Judgement Appeal (No. 130 of 1928) from a decree of the High Court (April 30, 1926) varying a decree of the Subordinate Judge at Asansol, Burdwan District. The appellant company and a firm carrying on business as the Nandi Coal Association were lessees of adjacent coal mines. On September 22, 1919, the appellant company instituted a suit alleging that the firm had encroached upon their mine and removed coal therefrom. They claimed as damages the value of the coal removed and the cost of erecting a barrier to cut off their mine from the defendants ; they also claimed an injunction. The only survivor of the firm as constituted at the date of the alleged trespass was made defendant No. 1; he died during the suit and his son and heir, respondent No. 1, was substituted for him. Defendants-respondents Nos. 2 to 6 were the widows and minor sons, and representatives, of deceased members of the firm. The defendants by their written statements denied that the plaintiffs had " any right or title to the property in suit," and pleaded that the plaintiffs had " no cause of action " against them ; they alleged that the coal was not within the boundaries of the plaintiffs lease, but of their own ; they pleaded also that the suit was barred by limitation. The Subordinate Judge by his judgment found (1.) that the coal was removed from within the boundaries of the plaintiffs lease ; (2.) that the firm had wrongfully extracted 18,544 tons of coal; (3.) that the coal was taken before 1915 ; (4.) that the encroachment was due to inadvertence and mistake; (5.) that the plaintiffs first learnt of the encroachment in 1919. On these findings he held that the suit was not barred. He made a decree for damages, both in respect of the coal taken and the cost of erecting the barrier, and he granted an injunction. On an appeal by the defendants to the High Court, and cross-objections by the plaintiffs, the decree was affirmed so far as an injunction had been granted, but in all other respects it was set aside. Mukerji J. (Greaves J. concurring) agreed with the above five findings of fact by the trial judge. The learned judges held, however, that the claim to damages for the coa extracted was barred by arts. Mukerji J. (Greaves J. concurring) agreed with the above five findings of fact by the trial judge. The learned judges held, however, that the claim to damages for the coa extracted was barred by arts. 39 and 49 of the Limitation Act; in their opinion art. 48 applied only to a dishonest conversion. The claim to the cost of the barrier, though not barred by limitation, failed because the barrier was not necessary. They held, agreeing with the trial judge, that Act XII. of 1855, and therefore art. 35 of the Limitation Act, did not apply as the coal taken presumably increased the assets of the members of the firm. The plaintiffs having appealed to the Privy Council, the defendants cross-appealed by special leave, contending that the plaintiffs had no title to the coal, as the patnidars, their lessors, had no title. Both Courts in India had declined to entertain that contention on the ground that it was not raised on the pleadings or issues. 1929. Dec. 9. Dunne K.C. and Hyam for the appellants. The limitation article applicable to the claim for conversion of the coal was art. 48; that article applies to all conversions whether dishonest or not. Consequently time did not run until 1919, when the plaintiffs first knew of the encroachment. The recent decision of the Board in Pugh v. Ashutosh Sen (( 1928) L. R. 56 I. A. 93.) is conclusive on the above points. Upon the evidence the barrier was necessary as a reasonable protection from the results of the continuing trespass by the encroaching galleries ; the value of the pillars of coal left in the galleries should not be deducted. The respondents cannot raise the contention put forward by their cross-appeal. It depended upon the terms of the patni lease granted by the zamindar to the plaintiffs lessors. [Reference was made to Satya Niranjan Chakravarti v. Ram Lal Kaviraj (( 1923) L. R. 52 I. A. 109.) and Bijoy Singh Dudhoria v. Surendra Narayan Singh. (( 1928)L.R.55 I.A.320.)] As the point was not raised by the pleadings or issues, the neces sary documents were not before the Court. Further, the defendants lease was from the same patnidars, consequently they could not successfully raise the point. Parikh for respondents Nos. 1 to 6. (( 1928)L.R.55 I.A.320.)] As the point was not raised by the pleadings or issues, the neces sary documents were not before the Court. Further, the defendants lease was from the same patnidars, consequently they could not successfully raise the point. Parikh for respondents Nos. 1 to 6. Having regard to Pugh v. Ashutosh Sen (L. R. 56 I. A. 93.), the respondents concede that the claim for conversion would not have been barred if the defendants had been the persons who took the coal. But the claim was against their representatives, and therefore was barred by Act XII. of 1855 and art. 35 of the Limitation Act. This contention was rejected on English decisions not applicable in India. The High Court rightly held on the facts that the proposed barrier was unnecessary. The defendants should be allowed to raise the contention as to the patnidars title. The written statement put the plaintiffs title in issue and asserted that they had no cause of action; that was sufficiently wide to cover he contention. A narrow construction should not be given to a pleading in India Sayad Muhammad v. Fatteh Muhammad. (( 1894) L. R. 22 I. A. 4.) If necessary the case should be remitted for a finding upon this contention. Dunne K.C. in reply referred to Act V. of 1881, s. 89, and to Order I., r. 13. 1930. Jan. 28. The judgment of their Lordships was delivered by LORD THANKERTON. In this action which was instituted on September 22, 1919, the plaintiffs, who are appellants in the leading appeal, sue in respect of a trespass into their coal mine by the principal defendants, who carry on business under the name of the Nandi Coal Association, the lessees of an adjacent mine, and who are respondents Nos. 1 to 6 in the leading appeal. The relief claimed in the action was (1.) an inquiry as to the amount of coal cut and taken away by the defendants and damages in respect thereof ; (2.) the cost of constructing an artificial barrier necessitated by the trespass, and (3.) an injunction against further trespass. The original defendant No. 1 having died, the present defendant and respondent No. 1 was brought on the record, and on December 8, 1921, filed an additional written statement of defence. Prior to this the issues had been adjusted and they were not subsequently amended. The original defendant No. 1 having died, the present defendant and respondent No. 1 was brought on the record, and on December 8, 1921, filed an additional written statement of defence. Prior to this the issues had been adjusted and they were not subsequently amended. In view of a point raised in the additional statement, Andrew Yule & Co., Ld., the present respondents No. 7, were added as pro-forma defendants, on the application of the plaintiffs. By decree dated September 11, 1924, the Subordinate Judge awarded to the plaintiffs Rs. 56,018 as damages for the coal extracted by the defendants and Rs. 18,223 as costs for the construction of the barrier against the defendants Nos. 1 to 6 to the extent of the assets of the deceased partners of the defendant firm in their hands (including the assets of the firm) with costs in proportion to the plaintiffs success and with interest at 6 per cent., and also granted a permanent injunction against further trespass. The defendants appealed to the High Court in Calcutta, and the plaintiffs also filed cross-objections on the insufficiency of the sums decreed. On April 30, 1926, the High Court gave judgment affirming the permanent injunction, but disallowing the claim for damages as barred by limitation, and also the cost of the barrier on the ground that there was no imminent risk. From this judgment the present appeal and cross-appeal are taken. By the appeal the plaintiffs maintain (1.) that the claim for damages is not barred by limitation, and (2.) that they are entitled to the cost of the barrier. In the cross-appeal defendants Nos. 1 to 6 maintain (1.) that the plaintiffs have not established a title to the coal taken, and (2.) that the cause of action does not survive against them. While various defences were raised at the trial, it is established by concurrent findings of the Subordinate Judge and the High Court that the defendants encroached on land within the terms of plaintiffs9 lease during the years 1904 to 1915 and took coal to the amount of 18,544 tons, and that the plaintiffs first became aware of the encroachment in 1919. On the question of limitation, their Lordships are of opinion that the point is governed by the decision of this Board in Pugh v. Ashutosh Sen (( 1928) L. R. 56 I. A. 93.), a coal encroachment case, in which it was held that art. 48 of Sch. I. of the Indian Limitation Act, 1908, applies to all conversions, whether dishonest or not. In the present case the Subordinate Judge found that the trespass was due to inadvertence, while the High Court held that it was due to inadvertence and want of reasonable care, and their Lordships are of opinion that both these views of the conversion fall within the terms of art. 48, under which the limitation period of three years begins to run when the person having the right to possession of the property first learns in whose possession it is. Accordingly the present suit was instituted in time. In considering the claim for the cost of constructing a barrier it is necessary to bear in mind the present position of the workings in the area of encroachment. The area is a right-angled triangle, the right angle being formed by straight lines on the east and south, which are on the true boundary between the properties; the hypothenuse on the north-west side is an irregular line, being the limit of the encroachment workings, which were carried on by means of transverse galleries, pillars of unwrought coal being left. According to the findings of the Commissioner, which were accepted by the Courts, the area of the galleries was 48,663 square feet, and that of the pillars 21,192 square feet, while the average height of the galleries was 11 feet 1| inches less 2 per cent, for hanging coal. The width necessary for a barrier is stated to be 20 feet and the nearest point of the plaintiffs workings is considerably further away to the north-west. The width necessary for a barrier is stated to be 20 feet and the nearest point of the plaintiffs workings is considerably further away to the north-west. The Subordinate Judge held that there was no evidence of " any present risk of fire, water or foul gas coming to the plaintiffs colliery from the defendants colliery even if the plaintiffs by working up to the encroached portion happen to establish connection between the two mines," on the assumption that the defendants would work their colliery properly; but he stated that he could not ask the plaintiffs to rely on the good sense and competency of the defendants, nor could he ask the plaintiffs to leave a barrier of coal within their land on the west of the portion encroached on, for the plaintiffs had a right to cut and take the pillars on that portion up to the boundary, but they could not do so without driving a gallery up to the disputed land. The learned judge therefore found that the defendants acts had rendered it necessary for the plaintiffs to keep an artificial barrier between their mine and the defendants mine. He further found the plaintiff company entitled to erect an artificial barrier (if they liked) on the east and south of the disputed area and to ask for such price or damages as they might be found entitled to on that account. He thereafter gave the plaintiffs a decree for Rs. 18,223, being the cost of the barrier (Rs.28,125) less the value of the coal (Rs.9,902) abstracted by the defendants, which the plaintiffs would have had to leave as part of a barrier if there had been no encroachment and the plaintiffs themselves had been working the disputed area, such value being already included in the damages awarded by the learned judge for the coal extracted. By the judgment of the High Court on appeal these findings in favour of the plaintiffs were reversed on the ground that, in view of the absence of risk as found by the Subordinate Judge, the plaintiffs, if they wanted to ensure the safety of their own mine, were bound to look to themselves for leaving a barrier, and that they might still keep such a barrier out of the coal that is left between the two mines, on the hypothenuse of the triangle. In their Lordships opinion that finding is not justified as it excludes the plaintiffs right to work out the pillars left in the encroachment area. Their Lordships are of opinion that the decree of the Subordinate Judge on this point should be restored, as the plaintiffs are entitled to be protected against any possible risk due to the defendants having wrongfully pierced the margin of coal on the plaintiffs side of the boundary, which would in ordinary course have been left as a barrier, and that the plaintiffs are not bound to wait until any risk emerges, when it might well be too late to construct a barrier. Further, it may be at least doubtful whether, on the subsequent emergence of such risk, it will then be open to the plaintiff to recover the cost from the defendants. While it might have been more logical to have deducted the value of the coal which would have had to be left from the amount of the damages for coal abstracted and not from the cost of construction of the barrier, their Lordships are not disposed to disturb the course adopted by the Subordinate Judge. There remain the two questions raised by defendants Nos. 1 to 6 in the cross-appeal, of which the first relates to the plaintiffs title; on this question their Lordships agree with the conclusion of both the Courts below—namely, that the question whether the patnidars, from whom the plaintiffs hold their leases, had themselves any title to the minerals was not raised by the written statements or by the issues in the suit, and cannot be raised at this stage of the suit. As regards the contention that the cause of action does not survive against any of the defendants Nos. 1 to 6, their Lordships are of opinion that s. 1 of Act XII. of 1855 does not apply to the present case which seeks to recover property or its value after conversion, and that in any event, the cause of action survives under s. 89 of the Probate and Administration Act, Act V. of 1881, which applies to Hindus, against executors and administrators, and that in effect these defendants objection is on the ground of misjoinder—an objection which comes too late in view of Order I., r. 13, of the Code of Civil Procedure, Act V. of 1908. Their Lordships are, therefore, of opinion that the appeal should be allowed, and the decree of the Subordinate Judge restored, with costs to the appellants in the High Court and before this Board, and that the cross-appeal should be dis missed with costs. Their Lordships will humbly advise His Majesty accordingly.