Baijnath Jugelkishore vs Manindra Chandra Nandi and Another

Wort, J.—These two appeals arise out of an action by the plaintiff against the defendant for damages for having trespassed upon the plaintiff''s mine and taken coal therefrom. The plaintiff''s appeal raises two questions, one as regards the quantum of damages allowed for pillar coal, and the other relating to gallery coal which latter claim has been disallowed by the Subordinate Judge as being barred by limitation. The defendant''s appeal raises the question whether in the circumstances the plaintiff can recover any sum regarding pillar coal as it is contended by the defendant that he must be deemed to have taken adverse possession not only of the gallery coal but the pillar coal also. He contends further that the plaintiff, as regards the greater part to the claim, has no cause of action.

There are two villages concerned. The plaintiff''s mine is in the village Goraria and the defendant''s in the village Ekra. I should have stated that one of the points which has been raised by the defendant is the boundary of these two villages, and it was contended by him in the Court below, but not pressed in this Court, that the boundary between the two villages was a certain railway line which, if that boundary had been taken, would have excluded that part of the mine which is in dispute from the plaintiff''s colliery. In this Court it was contended that the boundary as fixed by the Commissioner could not be supported.

The title of the plaintiff is traced in this way. In 1895 the Jharia Raj granted a lease to one Maheshwar Rai. There was some modification of this lease in 1901, there being a dead rent fixed in respect of all lands granted under the lease. On 22nd March 1901 Maheshwar Rai granted the coal rights in 100 bighas of land in Goraria to one Tribhuban Das Howji, and on 11th January 1907 Maheswar granted 40 bighas of land to the brother of Tribhuban Das Howji, that is to say, to Liloobhai Howji for 500 years. By a third patta in May 1902 the same Maheswar Rai demised to Doolabhji Howji, another brother, a plot of coal land measuring 100 bighas. On 5th October 1912, the three Howji brothers partitioned their property and the aforesaid coal lands which fell into the patti of Doolabhji Howji. On 26th April 1922 Doolabhji sublet to the plaintiff the 240 bighas being the three plots of coal lands for a period of 175 years. The defendant also obtained his title to the colliery lands in Ekra from the Jharia Raj.

A Commissioner was appointed in this case and he has come to the conclusion that in all about 12,000 tons of coal have been removed from the land in dispute. He has also decided that under the same plot there is still standing some 2,221 tons of pillar coal. Of the coal removed, 8,000 tons were gallery coal and 4,422 tons were pillar coal. Of the 8,000 tons of gallery coal the Subordinate Judge has disallowed the claim as being barred by limitation. A decree has been given for the pillar coal removed and damages for the pillar coal remain as the Subordinate Judge has held that a subsidence which has taken place and prevented the plaintiff from removing that pillar coal, excepting at a great expenditure, entitles the plaintiff to compensation. The alleged encroachment has been on what is known as seam No. 12.

For the purpose of arriving at the quantity of coal removed, the learned Subordinate Judge relying upon two working plans of defendant, Ex, B-l, and Ex. B-2 also upon the working plans of the previous Commissioner ordered the Commissioner to ascertain the quantity of coal removed from the pillars. The Commissioner hud already reported that 12,631 tons of coal in all had been removed. In the result it was found that 4,422 tons had been removed and that 2,221 tons remained in the standing pillars.

A very elaborate argument was advanced by Mr. Hasan Imam on behalf of the plaintiff-appellant, but the number of points which the argument involves are very few.

The first question which arises is as to limitation. The argument on behalf of the appellant is this: that the defendant being a trespasser, the onus is upon him to show that the coal extracted was at a time beyond the period of limitation. The learned Subordinate Judge in this connexion appears to have applied Article 142 or Article 144, Limitation Act, and decided that the defendant has taken adverse possession of the gallery coal more than twelve years before this action. But so far as coal removed is concerned this is an action in trover and is governed by Article 48, Limitation Act. No question of taking adverse possession of the gallery coal arises. It is true that it is necessary for the defendant to show that the coal has been removed at a time beyond the period of limitation: Deane v. Thwaite [1855] 21 Beav. 621 and the question therefore to be determined by this Court, and the only substantial question in the case, is whether the defendant has discharged that onus. Some controversy has taken place as to whether the defendant had discharged that onus, but it is clear from the judgment of the learned Subordinate Judge that this point was not present to the mind of the learned Judge. What appears to have happened was that a number of witnesses were called by the defendant and that a large number of account books of the defendant company were produced in Court; but what exactly happened as regards the relevant entries in those books it is not easy to discover at the moment. What appears to have been done is that a number of entries for the years from 1900 up to 1911 were extracted by the learned advocate on behalf of the plaintiff and those have been printed in the record of this case; but there is no specific reference to them in the evidence and no proper proof thereof. Sir Sultan Ahmad, on behalf of the defendant, appears to suggest that there are a large number of entries which would go to show that the colliery was being actively worked, that is to say, so far as the disputed plot was concerned between 1900 and 1911 and by that year the whole quantity of coal which is now found to have been extracted was extracted. Taking the evidence, apart from the working plans to which I shall presently refer it must be found that the evidence as to the quantity of coal taken is of the vaguest possible character. In the disputed land itself there is an incline which is called incline No. 4. In the surrounding colliery lands mostly to the east are inclines known as 3, 4, 5, 7, 8 and 13 and in the books to which reference has been made according to those entries (Ex. D to D-6 series coal has been extracted from or work done in connexion with most of those inclines), and during this period the total quantity of coal which appears to have been extracted, according to those entries, was some 2,000 odd tons. It is by no means certain that the coal extracted through the inclines other than incline No. 4 was coal extracted from the land in dispute. On these entries it is impossible for me to say that the defendants have proved that the coal was extracted by 1911. The most important pieces of evidence in the case however are two working plans known as B-1 and B-2 upon which the Court below has relied. These plans disclose the state of affairs up to 1911. B-1 shows the working up to January 1913 and B-2 the working up to 31st May 1911. Taking these maps at their face value, it is clear that the whole of the gallery coal was worked out before the last date. It is however difficult to see whether these maps were properly proved although one witness refers to them. There appears to have been an objection in the Court below as regards these two plans B-1 and B-2, but the learned Subordinate Judge was satisfied that they are satisfactorily proved and there has been no objection to them in this Court. Ex. B-2 shows the working up to May 1911 and B-1 the working up to 1913 and upon these documents the learned Subordinate Judge has come to i he conclusion that the gallery coal was removed twelve years before the institution of the suit which was 28th May 1925. I have already pointed out that the learned Subordinate Judge is in error in this regard as Article 48 applies and not Article 142 or Article 144, the period of limitation being three years.

On this finding, with which I agree, it would appear that the action is barred by limitation. But the plaintiffs argue that their knowledge of the trespass dated only from 1924 and their knowledge was obtained from the report of the Commissioner in the 1923 action. On the other hand the defendants contend that the predecessors in title of the plaintiffs well knew that the defendants were working the seam from incline No. 4. They refer to the fact that they erected a bungalow on the disputed land for the purpose of accommodating an employee in charge of the working of incline No. 4, and in the other inclines a tram line existed. From these and other facts the learned Subordinate Judge has decided that the plaintiffs must have known of the defendants'' action. However for another reason I think the action must fail so far as the gallery coal is concerned.

On the evidence I think it must be clear that, so far as the gallery coal is concerned, its removal is established as having taken place before the year 1922. It was in that year that the plaintiff got his title to the land and therefore his title to the coal and he could not therefore succeed in action in trover against the defendant for coal which was removed before he came into possession.

Mr. Hasan Imam argues however that the plaintiff got not only a lease of the colliery by his deed of 26th April 1922, but a right of action against the defendant for damages for such coal as was removed during the lessor''s interest. By the habendum the lessor demises:

all the coal mines etc., and inclines, privileges, advantages, appurtenances, appertaining thereto or belonging thereto.

These words convey to the lessee the right of action for damages which had accrued to the lessor; so argues Mr. Imam. It is impossible in my judgment to place that meaning upon those words. It is also impossible to hold that the parties had any such intentions as the parties were ignorant of any trespass at the time of the lease.

The question of the pillar coal however is a different matter. So far as this coal is concerned there is no serious dispute that it was removed between the time when the Commissioner reported in the action brought in the year 1923 and the Commissioner''s report in this action.

The only question which arises as regards the pillar coal is first as to the rates which have been allowed by the learned Subordinate Judge. This point is raised by the plaintiff in his appeal. The next question is whether the plaintiff can recover at all, the defendants arguing that they had obtained adverse possession of the pillars now standing as wall as those which they have extracted. This is raised by the defendants, first as regards the rates. During the period from March 1923 to 1925 the selling price of the coal appears to have varied considerably. As much as Rs. 7 a ton was obtained in March 1923, and according to one witness up to Rs. 18 in 1921. The lowest price for good second class coal was Rs. 3 in 1925, and up to Rs. 7 for good coal in the same month. Sir Sultan Ahmad however relies upon a number of witnesses who state that coal in 1924 was down to Rs. 4 and Rs. 5, and oven Rs. 3 in 1925. But nothing has been shown on either side which would entitle us to vary the rate which has been allowed by the learned Subordinate Judge, namely, Rs. 4, which was the minimum rate named by the plaintiff''s witnesses, giving an allowance to the defendant for raising at 12 annas. As regards this 12 annas, the rate has been admitted by both parties to be wrong. The correct rate should be 8 annas only and the decree will therefore be varied accordingly. It is contended that by making this allowance the learned Subordinate Judge has applied what is called the harsher rule and that this rule should not have been applied in the circumstances. But the finding of the Subordinate Judge is that the defendants knew or should have known the boundary of their own colliery as was given in the plan attached to their predecessor''s lease.

We now come to the important question whether the defendant can be said to have taken adverse possession not only of the gallery coal, but of the pillar coal as wall. It must be remembered that the defendant is a trespasser and therefore the maxim tantum prescriptun quantum possessum should apply: Nageshwar Bux Roy v. Bengal Coal Company . Nothing that he has shown will bring him within the exception of the rule as stated in the case of Glyn v. Howell [1909] 1 Ch. 666 , nor can it be shown in this case that what the defendants were wrongfully working was a definite unit and that from the method of working they must be presumed to have taken possession of the whole of that unit. The case of Nageshwar Bux Roy v. Bengal Coal Company was relied upon, but the facts in that case are dissimilar to those in this case. Here the defendants were working an area which they contend was within the area of their colliery, but on the finding of the Court below with which I agree they must have known was beyond the limits of their mine.

It was contended by Sir Sultan Ahmad that what the defendants were doing was working a unit, that is to say, the colliery in Ekra, which, according to the view taken by all the parties at the time, stretched as far as the railway to the north. But although this might have been an important consideration in a case which came within the exception referred to in the case to which I have just made reference, it can have no bearing upon the case before us. In my judgment the defendant-appellant has shown us nothing which would entitle this Court to hold that he had taken possession of the pillar coal together with that of the gallery coal which he had extracted and which would therefore prevent the plaintiff from recovering damages.

There were two other questions which were argued, one of which is relevant having regard to my decision on the main points only so far as regards the pillar coal and that question is the question of the western boundary of the land in dispute.

There was some contention that the area from which the pillar coal had been extracted and for which damages have been given by the Subordinate Judge was included in a suit brought in 1923 against the same defendant. There is however but scant evidence of this and indeed the learned Subordinate Judge as regards the question generally whether the damages have been recovered twice over for the same coal, has pointed out that if in fact that is the case it has resulted from the fact that Maheshwar Rai, who brought the suit in 1923 against the present defendant, had no right to bring such action. The fact that the defendant has paid damages once already for a part of the coal to the plaintiff in that action does not disentitle the plaintiff in this action from recovering damages; if otherwise the present plaintiff has no cause of action.

The right to damages for loss of pillar coal which cannot now be extracted without great cost to the plaintiff is not seriously contested by the defendant.

One other matter was mentioned and that was the boundary between the villages. The contention in the Court below that the railway formed the boundary was, as I have already stated, not argued in this Court, but some mention was made of the actual boundary fixed upon by the commissioner and accepted by the Subordinate Judge. This boundary was according to the Revenue Survey map. It was suggested that the boundary as shown in a map, Ex. B-4, should be taken which might give the defendants an extra 25 feet of land. But no argument was adduced to support this suggestion or to show why the boundary as fixed by the commissioner was wrong.

In these circumstances and for the reasons stated, there will be a modification in the decree as to the allowance of 12 annas to the defendant for raising the coal which allowance will be eight annas. Otherwise both the plaintiffs'' and the defendants'' appeals will be dismissed with costs.

Fazl Ali, J.

Four points were principally argued before us in these appeals and they may be formulated thus:

(1) Whether the disputed area lies within the land of the plaintiff; (2) whether the plaintiff''s claim is barred wholly or in part; (3) whether the plaintiff is entitled to any damages for the pillar coal which has admittedly not been removed; and (4) if the plaintiff is found to be entitled to any damages at what rate the damages should be assessed.

The first point need not detain us because it has been conceded on behalf of the defendants that the railway line is not the real boundary between Gararia and Ekra. What was urged was that Ex. B (3) a map prepared in the Government survey office should be preferred to the map prepared by the commissioner in so far as the two maps do not agree. This argument was based on certain statements made by the pleader commissioner on a comparison of the two maps to the effect that the boundary lines between the two villages as shown in these maps respectively did not exactly coincide. The answer to this argument however is provided by the third witness for the defendant, whose evidence clearly shows that there is not much difference between the original map of which Ex. B (3) is a mere tracing and the map prepared by the commissioner. Besides the person who prepared the original map of which Ex. B 3 is a tracing has not been examined and it is conceded that there is no statutory presumption as to the correctness of that map, as there is in the case of the maps which form part of the Record-of-Rights. On the other hand the pleader commissioner, Babu Charu Chandra Biswas has been examined as a witness for the defendant and both parties had ample opportunities to scrutinize his map and report before he was called upon to give evidence in Court. Further as the learned Judge points out, it is remarkable that the map drawn by this commissioner tallies with the map drawn by the commissioner appointed in Title Suit No. 77 of 1923. If the commissioner''s map is accepted, it is clear that the disputed area falls within the plaintiff''s land.

The question of limitation is a serious one. It is urged on behalf of the plaintiff that no portion of his claim is barred by limitation, while the defendant puts forward a claim to the whole of the disputed area on the ground of adverse possession. The learned Subordinate Judge while negativing the claim of the defendant based on adverse possession has found that the plaintiff cannot recover any damages with regard to the gallery coal which had been removed according to him before 1909 or at any rate before the year 1911. In order to decide whether the defendant can acquire any title to the disputed area by adverse possession it will be necessary to refer to a few circumstances which have an important bearing on the question whether any acts of possession were exercised by the defendants openly and to the knowledge of the plaintiff or his predecessors-in-interest for a continued period of 12 years. It is admitted that there were no boundary marks between the land leased to the plaintiff and those leased to the defendants. The defendants own case before us was that be honestly thought that the railway line was the boundary between the two villages and had proceeded all along on this footing. The lease in favour of the plaintiff related only to underground rights and the plaintiff could not restrain the defendants from carrying on any operation on the surface. Besides, it is admitted by defendants'' first witness that there was a dense forest on all sides even south of the railway line and D.W. 8 says that there were big jungles near about incline No. 4. It is true that the coal of the disputed area was worked through incline No. 4 but the situation of incline No. 4 did not necessarily indicate that it was constructed only for working the disputed area and not meant for defendant''s own land. It is admitted by D.W. 1 that the coal from east to west and also from incline No. 4 had been taken out by driving galleries from incline No. 3 which was admittedly on the land of the defendants. It is said that in several documents the Howjis who were the predecessors-in-interest of the plaintiffs have been described as residents of Gararia and some stress is laid on the fact that the office of the plaintiff was not very far from the disputed area.

It is however to be remembered that the plaintiff acquired an interest in the land as late as in 1922 and the more fact of the Howjis residing in the village either temporarily or permanently is not sufficient to show that they must have been necessarily aware of the operation carried on by the defendants underground for which was done by the defendants in the surface could not have attracted much notice in the circumstances of the case. In these circumstances specially as there is no direct evidence on the point, it cannot be assumed that either the plaintiff or his predecessor-in-interest must have known of the encroachment made by the defendants. In my opinion therefore the evidence on the record is wholly insufficient to prove that the defendants were working in the disputed area openly and to the knowledge of the plaintiff. As to the continuity of such possession as is said to have been exercised by the defendants the evidence merely is that work was started in incline No. 4 in 1900 and stopped for some time and then again it was recommenced about the year 1904 and it is also admitted that no work was done in incline No. 4 after the year 1911. In these circumstances and also having regard to the well known principle that so far as underground quarries are concerned, any title which the adverse possessor may have acquired will be strictly limited to what he has actually possessed, I think the lower Court was right in deciding that the defendants did not acquire any title by adverse possession.

I also agree with the lower Court''s decision that the plaintiff is not entitled to any damages for the gallery coal removed. There is no doubt that this gallery coal must have been removed before the year 1911. It has been proved by D.W. 1 that incline No. 4 was worked only till June 1911 and defendant 2 who was manager of the defendants'' colliery for some time in 1913 states:

During my time there was no raising from incline No. 4 but from Nos. 3 and 13. It appears to me that coal had been raised before my time from all inclines including No. 4.

Now it is true that coal from the disputed area was extracted not only from incline No. 4 but also from inclines Nos. 3 and 13; but there is no doubt that incline No. 4 was the main outlet and there is no clear evidence to show that any coal was removed from the disputed area after incline No. 4 had ceased to be used in 1911. The learned Subordinate Judge has also relied upon a series of account books of the defendants to show that the coal from the disputed area had been extracted before 1911. What particular entries he relied upon in these account books is not clear from the judgment and it appears that before the paper-books in these appeals were printed, neither party took care to ascertain what entries had been referred to in the lower Court and how much of those account books should be printed. These account books, we are told, have been since returned to be filed in another case and neither party called for them before the hearing of the appeal. In these circumstances all that we can say is that the plaintiff-appellant has not been able to show that the decision of the Subordinate Judge so far as it is based on the account books is wrong Apart from the account books however the working plans Exs. B (1) and B (2) which are undoubtedly genuine documents clearly show that the gallery coal had been extracted from the whole of the disputed area before the year 1911. Such being the fact, the trial Court decided that the plaintiff''s claim to damages in respect of the gallery coal was barred by limitation. It has been pointed out that Articles 142 and 144 have no application because they apply to immovable property and it is said that the proper article to be applied is Article 48, This article provides that a suit for compensation for wrongfully taking specific moveable property should be brought within three years of the time when the person having the right to the possession of the property first learns in whose possession it is, and it appears therefore, that this article would apply when the moveable properly "lost or acquired by theft or dishonest misappropriation or conversion" is still in the possession of the defendants and not when the property cannot be traced. In this particular case there is no evidence that the coal which was extracted by the defendants was in their possession within three years of the suit and, therefore, in my opinion, Article 48 will not apply to the present case. However that may be, as my learned brother has pointed out, the plaintiff acquired title to the disputed land long after the coal had been extracted and therefore, whatever remedy he may have as against his lessor, he cannot sue the defendants for coal which had been extracted by them at a time when the plaintiff had no title to the land.

The next two questions may be briefly disposed of. The defendants have by their wrongful act made it impossible for the plaintiff to remove the gallery coal without incurring prohibitive expenditure and cannot therefore escape paying damages. As to the employment of the harsher method of assessing damages, it has been rightly pointed out by the learned Subordinate Judge that the defendants removed the pillar coal after they had become aware of the encroachment by reason of Suit No. 76 of 1923. The lower Court was also right in accepting the statement made by one of the plaintiff''s own witnesses as to the current price of the coal in the years when the coal was removed by the defendants and beyond an error of four annas per ton which is admitted by the learned Counsel for the defendants, his decision in other respects cannot in my opinion be questioned. I therefore agree with my learned brother that, subject to the modification that the price of the coal will be calculated at the rate of Rs. 3-8-0 instead of Rs. 3-4-0, per ton that these appeals should be dismissed with costs.