Derbyshire, C.J:— [After discussing the facts, his Lordship proceeded as follows:—]

I find the following facts:—

1. Plaintiff was in lawful possession of the Parkul Tea Estate under the agreement of October 14, 1935, with the right to grow, pluck and manufacture tea and sell as his own Parkul Tea as from October 15, 1935.

2. On or about January 12, 1936, the plaintiff was wrongfully dispossessed of the Parkul Tea Estate by P.C Shyam through the latter's agents, who in and by dispossessing the plaintiff, committed criminal trespass upon the said estate.

3. P.C Shyam continued in such unlawful possession of the Parkul Tea Estate until December 23, 1936, and during that time plucked tea from the estate and manufactured it, and consigned 120,117 lbs. of such Parkul Tea with the railway receipts relative thereto, to the defendants who sold it for Rs. 30,876-6-1, received the price and paid the same, less their charges Rs. 2,346-2, i.e, Rs. 28,530-4-1 to Shyam.

The plaintiff contends that the tea so sold was his property that the defendants wrongfully converted it, and he claims its value. The defendants deny that it was the plaintiff's tea and further say they committed no wrong in selling it for Shyam.

Now, if the tea was the property of the plaintiff then the defendants are liable in law for wrongful conversion: Consolidated Company v. Curtis & Son. The question is—was the tea sold the property of the plaintiff? The plaintiff contends that he had paid for the Parkul Tea Estate and was given possession of it by the owners, the Chandpore Tea Company, on October 15, 1935, to enable him to grow tea, manufacture it and sell it the tea belonged to him, and no one else; the conveyance of the estate on October 8, 1937, have him all the rights of ownership of both the estate and its produce retrospectively as and from October 15, 1935.

The defendants contend that from October 15, 1935, the plaintiff may have had in law a right to possession but in fact, whilst the tea in question was being grown, plucked and manufactured and sold, plaintiff had no possession of the estate or its produce at all, nor had he the legal ownership of the estate and its produce, since they say, legal ownership could not in law pass and did not pass until the date of the registered conveyance, viz., October 8, 1937; that until October 8, 1937, the ownership of the tea estate was in the Chandpore Tea Company, and if the tea was plucked by Shyam as a wrongdoer, then the property in it remained in the owners—the Chandpore Tea Company—who are not parties to this suit.

If the property in the Parkul Tea Estate and the right to produce tea did, under the registered conveyance of October 8, 1937, pass to the plaintiff as and from October 15, 1935, there is an end to this part of the defendants' argument and the tea was clearly the plaintiff's.

It may be (though it is not necessary for the purposes of this case so to hold and I wish to make it quite clear that I do not so hold) that the registered conveyance of October 8, 1937, could not operate so as to pass the ownership in the Parkul Tea Estate to the plaintiff retrospectively, that is, on and from October 15, 1935. I will consider the position upon that supposition: the tea estate, and, in particular, the tea bushes, would be the property of the Chandpore Tea Company. Shyam a trespasser with no right at all to pluck the tea, pulled tea leaves off the bushes. The leaves becoming detached from the realty were no longer immoveable property. Whose property were they?

The plaintiff, the Chandpore Tea Company and Shyam are the only parties who could be interested in the ownership of the tea. If the property in the leaves before being plucked was in the Chandpore Tea Company, did it remain in them after having been plucked? Obviously, the agreement of October 14, 1935, intended that the property in the tea leaves should be in the plaintiff so that he could sett the tea, otherwise there was no point in the agreement.

Suppose the Chandpore Tea Company had attempted to assert a right to the tea as against the plaintiff? The plaintiff as a purchaser who had paid the purchase price and then been let into possession by the Chandpore Tea Company could have relied, and, in my view successfully, relied on s. 53A of the Transfer of Property Act, 1882, which is as follows:—

……….the transferor of any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.

The property in the leaves was not in Shyam, he and his servants were trespassers with no right to be on the garden or pluck tea or prepare it or do anything at all in the garden. Shyam acquired no rights at all to the property in the tea—either in the green leaf or when manufactured.

The only conclusion is that the tea when plucked was the property of the plaintiff. Shyam by further trespass such as the manufacturing of the green leaf into black tea, could not deprive the plaintiff of that property, the leaves though dried, shrunk and blackened, remained tea—“the same thing” as Mr. Sayers, Senior Partner of the defendant firm, put it in cross-examination in answer to question 330, and they were clearly “Parkul Tea” and were sold as such.

In my opinion, the tea in question was the property of the plaintiff and wrongfully converted by the defendants.

To what damages is the plaintiff entitled? The learned Judge has awarded the plaintiff the sale price of the tea less (by agreement) the defendants' charges for selling it.

The defendants' contention is that, as Shyam plucked, manufactured, and transported the tea to them for sale, the cost of these acts was saved to the plaintiff and the damages awarded should be reduced by this amount.

The defendants gave evidence that the value of the green tea leaves was Rs. 3-8 per maund; that four maunds of green leaves dried into one maund of black tea, which would give an equivalent price of two annas nine pies per pound for green leaves.

Further evidence was given by the defendants that the cost of production of black tea in a similar estate was at least five annas per pound. The average price obtained for the Parkul tea the defendants sold was about four annas six pies per pound. The defendants therefore suggest that Shyam was producing it at a loss, and that the plaintiffs have been saved that loss. Alternatively, the defendants say that the difference between the price the tea was sold for and the price of the green leaf, that is, four annas six pies less two annas nine pies, is due to Shyam's efforts and expenditure and that they should be given credit for it.

As regards the former suggestion, I decline to believe that Shyam lost money; he obviously did not invade the tea garden and remain there pillaging it to lose money. As regards both the first and second suggestions, it is improbable that Shyam, once having entered the garden, did not use up the stores of fuel, etc., he found there. Such tea as Shyam produced was from the plaintiff's bushes and was dried in the plaintiff's factory. Shyam may have paid the coolies' and workmen's wages and the cost of transporting the tea to Calcutta, but I doubt if he did anything else. How much this amounted to, it is impossible to say, upon the evidence.

I do not accept his statement that during 1936 he paid Rs. 40,000 for the working of the garden. He was short of money as his letters to the defendants show and hard put to it to find coolies' wages. The defendants were making him advances on account; of the tea in order to keep the garden going. In any event, what he did as regards tea production in that garden was through criminal trespass, in deliberate violation of the criminal law, and he could taken no credit for it.

Shyam was in much worse case than the defendant in Martin v. Porter, since his trespasses were deliberate and criminal whereas Porter's trespasses were ordinary trespasses which may not have been inadvertent.

Shyam was far removed from the position of the defendant in Wood v. Morewood, where, in an action for trover for coal wrongfully got and raised, Parke B. directed the jury that if the defendant was not guilty of fraud or negligence but had acted fairly and honestly in the full belief that he had a right to do what he did, they might give the defendant credit for the cost of raising the coal—which the jury did. See Lord Macnaghten's judgment in the Peruvian Guano Co., Limited v. Dreyfus Brothers & Co..

I am of the opinion that Shyam could not claim this mitigation that the defendants now claim. The question here is—can the defendants claim some mitigation of damage in respect of and in so far as Shyam's expenditure is proved? If I were bound to answer this question, I should do so in the negative.

The defendants had previously acknowledged the plaintiff as the owner of the estate and the tea produced on it; they had sold Parkul tea for the plaintiff and rendered accounts to him for it. The defendants knewj—putting it mildly—that there was a doubt as to Shyam's title to the garden and its tea; if they had enquired of another Calcutta firm—Messrs Barry & Co.—they would have found out that Barrys had sold the Parkul Estate for the Chandpore Tea Company to the plaintiff; if the defendants had enquired of the Tea Licensing Committee in Calcutta (a public body set up under statute) they would have learned that this body was recognising the plaintiff as the owner of the parkul Tea Estate by issuing export quotas in respect of it to him. Again, if they had made some enquiries in Assam (not a difficult matter for any one in the tea trade in Calcutta) they would have learned of the proceedings against Shyam's agents for criminal trespass. Finally, the defendants were warned in the clearest possible terms by the plaintiff's letter of April 24, 1936, against selling Parkul tea for Shyam. The defendants knew the dangers and yet persisted in selling the plaintiff's tea for Shyam and advancing Shyam money before the tea was sold. The defendants were grossly negligent in the matter, and partisans in Shyam's favour.

In my view, they would not be entitled to the benefit of the direction in law which Parke B. gave to the jury in Wood v. Morewood cited above.

If and in so far as it is necessary for me to hold, I hold that the defendants are not entitled to the benefit of Parke B.'s direction in Wood v. Morewood in mitigation of damages.

Be that as it may, it seems to me that the matter is concluded by a pronouncement of Lord Sankey L.C in Banco de Portugal v. Waterlow and Sons, Limited:

It was similarly stated by Lord Blackburn in the House of Lords in Livingstone v. Rawyards Coal Company in these words: “Where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation”. There is no doubt as to the law……………………

Applying that principle to this case, the wrong for which the plaintiff is now getting compensation or reparation is sale of each of those parcels of tea by the defendant. Immediately before each sale, the plaintiff had the property in the tea and was entitled to the parcel about to be sold. That the tea had been plucked, prepared and transported by the trespasser Shyam did not deprive the plaintiff of his right to the tea or its value; the tea was his and, he owed nobody anything in respect of it.

By the sale of the tea the plaintiff was deprived of its value which was the sale price obtained. The total of such sale price was Rs. 30,876-1. The plaintiff has allowed the defendants their commission on the sales, namely, Rs. 2,346-2. Thus, the plaintiff is entitled to the damages the learned Judge has awarded, namely, Rs. 28,530-4-1.

The appeal is dismissed with costs.

Lort-Williams, J.:— I agree. I desire to add only that I am satisfied that there was no agreement between the plaintiff and Shyam such as Shyam alleged. If any agreement had been made, most certainly it would have been reduced into writing as was the agreement to purchase the Longuchera Tea Estate.

Appeal dismissed.

Attorneys for appellants: Orr, Dignarn & Co.

Attorney for respondent: P.N Sen.

P.K.D