Sri Rajah Bounnadovara vs Putman and Another

Both the lower Courts find (if we may say so, in our opinion, correctly) upon the correspondence referring to the arrangement entered into

between the plaintiff (appellant) and Mr. Morrison, the Sub-Divisional Officer, on whoso orders with regard to quarrying the defendants

(respondents) rely, that the plaintiff had agreed to the collection and removal of loose stones only, but that he had not consented to any quarrying

work being carried on his land or to any quarried stones being taken away therefrom. It is admitted that the defendants nevertheless did quarry

stone from the plaintiff''s land and use the stones so quarried for their own purposes. In upholding the decree of the District Munsif dismissing the

suit, the Sessions Judge gives two reasons: The first is "" the general rule is that the principal and not the contractors or agents is liable civilly for

tortious misfeasance. Let the superior answer for the wrong is the general principle."" This is clearly an error; for it is elementary law, that whoever

commits a wrong is liable for it himself, it being no excuse that he was acting as an agent or servant on behalf and for the benefit of another

(Pollock on Torts, 4th Edition, page 67), and that when such other person is also liable, the party wronged has his remedy against both the tort-

feasors or either of them at his (the injured party''s) choice, (Ibid, p. 182). The Sessions Judge is equally mistaken in the second ground taken by

him when he observes ""the defendants being contractors under Mr. Morrison and not being parties to the original contract with the plaintiff not, I

think, liable to the plaintiff."" No doubt if the plaintiff were suing in respect of a breach of the contract with Mr. Morrison, the defendants who are

not parties to the contract could not be sued as to such breach. The plaintiff here, however, is not complaining of breach of an obligation created

by the contract. So far as he is concerned, the contract is referred to show that the wrong done to him by the defendants is independent of the

contract. In other words, the case made out is that by quarrying and removing stones from the plaintiff''s land without his permission the defendants

violated a duty cast upon them by law, viz., that they shall not invade his right of property.

It is manifest, therefore, that the plaintiff is entitled to recover from the defendants damages for their tort. ""We must, therefore, call upon the

Sessions Judge to submit within one month from the receipt of this order a finding (upon the evidence on record) as to the amount the plaintiff is

thus entitled to recover. Seven days will be allowed for filing objections after the finding has been, posted up in this Court.