P L D 1959 (W (PLP)

MUHAMMAD SHAFI, J.‑‑‑Muhammad Afzal Khan, son of Haji Attai Khan of Battal in Tehsil Mansehra of Hazara District was a Forest Magistrate of this District when on the 26th of May 1944, he was granted a permit by the Deputy Commissioner, Hazara to cut 15 Biar trees for the construction of his house in Battal from Kund Bela Guzara owned by Haji Azad Bakht (P. W. 12). The permit was valid till the 26th August 1944. Subsequently on an information received from one Muhammad Farid Khan, presumably that Muhammad Afzal Khan had cut many more trees from the said Guzara than 15, an inquiry was conducted into the matter under section 156 of the Criminal Procedure Code by the Deputy Superintendent of Police, C. I., D., Hazara, because, if allegations were true Muhammad Afzal Khan had committed an offence under section 26 of the North‑West Frontier Province Hazara Forest Act, VI of 1937. The Deputy Superintendent of Police found the information correct and purporting to act under section 39 of the said Act, he seized 603 sleepers lying in Motor‑lorry stand of Battal village on the 3rd of May 1945, 280 sleepers from the bungalow of Muhammad Afzal Khan on the 4th of May 1945 and ~ 332 sleepers lying scattered in Kund Bela Guzara, from where he was permitted to cut 15 trees, on the 6th of May 1945. Out of 603 sleepers he took four sleepers away for scientific examination and the remaining he entrusted to the custody of Muhammad Feroz Khan son of Nawab Khan and Abdur Rehman Khan Lambardar (P. W. 9). Out of 280 sleepers, the Deputy Superintendent of Police took into his possession two planks and the remaining he entrusted to the same Abdur Rehman as well as to Subedar Abdur Rauf Khan. The 332 sleepers were left as they were, but were entrusted to the custody of the owner of the Guzara, namely Haji Azad Bakht (P. W. 12). After the Police investigation. concluded five persons namely Muhammad Afzal Khan, his brothers Taj Muhammad Khan and Masud Khan and his servants Abdur Rehman son of Rahmat ullah and Juma, son of Kalu were challaned on the 3rd of October 1945, under section 26 of the North‑West Frontier Province, Hazara Forest Act, 420 of the Indian Penal Code and Rule 81, sub‑rule 4, of the Defence of India Rules. They were tried by Sayed Masoom Shah, Magistrate 1st Class, Hazara, who acquitted them of all the charges by his order dated the 31st of March 1949. He also ordered that the seized timber should be restored to the accused. He, however, did not specify the accused to whom the timber was to be restored, but presumably he meant Muhammad Afzal Khan, because it was from his possession that the timber was seized. On the 30th of June 1949, Tai Muhammad made an appli cation to the Special E. A. C. Hazara. that the seized timber should be restored to him, because it had been so ordered by Sayed Masoom Shah, Magistrate. While this application was still pending, the Provincial Government on the 7th of September 1949, filed appeal No. 184 of 1949, in the Court of Judicial Commis sioner of the North‑West Frontier Province, against the order of acquittal of all the five accused. The final order on this application was deferred till the decision of the appeal by the said Court. Eventually by order dated the 8th of December 1949, the appeal was dismissed by a Division Bench of Judicial Commis sioner's Court, of which I was also a Member. Hon'ble Khan Muhammad Ibrahim Khan, the then Judicial Commissioner North‑West Frontier Province, who wrote the order observed with regard to the restoration of the timber as under:‑ "In the end the learned Advocate‑General contended that the learned trial Magistrate was not justified to order the return of the timber in question to the accused. He urged that any unmarked timber found anywhere in this province would be deemed to be Government property, and requested for time to produce a Government Notification to that effect. The request was acceded to. The learned Advocate‑General, however, has not produced any such notification: We think that the learned trial Magistrate was justified' to order the restoration of the timber in question to the accused. Muhammad Afzal Khan is presumed to own 280 sleepers recovered from his house, whether they were marked or not. The remaining 332 sleepers recovered from Bala Kund Guzara, according to the recovery list (Exh. P. C. /2) prepared in respect of them by the D. S. P. himself belonged to Muhammad Afzal Khan. This being so, it was but fit that those sleepers should have also been restored to the accused." It will be noticed that the learned Judicial‑Commissioner did not say anything about 603 sleepers seized from the Motor‑lorry stand of Battal. After the appeal was decided Taj Muhammad brother of Muhammad Afzal Khan made another application on the 14th of February 1950, praying that the timber be released. The Deputy Commissioner, Hazara, who dealt with this application after receiving back from the Court of Judicial Com missioner passed order on the 6th of March 1950 to the following effect :‑ "Wood to be restored to the accused." No steps in order to recover the timber were taken thereafter by Muhammad Afzal Khan or his co‑accused until the 21st of January 1951, when the former served a notice under section 80 of. the C. P. C. on the Provincial Government of the defunct N.‑W. F. P. This notice is not placed upon the record and so the exact contents of it cannot be known. No reply to the said notice was received and consequently Muhammad Afzal Khan alone instituted a suit on the 8th of December 1952, for the recovery of Rs. 60,000 made up of the following items :‑ (a) Rs. 50,000 on account of the value of the seized timber, which according to him numbered 1215 sleepers and measured 8335 cft., (b) Rs. 5,000 as compensation for the non‑completion of the construction of the house on account of the wrongful seizure of the timber, and (c) Rs. 5,000 as compensation on account of the expenses incurred in the criminal case and the physical and mental anxiety caused to the plaintiff. In the body of the plaint while demanding the value of the wood and presumably giving an explanation as to why the suit for the recovery of the wood was not instituted, the plaintiff alleged in para. No. 5 that the wood had been destroyed and had become useless. He alleged in para. No. 7 of the plaint that cause of action arose to him in March 1950, when the case was finally decided on appeal by the Court of Judicial Commissioner. This date is obviously wrong, because as has already been mentioned, the appeal .was decided in December 1949, and not in March 1950. The Provincial Government resisted the claim and denied practically all the allegations made by the plaintiff in his plaint. Three preliminary objections were also taken which were to the effect that the suit was barred by time, the plaintiff had no cause of action and the notice under section 80 of the C. P. C. was bad in law. Altogether 10 issues were framed in the case. They were as follows :‑ (1) Is the suit within time ?. (2) Whether the notice served on the defendant does not accord with the provisions of section 80, C. P. C. (3) Whether any permit had been issued to the plaintiff by the Deputy Commissioner, Hazara, for felling trees from Guzara Kund Bela ? (4) Did the defendant seize and keep in its possession 8335 cubic feet of timber belonging to the plaintiff‑ and the same was subsequently ordered to be restored to the plaintiff by the competent authorities ? (5) If issue No. 4 is answered in the affirmative, did the plaintiff suffer a loss, of Rs. 50,000 or any portion thereof on account of non‑restoration of the timber to the plaintiff, and he is entitled to recover this amount from the defendant? (6) Did the seizure of the timber by the defendant result in the stoppage of the construction of the house of the plaintiff and demolition of the construction already made, if so, has the plaintiff' incurred any loss and to what extent ? (7) Whether the plaintiff is entitled to any damages for the litigation between the parties and mental worries in consequence of the same, if so, is lie entitled to recover any amount in this behalf ? (8) Is the plaintiff' estopped by his conduct from bringing the present suit ? (9) Has the plaintiff no cause of action ? (10) Relief. On issue No. 1, the learned Senior Sub‑Judge Hazara found that Article 49 and not Article 2 of the Limitation Act governed the case and according to him, the starting point of the limitation being the 8th of December 1949, when the appeal was dismissed by the Court of the Judicial Commissioner, the suit brought within three years of this date, was well within time. On issue No. 2 giving the decision in favour of the plaintiff the learned trial Court held that the defendant had failed to prove that the notice served upon it was not proper and in accordance with the relevant law. He discussed issues Nos. 3 and 4 together and came to the conclusion that the plaintiff had obtained a permit for felling 15 trees from Kund Bela Guzara and that the police had seized 1215 sleepers equal to 8335 cft. On issue No. 5 the plaintiff was found entitled to recover Rs. 41,675 as compensation for 8335 cft. at the rate of Rs. 5 per cft. Issues Nos. 6 and 7 were decided against the plaintiff, because the learned trial Court held that he had failed to prove that the construction work of his house was stopped or that the partially constructed part of his house had fallen down as a result of the seizure of the timber by the police, He further held that there was no satisfactory evidence produced upon the record to grant to the plaintiff the compensation envisaged by these two issues. Issue No. 8 was decided against the defendant, because no evidence on the point was led by it. Giving his decision on issue No. 9, the learned trial Court agreed with the learned counsel for the defendant that the police could seize the timber and that it could also retain it till the final disposal of the criminal case, but he held that police had no right to detain the timber after the orders were passed by the learned Magistrate for its restoration and affirmed by the Court of Hon'ble Judicial Commissioner. He further observed that if the timber had been lost or damaged during the investigation or during the pendency, of the case, or appeal, the plaintiff would have had no cause of action, but as there was nothing upon the record to show that the loss or damage had occurred during the pendency of the case, therefore, it must be taken to have occasioned after the case was decided and the plaintiff had then a clear cause to bring this action. In the end he granted plaintiff a decree for Rs. 41,675 with proportionate costs. The Provincial Government has come up on appeal against this decree. In my judgment, issues Nos. 4, 5 and 9 are of cardinal importance in this case. They are very closely linked with each other, because if in spite of the order of the competent authority, 8335 cb. ft. of timber seized from the possession of the plaintiff was not restored to him for any valid reason, then it will, as a necessary corollary follow that he has the cause to institute a suit for the recover of compensation. It will, therefore, be convenient and in fact essential to deal with them first and together. The tort in respect of the possession of movable property falls into three distinct categories. If a person wrongfully takes such property out of the possession of another or forcibly inter feres with it whilst it is in his possession, he is said in the legal language to commit trespass. But if the property is taken out of the possession of another in due process of law or under the authority conferred by any law, then it is conclusive justification for the seizure and no action for trespass will lie. In this case, there is no doubt that the timber of the plaintiff was seized by the Deputy Superintendent of Police on the authority conferred upon Mini by section 39 of the N.‑W.‑F. P. Hazara Forest Act, which lays down that a Police Officer may seize any forest products (timber is a forest Product) which he has reason to believe has been obtained contrary to any provision of the Act or of any rule or order made there under. The second tort consists in the defendant's wrongfully con verting to his own use and thus depriving the plaintiff permanently or for an indefinite time of the property to the use and possession of which the plaintiff is entitled, as by taking it away, detaining it, destroying it. delivering it to a third person or otherwise dealing with it in a manner adverse to the plaintiff and inconsistent with his right to List and possess it. This tort in legal parlance is called "conversion". The use of the word "detain" in this context indicates that the defendant lays his own claim to 'the goods and detains such goods in order to convert them to his own use. The case under discussion is not covered by this kind of tort, because the Government has neither laid any claim to the timber nor has it converted it to its own use or has it deprived the plaintiff permanently or for an indefinite period, of such timber. It is not the plaintiff's case that the Government has taken it' away or has destroyed it or delivered it to a third person or has otherwise dealt with it in a manner adverse to the plaintiff. The third category of tort is the one which is termed as "detention" of goods or detenue consists in wrongfully detaining the plaintiff's goods to the immediate possession of which he is entitled. The distinction between "detention" and' "conversion" is that while in the former, the goods are detained without the defendant setting up an adverse claim to it, in the latter, he intends to hold it in defiance of the plaintiff. The principal distinction between "detention" and "conversion" is in the remedy sought. In cases in which the defendant refuses to hand over the possession of the plaintiff's goods to him, whether the defendant got the possession of the goods wrongfully in the first instance, or after having lawfully obtained the possession, kept them wrongfully, the plaintiff can sue either for wrongful detention or for conversion. Conversion is the appropriate remedy where ‑the plaintiff seeks merely to recover as damages the value of the goods of which the defendant has deprived him. It is the only remedy available where the defendant has no' longer the possession of the goods, or where they cannot be identified. The remedy of the plaintiff in case where the goods are still in possession of the defendant, whether wrongfully in the firs instance, or by keeping it wrongfully after having lawfully obtained possession, lies in bringing an action for the recovery of; the goods to which he may add damages that he has suffered as a result of a wrongful detention. A suit for the recovery of the value of the goods as distinct from the suit for the restoration of the goods, will not lie merely because there was failure to return the goods. It must also appear in such a case that there was an e adverse claim set up by the defendant, or after having lawfully obtained the possession of the plaintiff's goods, he could not return the goods, because they had been destroyed by some action of the defendant. If the defendant obtains possession of the goods in due process of law, but the goods were destroyed as a result of some act of God or and action of enemy, he may not on both legal or equitable grounds be held responsible to compensate the plaintiff for the loss. As has already been said in this judgment, the plaintiff has conceded that the seizure of timber in its inception was perfectly legal and no objection can possibly be taken to it. His grievance is that after Sayed Masoom Shah Magistrate First Class on the 31st of March 1949, and the Judicial Commissioner's Court on the 8th of December 1949, ordered that the timber should be restored to him it was not restored because no order was issued by the relevant authority to the different superdars to hand over the timber to him. Actually, I do not think it was really necessary that any separate order should have been issued to the supeidars to hand over the timber to the plaintiff. After the case was challaned to the Court of Sayed Masoom Shah, it was for that Court to pass an order with regard to the disposal of the timber under section 517 of the Criminal Procedure Code, which lays down as under :‑ "When an inquiry or trial in any Criminal Court is concluded the Court may make such order as it thinks fit for the disposal by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise of any property ‑or document produced before it or in its custody or regarding which any offence appears to have been committed, or which is used for the commission of an offence." It would have been a different matter if the Court had not passed any order with regard to the timber, although even in that case, the plaintiff's remedy lay only in applying to the said Court for an order with regard to the delivery of the timber. The Police, the Deputy Commissioner or the District Magistrate do not come into the picture at all. Although initially the timber was seized by the Deputy Superintendent of Police, yet after the case was challaned, the property with regard to which the offence had been alleged to have been committed was in the custody of the Court, which alone was competent to pass an effective order. After the learned Court passed the orders, all that the plaintiff had to do was to take certified copies of those orders and ask the Superdars to hand over the timber to him. If they refused to do so, the plaintiff could have then again moved the Court, who would have surely passed an ap propriate order. If the plaintiff did not adopt this course, and for that reason, the timber was not delivered to him, then the responsibility for the same rests with him and not with the Government. There is no assertion, much less proof on this record, to show that the Government or its servants in any way stopped the plaintiff to take the possession of the timber, or the Superdars to deliver it to him. The absurdity of the plaintiff's claim that the Government had detained the goods becomes all the mote glaring when we notice that 603 sleepers continued to lie in the lorry stand where the plaintiff had himself stored them and 280 sleepers in his own Bungalow even after they were entrusted to the Superdars. There is nothing on the record to show that the different Superdars removed them to some other place. Abdur Rehman Khan (P. W. 9) stated in his evidence that the timber which was entrusted to him was still in his custody which is a very different thing from saying that it was in his possession. From this cautious statement made by Abdur Rahman Khan, it is quite clear that while the timber was in his custody, it continued to remain in the possession of the plaintiff. So, in respect of these 883 sleepers, all that the plain tiff had to do was to exercise his ownership rights over the timber which was in his possession. It is so utterly preposterous and comical to believe that while he had the possession of the timber, yet a formal order, apart from the order of t he Court, was necessary in order to enable him to utilize the timber in the way that he liked. So far as 332 sleepers lying scattered in the guzara were concerned, he could just go guzara and collect them after he was acquitted and the timber was ordered to be restored to him. I am confident that Haji Azad Bakht (P. W. 12), who is the paternal aunt's son of the plaintiff would not have stood in his way. In any case, after the criminal case was concluded, it was open to the plaintiff to avail himself of the legal remedy by way of re-caption, which is to the effect that when anyone has been unlawfully deprived of his goods, he may lawfully reclaim and take them wherever he happens to find them, but not in a riotous manner or attended with the breach of peace, although he could justify an assault made for the purpose of recapturing after demand and refusal. The question of assault or the breach of peace or riot does not arise in this case, because the plaintiff, according to him, did not make any attempt whatsoever to take advantage of this remedy. But supposing the order of the District Magistrate was neces sary before the plaintiff could lay his hands on his timber, which I have already said, was mostly already in his possession, then this order was in actual fact passed by Nawabzada Sher Afzal Khan, District Magistrate, Hazara on the 6th of March 1950. The plaintiff has admitted in his evidence that this order was written in his presence and subsequently when he went to call upon the Deputy Commissioner or the District Magistrate, he told him that the order for the restoration had already been passed. The plaintiff, in spite of this order, did not make any attempt if any attempt on his part was at all necessary, to take formal possession of the timber in question. It is, thus, obvious that the Government did not detain the goods so as to give a right to institute a suit either for its recovery, or for compensation. In order to justify his action for the recovery of the value of the timber, the plaintiff built up a case at the trial that 332 sleepers entrusted to Haji Azad Bakht (P. W. 12) had been totally destroyed by fire, while the rest had decayed as a result of the weather conditions. In this context, it is essential to look at the plaint. All that he said in para. No. 5 of his plaint was that the whole of the timber had been destroyed and had become useless "as a result of the seizure." It was nowhere stated in the plaint that a part of the timber had been burnt down and the other had decayed. . It is difficult to understand as to what the plaintiff meant by saying` that the timber had become rotten and useless on account of the seizure, the seizure by itself could not have produced that effect at all. As regards the destruction of 332 sleepers by fire, the omission to mention it in the plaint leads me to an irresistible conclusion that the story was concocted after the plaint had been filed, otherwise I do not understand why should this fact have not been specifically stated in the plaint itself, governed their had an opportunity is rebut it. In support of his case that 332 sleepers had been burnt down, the plaintiff has apart from his own-self, put into the witness‑box his collateral Haji Nawab Khan and his paternal aunt's son, Haji Azad Bakht. All the three witnesses, are, however, completely silent as regards the time, place and the manner in which the timber caught fire. The plaintiff has not even made an attempt to bring upon the record sufficient material to answer the question as to how, when, where and why did the timber get destroyed by fire. This indifference on the part of the plaintiff is not without signi ficance. If the fire had really taken place, the plaintiff or his witnes ses could not possibly have omitted to mention the minutest details of the fire. Azad Bakht says that he made a report in the police station about the fire, but no copy of such report has been placed upon this record; nor has any attempt been made to prove it. Azad Bakht could not have failed to realize that he was the custodian of the timber and it was his bounden duty to inform the Deputy Superintendent of Police or the Court in which the case was pending, that the timber had been destroyed. He did nothing of the sort. Apart from it, if the fire had in fact taken place, the information of it should have been given to the relevant authorities by Haji Azad Bakht under section 34 of the N. W. F. P. Hazara Forest Act VI of 1937. It does not seem to have been done because if it had been done, Haji Azad Bakht would have mentioned it in his state ment. In the condition in which 332 sleepers were lying at diffe rent places in the guzara, it is difficult to imagine how could all the sleepers catch fire at one and. the same time and get burnt, unless of course the fire had broken out in the whole of the guzara at a very extensive scale in which case all the trees would have been burnt down and the sleepers of many other persons would have also got destroyed. No evidence has been produced to show that in such a fire anybody else had also suffered the loss like the plaintiff, not even Haji Azad Bakht, who is the owner of this guzara. That the loss remained lying scattered is proved from this fact alone that Haji Azad Bakht did not say in his evidence that after they were entrusted to him, they were collected by him and put at any particular place. In fact, if he had done so, he would have certainly engaged labour for the purpose and demanded the payment which he had made to that labour, from the Government or the Police. On the other hand, Haji Nawab Khan (P. W. 5) definitely stated in his evidence that the timber was still lying in the guzara when it burnt down. From all these facts the conclusion is inevitable that no fire took place and no timber of the plaintiff was destroyed. Between the two cousins, that is Azad Bakht and the plaintiff, the timber has disappeared and the plaintiff is now seeking to recover its price from the Govern ment. The story of the rest of the, logs having decayed is no less dismal fantastic and unbelievable. The evidence in support of this preposterous story came from the mouth of the plaintiff himself, his collateral Haji Nawab Khan (P. W. 5) and Abdur Rehman, one of the Superdars (P. W. 9). The evidence of the first two witnesses may be completely ignored on the ground that it is highly tainted and interested. Abdur Rehman's evidence however, deserves special attention. As has been stated above, when 280 sleepers were entrusted to Abdur Rehman Khan and Feroz Khan (the latter has not been produced in the witness‑box), they had been lying in the Bungalow of Muhammad Afzal Khan himself. The 603 sleepers entrusted to the same Abdur Rehman Khan and one Subedar Abdur Rauf, (who has also not been put in the witness‑box), at the time of the seizure, were lying in the Lorry Stand at Battal. The exact place ‑in the Stand where they were lying has not been located, but 'one can say with a fair amount of certainty that they were lying in the property, in which according, to the plaintiff's own admission, he owns the biggest share. The process of deterioration or decay in relation to timber is certainly not a, quick one. It can never happen that one night a person sleeps having in his possession perfectly good timber, but on the following morning when he gets up, he finds it all rotten. The process is slow and gradual and before the timber becomes rotten and unfit for use not days and months, but years must elapse. At this stage, I may parti cularly take notice of the statement of Haji Nawab Khan (P. W. 5), wherein he stated that some of the timber, though in a rotten condition, was still lying in Battal Stand, meaning thereby that the timber had not been removed from that place after seizure. Now, the plaintiff could not have in the circum stances failed to notice the process of deterioration or decay having started. For that matter, Abdur Rehman Khan, who was directly responsible for the safety of the timber, could not have missed to notice it either. Having detected the process of deterioration setting in, they could not have just sat there waiting patiently for the process to complete in order to bring a suit for damages. They must have taken, all necessary pre cautions to save the wood from further decay or inform the authorities concerned that the timber was getting rotten. This they never did. This conduct of the plaintiff and Abdur Rehman Khan certainly negatives their evidence that the timber had in fact become rotten. It is interesting to note that Taj Muhammad when he made an application on the 14th of February, 1950, for the return of the wood, did not say in his application that part of the wood had been destroyed by fire and the other part deteriorated on account of the weather conditions. There after, the plaintiff, according to his own statement, was seeing the police officers and the District Magistrate, and trying to get the timber back, but at no time did he inform these authorities that it was useless for him to try for the restora tion of the timber, because it had been destroyed. It is alleged by the witnesses, particularly by Abdur Rehman Khan, that the timber was still lying in his custody in a rotten condition. Nothing was easier for the plaintiff than to have asked the Court to appoint an independent person as a Commissioner to go to the spot and inspect the timber and report if the timber had really lost all its value. In the absence of skilled scientific observation of the timber by an independ ent person, it is impossible to hold on the strength of the statements of Abdur Rehman Khan plaintiff, and Haji Nawab Khan, that the timber had decayed. In the estimate of the evidence examined in the case I am quite sure in my mind that the whole story of the timber having been destroyed either by fire or by weather conditions was palpably false, fabricated, and grotesquely improbable. Even, if it be assumed for the sake of argument that part of the timber was destroyed by fire and what was left behind rotted, then both these eventualities must have been the direct result of carelessness and negligence of the persons in charge of the timber. If they had exercised due care and caution with regard to this timber then neither the fire could have destroyed it nor the weather conditions. It is clear, as has been admitted by the plaintiff himself that the timber was not under the direct care and control of the Government, but in that of the superdars, some of whom had been produced by the plaintiff himself as witnesses in the case. They have not either explicitly or implicitly accepted the responsibility of the destruction of the timber on account of their carelessness or negligence. The maxim res ipsa loquitur when applied to an action for negligence is merely a rule of evidence affecting onus. It does not alter the general rule that the burden of proof of the alleged negligence rests upon the plaintiff. The plaintiff, in this particular case, has not led any evidence to show that the timber was destroyed by the carelessness or negligence of any officer or agent of the Government. The question, therefore, of the vicarious liability of the Government for the acts or omissions of the superdars does not arise. But, supposing if it is also assumed in favour of the plaintiff that it was on account of the carelessness and negligence of the superdars that the entire timber was des troyed, still we have to see to what extent is the Government liable for the same? The powers of a Government may be divided into three broad categories : (1) the act of the state which denotes an exercise of sovereign power by an independent' State or potentate or by its duly authorised agents or officers, for example making treaties, commandeering private property for purposes of war or quelling disturbances by force. Such matter is not justiciable in a Court of law, and therefore, the State is not answerable for the acts of its officers or subordi nates. The second category of the Government power is the Government activities or sovereign powers, that is the power exercised by the officers of the State under the sanction of some Municipal law or statute, and in exercise of powers thereby conferred. This class can be sub‑divided further into two classes (i) those consisting in detention by the State of goods, land or chattels belonging to the subject, and (ii) those done by officers of the State ‑in the discharge of their official duties. With regard to the acts of the first sub‑class, an action would lie against the State if the detention of goods, land or chattel is malicious and unauthorised but so far as the second sub‑class is concerned, no action would lie against the State, except in cases where it can be proved that the impugned act of a sub ordinate officer had been expressly authorised by the State or the State had profited by its performance. The reason why no right of action lies in such a case is that in the absence of such proof; the act will be presumed to have been done in the exercise of the powers or the discretion vested in the officer by the relevant law, and not in pursuance of any implied authority derived from the Government. Apart from that, the Government cannot possibly be held to be responsible for the misfeasances, or wrongs or negligence, or omissions of duty of the subordinate officers or agents engaged in the public service, for it does not undertake to guarantee to any person the fidelity of any of the officers or agents whom it employs. It is also well settled law that the State cannot be held liable for wrongs committed by its servants in the discharge of the duties imposed by the legislatures. The reason is quite obvious, because the performance of‑the duty is not as a result of obedience to the order of the employer but is imposed by law. The third category of the Governmental power is the commercial activities of the State, that is to say, acts done by the State. In pursuance of ventures which a private individual might under take equally well as distinguished from the acts done in exercise of the Governmental powers which cannot be legally exercised save by the sovereign authority or by person or persons whom the sovereign authority might delegate these powers. In order to bring a suit in this category, it has to be established that right of action against the State is based on contract or has been conferred by a statute. A police officer seizes timber in exercise of the powers con ferred upon him by S. 39 of the North‑West Frontier Province Hazara Forest Act VI of 1937. He is criminally responsible under S. 41 of the same Act if he seizes the property vexatiously and unnecessarily. Once he seizes the property and entrusts it to the superdars then it is the statutory duty of the superdars to take proper care of it, and if they fail to do so, it will be very difficult to hold that the State is responsible for their negligence. The case in hand is very much similar to the case Mani v. State of Madras (A I R 1957 Mad. 190). In this case, the Government was sought to be made liable for the act of the Prohibition Sub‑Inspector, in seizing the licensee's stock during the pendency of a notice, on the ground that it was not bona fide, and that the Prohibition Sub -Inspector was actuated by malice or ill‑will. It was held that the Government was not liable to the licensee for the act of the Prohibition Sub‑Inspector. Another case of vicarious liability of the Government is reported in Babulal Agarwalla v. Province of Orissa and others (A I R 1954 Orissa 226). In this case, the police officers had seized a number of bags of rice belonging .to the plaintiff with a view to prevent them from being exported from Orissa to Bengal in spite of the fact that the plaintiff had shown them a valid license. It was held that the police officers were responsible to make good the loss to the plaintiff, but the Government was not, because no con spiracy between the, officers and the Government was proved, nor did the Government ratify the act of the police officers or derive any benefit from such seizure. I am, therefore, of the opinion that even if it be held that the timber was lost on account of the negligence and careless ness of the Superdars, still the Government will' not be res ponsible for it, and the plaintiff's cause of action only lay against the police officers concerned or against the superdars. Next comes the question of the quantum of damages. The plaintiff has been awarded damages by the learned trial Court to the extent of Rs. 41, 675 on the assumption that the timber which the plaintiff has lost measured 8335 c. ft. According to the evidence produced upon the record, the police took into possession certain sleepers, that is, 603 sleepers from the lorry stand, 280 sleepers from the bungalow of the plaintiff, and 332 sleepers from the guzara of Haji Azad Bakht. There is no evidence, except the bare statement of the plaintiff, which obviously cannot be relied upon, to show that all these sleepers measured 8335 c. ht. According to the statement of the plaintiff, he was given a permit to cut fifteen trees from the guzara. According to Abdul Manan Khan (P. W. 3), 200 c. ft. can be extracted from a first class tree. If all the fifteen trees which the plaintiff had cut from the guzara were first class, which will of course be very unusual, then the total number of the cubic feet which he had from the guzara would come to 3000 c. ft. The timber which he had purchased from Awal Khan (P. W. 8) was 4000 or 4500 c. ft. The maximum number of the cubic feet which the plaintiff thus had was about 7000 or 7500 c. ft. In these circumstances, it is difficult for me to appreciate as to how could the plaintiff be awarded damages as if he had lost 8335 c. ft. At any rate, to grant damages on the basis of cubic feet was totally wrong, because the timber was not measured at the time it was taken possession of and the plaintiff has not come forward to give the price of either the trees cut or the timber purchased. Awal Khan or the plaintiff did not say as to how much had the former charged the latter for the timber sold by him. In the absence of this evidence, even if the plaintiff succeeded on other issues, he should have failed in his suit for not bringing upon the record evidence with regard to the damages which the plaintiff suffered. The last question which has to be considered is that of limitation. According to the plaintiff's contention, which has found favour with the learned trial Court, his suit was governed by Article 49 of the Limitation Act, which provides a period of three years for compensation for wrongfully taking or injur ing or wrongfully detaining specific moveable property other than the property lost or acquired by theft or dishonest misappropriation or conversion. The three years start from the date when the property is wrongfully taken or injured or when the detainer's possession becomes unlawful. So far as the wrongful taking of the property is concerned, the plaintiff admits that there was no wrongful taking of the timber, because it was done so under a statute. As far as the injuring of the timber is concerned, there is ‑no evidence worth the name produced that the Government was responsible for the same. So far as the third condition for the application of Article 49 is concerned, I have elsewhere discussed in this judgment that the possession of the defendant cannot be called a wrongful detention until the defendant detains this property with the knowledge that he has no right to do so. The usual method of proving that the de tention was wrongful is when the plaintiff makes a demand of the delivery of moveable property and the defendant refuses to comply with the demand on the ground that he has a better title to it than the plaintiff that he would not return it until his conditions which he knows to be wrongful are fulfilled. Before this Article applies, the plaintiff must show that the defendant had an intention to keep the property in fraud of the plaintiff which surely is not the plaintiff's case. The three ingredients of Article 49 therefore have absolutely no application to the facts of the present case, because the Government never laid any claim to the timber, nor did they refuse to comply with the demand which of course was never made by the plaintiff in this case. On the other hand, the learned Government pleader has laid a very great stress that it is Article 2 of the Limitation Act which applies to the case. This Article provides a period of ninety days from the date the act or omission takes place in all suits for compensation for doing or omitting to do an act alleged to be in pursuance of any enactment in force for the time being in Pakistan. In order to make this Article applicable, it must be shown that the compensation was sought for doing or omitting to do an act alleged to be in pursuance of any enactment, that is to say, the defendant had reasonable grounds for justifying his action under some enactment. He must have assumed to act in the honest exercise of a supposed statutory power. The object of the Article is the protection of public officials, who purporting to act bona fide in the exercise of a statutory power, have exceeded that power and have committed a tortious act. Article 2 has no application to suits in which the defendant acted negligently or in defiance of any provision of law. The plaintiff's case is certainly not very happily explained, because in the plaint he has demanded compensation for the wrongful seizure of the goods by the police, and finally he came down to this that he wanted compensation for the injury to the goods due to the carelessness of the Government or its agents. The question of bona fide of the superdars or the police did not at all arise. Article 2 of the Limitation Act has; therefore, no application whatsoever. The only Article which, in my view, applies to this case is Article 36 of the Limitation Act, which provides a period of two years for compensation for any malfeasance, misfeasnce, or non‑feasance independent of contract and not specially provided for in the Limitation Act. This period of two years is to start when the malfeasance, misfeasance, or non‑feasance takes place. The plaintiff has failed to prove in this case as to when tile timber was burnt or when did it become rotten on account of the weather conditions. It was for him to bring the circumstances on the record to show that his suit was within time. Since he has failed to do so, there is no other alternative but to hold, that the plaintiff's suit was not proved to be within time. On behalf of the plaintiff, reliance was placed on a judgment of the Judicial Commissioner's Court, Harnam Singh v. N. W. F. P. Government (A I R 1942 Pesh. 57), but the facts of that case were absolutely different, as would appear from the following summary of facts :‑ An Inspector appointed under Pure Food Act by the Government, took possession of 22 tins of ghee and gave a receipt for the same to Harnam Singh, the owner, Harnam Singh was sent up for trial for being found in possession of adul terated ghee. He was fined Rs. 50 for having ghee in one tin which was found to be adulterated by the Public Analyst, and the Magistrate ordered that the remaining twenty one tins should be returned to Harnam Singh. The Inspector instead of returning the tins to Harnam Singh, destroyed the same. Harnam Singh filed a suit for the recovery of twenty‑one tins of ghee, or in the alternative, for their price, which he assessed at a certain amount. The suit was dismissed and the appeal filed by him also met the same fate. . He then went up in revision and the only point argued at the Bar was whether the suit was governed by Article 2 or Article

49. It was held by Mir Ahmad, J. that Article 2 applied to suits for compensation for official acts which the official did under the impression that he was acting according to a statute, while Article 49 was a general Article which applies to suits for recovery of specific moveable property or for compensation for taking, injuring or detaining the same. Article 49 was applied not because the tins of ghee were not returned to the plaintiff, but because they were completely destroyed, and it was thereafter not possible for the authorities concerned to return them to him. The question whether a decree against the Government could be granted or not was not gone into by the learned Judge. I am, however, unable to discern anything from the judgment which could make the Provincial Government responsible for act of destroy ing the tins of ghee by the Health Officer. The result of the above discussion is that I find that the plaintiff has not made out a case for the grant of a decree for damages in his favour. The Government's appeal, therefore, accepted and the plaintiff's suit is dismissed with costs throughout. Pleader's fee Rs.

500. HABIBULLAH KHAN, J.‑I agree, A. H. Appeal accepted.