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TMI Blog1937 (10) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... eing transposed, yet having been transposed and accordingly having let the time for appealing pass, it would be inequitable now to treat him as a person against whom a final decree has been passed. We think it unfortunate that he has got before the Court as an appellant by transposition rather than by appealing because on the argument there are wide differences between his position and that of defendant 1 firm. These differences however are greatly reduced as a consequence of the pleadings (which raise quite a different case from that argued before us) and any difficulty that is caused by the fact that defendant 2 is before us by transposition can be avoided by keeping defendant 2 to his representation, on the strength of which he was transposed, that his grounds of appeal are the same as those taken by defendant 1 firm. As their Lordships of the Privy Council observed in Hodges v. Delhi and London Bank Ltd., (1901) 23 All 137=27 IA 168=7 Bar 767 (PC) at p. 142, "as matters turn out the misjoinder in appeal will not cause any embarrassment." 2. It is very necessary in this case, the arguments in which have ranged over a wide area, to bear in mind what the nature of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of plaintiff's "lease" and assuming that everything was in order, the position will be seen to be as follows: Defendant 1 firm had, for many years, during most of which plaintiff was associated with defendant 1 firm in business connected with these leaves, been gathering leaves from defendant 2's trees under exclusive licence of the nature of a profit a prendre. Those licences were not registered at the time when plaintiff got an exclusive licence from defendant 2 who four days later gave an exclusive licence over the same area to defendant 1 firm. At the time of the grant to plaintiff, defendant 1 firm was entitled as against defendant 2 to gather leaves under an unregistered licence under which defendant 1 firm had acted and under which the firm had paid substantial sums. If S. 53-A, T.P. Act, applies, he was accordingly entitled to act under that licence against defendant 2 or against any person (including the plaintiff) "claiming under" defendant 2. Those are the broad facts which have to be borne in mind in considering the relief sought in this suit. The pleadings and so-called pleadings amount to 44 typewritten pages in the record. The relief sough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff in answer to defendant 1 firm's written statement para. 13 (adopted by defendant 2 in para. 1 of his written statement). In defendant 1 firm's written statement, para. 13, it is alleged that "the joinder of causes of action of distinct and different nature is bad in law". An issue is taken on this plea of misjoinder: see Issue 2(b). This issue is dealt with in para. 10 of the judgment where it is stated: Plaintiff alleges that both the defendants are joint tort feasors. They combined in depriving the plaintiff of his right to exclusive collection of tendu leaves.... 6. It will be seen if that paragraph in the judgment is referred to, that mention is made of an agreement come to in a criminal case (Exs. P.4 and P.9). Ex. P-4 is to the effect that defendant 1 firm agrees to pay to plaintiff "the costs of the leaves so collected" in case a Civil Court decides that defendant 1 firm has no right to take the leaves. Ex. P-9 is to the effect that the plaintiff will pay a sum there mentioned if the Civil Court decides he has no right to collect leaves. Neither statement imposes any obligation on defendant 2 to pay anything. Defendant 2 presumably was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of ₹ 7000. It is said that amount was not paid. We are of the opinion that the plaintiff made every reasonable effort to pay and the fact that defendant 2 has not got that money is his own fault in not accepting it when tendered. We are accordingly of the opinion that the plaintiff's "lease" was properly registered and could not be cancelled by defendant 2. That "lease" preceded by four days the registered "lease" given to defendant 1 firm by defendant 2 but it was given at a time when an unregistered "lease" was in existence and under which defendant 1 firm was operating. The next question that arises is: "Did these documents require registration?" It is urged that these "leases" do not require registration as the subject-matter falls within the definition of moveable property contained in S. 2(9), Registration Act, which is as follows: "Moveable property" includes standing timber, growing crops and glass, fruit upon and juice in trees, and property of every other description, except immoveable property. 8. On the other hand it is said that the subject-matter is "immovable property" wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not exhaustive. The word "crop" derives from an old English word meaning the top of a plant and might include, we think, leaves. Indeed one would naturally speak of a tobacco crop though whether one would normally speak of a tea crop we doubt. Assuming however that the leaves of a tree can be described as a crop (which according to English legal usage would have a more restricted meaning: see Raja Bije Bahadur v. Ganoolal, (1892) 5 CPLR 6 ) then a transfer of a growing crop, i. e. a crop growing at the time of the transfer might he a transfer of moveable property within the definition of "moveable property" contained in the Registration Act. 9. Pollock J.'s view was that as the tree was growing at that time, the leaves were, or might be, growing and therefore there was nothing to show that the agreement in question was concerned with a crop not growing at the time. We prefer in this case however to view the matter somewhat differently. These "leases" are not "leases" of leaves or crops. That is, the subject-matter is not the sale or transfer of leaves or crops. The subject-matter is the transfer of a right. We have therefore to conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (Hail-sham edition) Vol. 11, p. 386, and cases cited infra. The owner of a profit can bring trespass, unlike the owner of an easement whose remedies are abatement or nuisance. The "something" which may be taken off the land can be very various and does not necessarily form part of the land. Thus the right to gather acorns and beech-mast, [Chilton v. Corporation of London, (1878) 7 Ch D 562=47 LJ Ch 433=38 LT 498=26 WR 627] the right to shoot pheasants [Lowe v. Adams, (1901) 2 Ch 598= 70 LJ Ch 783=85 LT 195=50 WB 37=17 TLR 763] are examples of profits. The right to shoot pheasants is an interest in land not because pheasants are land, but because, being wild animals, while upon the land they are deemed to be owned by the owner of that land who, as such may give the right to come and take them. We are accordingly of the opinion that these "leases" amounted to grants of immovable property within the definition contained in the General Clauses Act, S. 3(25) and S. 2(6), Registration Act, as relating to "benefits to arise out of land" and as not being excluded by S. 3, T.P. Act or S. 2(9), Registration Act. These (grants accordingly fall within S. 17(1)(b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to us is founded on the major premise that we are here concerned with leases and that therefore the Sections of the Transfer of Property Act relating to leases apply. We are of the opinion that these "leases" were not leases and the Sections relating to leases have no application : see Mulla's Transfer of Property Act, Edn. 2, pages 581, 582 and Natesa v. Tangavelu, AIR (1914) 1 Mad 362=23 IC 102=38 Mad 883 (a decision which, in so far as it decided that the license did not require registration, turns on the definition of moveable property in the Transfer of Property Act). The next point raises the much debated question whether S. 53-A is applicable. Here the suit was instituted after the 1st April 1930. To such a suit, according to the recent Bench decision of this High Court, Hari Prasad v. Hanumant Rao, AIR (1987) 24 Nag 74=170 I0 354=ILR (1936) Nag 115 (where the cases were reviewed), S. 53A applies unless the plaintiff had no notice of either the "lease" to defendant 1 firm or of the part performance thereof. Before we examine the question of notice, it is desirable to put on one side the question raised whether S. 53-A relates to leases at all. In vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fresh lease to this lessee or to any other lessee." There are many other terms and some in respect of restricted sites on which buildings might be put might be regarded as creating a true lease of such sites though this is doubtful as the sites are not demarcated. We are not however concerned with sites but with the main part which is dealing with the plucking and removing of leaves. There is no suggestion that defendant 1 firm did anything they were not entitled to do under the terms of the "lease;" defendant 2 has no grievance, no claim, against defendant 1 firm. But it is said that as regards all the leaves collected after the plaintiff's "lease" was granted, viz. 24th April 1931 (it was registered about six weeks later), the leaves, as collected by defendant 1 firm, became the property of plaintiff. If this be so, then defendant 1 firm, it is said, have converted the property of plaintiff and are liable in damages; defendant 2 has aided and abetted and is therefore a joint tortfeasor and is also liable in damages and the damage is the market value of the leaves without any allowance for cost of collection. 16. That is how the case is framed accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scuss the position to see whether on the facts here present such a cause of action here exists. If it does, we should not construe these pleadings too strictly. They are mofussil pleadings in a suit of some complexity. Our view being that S. 53-A, T.P. Act applies, clearly defendant 2 could not enforce against defendant 1 firm "any right in respect of the property of which the transferee has taken or continued in possession......" He could not have obtained an injunction restraining defendant 1 firm from collecting and taking away tendu leaves. Neither could "any person claiming under him." Defendant 1 firm when operating under that unregistered lease were not tort-feasors or trespassers. They were exercising rights they had paid for. That is the position that existed up to the end of the unregistered 'lease'. What is the position thereafter? 18. The position is not easy. To understand the difficulty certain dates are necessary. At the date of the grant to plaintiff (28th April 1931) defendant 1 firm had an unregistered licence under which they had operated and in respect of which they had paid substantial sums. That 'lease' expired on 31st Marc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 1 firm has the exclusive right up to 31st March 1936 and from 23rd April 1939 to 31st March 1941. That appears to us to be the result of this extraordinary series of overlapping grants. Needless to say this results in neither plaintiff nor defendant 1 firm getting what they paid for. The consequence will be that the zamindar will be liable in a properly constituted suit for damages. What the measure of damages will be can be left to be decided in such a suit. It does not arise here. We have not overlooked the fact that these licenses are given during the pendency of an existing license. Broadly our position can be made clear by the following illustration. A grants to B exclusive license to gather and remove leaves for one year from 1st January 1936 to 31st December 1936 inclusive. On 1st June 1936 A grants to C in respect of the same area exclusive license to gather and remove the same leaves for one year from 1st June 1936 to 31st May 1937. On 1st July 1936 A grants to B same license over same area for the period 1st July 1936 to 30th June 1937. In our view after the first grant, A is divested of the power to make any such grant to G for the period 1st June 1936 to 31st Decemb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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