JUDGMENT
Jenkins, C.J.
1. At the time the Charter was passed the Code of Civil Procedure of 1859 was in force. The section in that Code referring to “suits for land” was subsequently replaced by similar sections in successive codes. Section 16 of the present Code describes what was meant by “suits for land.”
2. It is submitted that the Codes subsequent to that of 1859 Varied the rule therein contained and did not enact the section in an amplified form. The mere fact that a question of title may arise for decision does not oust this Court’s jurisdiction. Whether this Court hart jurisdiction or not, depends on the nature of the relief sought.
Woodroffe, J.
3. Can you by claiming a particular form of relief by a side-wind get this Court to determine a question of title?
4. There is nothing to prevent me. The Charter does not prevent this Court from trying a suit in which an issue relating to title arises. The test is whether by means of the suit the plaintiff seeks either to acquire a right or control over land or any interest in land, or to prevent the defendant from doing acts which if persisted in, will eventually deprive tire plaintiff of land Or some interest in land. Nearly all the authorities become reconciled if this view be adopted: East Indian Railway co. v. Bengal Coal Co. (1875) I. L. R. I Calc. 95. Delhi & London Bank v. Wordie (1876) I. L. R. 1 Calc. 249. Kellie v. Fraser (1877) I. L. R. 2 Calc. 445. where the Court enforced an award affecting land at Darjeeling, Sreenath Roy v. Cally Doss Ghose (1879) I. L. R. 5 Calc. 82., which was a suit for specific performance, Peary Mohun Ghosaul v. Haran Chunder Gangooly (1885) I. L. R. 11 Calc. 261., where a claim for damages for trespass to land, was held not to be a suit for land.
Jenkins, C.J.
5. That was a Small Cause Court suit and the decision depended on the consideration of the particular sections of the Small Cause Courts Act.
6. See also Krishna Prasad Nay v. Maizuddin Biswas (1890) I. L. R. 17 Calc. 707., Land Mortgage Bank v. Sudurudeen Ahmed (1892) I. L. R. 19 Calc. 358., which was a vendor’s suit for specific performance of a contract for the sale of land and for damages for broach of such contract, where the decision turned on the nature of the relief sought, Bapuji Raghunath v. Kumarji Edulji Umrigar (1890) I. L. R. 15 Bom. 400. Crisp v. Watson (1893) I. L. R. 20 Calc. 689. was a decision under the Civil Procedure Code and is only an authority for the proposition that a claim for damages is not enforceable by personal obedience. If the Code requires that the infringements of rights to immoveable property should be redressed loyally, it does not follow that the Charter regarded suits for compensation for infringement of such rights as suits for land. In Bag-ram v. Moses (1863) 1 Hyde 284., the Court exercised jurisdiction.
Jenkins, C.J.
7. That was a decision of the Supreme Court, winch exercised the jurisdiction of an English Court.
8. It has always been treated as an authority. In the case of a nuisance, this Court exercised jurisdiction, though the land was in Howrah: Rajmohun Bose v. East Indian Railway Co. (1872) 10 B. L. R. 241., Helford v. East Indian Railway Co. (1874) 10 B. L. R. 1., Chintaman Narayan v. Madhavrao Venkatesh (1869) 6 Bom. H. C. App. 29. English Courts foreclose lands outside the jurisdiction: Paget v. Ede (1874) L. R. 18 Eq. 118. The distinction in England between local and transitory actions has no application here. The English system is highly technical. Rules regarding venue and choice of Courts in which suits should be brought were peculiar to the English system: Smith’s Leading Cases, 11th edition, Vol. I, p. 608, per Lord Mansfield in Mostyn v. Fabrigas (1774) 1 Cowp. 161., also Shelling v. Farmer 1 Strange 645., Lodna Colliery Co., Ld., v. Bipin Behari Bose (1912) I. L. R. 39 Calc. 739. on which the decision in the present case is based is distinguishable: the question of possession was bona fide hi issue in that case. On a proper construction of the pleadings in the present case, no question of title or possession is put in issue. The defendants deny having cut into the plaintiffs’ barrier: this denial assumes that the barrier was the plaintiffs’, and relates to the factum of cutting into it. The demarcation by boundary pillars is admitted by the defendants: the only question to be ascertained is whether the underground workings of the defendants are on this side or that of the line of pillars. In Juggodumba Dossee v. Puddomoney Dossee (1875) 15 B. L. R. 318, 329. jurisdiction was exercised on the ground that “no provision of any land is claimed and no decree bearing directly upon land or any interest in land has been given.”
9. Even if it be held that a suit for compensation for trespass to land is a suit for land, the plaintiffs were entitled to a decree for the value of their coal removed by the defendants. This is a cause of action in trover and such a suit has never been regarded as local; see Halsbury’s Laws of England, Vol. XX, pp. 538, 1372, 1373, 1376, also Powell v. Rees (1837) 7 A. & E. 426. The circumstance that in order to give effect to a claim for money, the title of land may be required to be incidentally decided, does not make the suit one for land.
10. Sir S. P. Sinha (with him Mr. A. K. Sinha), for the respondents. It is true the defendants admit that the boundaries between the properties are demarcated by pillars, but the pillars are wrongly shown on the plans. The boundaries are in dispute. The expression “suits for land or other immoveable property” in Clause 12 of the Charter has the same wide significance as in Section 16 of the Code and includes all suits mentioned therein [Nalum Lakshimikantham v. Krishnasawmy Mudaliar (1903) I. L. R. 27 Mad. 157.] with the possible exception of Clause (f). A distinction is drawn between local and transitory actions in the Code—the former referring to laud, the latter including other actions. Actions of a “real” nature fall within the purview of Section 16 of the Code—actions of a transitory nature under Section 20. At the time of the passing of the Code of 1859 and the Charter of 1861, a distinction was drawn between local and transitory action in England and it was this distinction which it was intended to impress on the Code and the Charter. “Suits for land” must mean suits of a local nature, which must be brought where the venue is. The principle of the distinction has greater force in this country than in England, as here the High Court has no jurisdiction over land say in Manbhoom, whereas in England, the Singes Courts of Justice have jurisdiction over all land in England, in British South Africa Company v. Companhia de Mocambiqae [1893] A. C. 602., the plaintiffs rested their case on. a claim foe damages, admitting that they could not get a declaration of title to laud. The suit was dismissed. This Court has no more jurisdiction over Land in Manbhoom than the English Court had jurisdiction over land in South Africa. In view of the, English authorities, it cannot be contended that Clause 12 of the Charter cannot include the class of suits indicated by Sub-clause (e) of the Code, namely, suits for compensation for wrong to immoveable property: see Vaghoji v. Camoji (1904) I. L. R. 29 Bom. 249. The argument that so long as the Court can act in personam, it has jurisdiction, is unsound, even English Courts of Equity refused to recognise that doctrine. Equity did not give relief in personam unless priority was established by contract, fraud or trust. Section 16 of the Code reproduced the law governing the jurisdiction of the English Courts even after the extension of the Courts of Equity. The jurisdiction of the High Court on its Original. Side, under Clause 12 of the Charter, is the same as that of Mofussil Courts under Section 16 of the Code and the same as that of English Courts. The earlier authorities tire discussed in Zulekabai v. Ebrahim Haji Vyedina (1912) I. L. R. 37 Bom. 494. The substantial question in dispute, in the present case, is whether the strip of coal land which the defendants are working, belongs to them or the plaintiffs, is that not substantially a suit for land? It does not alter the nature of the suit, by the plaintiffs purporting to claim not the laud, but the price of the land. Ebrahim Ismail Timed v. Provas Chander Mitter (1908) I. L. R. 36 Calc. 59. is a direct authority for the proposition that no suit will lie where damages are churned for trespass. The last mentioned case supplies the answer to the argument based on assumpsit.
Jenkins, C.J.
11. Referred to Vinayak v. Krishnarao (1901) I. L. R. 25 Bom. 625.
12. Kellie v. Fraser (1877) I. L. R. 2 Calc. 445. is not in conflict with Delhi (and London Bank v. Wordie (1876) I. L. R. 1 Calc. 249.: see Woodroffe’s Civil Procedure Code, p. 157, note 4.
13. Mr. Bagram, in reply. In British South Africa Company v. Companhia de Mocambique [1893] A. C. 602. the reason why the House of Lords dismissed the suit was that the English Court would not assume jurisdiction in the case of an invasion of right depending on a foreign rule of law affecting land, such right being unknown to the English law: the Lord Chancellor adopted the argument of Sir H. James that it was a matter of procedure.
Jenkins, C.J.
14. It appears to me that the test proposed by Clause 12 is not one of form but one of substance. A suit brought in trespass for the purpose of having title to land tried, is a suit for land.
15. In Ilderton v. Ilderton (1793) 126 Engl. Rep. 476. the English Court entertained a suit for dower, although incidentally it had to decide the issue of the validity of a Scotch marriage see also Norris v. Chambers (1860) 29 Bcad. 246., In passing the Charter, the Legislature intended to distinguish not between local and transitory actions, but between real and personal actions. Whitaker v. Forbes (1875) L. R. 10 C. P. 583., Sydney Municipal Council v. Bull [1908] I. K. B. 7, 12., In re Hawthorne, Graham v. Massey (1883) L. R. 23 Ch. D. 743., 2 Duder v. Amsterdamsch Trustees Kantoor [1902] 2 Ch. 132. were also referred to.
Jenkins, C.J.
16. This is an appeal from a judgment of Mr. Justice Fletcher who has dismissed the suit with costs. This was done on a preliminary hearing upon settlement of issues, find the only question involved is whether this is a suit for land or other immoveable property within the meaning of Clause 12 of the Let tern Patent. That clause was intended to define the original jurisdiction of the High Court as to suits, and it empowered the Court “to receive, try and determine suits of every description, if, in the case of suits for land or other immoveable property, such laud or property shall be situated . . . . . within the local limits of the ordinary original jurisdiction of the High Court.”
17. The matter in dispute here relates to a mining property outside the jurisdiction so defined. But on behalf of the plaintiff it is contended that having regard to the pleadings it cannot be said that it in a suit for land or other immoveable property. The question is what was intended by that expression. It appears to mo that it was not a mere formal test that was proposed—a test to be determined by the precise form in which a suit might be framed; but that regard was to be had to the substance of the suit, and I cannot help thinking that the particular expression was used, because there was its equivalent in the Civil Procedure Code of 1859, Section 6. Indeed, it is a matter of common knowledge that the Secretary of State’s despatch forwarding the Letters Patent to this Court makes special reference to that circumstance. The course of decisions on the Charter shows that the description cannot be limited to suits for the recovery of land in its strict sense, and as to that there can be no dispute: and, running on parallel lines with that, we find the Code of Civil Procedure of 1859 developed in 1877, so as to embrace a number of topics which perhaps would not in. strictness be regarded as suits for land, and it is instructive to observe what they are. They are suits for the recovery of immoveable property (with or without rent or profits), suits for the partition of immoveable property, suits for foreclosure, or redemption of a mortgage of immoveable property, suits for the determination of any other right to or interest in immoveable property and suits for compensation for wrong to immoveable property. This appears to me to be in accordance with principles of general if not universal, application according to which suits for land in its strict sense must come before the Court where the land is situate. The system on which our procedure is based, the English procedure, regards a suit for damages for trespass to land in the same way, and, it is interesting to notice that Chancellor Kent in his commentaries on American Law states that ‘an injury to real property is local as to jurisdiction, and trespass on real property situated in one State cannot be sued for in another.’ Therefore, it seems to me that we are not giving a construction that is opposed to the general trend of legal thought, if we hold that suits for land at any rate extend to a suit of this kind, which is a suit for compensation for wrong to land, when, as I hold to be the case here, the substantial question is the right to the land. In my opinion, the suit is one to which Clause 12 of the Letters Patent applies in the sense I have indicated and therefore it was rightly dismissed. The appeal should therefore be dismissed with costs.
Woodroffe, J.
18. I agree.
