JUDGMENT : B.D. Singh, J. 1. These two appeals have been preferred by the appellant, the District Board through its Chairman each against two separate JUDGMENT :s and decrees in money suits dismissing the claim of damages against defendant-respondents in each suit for Rs. 17,754/- as detailed under Schedule 'B' and 'C' of the plaint. Since both the suits given rise to common questions of law, the two appeals against them were heard together. Therefore, I propose to deal with both the appeals together and this common JUDGMENT : will govern both of them. The plaintiff-appellant instituted the two suits on the 23rd December, 1959 claiming equal amount of damages from the defendant-respondents in both the suits. It will be worthwhile to note the case as made out by the appellant in its plaint in the two suits. The plaintiff is a body corporate under the Bihar and Orissa Local Self Government Act, 1885 with power to acquire and hold property both moveable and immoveable and being entitled to sue in its corporate name. As such it held a road commonly known, as "Phularitand Dumra Road", the surface right of which is owned and maintained by the plaintiff for the purposes of the traffic. The said road starts from Mile 11 of Rajgunj and passes through several collieries and it serves important purpose for transporting coal, colliery machineries etc. 2. Plaintiff's case, in Money Suit No. 64 of 1959, in brief was that defendant-respondent no. 2 in First Appeal No. 306 was working a colliery commonly known as Baghmara East Colliery (defendant-respondent no. 1), situated in village Mandra, Pergana Jharia in the district of Dhanbad. A portion of the aforesaid road of the plaintiff passes through the said village. Baghmara East Colliery is located on the west side of the road, whereas Pure Mandra Colliery which is defendant no. 1 in the other Money Suit No. 63 of 1959 which has given rise to First Appeal No. 305 of 1964, is located on the east side of the road. Plaintiff's case was that the road was in its existence since over 40 years, and had all along been receiving support for its existence from the underground strata of coal and other layers of earth, and defendant-respondent no. Plaintiff's case was that the road was in its existence since over 40 years, and had all along been receiving support for its existence from the underground strata of coal and other layers of earth, and defendant-respondent no. 2 of the two suits who, were working the respective collieries, had by unscientific extraction of coal wrongfully removed the support which the road was all along receiving and thereby sometime in January, 1957, they caused a subsidence on certain area of the road as detailed under Schedule. 'A' of the plaint filed in the two suits. Its further case was that due to the subsidence, the plaintiff suffered heavy loss. Its road became unsafe, danger signals and barriers had to be provided at both ends of the danger-portion of the road, and watchmen had to be appointed by the plaintiff to guard the subsided portion throughout the day and night. For making those arrangements the plaintiff had to incur expenses of Rs. 1329/- as detailed under Schedule 'B' of the plaint Further according to the plaintiff, due to said extraction of coal by the defendant-respondents a void was created underground the road, which greatly impaired the safety of the road. In ORDER :to restore safety of the road the void required to be stowed with sand which would cost Rs. 16425/- as detailed under Schedule 'C' of the plaint. Therefore, the plaintiff claimed a total sum of Rs. 17,754/- under Schedules 'B' and 'C' in each suit from the defendant-respondents. It also pleaded that the defendant-respondents having allowed the nuisance by the illegal extraction to continue, made themselves liable for the said damages to the plaintiff. 3. In the suit which has given rise to First Appeal No. 306 of 1964, defendants 1 to 4 filed separate written statement and contested the suit accordingly. Defendant no. 4 filed written statement on behalf of defendant no. 1 whereas defendant no. 2 inter alia stated in his written statement that he never worked any coal land within the distance of about 500 ft. from the road in question. He closed working in the colliery sometime in 1954 and sold it to defendant no. 4 sometime in 1956. 4 filed written statement on behalf of defendant no. 1 whereas defendant no. 2 inter alia stated in his written statement that he never worked any coal land within the distance of about 500 ft. from the road in question. He closed working in the colliery sometime in 1954 and sold it to defendant no. 4 sometime in 1956. He denied to have extracted any coal close to the road or removed the support of the road as alleged by the plaintiff, and stated that no subsidence was caused on any portion of the road due to his working in the colliery. He also stated that the level of the land by the side of the road sunk one or two feet at a distance of about 10 ft. from the road sometime in the end of 1955 or in the beginning of 1956, but it settled down within a few months in 1956 and since then heavy trucks loaded with coal and machineries were plying on the road, and the road was not at all unsafe. The plaintiff had not suffered any loss and danger signals or barriers were placed on the road nor any watchman was appointed as alleged by the plaintiff. He also pleaded that the suit was barred by limitation. Defendant no. 3, Ram Kishore Agarwal son of Badri Das Agarwal also in his written statement inter alia stated that he was neither the owner of Baghmara East Colliery nor he was working the colliery. He had no knowledge about any subsidence. The colliery originally belonged to his father Badri Das Agarwal, who by registered sale deed of 1950, sold the same to defendant no. 2, who was since then in exclusive possession of the same. He also pleaded that the suit was barred by limitation and it was vague and indefinite. The plaintiff was not entitled to any relief against him. Defendant no. 4 Jiwan Lal Sunda in his written statement pleaded among others, that he purchased the colliery after the alleged date of subsidence. Therefore, he was not at all liable for any damage. 4. In Money Suit No. 63 of 1959 only one written statement was filed by Om Prakash Agarwalla, defendant no. 2. Defendant no. 4 Jiwan Lal Sunda in his written statement pleaded among others, that he purchased the colliery after the alleged date of subsidence. Therefore, he was not at all liable for any damage. 4. In Money Suit No. 63 of 1959 only one written statement was filed by Om Prakash Agarwalla, defendant no. 2. He denied all the allegations made by the plaintiff in its plaint, and stated inter alia that his father Bajranglal Agarwalla had purchased Pure Mandra Colliery from Ghanshyam Das Sarogi, who in his turn had purchased it from the official assignee of Calcutta by a registered deed. Bajranglal Agarwalla after the said purchase did not work the colliery. The defendant also did not work the colliery after the death of his father. On an enquiry the defendant learnt that one Liladhar Monji and another were working the colliery without any right. Therefore, the father of the defendant had filed a Title Suit No. 18/12 of 1947-1949 in the Court of Subordinate Judge, Dhanbad against those trespassers, and had obtained a decree against them on the 18th July, 1949. After the death of his father the defendant never worked the colliery; nor raised any coal therefrom, and as such the plaintiff was not entitled to any damage from the defendant. 5. On the pleadings of the parties in the two suits the following six identical issues were framed by the court below:-- (1) Has the plaintiff got any cause of action? (2) Is the suit maintainable? (3) Is the suit barred by limitation? (4) Where there has been any subsidence in the road at the place alleged by the plaintiff due to the workings of the mines by any of the defendants? (5) Whether the plaintiff is entitled to any decree for damages, if so, against which of the defendant and for what amount? (6) To what reliefs is the plaintiff entitled? 6. Out of them, Issue Nos. 3 to 5 are important for consideration in the two appeals which have arisen from the two suits. The contesting parties before the trial court in both the suits adduced both oral and documentary evidence. (6) To what reliefs is the plaintiff entitled? 6. Out of them, Issue Nos. 3 to 5 are important for consideration in the two appeals which have arisen from the two suits. The contesting parties before the trial court in both the suits adduced both oral and documentary evidence. After due consideration of those evidence, the trial court in both the suits inter alia found that (i) it failed to establish that subsidence was caused due to underground working by any of the defendants; (ii) even if it is assumed that subsidence occurred on the District Board road on account of working of the mines beneath the road, none of the defendants was liable for the same, as none of them made scavation in the collieries; (iii) the plaintiff's suit was also not maintainable, because it had not indicated as to how much subsidence was caused due to the working of which of the two collieries; and (iv) the suit was also barred by limitation as provided under Article 36 of the Indian Limitation Act, 1908. 7. Mr. J.C. Sinha, learned counsel appearing on behalf of the appellant in both the appeals, has challenged the above finding of the court below and contended that the learned Judge has erred in holding that none of the defendants was liable for any damage claimed by the plaintiff in Schedule 'B' and 'C' of the plaint. According to the learned counsel, there were ample evidence on the record as produced by the plaintiff, which clearly establish that defendant no. 2 of each of the two suits were responsible for causing subsidence on the road of the plaintiff and they could not escape liability. There were exclusive liability on both those defendants to fill up the gap, underground of the road, which was created due to extraction of coal. Learned counsel submitted that the court below should have held that the plaintiff's right of support to its road was both vertical and lateral; withdrawal of support by the defendants constituted nuisance. There were exclusive liability on both those defendants to fill up the gap, underground of the road, which was created due to extraction of coal. Learned counsel submitted that the court below should have held that the plaintiff's right of support to its road was both vertical and lateral; withdrawal of support by the defendants constituted nuisance. Although the nuisance might have existed before the defendants entered into possession of the property, they were still liable for damages inasmuch as the defendants being in occupation of the property negligently allowed nuisance to continue and the plaintiff, therefore, had legal right to be provided artificial supports in place of the natural supports, which were removed either by the present collieries owners or by their predecessors-in-interest. He also urged that the trial court erred in holding that the suit was barred by limitation under Article 36 of the Limitation Act. 8. It will be convenient to examine the contentions of the learned counsel for the appellant regarding the liability of the defendants first. Learned counsel fairly conceded that the defendants other than defendant no. 2 in the two suits may not be liable, but he strongly emphasised the liability of defendant no. 2 in both the suits as mentioned above. He contended that the court below has failed to appreciate the evidence adduced on behalf of the plaintiff, and the principle of law which clearly fixes the liability on those defendants. In ORDER :to substantiate his contention firstly he referred to the relevant evidence on the record. On behalf of the plaintiff, substantially the similar documentary and oral evidence, were adduced in both the suits. Learned counsel for the appellant, therefore, in ORDER :to avoid repetition, and for the sake of convenience has referred mainly to the relevant evidence which were led in Money Suit No. 64 of 1959 out of which First Appeal No. 306 of 1964 has arisen. Exhibit his a registered deed of gift executed by Nil Kanth Narain Singh, dated the 28th July, 1916 in favour of W.M. Crawford, the then Chairman of the District Board of Manbhum by which the surface right of the road was donated to the District Board. Exhibit 22 is an extract of khatian of village Mandra, which was prepared on the 19th December, 1924. Exhibit 22 is an extract of khatian of village Mandra, which was prepared on the 19th December, 1924. That shows that the said road was entered in the name of the District Board op the basis of the aforesaid gift. Exhibit A2 dated the 15th March, 1937 is a Patta by Santosh Kumar Roy to Ghanshyam Das Agarwalla making settlement of underground road for extraction of coal in various places including beneath the road in question. Exhibit C2 is a sale deed by Badri Das Agarwalla son of the said Ghanshyam Das Agarwalla in favour of Gyan Chand Sunda (defendant no. 2 in Money Suit No. 64). Exhibit 4 is a letter dated the 3rd January, 1957 written by K. Gupta (P.W. 3), the then District Engineer, Dhanbad to the Chief Inspector of Mines in India, Dhanbad. By the said letter, the District Engineer informed the Chief Inspector of Mines that a subsidence had occurred on the District Board road land measuring 9 ft. x 4 ft. at Mile 2 furlong 4 of Phularitand Dumra road. The formation width of the road is 26 ft. and the distance of the subsidence area is about 6 ft. from the edge of the formation. There were goafs (the space left by the extraction of a coal-seam, into which waste is packed) on both sides of the road about 25 ft. deep and galleries 4 ft. wide, and 4 ft. intermediate pillars below the road were noticeable. Some of those pillars were collapsed. He further mentioned therein that it appeared that it fell within the jurisdiction of the East Baghmara Colliery and Gyanchand Sunda was the proprietor. He requested the Chief Inspector to effect an immediate enquiry and to favour him with his opinion if there was any danger to the District Board road. A copy of the said letter was also forwarded to the Chairman, District Board for information and for taking necessary steps. Further, reference was also made to Exhibit 4(d) which is a letter dated the 15th January, 1957 written by Mr. S.S. Grewal, Chief Inspector of Mines to the District Engineer, Dhanbad, in reply to his letter contained under Ext. 4. The relevant portion of the letter [Ext. 4(d)] reads as:-- ........In this connection I may add that the mine wherefrom the workings seem to have been made under the Road is now closed. S.S. Grewal, Chief Inspector of Mines to the District Engineer, Dhanbad, in reply to his letter contained under Ext. 4. The relevant portion of the letter [Ext. 4(d)] reads as:-- ........In this connection I may add that the mine wherefrom the workings seem to have been made under the Road is now closed. It appears that the expenditure for stabilizing the workings in that portion of the mine will have to be incurred by the Board. I may inform you that there does not appear to be any immediate danger to the Road and, therefore, I did not suggest suspension of traffic on that portion of the road. In my opinion, the above letter does not help the contention advanced on behalf of the appellant. It clearly points out that there was no immediate danger. 9. A reliance was also placed on behalf of the appellant on Exhibit 4(e) (vide Money Suit No. 63 of 1959) which is a report dated the 11th January, 1957 by Mr. G.S. Jabbi, Deputy Chief Inspector of Mines, who was examined also as P.W. 1 on commission. The said report reads as follows:-- In his letter no. 576-78/D.E., dated the 3rd January, 1957, the District Engineer informed the Chief Inspector of Mines in India that a subsidence had taken place on the west side of Phularitand Dumra D.B. Road in the property of Baghmara Colliery belonging to Sri Gyan Chand Sunda. The Chief Inspector of Mines in India and I visited the spot on 11th January, 1956 morning. As Baghmara East Colliery and also Pure Mandra Colliery situated on the east side of the road were closed no person from these two collieries was available to give any definite information. The Chief Inspector of Mines in India sent for the manager of Mandra South Barora Colliery who showed us the spot and gave us a couple of workers to dress the loose sides of the subsidence to enable us to enter the subsidence and make an inspection. The subsidence is situated about 6 ft. on the west wide of the D.B. Road. It measures about 8' x 5' and the depression is also about 7 ft. It was observed that the subsidence had occurred due to collapse of roof in a gallery measuring about 8 to 9 ft. in width. The subsidence is situated about 6 ft. on the west wide of the D.B. Road. It measures about 8' x 5' and the depression is also about 7 ft. It was observed that the subsidence had occurred due to collapse of roof in a gallery measuring about 8 to 9 ft. in width. The gallery had gone towards the North East direction of the point where the subsidence occurred. It appeared that some packing had been done in this gallery within 3 to 4 ft. of the roof and the gallery appeared to have been solidly stowed beyond the point measuring, about 15 ft. from the subsidence. It would be advisable to slope back the sides of the subsidence and dress down the loose portions thoroughly with a view to undertaking further stowing operations in this gallery. The Chief Inspector of Mines in India intends writing to the District Engineer so that a joint inspection may be made to decide the protective works. It appeared that this gallery had passed beneath the D.B. Road and was probably driven from No. 1 Incline which is situated on the East side of the D.B. Road in Pure Mandra Colliery old records are being searched out to find out the exact location of this gallery. The cover beneath the road is about 12 to 15 H. Exhibit 1(b) is also an inspection report dated the 24th January, 1957 by Mr. G.S. Jabbi. In the report he has mentioned that he had inspected on the 19th and 21st January, 1967. Importance was placed on this report mainly on some paragraphs of the report which reads as: This may be read in conjunction with my previous Inspection Report dated the 11th January, 1967. On 18th evening Shri S.S. Prasad, Regional Inspector of Mines rang me up informing me that another subsidence had taken place on the East side of the District Board Road near the edge of Pure Mandra Colliery quarry. I went to the mine the following morning and inspected this subsidence and also the previous subsidence referred to in my last Inspection Report. I noticed that there were underground workings beneath the road from a quarry in Baghmara East Colliery. I could see gallery which was water-logged and the water stood about 3 ft. below the roof of the gallery. I noticed that there were underground workings beneath the road from a quarry in Baghmara East Colliery. I could see gallery which was water-logged and the water stood about 3 ft. below the roof of the gallery. I went round the edges of the quarry in Pure Mandra Colliery and found an old gallery which was also water-logged, the water standing about 4 ft. from the roof. I gave information about these galleries and the second subsidence to the Chief Inspector of Mines in India on his return from a tour. The Chief Inspector of Mines in India decided to inspect the mine on the 21st morning. I showed him all the old galleries and the position of the water and also that of No. 1 old Incline of Pure Mandra Colliery. The Head Surveyor was asked to have all these surface features and galleries etc., surveyed and prepare a plan showing in relation to the road. The surface survey was completed on 23.1.57 and the Head Surveyor has now produced an old plan on these workings which was made in February, 1938. In the surface features surveyed on 13.1.57 have been incorporated in this old plan which was made as a result of the survey made by our departmental surveyors. A reference to the plan would reveal that there are workings of both 4th and 5th sections of No. 7 seam beneath the road. The cover beneath the road varies from about 10 ft. to 20 ft. Condition of the working is very unsatisfactory. In the past the management of both the collieries were required to stow these workings with a view to stabilizing them in ORDER :to make the road safe. Correspondence on this matter was carried on for a very long time. Some stowing was done from Baghmara East side but this was not considered sufficient for the purpose of stabilization of the road Both the mines were later on abandoned and there was, therefore, no party to undertake this stowing work. This result was that the road was not made safe by stabilizing the workings. The present position is that the road surface can collapse as the water in the underground workings recedes. It should be necessary, therefore, to keep a watch on the road so that traffic may be stopped should some such subsidence take place beneath the road. This result was that the road was not made safe by stabilizing the workings. The present position is that the road surface can collapse as the water in the underground workings recedes. It should be necessary, therefore, to keep a watch on the road so that traffic may be stopped should some such subsidence take place beneath the road. This can be done by providing swing gates across the road on both sides of the dangerous portion of the road and providing watchman to control the traffic and watch the road. The permanent remedy for the road would be that the workings beneath it would be solidly stowed. This can be done during the dry season when the water would go down to the dip side. I do not think that the owners of the two mines in question would come forward to undertake the stowing work. The district board authorities should, in my opinion, be prepared to undertake the work as soon as the water recedes. X X X X 10. Learned counsel pointed out that the above report shows that on the 18th January, 1957 when the investigation was going on regarding the subsidence caused by Baghmara East Colliery, it revealed that subsidence was also caused due to unscientific working on Pure Mandra Colliery also. He submitted that, that was the reason why the other Money Suit No. 63 of 1959 was instituted claiming damages from defendant no. 2 of that suit. He submitted that the condition of the workings of both the collieries were unsatisfactory and there was danger of the road surface collapsing. Further reference was made to Ext; 4(f) which is a letter from Mr. S.S. Grewal, Chief Inspector of Mines dated the 28th January, 1957, addressed to the District Engineer, District Board, Dhanbad. The said letter was signed by Mr. Jabbi. In my view, this letter is not of much importance. It is merely a forwarding letter of report (Ext. I), which I will presently refer. The letter further mentions that there were excessively wide galleries beneath the road which pointed out that the stability of the road could not be vouchsafed. In view of those circumstances, the District Engineer was requested to take immediate steps to control the traffic on the part of the road from where the District Board from Benedih joins the road to a point 500 ft. In view of those circumstances, the District Engineer was requested to take immediate steps to control the traffic on the part of the road from where the District Board from Benedih joins the road to a point 500 ft. north on the Baghmara side. 11. Learned counsel for the appellant drew our attention to the inspection report (Ext. 1) dated the 29th January, 1957 by Mr. S.S. Prasad, Regional Inspector of Mines, who was examined as P.W. 1. He submitted that on this report the two suits of the plaintiffs are based. Therefore, it will be necessary to quote the relevant portion of the said report:-- While passing that way today I saw the subsidence which had occurred at mile stone 2, furlong 4 to Phularitand Baghmara District Board Road. The formation width of the road was 26 ft. and the distance of the subsided area was about 6 ft. from the edge of the western side formation. Subsidence had occurred in an area 9' x 5'. I was also informed that last night another subsidence had taken place in the quarry on the east side of the road, about 150 ft. towards Phularitand. This subsidence had taken place in an area of about 30' x 8' in Pure Mandra side. These subsidence are occurring in No. 7 Seam 4th and 5th Section Workings of Baghmara East Colliery and Pure Mandra Colliery, both of which are closed from long time. From either side of the colliery, however, it could be noticed that the galleries had been driven beneath the road, where the cover would be about 15 ft. 12. The next documentary evidence which is relied upon by the appellant, is Ext. 3 which is a report dated the 6th February; 1937 submitted by K. Gupta (P.W. 3) District Engineer of the District Board to the Chairman of the District Board. In the report he mentioned that he had a joint inspection with the Chief Inspector and Deputy Chief Inspector on the 6th February 1957. He suggested that the danger signs and barriers were to be provided immediately on both ends of the danger portion (about 500 ft). In the report he mentioned that he had a joint inspection with the Chief Inspector and Deputy Chief Inspector on the 6th February 1957. He suggested that the danger signs and barriers were to be provided immediately on both ends of the danger portion (about 500 ft). Guards were to be placed day and night; the galleries area was partly filled up with water but the water was fastly drying up: the mouths of the galleries were to be charred by removing earth; the stowing had to be started within 15 or 20 days with ordinary earth with manual labour and ordinary soil from three adjoining goafs; and for the safety, the galleries would require the roof supported by balas of 6" to 8" diameter. He further reported that on getting further details from the office of the Chief Inspector, he would submit the approximate cost involved in carrying out his suggestions. He indicated in the report that he was arranging for barriers and guard at once. 13. In my view, the above report also lends support to the contention advanced on behalf of the respondents, as it is also mentioned therein that the mines were abandoned and were worked nearly 15 to 20 years prior to the report. He also mentioned therein that no person could be held responsible then for the condition existing there. 14. Our attention was also drawn to Ext. 4(a) which is a letter dated the 22nd February, 1957 written by S.S. Prasad (P.W. 1) to the District Engineer, Dhanbad. The relevant portion of the letter reads as:-- Please refer to the inspection made by the Chief Inspector of Mines in India, the Deputy Chief Inspector of Mines in India and yourself on 6th February, 1957 of the subsidences which accrued adjacent to Phularitand Baghmara District Board Road at mile stone 2 furlong 4 owing to the old workings of Pure Mandra and Baghmara East Collieries. The entrances of underground galleries to these workings beneath the road were also inspected. The Chief Inspector of Mines explained to you the method that should be followed for stowing the underground working. He further impressed the desirability to undertake these protective measures without any delay so that work could be completed before the next rainy season. It was also suggested that the stowing Work should be done under the supervision of ah experienced person holding Sardar's certificate. He further impressed the desirability to undertake these protective measures without any delay so that work could be completed before the next rainy season. It was also suggested that the stowing Work should be done under the supervision of ah experienced person holding Sardar's certificate. The roof of the galleries should be supported by setting props before commencing stowing operations. Pending the above protective work it was pointed out to you the places where swing gates could be provided to control traffic on the dangerous part of the road. Learned counsel also referred to Ext. 4(e) dated the 7th March, 1957 which is a letter written to the District Engineer, Dhanbad, by Mr. Jabbi (P.W. 1) who was examined on commission. He mentioned therein that he had inspected the District Board passing over Mandra and had found that two swing gates had been fixed at both ends of the dangerous portion of the road. He also found that no steps had been taken to commence stabilisation work. He advised in the said letter to undertake the work at an early date and to complete it before the onset of the rainy season. 15. Learned counsel submitted that, therefore, the District Board got the estimate made for making the road safe. He referred to Exhibit 2 which is Estimate No. 94 of 1957-58, dated the 18th May, 1957, prepared by K. Gupta, District Engineer of the District Board on the basis of which the plaintiff claimed damages from the defendants in the two money suits referred to above. He also referred to Exhibit 3(b) which is a report of the same District Engineer, K. Gupta, dated the 9th November, 1957. The relevant portion of the report is that he noticed on his inspection on the 24th October, 1957 that there was a recent extraction of coal near the mouth of the galleries and left side of the road, and he requested the authorities of the District Board to make the owners of the collieries responsible for protecting the road and to get the galleries stowed by them without delay. He also suggested that legal opinion might also be taken. In my opinion, this report is not of much assistance to the appellant as Mr. He also suggested that legal opinion might also be taken. In my opinion, this report is not of much assistance to the appellant as Mr. Gupta also mentioned in the said report that the Chief Inspector of Mines held opinion that the workings were old, and no responsibility could be fixed on the owners for stowing in ORDER :to stabilise the road. 16. A reference was also made to Exhibit 3(a) which is a report by K. Gupta, District Engineer, Dhanbad, dated the 18th November, 1957, wherein he mentioned that it was again reported that the proprietor of Baghmara East Colliery had restarted extraction of coal at the very spot where subsidence had occurred. He also suggested that the matter might immediately be taken up with the proprietor of the colliery and also with the Chief Inspector of Mines for stopping extraction, otherwise the pillars may collapse. 17. Learned counsel then referred to Exhibit 1(a) which is an inspection report dated the 10th February, 1958 by Mr. K.C. Ganguly (P.W. 2), Inspector of Mines, Dhanbad. From the said report, it appears that the Vice Chairman of the District Board had asked the proprietors of Pure Mandra and Baghmara East Collieries to stop mining operations on the west of Phularitand Dumra road, as he considered that such operation might lead to complete subsidence of the road. The Vice Chairman had also sent a copy of the said letter to the Chief Inspector of Mines, requesting him to advise the collieries concerned to stop extraction of coal. Therefore, the Regional Inspector of Mines directed Mr. Ganguly to look into the matter. Mr. Ganguly accompanied by the Manager of Pure Benedih Colliery (Baghmara East Colliery) inspected the place of occurrence. In the report he mentioned that on the south of the District Board Road a quarry was being worked. Working of the quarry was not at all likely to affect the road. The 5th section workings beneath the District Board Road could not be inspected as the entrances to those workings had been blocked by 7 dumping quarry debris. He inspected the 4th section workings beneath the District Board Road. Water was logged. The workings that could be inspected, consisted of very small pillars and wide galleries at small depth of cover. The 5th section workings beneath the District Board Road could not be inspected as the entrances to those workings had been blocked by 7 dumping quarry debris. He inspected the 4th section workings beneath the District Board Road. Water was logged. The workings that could be inspected, consisted of very small pillars and wide galleries at small depth of cover. There was no indication of "weighing" on the pillars nor was there any roof fall in the workings beneath and adjacent to the road. From the conditions of the workings he was satisfied that the pillars had not further been reduced by robbing. No work was being done in Pure Mandra on the north of the road. Due to unsatisfactory condition of the workings a subsidence had taken place just on the south of the road sometime in the middle of 1957. Since then danger signals and barriers were provided at both ends of the danger portion, and watchmen were posted day and night by the District Board authorities. He further suggested that to remove danger to the District Board Road due to the bad workings underneath, the management, might be advised to stow. 18. In my opinion, this report does not lend much assistance to the appellant, on the contrary it helps the contention of the respondents, as he mentioned in his report that he was satisfied that the pillars had not further been reduced by robbing, and that no work was being done in Pure Mandra on the north of the road. It may further be noticed that in the report he has mentioned the subsidence to have occurred south of the road sometime in the middle of 1957 which is not the case of the appellant. According to the appellant, subsidence by the two collieries had taken place on the east and west of the road flanks, and it had taken place according to the assertion made in the plaint at the end of January, 1957, and according to the evidence led by the appellant it took place on the 1st January, 1957. 19. Learned counsel also referred to Exhibit 7 series, the maps prepared at the instance of the appellant in ORDER :to show whether subsidence had occurred. 19. Learned counsel also referred to Exhibit 7 series, the maps prepared at the instance of the appellant in ORDER :to show whether subsidence had occurred. In my opinion, by reference to those maps the boundaries of Pure Mandra Colliery and Baghmara East Colliery cannot be ascertained nor it can be found out from those maps that the coal lands of those two collieries extended beneath the District Board Road. Therefore, the court below rightly held that those plans were not at all helpful to prove that the subsidence had been caused due to the working in the two collieries. The various reports also which have been referred to above, do not throw any light in this regard. In the plaint of the two suits the plaintiff has made identical allegations against the defendants. Schedule A of the plaint in each of the suits mentions subsidence of 250 ft. in length, at Mile 2 Furlong 4 of Phularitand Dumra road, and same allegations have been made to the owners of the two collieries in paragraphs 5 to 10 and 13 of the plaint, and equal amount of damages have been claimed against the defendants under Schedule 'B' and 'C' of the plaint in both the suits. Therefore, allegations in the plaints are equally vague and indefinite. By reference to them the boundaries of the two collieries cannot be ascertained; nor the extent of the coal lands of the two collieries beneath the District Board Road can be located. On the pleading it will be difficult to fix the liabilities of the defendants for the subsidence, if any, caused on the plaintiff's road. In the pleading, the plaintiff has not made out an alternative case of joint and several liabilities against those defendants. Learned counsel for the appellant, however, referred to paragraph 9 of written statement filed on behalf of defendant no. 2 in Money Suit No. 64 of 1959, whereby defendant no. 2 admitted the possession of Baghmara East Colliery till it was sold to defendant no. 4. It was admitted case of the parties that it was sold to defendant no. 4 in the year 1957 after the alleged date of subsidence. Therefore, learned counsel submitted that the admission in the written statement defendant no. 2 has made himself liable and, therefore, he cannot escape liability. 4. It was admitted case of the parties that it was sold to defendant no. 4 in the year 1957 after the alleged date of subsidence. Therefore, learned counsel submitted that the admission in the written statement defendant no. 2 has made himself liable and, therefore, he cannot escape liability. In my view, it is well settled that the pleading has got to be read as a whole, and the statements made therein, cannot be taken in piecemeal as an evidence of admission. In the very paragraph 9 of the written statement, defendant no. 2 has totally denied the allegations made by the plaintiff in paragraph 5 of the plaint, and he stated that he never worked any coal land within a distance of about 500 ft. from the road in question. Thus, he has denied his liability altogether. In my JUDGMENT :, the initial onus is upon the plaintiff to establish liability against the defendants. In that circumstances, it will be necessary to probe into other oral evidence on the record in ORDER :to find out whether the plaintiff has established liability against those defendants. 20. Shri S.S. Sinha, Deputy Chief Inspector of Mines was examined as P.W. 1, who had submitted his Inspection Report (Ext. 1) dated the 29th January, 1957. He stated that in 1957 he was Regional Inspector of Mines, Dhanbad, Region No. 1. Pure Mandra Colliery, and Baghmara Colliery were under his Region No. 1. He was aware of a subsidence which had occurred at Mile-stone 2 Furlong 4 of Phularitand Baghmara District Board Road within his inspection region. He also proved his letter dated the 22nd February, [1957 (Ext. 4(a)] referred to above. In cross examination, however, he stated that he had not personally gone underground to inspect the gallery. He went to the place in a car and got down to see the subsidence. He further stated that he did not remember if he prepared any sketch plan of the site. He did not remember on which side of the road Pure Mandra Colliery was situated, nor did he remember on which side of the road Baghmara East Colliery was situated; nor he could see the distance of the boundary of Pure Mandra and Baghmara East Collieries from the road side. Mr. He did not remember on which side of the road Pure Mandra Colliery was situated, nor did he remember on which side of the road Baghmara East Colliery was situated; nor he could see the distance of the boundary of Pure Mandra and Baghmara East Collieries from the road side. Mr. K.C. Ganguly (P.W. 2) who was Inspector of Mines of Region No. 1, Dhanbad, during the relevant year, stated in his evidence that the report [Ext. 1(a)], dated the 10th February, 1958 was submitted by him after inspecting Baghmara East Colliery and Pure Mandra Colliery which are adjacent to each other. Those two collieries had workings underneath the Phularitand-Dumra Road. He deposed that in the report it was incorrectly typed that the subsidence occurred in the middle of 1957. His report should be read as that the subsidence occurred in January, 1957 due to unsatisfactory condition of working in both the collieries. In cross examination, however, he stated that he did not remember if he inspected Baghmara East Colliery before the 30th January, 1958. He also did not remember if he consulted the working plan of Baghmara East Colliery. He conceded that the boundaries of all collieries are required to be shown in the plans under the Mining Rules which, would show the extended (Sic) of land of each colliery. In his report he had written "on the south of District Board Road a quarry was being worked. The working of the quarry was not at all likely to affect the road." That quarry related to Baghmara East. The working of that quarry would not further endanger the road. The Mine was closed for some time before 1958. The quarry was being worked above the old working at some distance from the District Board Road. It might be beyond 50 feet. He deposed that the District Board Road was really in danger. The workings underneath were unsatisfactory due to small pillars, wide galleries at small depth of cover and hence the road was dangerous. Those workings were old. He had inspected only 4th section, but he stated that the vehicles of all kinds including the trucks and passenger buses were passing by that road at slow speed over the road under which there was unsatisfactory working. He did not notice any crack on the road. Those workings were old. He had inspected only 4th section, but he stated that the vehicles of all kinds including the trucks and passenger buses were passing by that road at slow speed over the road under which there was unsatisfactory working. He did not notice any crack on the road. Shri K. Gupta, the then District Engineer of the District Board was examined as P.W. 3. He proved his report, Exhibit 3 series referred to above. He stated that there was subsidence on the, road in village Mandra at 2 Miles 4 Furlong. The Overseer incharge, Amal Kumar Rai reported to him on 1.1.57 about the said subsidence. On his ORDER :Amulya Ratan Mukherjee made an enquiry on the 2nd January, 1957 and submitted a report. Thereafter the witness wrote to the Chief Inspector of Mines on the 3rd January, 1957 for investigation regarding the subsidence and for instructions. The witness personally inspected the subsided portion on the 8th January, 1957. In cross examination he stated that the width of the District Board Road where the subsidence had taken place, was 60 ft. which included both metalled and non-metalled portion of the road. He further stated that he was not finding the memo of his inspection held on the 8th January, 1957 amongst the exhibited documents. He also conceded that he could not vouchsafe the correctness of the facts mentioned in the report (Ext. 3). He had not seen the working plans of Pure Mandra and Baghmara East Collieries. He did not remember the thickness of the pillars or their height. He could not say when those galleries were worked; nor could he say that those galleries belonged to which of the two collieries. 21. Thus, from the evidence of these witnesses, in my opinion, much reliance cannot be placed on the report submitted by them in ORDER :to fix the liability on the two colliery owners. The extent of these two collieries also cannot be ascertained; nor it can be said that the subsidence on the road had occurred due to their workings in the collieries. From the evidence of P.W. 3, however, we get that the alleged subsidence had occurred on the 1st January, 1957. This will be relevant when we shall be considering the question of limitation. 22. Bhagwan Rai, an Amin of the District Board was examined as P.W. 11. From the evidence of P.W. 3, however, we get that the alleged subsidence had occurred on the 1st January, 1957. This will be relevant when we shall be considering the question of limitation. 22. Bhagwan Rai, an Amin of the District Board was examined as P.W. 11. He stated in his evidence that subsidence had occurred in village Mandra at Phularitand Dumra road. By the subsidence a ditch like a well was created. He surveyed the subsided place and prepared its map. A.K. Roy (P.W. 12) was also with him for conducting the said work. He proved the map [Ext. 7(b)]. The subsided place is close to the pitch road on the flank of the road. He stated that the place of the road which had subsided, was even on the date of his deposition in the same condition and upto that date the place was not filled up with any brick stone or anything. He, however, stated that heavy traffic always pass through that road. He did not notice if there was any Karkhana within 1000 ft. of the subsided area. 23. A.K. Roy, the Overseer of the District Board Road was examined as P.W. 12. He also stated that subsidence had occurred on the District Board Road on the 1st January, 1957. In cross examination he stated that he did not remember if the ditch which was caused due to the subsidence was filled up by November, 1960. So long he remained in that circle the ditch was not filled up. He had made the barrier in 1957 which was removed in 1958. He could not say as to why the barrier was removed. He also stated that the danger signal was also removed with the barrier. He could not say as to why the danger signal was removed. The guards so appointed by the District Board, were also removed under the written ORDER :of the District Engineer. He did not know what was the area of the Colliery. He had not seen the plan or paper of Baghmara East Colliery. He had stated that the subsidence area was within Baghmara East Colliery according to the plan of colliery supplied by the Mining Department. He did not make any independent survey on the basis of the plan. He did not know underground survey. The exact area of Baghmara East Colliery was not shown in Exhibit 7(b). He had stated that the subsidence area was within Baghmara East Colliery according to the plan of colliery supplied by the Mining Department. He did not make any independent survey on the basis of the plan. He did not know underground survey. The exact area of Baghmara East Colliery was not shown in Exhibit 7(b). Lastly he stated that the road was not closed to traffic of any kind due to subsidence. 24. From his evidence also it is difficult to say that the subsidence had occurred due to the working of the two collieries' owners. He is also unable to state regarding the extent of those two collieries. From his evidence it further appears that there was some subsidence on the road which was later filled up. Therefore, the guards, the barriers and the danger signals were removed in 1958. 25. Similar impression is formed on perusal of the evidence of other witnesses examined on behalf of the plaintiff-appellant Shri Tara Kumar Mukherjee (P.W. 16) who was Surveyor in Dhanbad during the relevant time, stated that he knew Pure Mandra Colliery and Baghmara East Colliery. In January, 1957 a subsidence had occurred by the side of the road. He had surveyed the area where the subsidence had taken place on the ORDER :of Sri G.S. Jabbi (P.W. 20 examined on commission). He had also proved the plans, Exts. 7(b) and 7(c). He stated that he found some signs of working under the road. Some of the surface features seen by him at the spot had been shown in the map, Ext. 7(c). During his survey he found some cracks on the surface of the side of Pure Mandra Colliery. He had shown that in green colour in Ext. 7(c). All the workings underneath water were not approachable due to water and hence all the workings could not be shown in Ext. 7(c). Only those workings which were approachable, were surveyed and had been shown in the plan, Ext. 7(c). In cross examination, however, he stated that none of the papers produced in the case, bore his signature. He had no paper with him of Baghmara Colliery. Exhibit 7(c) was not a ferro copy of its original. 7(c). Only those workings which were approachable, were surveyed and had been shown in the plan, Ext. 7(c). In cross examination, however, he stated that none of the papers produced in the case, bore his signature. He had no paper with him of Baghmara Colliery. Exhibit 7(c) was not a ferro copy of its original. After surveying the spot he went to the Mines Department and obtained the copy of plan of 1938 and then prepared the plan of subsided area in his office at Dhanbad on the basis of old plan of 1938. He further stated that he consulted the abandoned mine plan of 1938 submitted by Pure Mandra Colliery. He did not remember on what scale that plan was prepared. The workings of West Raneedih Colliery were not shown in that plan of 1938. West Raneedih Colliery is now named as Baghmara East Colliery. He further stated in his cross examination that he did not know the extent of the western boundary of Pure Mandra Colliery and the corresponding eastern boundary of Baghmara East Colliery. Those two collieries were separate from each other in workings, ownership and all other respects. He also stated that he made one survey of both the Mines, but the underground survey of the two collieries were made separately. He further stated that it was dangerous to go underground of mine which was closed for 20 years. It was necessary to take precautionary measures to go underground of mine which was closed for 20 years. He did not remember from which place he started the survey. He did not consult the working place of Baghmara East Colliery in connection with his survey. Thus from his evidence also we do not get the exact location of the workings of the two collieries beneath the road; nor in the circumstances stated by the witness in the cross examination reliance can be placed on the maps prepared by them. It also appears that since there was water inside the collieries, the details of the underground workings could be shown in the maps, nor it was mentioned in the various reports. 26. R.D. Khan, the Draftsman Surveyor in the Department of Mines, Dhanbad, was examined as P.W. 17. He also stated in his evidence that he assisted Tara Kant Mukharjee (P.W. 16) in preparing the plans, Exhibit 7 series. 26. R.D. Khan, the Draftsman Surveyor in the Department of Mines, Dhanbad, was examined as P.W. 17. He also stated in his evidence that he assisted Tara Kant Mukharjee (P.W. 16) in preparing the plans, Exhibit 7 series. In cross examination he stated that in Exhibit 7(d) the subsided area was surveyed by them and had been shown in green colour. The correction of otherwise of the plan Ext. 7(d) could not be tested without seeing the field book. There was water underground those collieries at a depth of 20 feet from the surface. They had no articles with them except the implements required for survey when they went underground. From his evidence also it appears that no reliance can be placed on the ground survey which was prepared. 27. Shri G.S. Jabbi, who was then Deputy Chief Inspector of Mines and Who played important role in the investigation of the subsidence and who is author of the various correspondence and some of the reports referred to above, has been examined as P.W. 20 on commission. He stated in his evidence that the subsidence took place by the side of the road. He inspected the spot and submitted a report. He submitted his first report on the 11th January, 1957 and the second report on the 19th January, 1957. He proved the reports, Exhibits 1 and 1(a). He also stated in his Examination-in-chief that the road was in dangerous condition and it could not be said as safe. After investigation he considered the workings beneath the road as unsafe. The cover beneath the road was very small and the galleries were excessively wide and pillars were small in size so he considered it as dangerous. It was necessary to stow beneath the road in ORDER :to make the road safe. He asked the District Board to provide guards and barriers so as to control the traffic on the road. If the road was not stowed it was unsafe. In cross examination he, however, stated that he went to inspect the subsidence without any papers showing the exact place of subsidence. He did not know at the time of inspection the exact boundary limits of the two collieries, although he knew the boundary, which ran between the two near the road. He could not say the area of the two collieries, namely, Pure Mandra Colliery and Baghmara East Colliery. He did not know at the time of inspection the exact boundary limits of the two collieries, although he knew the boundary, which ran between the two near the road. He could not say the area of the two collieries, namely, Pure Mandra Colliery and Baghmara East Colliery. He stated that the road partly fell in Baghmara East Colliery and partly in Pure Mandra Colliery. He also could not say as to which portion fell in Baghmara East Colliery and Pure Mandra Colliery, because the boundary line between the two mines was not shown in the plan. The workings shown in the plan, were those that existed in 1938. He had not looked for any other plan showing the workings of 1938 at the time of reading out the report. In the plan workings had been shown before the 15th February, 1938. The subsidence shown in the plan, is also the result of existence of old workings up to before the 15th February, 1938. He stated that he went near the galleries before 1938. The plan was based on old plan of 15th March, 1938. He further stated that he went down into the gallery where the subsidence had taken place and found that some plucking had been done to within 3 to 4 ft. of the roof. Some stowing was done from Baghmara East side and after that both the mines were abandoned. He deposed that he directed the surveyor to locate the position of the subsidence. He was not present at the time of actual survey by the surveyor. He did not remember if he had any occasion to consult in regard to the plan etc. of the Colliery in question and the District Board in relation to subsidence before the 19th January, 1957. The occasion of his second visit was on account of report received from Shri S.S. Prasad, the then Regional Inspector of Mines who informed him about another subsidence on the east side of the District Board and near the edge of Pure Mandra Colliery. The second subsidence had taken place near the place where it was written 'crack' on the ferro plan. The distance between the two subsided area would be about 150 to 200 feet and the two subsided areas were upon the opposite directions of the road. The second subsidence had taken place near the place where it was written 'crack' on the ferro plan. The distance between the two subsided area would be about 150 to 200 feet and the two subsided areas were upon the opposite directions of the road. The second subsided area would be 15 or 20 feet, on the east side of the road. He stated that the crack showed really the extent of the subsidence, and then he stated that he could not say exact length and breadth of the subsidence represented by the crack. The depth of the subsidence was about 3 to 4 feet. 28. In my opinion, the evidence of this witness also is not at all helpful to the appellant. In the plaint under Schedule 'A' in both the suits the subsidence on the road is shown to the extent of 240 ft. In the pleading no distinction is made between Baghmara East Colliery and Pure Mandra Colliery while in the report (Ext. 1) the subsided area is mentioned as 9 ft. by 5 ft. whereas P.W. 20 in his evidence has given different figures of subsided area as noted above. The statement which he has made in his evidence regarding preparation of the plans and the survey indicating the location of subsidence and the workings of the two collieries, are vague and indifferent and no reliance can be placed on them to fix any liability on the defendants in the two suits. 29. The other witnesses examined on behalf of the plaintiff-appellant, are not of any importance and some of them are formal in nature. Therefore, learned counsel for the parties have not referred to them. Hence, no discussion to their evidence is called for. 30. On behalf of the defence respondents in both the suits the report dated the 9th July, 1963 of Hari Narain Bhattacharjee, Pleader Commissioner was exhibited. In Money Suit No. 64 of 1959 it was exhibited as A-1, whereas in Money Suit No. 63 of 1959 the same was exhibited and marked as Ext. C. He was appointed to inspect the place of subsidence by the court at the instance of defendant-respondents. On the 25th June, 1963 he inspected the place in presence of the counsel of both the parties. He mentioned in the report that he found no subsidence at Mile 2 Furlong 4 of Phularitand District Board Road. C. He was appointed to inspect the place of subsidence by the court at the instance of defendant-respondents. On the 25th June, 1963 he inspected the place in presence of the counsel of both the parties. He mentioned in the report that he found no subsidence at Mile 2 Furlong 4 of Phularitand District Board Road. There was no sign of any damage on the road. There was constant flow of heavy loaded trucks, buses and carts. There was subsidence between Ganeshpur Engineering Works and the engine shed of Ganeshpur Colliery of Mr. B.P. Jain with which defendants' collieries in the two suits had no concern at all. He submitted the report, as it appears from the seal of the court, on the 9th July, 1963. He was also examined as D.W. 1 in Money Suit No. 64 of 1959. In the evidence also he stated that he made local inspection in the presence of learned counsel of both the parties. He inspected Mile 2 Furlong 4 of Phularitand Dumra Road. He did not find any subsidence on that place. He, however, found subsidence in the road at Mile 1 Furlong 4 between Ganeshpur Engineering Works and (sic) engine shed of Ganeshpur Colliery belonging to Mr. B.P. Jain. He also proved his report which was marked as Ext. A-1. He further stated that during his inspection he found heavily loaded cars and trucks passing over the said road. 31. In my opinion, nothing has been brought out to discredit the testimony of this witness. He stood the test of cross examination. Mr. Sinha, however, contended that he had made the inspection about six years after the occurrence. Therefore, he did not find any subsidence. He also urged that on the 26th July, 1963 the plaintiff had filed objection to the report of the Pleader Commissioner. The objection of the plaintiff was ORDER :ed to be put up on the 16th August, 1963, but no ORDER :was passed on the objection of the plaintiff. The other comment made against the report of the Pleader Commissioner, was that it was not confirmed by the court below. In my view, there is no merit in the said comment. There is no provision for such confirmation under ORDER :26 Rules 9 and 10 of the Civil Procedure Code. The other comment made against the report of the Pleader Commissioner, was that it was not confirmed by the court below. In my view, there is no merit in the said comment. There is no provision for such confirmation under ORDER :26 Rules 9 and 10 of the Civil Procedure Code. Learned counsel then referred to Paragraph 9 of the trial court JUDGMENT : in ORDER :to show that the trial court had not relied upon the report of the Pleader Commissioner or his evidence and had held that subsidence had taken place at Mile 2 Furlong 4 of Phularitand Dumra road, although the trial court has held that the said subsidence was not due to the working of the two collieries, and for that the defendants in the two suits were not in any way liable for any damage. He submitted that if the Pleader Commissioner's report and his evidence are accepted by this Court, the appellant will be greatly prejudiced, because the objection of the plaintiff to the Pleader Commissioner's report was not considered by the trial court. 32. In my view, even if we ignore (sic) evidence of D.W. 1 and his report, (sic) not enough evidence on the (sic)cord adduced on behalf of the plaintiff as discussed above to fix the liability of the defendants in the two suits for any damage. The subsidence on the road measuring 9 feet by 4 or 5 feet might be due to some strenuous cause which was soon established as it appears from the evidence of P.W. 12 discussed above that the barriers, danger signals and the guards which were provided by the District Board in the year 1957, were removed in 1958. If the said subsidence would have continued, there was no reason for withdrawing those precautionary measures in 1958. Further, from the evidence discussed above, it appears that the motor vehicles and the trucks with full load were freely passing on the road in question. I have already indicated that P.W. 12 has also stated in cross examination that the road was not closed for traffic of any kind due to subsidence. There is nothing on the record to suggest that any fresh subsidence had taken place since then and thereby causing any obstruction to the regular and formal movement of the traffic on the road. There is nothing on the record to suggest that any fresh subsidence had taken place since then and thereby causing any obstruction to the regular and formal movement of the traffic on the road. Learned counsel for the appellant, however, contended that it was not necessary for the plaintiff to wait till the entire area of the road over the two collieries had subsided and collapsed. The subsided portion of even 9 ft. by 4 ft. was enough to entitle the plaintiff to claim damages against the owner of the two collieries. According to him as soon as the plaintiff proved that the two collieries were located by the two sides of the road where the subsidence occurred and the two colliery owners or their predecessors-in-interest had extracted coals in an unscientific manner, the onus was on the defendants to establish that they were not in any way responsible. It was for the defendants to establish that they had worked scientifically while extracting coals. Since the defendants have not let evidence in rebuttal other than D.W. 1 and his report, the evidence of the plaintiff is more or less ex parte on that point. 33. In ORDER :to find support to his contention regarding onus, learned counsel contended that in the instant case the maxim res ipsa loquitur (the thing speaks for itself) as held in (1) Byrne V. Boadle [(1863) 2 H and C 722] would apply because on the facts and circumstances of the case the negligence on the part of the two colliery owners shall be presumed. He also urged that there was strict liability on the two colliery owners to have worked in a scientific manner so that sufficient support to the surface, is maintained. They had knowingly undertaken dangerous operation. If they had by that operation caused the subsidence, the strict liability as indicated in (2) Rylands V. Fletcher [(1865) 3 H&C 774] would be attracted in the instant case. Learned counsel referred to the case of (3) Manindra Nath Mukherjee V. Mathuradas Chatturbhuj (A.I.R. 1946 Cal 175) where Khundkar, J. was considering tortious liability, its meaning and essentials of negligence. In that case the defendant was a proprietor of a cinema house. The portion of the building which abutted on the street was one storeyed. Learned counsel referred to the case of (3) Manindra Nath Mukherjee V. Mathuradas Chatturbhuj (A.I.R. 1946 Cal 175) where Khundkar, J. was considering tortious liability, its meaning and essentials of negligence. In that case the defendant was a proprietor of a cinema house. The portion of the building which abutted on the street was one storeyed. A banner, which was a cinema advertising device consisting of a picture on cloth within a wooden frame was displayed from the sky sign. One stormy evening the banner fell from its position against the sky sign on the head of the plaintiff, who was passing along the pavement of the public thoroughfare, and caused a severe cut. The plaintiff in that case claimed for damages on the ground of negligence on the part of the defendant. His Lordship also held that the maxim, res ipsa loquitur was applicable to the case, and cast the burden of proving exercise of due care on the defendant The fact that the velocity of the wind which caused the fall of the banner was less than 27 miles per hour itself showed that the defendant was guilty of negligence in keeping the banner properly attached to the sky sign and was, therefore, liable for damages. His Lordship further held that the case also attracted the rule in (2) Rylands V. Fletcher and, therefore, the defendant could not answer his liability for the injury by merely showing that due care was exercised in keeping the banner properly attached to the sky sign. As the storm which was alleged to be the cause of the fall of the banner was not an act of God as alleged by the defendant he was liable for damages. 34. In my view, the maxim res ipsa loquitur and the rules laid down in (2) Rylands V. Fletcher are not universal application. Their applicability depends upon the facts and circumstances of an individual case. The author of the Win-field on Tort 7th Edition dealing with the scope of the maxim res ipsa loquitur at page 196 mentions "the maxim is not a principle of liability but a rule of evidence; it possesses no magic qualities; nor has it any added virtue, other than that of brevity, merely because it is expressed in Latin. The author of the Win-field on Tort 7th Edition dealing with the scope of the maxim res ipsa loquitur at page 196 mentions "the maxim is not a principle of liability but a rule of evidence; it possesses no magic qualities; nor has it any added virtue, other than that of brevity, merely because it is expressed in Latin. When used on behalf of a plaintiff it is generally a short way of saying: 'I submit that the facts and circumstances which I have proved establish a prima facie case of negligence against the defendant.' It must depend upon all the individual facts and the circumstances of the particular case whether this is so. There are certain happenings that do not normally occur in the absence of negligence, and upon proof of these a court will probably hold that there is a case to answer". The principal requirement in applicability of the maxim according to the author is that the mere fact of the accident having happened should tell its own story and raise the inference of negligence so as to establish a prima facie case against the defendant. The story must be clear and unambiguous, if it may tell one of half a dozen stories the maxim is inapplicable [Vide (4) Carruthers V. Mac Gregor, 1927 S.C. 816, 823]. In the instant case also the story regarding the subsidence on the plaintiff's road is not clear and it is ambiguous. The subsidence might have been caused due to certain movements of earth beneath the road. It is of common knowledge that sometime road is sunk when the earth below the road settles down due to some reason or the other. The rule in (2) Rylands V. Fletcher is that the occupier of the land who brings and keeps upon it anything likely to do damage if it escapes is bound at his peril to prevent its escape, and is liable for all the direct consequences of its escape, even if he has been guilty of no negligence. It is well settled that the rule in (2) Rylands V. Fletcher applies only to things which are brought and kept upon the defendant's land and is inapplicable to things which are naturally there, howsoever dangerous they may be; for example, noxious needs, vermin, or water. It is well settled that the rule in (2) Rylands V. Fletcher applies only to things which are brought and kept upon the defendant's land and is inapplicable to things which are naturally there, howsoever dangerous they may be; for example, noxious needs, vermin, or water. So far from being absolutely liable for the escape of these things, the occupier of land is not even under any duty of care to prevent their escape. A person is liable, however, even for the escape of things naturally on his land, if he has artificially accumulated them there so that their escape does more mischief than it would otherwise have done. The scavation of a coal mine is accounted as natural. In other words in the instant case it was the natural right of the defendants to scavate the coal mines in the two collieries. In that view of the matter, there will be no strict liability on the defendants unless the plaintiff establishes that due to the said unscientific workings of the two collieries by the defendants or by their predecessors, the said subsidence on the road of the plaintiff had occurred. The observation made by his Lordship in (3) A.I.R. 1946 Cal 175 (supra) is also not applicable to the facts of the instant case. In that case the velocity of the wind which caused the fall of the banner was less than 27 miles per hour. It is of common knowledge that due to such low velocity of wind the banner would not have fallen unless defendant was negligent. Therefore, his Lordship held that the maxim res ipsa loquitur would apply and the rule in (2) Rylands V. Fletcher was also attracted. In (5) Mohammad Habib V. Ram Narain Lall and others (A.I.R. 1959 Pat 348) where Ramaswami, C.J. and Kanhaiya Singh, J. (as they then were) had occasion to consider tortious liability, negligence and the question of onus. In that case, the plaintiffs had let out a house to the defendants on monthly rental. The defendant was a fruit seller and lived in the house leased out to him by the plaintiffs along with his family. In February, 1949 the house was burnt down by a fire, and the case of the plaintiffs was that the fire was caused due to the negligence of the defendant and so the plaintiffs were entitled to compensation in tort. In February, 1949 the house was burnt down by a fire, and the case of the plaintiffs was that the fire was caused due to the negligence of the defendant and so the plaintiffs were entitled to compensation in tort. The defendant contested the suit on the ground that the fire broke out suddenly on the north eastern corner of the outer verandah when all the inmates of the house were asleep and that there was no negligence on his part and that the fire was not due to his negligence. The trial court dismissed the suit on the ground that the plaintiffs failed to prove negligence on the part of the defendant. The lower appellate court had reversed the finding of the trial court and had given a decree for compensation to the plaintiffs. The defendant, therefore, filed an appeal before this Court. It will be apt to quote a portion of their Lordships' observation in paragraph 3 at page 349:-- In our opinion, the lower appellate court misdirected itself on a point of law in throwing the onus of proof upon the defendant to show that there was absence of negligence. It was argued on behalf of the respondents that the doctrine of res ipsa loquitur applies to this case and so it is sufficient for the plaintiffs to prove the accident and nothing more, and unless a satisfactory explanation is given by the defendant, the plaintiffs are entitled to a decree for damages. We do not think that this argument is correct. The doctrine of res ipsa loquitur has been explained by Erle, C.J. in the leading case of Scott V. London Docks Co. (1865) 3 H and C 596 (at p. 601) as follows:-- There must be reasonable evidence of negligence, but where the thing is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. The doctrine has been held to apply in a case where bags of flour fell from warehouse windows [(1) Byrne V. Boadle, (1863) 2 H & C. 722] and also in a case where stones were found in edible commodity [(6) Chaproniere V. Mason (1905) 21 TLR 633] and similar other situations. But in the present case it is obvious that the doctrine cannot, apply and unless the plaintiffs establish negligence on the part of the defendant no decree for damages can be granted to the plaintiffs in tort. In (7) Sochacki V. Sas (1947-1 All. E.R. 344) it was observed by Lord Goddard, C.J. as follows:-- Counsel for the defendants argued that I am bound to apply the doctrine of res ipsa loquitur, but I do not think this is a case of res ipsa loquitur. Everybody knows fires occur through accidents which happen without negligence on anybody's part. There is nothing here to show that the plaintiffs left any improper fire in his room, any larger fire than usual, a fire which was too large for the grate, or anything like that. There was a fire burning in his room. He left his room for two or three hours. I do not consider that the doctrine of res ipsa loquitur could possibly apply to a case such as this. We are, therefore, of opinion, that the doctrine of res ipsa loquitur does not apply to this case and the normal rule of evidence must prevail. The onus of proving negligence lay on the plaintiffs and in the absence of any evidence led by the plaintiffs to this effect the case must fail........... 35. It will be useful to refer in this connection the case of (8) S. Nagamani and another V. Corporation of Madra (A.I.R. 1956 Mad 50), where Ramasswami, J. was also considering the maxim res ipsa loquitur on the question of onus. In that case a person was injured on head, while passing along a street, by the fall of a Corporation ventilator iron post, which injuries brought about his death. In that case a person was injured on head, while passing along a street, by the fall of a Corporation ventilator iron post, which injuries brought about his death. In a suit for damages against the Corporation, founded on gross carelessness and negligence of the Corporation in allowing the ventilator post to exist in a dangerous condition and without taking adequate precautions, the plaintiffs (wife and son of the deceased) based their claim upon the principle 'res ipsa loquitur' grounded on the accusations that the post would have broken and fallen on the head of the deceased because of the thoroughly rustly and insecure position at the base, so that any moment it would drop down without any extraneous push or impact. On the other hand, the Corporation had shown that all legitimate precautions had been taken by them and that there was no want of adequate care and attention on their part which could be normally expected in the circumstances of the case. They had put forward also explanations which could not be described as unreasonable for the accident which happened. His Lordship further observed that in a claim for damages founded on negligence the general rule is that the plaintiff must establish a breach of duty and its causal connection with his injury. If he fails to prove either of them action fails. Mere proof of some injury is not enough. The plaintiff's evidence must pass, however, beyond the region of pure conjecture into that of legal inference. The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is the deduction from the evidence and if it is a reasonable deduction it may have the validity of legal proof. The circumstances put forward by the plaintiffs as evidencing negligence and want of due care and attention by the Corporation had not been shown to the reasonable explanations for the accident. His Lordship, therefore, held that the plaintiffs had not established the negligence on the part of the defendant Corporation entitling them to damages either affirmatively or even on the foot of the maxim 'res ipsa loquitur'. 36. His Lordship, therefore, held that the plaintiffs had not established the negligence on the part of the defendant Corporation entitling them to damages either affirmatively or even on the foot of the maxim 'res ipsa loquitur'. 36. In the light of the decisions referred to above and on the facts and circumstances of the instant case, in my opinion, the initial onus was on the plaintiff to establish the liability on the defendants in the two suits. Therefore, the contention of the learned counsel on the point of onus has no substance. 37. In ORDER :to show that the duty is cast upon the underground owners to preserve right of the surface owner so that no injury is caused to the surface, Mr. Sinha made several citations. He referred to (9) Harris V. Ryding (151 E R 27). In that case 'A' being seised in fee of certain lands, granted the land to P, his heirs and assigns, reserving to himself, his heirs and assigns, "all and all manner of coals, seams and veins of coal, iron ore, and all other mines, minerals, and metals which then were, or at any time, and from time to time thereafter, should be discovered in or upon the said premises, & c, with free liberty of ingress, egress and regress, to come into and upon the premises, to dig, delve, search for, and get & c, the said mines and every part thereof, and to sell and dispose of, take, and convey away the same, at their free will and pleasure; and also to sink shafts, & c, for the raising up works, carrying away and disposing of the same or any part thereof, making a fair compensation to P, for the damage to be done to the surface of the premises, and the pasture and crops growing thereon". It was held that under this reservation, 'A' was not entitled to take all the mines, but only so much as he could get leaving a reasonable support to the surface. In the case of (10) Backhouse V. Bonomi (9 H.L.C. 503) 'A' was the owner of certain houses standing on land which was surrounded by the lands of B.C. and D.E. was the owner of mines running underneath the lands of all these persons. In the case of (10) Backhouse V. Bonomi (9 H.L.C. 503) 'A' was the owner of certain houses standing on land which was surrounded by the lands of B.C. and D.E. was the owner of mines running underneath the lands of all these persons. He worked the mines in such a manner (without actual negligence) that the lands of B.C. and D. sank in; and after more than six years' interval their sinking occasioned an injury to the houses of A. It was held that the right person to the support of the land immediately around his house is not in the nature of an easement, but is the ordinary right of enjoyment of property; and till that is interfered with he has no legal ground of complaint, although, in fact, something may have been done which (without his knowledge), has occasioned results that will afterwards affect his property. It was further held that a right of action accrued to A, when this injury actually occurred, and that his right was not barred by the Statute of Limitations. In the case of (11) Butterknowle Colliery Company Ltd. V. Bishop Auckland Industrial Cooperative Company Ltd. (1906 A.C. 305) before 1757 the lord of a manor had the right to work mines and minerals under the waste lands of the manor so as to let down the surface, provided enough pasturage was left to satisfy the rights of the commoners. By an enclosure Act of 1757 the waste lands were enclosed and allotted, and the lord of the manor was empowered to work the mines and minerals under the allotments as fully and freely as he might have done if the Act had not passed, and that without making or paying any satisfaction for so doing, A compensation clause in the Act provided that any damage done to an allottee by the exercise of the powers reserved to the lord should be paid for by an assessment upon the occupiers of the other allotment. It was held that upon the true construction of the Act, the common law right of the surface owners to the support of the surface was not taken away by express words or necessary implication. It was held that upon the true construction of the Act, the common law right of the surface owners to the support of the surface was not taken away by express words or necessary implication. In the case of (12) 'M' Alister (or Donoghue) V. Stevenson (1932 A.C. 562) by Scots and English law alike the manufacturer of an article of food, medicine or the like, sold by him to a distributor in circumstance which prevent the distributor or the ultimate purchaser consumer from discovering by inspection any defect, is under a legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health. Although the facts of that case are not very much relevant to the point, Mr. Sinha drew our attention particularly to certain observations of Lord Atkin at pages 580 and 581. He held that the liability for negligence, whether you style in such or treat it as in other systems as a species of 'culpe' is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Under the certain circumstances, one man may owe a duty to another, even though there is no contract between them. If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property. A duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other. In (13) Balfour V. Barty King (1956, 2 All E R 555) premises which formed part of a large mansion house had been converted into four houses. The plaintiff owned one of these and the defendants, who were husband and wife, occupied the adjoining converted premises. In (13) Balfour V. Barty King (1956, 2 All E R 555) premises which formed part of a large mansion house had been converted into four houses. The plaintiff owned one of these and the defendants, who were husband and wife, occupied the adjoining converted premises. A pipe in the loft of the defendants' premises became frozen and B and R, two workmen in the employment of the third parties, came on the defendants' premises at the request of the defendants, made to the third parties as independent contractors, to unfreeze the pipe. B and R proceeded to thaw the pipe by applying to it the flame of a blow-lamp. Most of the pipes in the loft were lagged with felt, and some of the lagging caught, alight and in turn ignited other inflammable material in the defendants' loft causing an extensive fire which spread to the plaintiff's premises. The fire so arising was not an accidental fire within Section 86 of the Fires Prevention (Metropolis) Act, 1774, but was caused by the negligence of the workmen in using a blow lamp for the purpose of unfreezing the pipe in the place at which the blow-lamp was used. The plaintiff claimed against the defendant in respect of the damages to his premises caused by the fire. It was held that the defendants were liable to the plaintiff on two grounds, namely, (i) because the fire had begun on the defendants' premises through negligence and the defendants failed to establish that the persons by whose negligence the fire was caused, viz. B and R, were strangers to the defendants for this purpose; and (ii) because the use of the blow lamp to thaw the pipe was in the circumstances dangerous and a non-natural use of the premises and accordingly the rule in (2) Rylands V. Fletcher (1868 L.R. 3 H.L. 330) applied to the creation of the fire as also to its spreading to the plaintiff's premises, and against liability under this principle neither the Fires Prevention (Metropolis) Act, 1774, Section 86, nor the fact, if it were the fact, that the defendants had no reason to know that the blow lamp would be used to thaw the pipe in the loft afforded a defence. It is apparent that the above case was based upon the rule in (2) Ryland V. Fletcher. It is apparent that the above case was based upon the rule in (2) Ryland V. Fletcher. I have already held in the instant case that the said rule is not applicable. Therefore, no further consideration is required on the basis of the decision in (13) Balfour V. Barty-King. 38. Mr. Sinha referred to the law of Mines, Quarries and Minerals by Mac-Swinney, 5th Edition and he drew our attention to Articles 60, 91, 92, 564 to 567, 571 to 577 and 583 to 585. I wish to refer here the contents of some of them which are relevant for consideration in the instant case. Mr. Sinha has led much stress on Article 575 which reads as:-- A right of support, whether lateral or vertical for land in its natural state has been usually spoken of as "an incident to the land itself", or as a natural right of property; but it has been sometimes spoken of as an easement, or a natural easement. If however, it is a right of property, it is not a right of property in the same sense as a right to prevent a trespass on one's land. A surface owner, as such, has not, for instance, any right to the minerals by which his surface is supported. The property in such minerals belongs exclusively to the mine owner. And if a trespass is committed in respect of the minerals, the mine owner is the person entitled to take proceedings. A surface owner, as such, cannot, moreover, insist upon the minerals being kept in their natural state. The mine owner may remove every particle of his minerals, even including those immediately adjacent or subjacent to the surface, if for the natural support which such minerals would have afforded, he substitutes artificial support. A similar position exists as between the lord of a manor and his copyholder, where the lord has a customary right to work, subject to the condition that he does not let down the surface. Next important Article is 577. It mentions that there a right of support exists, whether lateral or vertical, and whether for land in its natural state, or for land in its non-natural State, degrees cannot be measured out to which the right could extend. The right is neither affected by the nature of the strata, nor by the difficulty of propping up the surface. It mentions that there a right of support exists, whether lateral or vertical, and whether for land in its natural state, or for land in its non-natural State, degrees cannot be measured out to which the right could extend. The right is neither affected by the nature of the strata, nor by the difficulty of propping up the surface. It is an absolute right to have the surface protected from subsidence, and kept securely at its ancient and natural level. Article 583 mentions that the right of support is not infringed by mere excavations in adjacent or subjacent lands; and, although something may be done causing results which afterwards produce subsidence, the right is not infringed until the subsidence actually takes place. Another way of stating the same proposition is that merely weakening the support without taking it away, creates no cause of action. In Article 584 it is stated that depreciation in the value of the surface caused by the mere apprehension of future damage gives no cause of action. In my view, the above observation of the author in the two articles referred to above, are not helpful to the claim made by the plaintiff in the case under consideration. It may be recalled that under Schedule C to the plaint, the plaintiff has claimed Rs. 16,425/- for cost for stowing sands in the goaf in the two suits. That is mainly on the basis of the allegation that due to unscientific scavation by the defendants in the two suits the support to the road had weakened. On the basis of the above observation, the plaintiff is not entitled for the same unless actual subsidence had occurred. In the instant case, I have already observed that subsidence of the road was to the area of 9 ft. by 4 ft. and that also, it appears soon filled up as there was no obstruction in the movement of loaded trucks etc. Plaintiff's claim cannot be supported on the basis of mere apprehension of future damage. 39. Mr. Sinha also, in this connection referred to Bainbridge on Mines and Minerals, 5th Edition at pages 396-397. by 4 ft. and that also, it appears soon filled up as there was no obstruction in the movement of loaded trucks etc. Plaintiff's claim cannot be supported on the basis of mere apprehension of future damage. 39. Mr. Sinha also, in this connection referred to Bainbridge on Mines and Minerals, 5th Edition at pages 396-397. The relevant portion of the passage is a quotation from (14) Humphries V. Brogden [(1850), 12 Q.B. 739] where the court held that the owner of the surface was entitled to have it supported by the subjacent mineral strata; and if the surface subsides through the removal of such subjacent strata, although the operation may not be negligent nor contrary to the usual and customary mode of working, yet the owner of the surface may maintain an action for the damage, and reasonable support is simply what will support the surface. In my view, the observation also does not assist the appellant in fixing liability on the defendants in the two suits. The plaintiff could maintain action against the defendants only if the plaintiff could have proved that the surface subsided due to the removal of subjacent strata. Mr. Sinha, however, submitted that defendant no. 2 in both the suits was liable to the plaintiff also on the ground of nuisance. He contended that in nuisance all that the plaintiff need show, in ORDER :to make out a claim prima facie, is that the plaintiff has been injured by the defendant's conduct. In such a case the plaintiff starts with the presumptive rule in its favour that every man is bound so to use his own property that he does not injure his neighbour. He drew our attention to Halsbury's Laws of England, 3rd edition, volume 28, Part I, dealing with the nature of nuisance. Article 152 states that the term 'nuisance' as used in law is not capable of exact definition and has divided nuisance broadly into three classifications. Learned counsel submitted that in the instant case the third classification which defines nuisance as acts or omissions generally but not always or necessarily connected with the user or occupation of land which cause damage to another person in connection with the latter's user of land or interference with the enjoyment of land, or of some right connected with the laud, is applicable to the instant case. Reference was also made to Article 161 which mentions that both injuria and damnum are necessary in ORDER :to constitute a nuisance. He submitted that in the present case also there were both injuria and damnum. Injuria because there were unscientific workings underground the road by the two colliery owners, who failed to stow the goaf with sands and damnum because there was subsidence on the surface of the road. Therefore, according to him the defendants ware liable for damages for causing nuisance. 40. In my opinion, the contention of learned counsel cannot be accepted in view of what is stated in Article 162. It is mentioned therein that the surrounding circumstances in each case must be considered. An act which in some circumstance is innocent may in others become actionable as a nuisance. Whether such an act does constitute a nuisance must be determined not merely by an abstract consideration of the act itself, but by reference to all the circumstances of the particular case, including, for example, the time of the commission of the act, complained of the place of its commission, the manner of committing it, that is, whether it is done wantonly or in the reasonable exercise of rights; and the effects of its commission, that is, whether those effects are transitory or permanent, occasional or continuous; so that the question of nuisance or no nuisance is one of fact. From the above it is clear that the plaintiff, in ORDER :to succeed, must establish that the defendants by removing the support committed nuisance. 41. Mr. Sinha then referred to Article 164 of the Halsbury's Laws of England which mentions that the damage actual or prospective, is one of the essentials of nuisance. Its existence must be proved, except in those cases in which it is presumed by law to exist. The damage need not consist of pecuniary loss, but it must be material or substantial, that is, it must not be merely sentimental, speculative, or trifling, or damage that is merely temporary, fleeting, or evanescent. Nothing can be deemed fleeting or evanescent however, if it results in substantial damage, and regard is to be had, therefore, not merely to the duration of the thing complained of in point of time, but to the effect of the act or omission upon the plaintiff. 42. Nothing can be deemed fleeting or evanescent however, if it results in substantial damage, and regard is to be had, therefore, not merely to the duration of the thing complained of in point of time, but to the effect of the act or omission upon the plaintiff. 42. In my view this article also lays stress upon proving damage as essential to nuisance. In the instant case we have also noted that the subsidence on the road had occurred only once, and it has not occurred since then. Besides, the subsidence on the surface of the road as disclosed from the evidence adduced by the plaintiff, was temporary, because soon after the occurrence the danger signals and the barriers etc., were removed, and the movement of the traffic on the road was not at all impaired. 43. Reliance was also placed on Article 165 which deals with presumption of damage. It states that where an absolute legal right of the plaintiff is infringed, the law presumes damage even though no actual loss can be proved. In my view this article is not applicable to the instant case. The plaintiff does not possess absolute legal right as observed earlier. In ORDER :to succeed the plaintiff must establish that the subsidence was caused due to the bad workings of the collieries by the defendants. 44. He also drew our attention to Article 168 of the Halsbury's Laws of England, third edition, Volume 28, at Page 132, which states that where a person does some act, which he is lawfully entitled to do on his own land, it will constitute a nuisance, if it results in causing physical damage to his neighbor's property, unless there is justification, possible justifications are that the damage is a natural result of a reasonable use by a man of his own property, or that the act was done under statutory authority and that every reasonable precaution was taken to prevent it causing damage, or that the act was done under agreement, expressed or implied, between the door and the person affected etc. It also mentions that instances of injury to property, or interference with rights in respect of property, are commonly found to arise from excavations causing subsidence. In my opinion, the above observation also does not support the contention put forward on behalf of the appellant. It also mentions that instances of injury to property, or interference with rights in respect of property, are commonly found to arise from excavations causing subsidence. In my opinion, the above observation also does not support the contention put forward on behalf of the appellant. Reference may be made to Halsbury's Laws of England, Third Edition, Volume 26, at Pages 371 and 372, dealing with the topic 'subsidence damage'. Article 779 mentions that the damage, not the withdrawal of support, is the cause of action. No right of the surface owner is infringed unless and until subsidence results. At one time a contrary view prevailed, but it is now well settled that the mine-owner may remove every atom of the minerals contained in the subjacent stratum, if the soil above does not fall. Therefore, there is no interference with the surface owner's right of enjoyment of his land and no cause of action on his part, unless and until actual damage results from the removable of the subjacent stratum. 45. Mr. Sinha contended that even if the plaintiff failed to establish that the said subsidence had occurred due to the withdrawal of the support by defendant no. 2 in both the suits, still they cannot escape liability for the wrongs committed even by their predecessors. Those defendants have allowed to continue the nuisance which was caused by their predecessors. Learned counsel endeavored to base this part of his argument of their liability on account of their predecessors' wrong on the basis of the maxim 'covenant running with the land'. In ORDER :to find support to his contention, he relied on a Bench decision of this Court in (15) Jagannath Marwari V. Kalidas Raha (A.I.R. 1929 Pat 245) where Adami and Chatterji, JJ. were considering an action which was for the recovery of compensation for the subsidence of a tank purchased by the plaintiff from one Uchit Gorain. The subsidence had been caused by the removal of pillars of coal in the coal mine belonging to the defendant. Their Lordships in that case were mainly concerned as to which of the Articles, namely, Articles 36, 115 and 120 of the Indian Limitation Act, 1908, were applicable. The real question before their Lordships was whether the suit was barred by limitation. Their Lordships in that case were mainly concerned as to which of the Articles, namely, Articles 36, 115 and 120 of the Indian Limitation Act, 1908, were applicable. The real question before their Lordships was whether the suit was barred by limitation. While dealing with the matter their Lordships at pages 246 and 247, observed that it was no doubt a suit for compensation for malfeasance or misfeasance but it was one independent of contract. Their Lordships further observed that there was implied covenant running with the land that the surface owner had an inherent right of support from the owner of the underground mines. In my JUDGMENT :, that maxim is not applicable in the instant case, because there was not any covenant between the defendants in the two suits and the plaintiff regarding any liability. If there was any liability at all on the defendants it was merely a tortious liability and not any contractual liability. In (16) National Bank of Lahore Ltd. V. Sohan Lal Saigal and others (A.I.R. 1965 SC 1663) at page 1665 in Paragraph 6 their Lordships observed that torts are often considered as of three kinds, Viz. nonfeasance or the omission of some act which a man is by law bound to do, misfeasance, being the improper performance of some lawful act, or malfeasance, being the commission of some act which is in itself unlawful. In view of the observation of their Lordships of the Supreme Court that a malfeasance or misfeasance arises out of torts, by the above observation their Lordships in (15) A.I.R. 1929 Pat 245 (supra) have not laid down good law. I find further support to my views from the decision in (17) Ambalal Khora and another V. Bihar Hosiery Mills Ltd, and others (A.I.R. 1937 Pat 657) where Wort and Dhavle, JJ. at page 659 observed: The owner of the surface may have a right in law of support, or to put it in the words of Lord Cranworth in the House of Lords in 9H LC 503 (Backhouse V. Bonami) 'in truth his right is a right to the ordinary enjoyment of his land' but the infringement of that right to tortious. A sufficient authority for that, if authority were needed, is found in 3 QBD 389 (Lamb V. Walker) at p. 402 referred to by Bruce, J. in (1897) 2 QB 165 (Greenwell V. Low Beechburn Coal Co)........ My view also finds support from (18) Jarvis V. Moy, Davies, Smith, Vander-vell and Company [(1936) 1 K.B. 399)] where Greer L.J. held that where the breach of duty complained of arises out of the obligations undertaken by a contract, the action is founded on contract but where that which is complained of arises out of a liability independently of the personal obligation undertaken by a contract, an action brought in respect of this is founded on tort, and this is so even though there may be a contract between the parties. 46. Mr. Sinha then submitted that even for tortious liability the defendants would be liable for the wrong done by their predecessors. In ORDER :to find support to his contention he referred to (19) Sedleigh Denfield V.O. Callaghan and others (1940 A.C. 880) where it was observed that an occupier of land continues a nuisance if, with knowledge or presumed knowledge of its existence, he fails to take reasonable means to bring it to an end when he has ample time to do so; and he 'adopts' it if he makes any use of the erection or artificial structure which constitutes the nuisance. In this connection he also referred to (20) Lesange V. Egertion (1943) 1 All ER 489. In that case as a result of an air raid which took place on the night of Friday, November 15, 1940, damage was caused to the window frames and glass of an empty house of which the defendant was the owner. No steps were taken to remedy the damage until the following Monday, because the offices of the agents were closed on Saturday and there was difficulty in getting builders to work on that day. On November 19, before the damage had been repaired, the plaintiff was struck on the head by a piece of glass which fell from the house as she was passing, with the result that she sustained injuries which had a serious effect on her health. The defendant, i.e., the owner of the house, did not live in it. He had no furniture therein. He did not even have a housekeeper on the premises. The defendant, i.e., the owner of the house, did not live in it. He had no furniture therein. He did not even have a housekeeper on the premises. There was nobody on the premises either to watch or take care of anything which might happen to the house or to remove anything which might make the house a nuisance if something had damaged it so as to make it dangerous. It was held that the house in its damaged condition after the air raid was a nuisance and the defendant was liable for continuing the nuisance, of which he had presumed knowledge on November 16, since he had failed to abate it. 47. In my view, the principles laid down in the two cases just referred to above, cannot be extended to the facts of the instant case, and in the case of subsidence. The liabilities in those two cases were based on the knowledge or presumed knowledge of the defendant. A complete answer to the contention of learned counsel for the appellant in this regard is to be found in Article 787 of Halsbury's Laws of England, Volume 26, 3rd edition, where the author while dealing with the liability of successive owners in case of subsidence has clearly mentioned that where subsidence occurs after the original wrongdoer has gone out of possession, a later occupier is not, in general, liable in respect of it; for although the cause of action is not complete until subsidence occurs, neither is it constituted without the original excavation or omission to substitute artificial support. The later occupier, who has made no excavation, is under no duty to substitute artificial support for that withdrawn by his predecessor, nor is any liability imposed upon him merely by virtue of his occupation of the mine. 48. Thus, the plaintiff's claim for damages as mentioned in Schedules B and C of the plaint in the two suits cannot be sustained from any point of view. Even if I had held in favour of the plaintiff on merit, it appears that the two suits were also barred by limitation. This brings us to the last consideration in these two appeals as to whether the two suits were barred by limitation or not. 49. Mr. Even if I had held in favour of the plaintiff on merit, it appears that the two suits were also barred by limitation. This brings us to the last consideration in these two appeals as to whether the two suits were barred by limitation or not. 49. Mr. Sinha advocated that the court below in both the suits had erred in holding that Article 36 of the Indian Limitation Act, 1908 (hereinafter referred to as 'the Act') is applicable. According to him, Article 115 of the Act was attracted in the instant case. Article 115 reads as: He submitted that the subsidence had taken place on 1.1.57 whereas the two suits were instituted on 23.12.59, i.e., within three years which is the period of limitation prescribed under the aforesaid Article 115. In ORDER :to substantiate his contention he relied on (15) A.I.R. 1929 Pat 245 (supra) where it was held that where the owner of the subsoil causes injury to the surface the wrong cannot be said to be independent of a contract so as to be governed by Article 36; because there is an implied covenant running with the land. In that view of the matter, it was held there that Article 115, which is the residuary article for actions excontractu, would be applicable. I have already held above that in the instant case there was no question of any implied covenant and the wrongs committed by the defendants were independent of a contract and it was a case of malfeasance or misfeasance arising out of tortious liability as observed in (16) A.I.R. 1965 SC 1663 (Supra). I have already held earlier that in view of the decision (16) in A.I.R. 1965 SC 1663 (Supra) their Lordships in (15) A.I.R. 1929 Pat 245 (Supra) have not laid down good law. Section 24 of the Act reads as: 24. Suit for compensation for act not actionable without special damage. In the case of a suit for compensation for an act which does not give rise to a cause of action unless some specific injury actually results therefrom, the period of limitation shall be computed from the time when the injury results. Illustration--(a) A owns the surface of a field. B owns the soil. B digs coal there out without causing any immediate apparent injury to the surface, but at last the surface subsides. Illustration--(a) A owns the surface of a field. B owns the soil. B digs coal there out without causing any immediate apparent injury to the surface, but at last the surface subsides. The period of limitation in the case of a suit by A against B runs from the time of the subsidence. On the facts and in the circumstances of the instant case, the plaintiff's suit for compensation is based on the above section. Article 36 reads as: The subsidence having taken place on 1.1.57, the two suits which were instituted on 23.12.59 were obviously beyond two years, the period of limitation prescribed under Article 36. 50. Mr. Sinha then contended that Section 23 of the Act is attracted in the present case which provides that in the case of continuing breach of contract and in case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues. Learned counsel submitted that the said section is wide enough to include the breach of contract as well as the wrongs committed in tort. He urged that it is a case, according to the plaintiff, of a continuing wrong committed by the defendants. Therefore, a fresh period of limitation began to run at every moment of the time during which the tortious wrong continued. In my view, this contention of learned counsel is also not acceptable. In (21) Balakrishna Savalram Pujari Waghmare and others V. Shree Dhyaneshwar Maharaj Sansthan and others (A.I.R. 1959 SC 798) their Lordships had an occasion to deal with Section 23 of the Act and its applicability. Their Lordships at Page 799 observed that Section 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. In the instant case, I have already held above that the cause of action arises to a surface owner only when there is actual subsidence caused by the underground owners, on the basis of the various decisions referred to above. Therefore, the wrongful act causing injury is complete when the subsidence is caused. If the said subsidence continued on the surface of the road it is only an effect of the said injury and, therefore, it cannot be said to be a continuing wrong. Thus, Section 23 of the Act was not applicable. 51. Learned counsel drew our attention to Article 585 of the Law of Mines, Quarries, and Minerals by Mac Swinney, some of the articles whereof have already been discussed. In Article 585 the author mentions that where the owner of land in its natural state is entitled to have it supported, each fresh subsidence caused by the removal of the support, creates, as it occurs, a fresh cause of action. Either the subsidence is itself in interference with the enjoyment of the property, and as such constitutes the cause of action; or the cause of action is the continuing omission to substitute artificial support, and the damage which follows from that omission. Similar version is to be found in Article 779 of Halsbury's Laws of England at page 372, Volume 26 referred to above, where it is mentioned that each fresh and independent subsidence gives rise to a new cause of action, and it is no answer to the surface owner's claim for compensation to say that he has already brought an action and obtained compensation for previous damage, although the subsidence results from the same excavation. As each fresh and independent subsidence gives rise to a new cause of action, so may a subsidence, which is merely a stage in a continuous process, constitute a distinct cause of action. As each fresh and independent subsidence gives rise to a new cause of action, so may a subsidence, which is merely a stage in a continuous process, constitute a distinct cause of action. In my view, that does not assist the case of the appellant on the point of limitation. From the above observation it simply appears that each subsidence gives rise to a new cause of action. If in future any subsidence occurs on the road of the plaintiff, and if it is established that the subsidence was due to the bad workings of either of the defendants in the two suits, certainly it would give a fresh cause of action, and the plaintiff would be entitled to institute fresh suits against them. Those observations do not in any way save the period of limitation prescribed in the present suits, the cause of action for which arose on the 1st January, 1957. 52. After minute consideration from various points of view discussed above, I find no reason to differ from the findings arrived at by the trial court in the two suits. In the result, the JUDGMENT : and decree of the trial court in both the suits are upheld, and both the appeals are dismissed with costs. Appeal dismissed