judge, namely, that the prosecution being one for an offence under the Estates Land Act an action for damages for malicious prosecution would not lie. A decision to this effect is that of Justice Napier in Sriramulu Naidu v. Kolandaivelu Mudali 37 Ind. Cas. 374 : 31 M.L.J. 497 : 20 M.L.T. 308 : (1916) 2 M.W.N. 242 : 4 L.W. 332, and it is to a certain extent supported by the other learned Judge Seshagiri Iyer who, however, concedes that in certain circumstances it might be possible to prove a claim for malicious prosecution under the Cattle Trespass Act. Here the facts are very similar and it will certainly be very difficult to prove in a case of this Sort that substantial damages could have been sustained. The offence complained of contains no moral turpitude and no special damages have been alleged.
6. For all these reasons, I think the Sub-ordinate Judge is right in his decision and dismiss the apppeals with costs.
7. Appeal No. 71 of 1924, abates as against the second defendant, the tenant, who is dead.
8. One set of costs in Appeal No. 71 of 1924, and two sets of costs in all the other appeals.
Odgers, J.
9. I agree and I shall add a few words more. In deciding these appeals, sitting as we are, as a Jury, we have got to take, if we can, the common sense view which the ordinary man in the street would take with regard to the occurrence on 7th December, 1920. Now it has been strenuously argued that the complaint is under the Indian Penal Code as well as under the provisions of Section 212 of the Estates Land Act. The complaint is headed under Section 212 of the Estates Land Act but it concludes with the following words,’the illegal acts committed by the accused are an offence under Section 212, Estates Land Act, and amount to robbery under the Indian Penal Code., That has been characterised by the learned Subordinate Judge as a Pleader’s gloss and it has been strenuously argued by Mr. Ramadas for the appellant that looking at the complaint generally we must take it that it alleges an offence under the Indian Penal Code. I cannot subscribe to that view. The general allegation in the complaint is that it amounts to robbery under the Indian Penal Code specifying no section and it seems to me that it is insufficient to make it a complaint under the Indian Penal Code. Therefore, we have to see whether this complaint under Section 212 of the Estates Land Act was justified under the circumstances which have been set out in detail by my learned brother and which I do not propose to repeat. I think it most likely that under the partition deed, Ex. C, the first defendant was in possession of the village of Chodavaram at the time and the plaintiff had then no power or authority over it whatever. But, however that may be, we have got to see whether the tenants were justified in taking the view they did of the plaintiff’s action and I think having regard to that action, (that is to say, the demand of rent and when it was not paid, immediate distraint of their property) they were justified in regarding that as a violation of their rights because as they said they had already paid the rent to the first defendant.
10. With regard to the question as to whether the first defendant was really the prosecutor in these cases I do not think he was, in the view that I take with regard to justification.
11. With regard to the law I am very doubtful as to whether a suit of this sort lies at all under the circumstances. It is said that the prosecution must have been for an offence which would carry reprobation or impair the fair name of the parties. It is not enough if the proceedings are penal in form. This view is supported, as my learned brother has pointed out, by the judgment of Napier, J., in Sriramulu Naidu V. Kolandaivel v. Mudali 37 Ind. Cas. 374 : 31 M.L.J. 479 : 20 M.L.T. 308 : (1918) 2 M.W.N. 242 : 4 L.W. 332, which again relied on the decision in Wiffen v. Bailey (1915) 1 K.B. 600 : 84 L.J.B. 688 : 112 L.T. 274 : 79 J.P. 145 : 13 L.G.R. 121 : 59 S.J. 176 : 31 T.L.R. 64, where a very minute examination of the law has been undertaken by the learned Lords Justices and they come to the conclusion that there is no such damage to fair name in a prosecution under Section 95 of the Public Health Act, 1875 instituted against a man who failed to repair the walls of his house when required to do so. Buckley Lord Justice said the question was to see if there was scandal or damage to fame, secondly, danger of imprisonment and thirdly damage to property. We are only concerned with the first of these here. Scandal means something derogatory to the fair fame of the person damaged and everything punishable by fine does not necessarily reflect upon the fair fame of the person prosecuted. So we have to look at the charge itself and holding, as I do, that it is one under Section 212, Estates Land Act merely, it seems to me that this suit falls under the category of cases referred by the learned Lords Justices and I am prepared to say that such an action will not lie under the circumstances. Even if I am wrong as to that I agree with my learned brother as to justification and, therefore, the appeals must be dismissed with costs.
