E.C. Agabeg vs Hargobind Tiwari and Others

Dass, J.—In this suit the plaintiffs claim a declaration of title.

to the surface and underground rights of 65 bighas 3 cuttahs of land.

as specified is the plaint. They base their title on three mokarari grants made in favour of their predecessor-in-title by certain persons, who maybe referred to as the Burdhans, represented in this action by defendants 1 to 12.

All these lands are situate in mouza Jorekuri within the ambit pf the zamindari of the Maharajah of Hetatnpur. It is not disputed, that the Maharaja of Hetampur granted a patni lease to the Burdhans. On 28th March 1868 Chandra Mohan Burdhau who had a four annas six-pies share in. the patni and who is represented in this action by defendants 1 to 4 granted a mokarrari lease in respect of 17 bighas to Kuladanand Tewari as, the shebait of a certain idol at. a rent of Rs. 9 per year. On 5th April 1873 Pratap Chandra Burdhan and Nilmadhab Burdhan represented in this litigation by defendants 5 and 9 and having a three annas six-pies share in the patni granted a mokarrari of 16 bighas 9 cuttahs to Kuladanand Tewari as the shebait of the idol at a rent of Rs. 9 per year. On 22nd August 1874 Inder Narayan Burdhan represented in this litigation by defendants 10 to 12 and having an eight annas interest in the patni granted a mokarrari lease of 31 bighas 14 cuttahs to Kuladanand Tewari at a rent of Rs. 14 per year. The plaintiffs claim to be the successors-in-interest of Kuladanand Tewari and they contended that under the mokarrari leases just mentioned they have both surface rights and underground rights to 65 bighas 3 cuttahs of land. The Record-of-Rights under the provisions of Regn. 3 of 1872 was prepared in respect of mauza Jorekuri and was finally published sometime in 1906.

Now it appears that some of the lands in the leases granted by the Burdhans were culturable lands and. some waste lands. In preparing the Record-of-Rights the settlement authorities recorded the plaintiffs in respect of 38 bighas 12 cuttahs and 14 dhoors of cultuable lands. The remaining 26 bighas 10 cuttahs and 6 dhoors of land was obviously waste land and were recorded by the settlement authorities as waste land which means that according to the survey ;authorities these 26 bighas 10 cuttahs rand 6 dhoors were in the possession of the proprietor of the mauza subject to certain rights as are vested by law in. the village community On a construction of the mokarrari leases upon which, the plaintiffs rely, the learned Subordinate judge has come to the conclusion that ''underground rights passed to the plaintiffs ; but he has given the plaintiffs a decree only in respect of 38 bighas 12 cuttahs and 14 dhoors. In regard to the Temaining 26 bighas 10 cuttahs and 6 ''dhoors of land, he has dismissed the plaintiff''s suit. The defendants appeal from the. decree passed by the learned Subordinate Judge in so far as the learned Subordinate Judge has declared the plaintiffs'' underground rights in 38 bighaa 12 cuttahs and 14 dhoors ; and the plaintiffs have presented a cross appeal, in regard to the 26 bighas 10 cuttahs and 6 dhoors of land.

I will first deal with the main appeal. 1 have no doubt whatever that the decision of the learned Subordinate Judge on this point is right and must he affirmed. The defendants claim that the underground rights did not pass under any of the transactions upon which the plaintiffs rely. The defendants base their title upon two transactions of a later date, one dated 25th February 1914 and the other dated 2nd May 1914. It is obvious that the defendants cannot succeed unless they satisfy us that the mineral rights did not pass under the earlier transactions upon which the plaintiffs rely- Now the earliest of the transactions is dated 28th March 1868. As I have said, that was a mokarrari lease by Chandra Mohan Burdhan to Kuladanand Tewari described as the shebait of Shree Harihar Jiu Salagram Thakur. By this document Chandra Mohan granted a mokarrari in respect of 17 bighas of hasil and patit lands in his shares and he expressly provided that the grantees by constructing tanks and by cultivating himself or settling it with tenants.

with sons and grandsons will continua to possess and enjoy with great facilities tha surfaoe and the subsoil rights.

in those 17 bighas of land. The subsoil rights are specifically mentioned in the document, the actual word used in the document being "adha." Now the term "adha" was construed by ''this Court in Ram Lal v. Satya Niranjan [1920] 5 Pat. L.J. 563. In dealing with this point, their Lordships said as follows:

Adha and urdha are words of distinct meaning and connotation. I do not appreciate the remark of the learned Subordinate Judge that the words "adha urdha" "hadud mahdud" are, general words used by the writers of deeds without knowing their meaning, and they generally go to indicate that the lease is a permanent one and. that the word adha "means down," and not "underground minerals." These words are in an ancient document of 1852 and are in consonance with their accepted significance in Airi-i-Akbari and in Monier William''s Dictionary quoted above. By the word "adha" the underground rights were distinctly included in the subject matter of the lease.

The decision of this Court was subsequently affirmed by the Judicial Commitee:, see Satya Niranjan Chakravarti v. Ram Lal Kaviraj, AIR 1925 P.C. 42 .

Mr. N.C. Sinha appearing on behalf of the defendants appellants contends that the decision in that case has no application to this, inasmuch as in that case, to adopt the words of the Judicial Committee:

looking to the anxious expression of the generality of the grant as evideneed by the long category of things conveyed the words "adha" and " urdha " made it plain that there was every intention to convey all below the surface as well as all on it or above it.

Now it is true that in Satya Niranjan''s case the grant was in these terms:

You will hold possession of all the lands appertaining thereto from a very long time, such as mal, khamar hasil, patit, bil, jhil, khal, kandar, pahar and parbat, jalkar, falkar, the fruit bearing and non fruit bearing trees and the jungles and all rights and interests appertaining to all such things lying within the four boundaries and above and below the surfaces.

It is also true that in the document before us we have not a long category of things conveyed ; but it may be pointed out that the critical words in the document were " adha " and " urdha. " If these words were not there, the grant of:

mal, khamar, hasil, patit, bil, jhil, khal, kandar, pahar and parbatj, jalkar, falkar, the fruib-baaring and non-fruit-bearing trees and the jungles and all rights and interests appertaining to all such things lying within the four boundaries.

would not have conveyed to the grantee the mineral rights ; and Jwala Prasad, J. in dealing with the case in this Court pointedly referred to the term " adha " which according to that learned Judge could not mean anything but underground mineral. In my opinion it is idle to contend that by the express grant of 28th March 1868, the underground rights did not pass to Kuladanand Tewari.

I now come to the grants of 5th April 1873 and 22nd August 1874. By the grant of 5th April 1873, 16 bighas 9 cuttahs were conveyed to Kulandanand Tewari shebait of Shree Harihar Jiu Salagram Thakur and it was provided as follows:

You shall be the proprietor of and be entitled to any Dhatu adi, etc., which will be found above and below the said mokarrari land and you will be competent to settle with or, transfer the same to any one alse.

Mr. N.C. Sinha appearing on behalf of the appellants contends that the term " Dhatu " means metal and does not mean coal. But the learned Subordinate Judge has taken the view that Dhatu means minerals. Now in Monier William''s Sanskrit Dictionary, the term Dhatu is rendered as follows:

a primary element of the earth or mountains a mineral, fossil, metal, ore.

But Mr. N.C. Sinha contends that the parties were plain Bengalis and cannot be presumed to understand the meaning of the term " Dhatu " as used by the Sanskrit Grammarians. It is therefore, relevant to consider how the term " Dhatu " has been translated by plain

Bengali ''gentlemen, I find that in the-Student''s Bengali and English Dictionary by Beni Madhav Ganguli, the term " Dhatu " has been translated as " a metal, a mineral, an ore, a fossil: " and in> another Bangali to English Dictionary by Subal Ch. Mitra, the terw '''' Dhatu " has; been translated as including mineraL There are two documents in the record which conclusively establish that the lessors themselves understood the terra " Dhatu " to include coal. A lease was executed by the Burdhans on 5th April 1893. It was recited in that document that:

if any dhatu etc, other than coal is found, we will be competent to settle the same with, whomsoever we please.

In another lease granted by them or 25th February 1914, they stipulated:

that if any Dhatu other than coal is found out, it will remain in our khas possession.

There is little doubt then that, so far as the lessors are concerned, they thought: that coal was included in the term " Dhatu. " The learned Subordinate Judge is himself a Bengali gentleman and must be presumed to know in what sense the word " Dhatu " is understood by the Bengalis. In my opinion there is no doubt whatever that by the transaction of 5th April 1873 there was an express grant of the minerals. It is not necessary to deal with the last of these transactions for it is not disputed that in the mokarrari deed of 22nd August 1874 there was again an express grant of " Dhatu " etc., above and below the said mokarrari land.

It was then contended by Mr. N.C. Sinha that the mokarrari deeds are no longer subsisting and that therefore the plaintiffs cannot base any title on the mokarrari deeds. The basis of the argument would oppear to be this, that in the-Record-of-Rights these 38 bighs 12 cuttahs and 14 dhoors of land have been amalgamated and recorded in the names of the plaintiffs and the remaining 26 big-has 10 cuttahs and 6 dhoors have been, recorded as the waste land of the proprietor. But the answer to the argument: is that the Record-of-Rights itself shows that the plaintiffs were recorded on the; strength of their mokarrari deeds, so that it seems to me that these mokarrari deeds are still in existence and are the documents of title of the plaintiffs. As I have said the waste lands have been recorded in the name of the proprietor as the view of the Settlement Officer appeared to be that the proprietor had no power to deal with waste lads in which the village community appears to have certain rights. But the fact that these 26 bighas 10 cuttahs and 6 dhoors of land were recorded as waste lands does not establish that the mokarrari deeds were gone and were no longer in existence. If they were gone, the plaintiffs could not be recorded at all ; and the abstract khatian jamabandi definitely shows that the plaintiffs were recorded on the strength of the mokarrari lease.

It was last contended that there is a misjoinder of causes of action. Mr. N.C. Sinha, however, did not argue this point, but merely formulated it and he intimated to us that he would deal with this point in the Privy Council. As no argument has been advanced to us in support of the contention, it Is impossible for us to deal with it.

The appeal fails and must be dismissed to deal with costs.

I now come to the cross appeal and it seems to me that it must succeed. The learned Subordinate Judge has taken the view that as these 26 bighas 10 cuttahs 6 dhoors of land were recorded as waste lands and not in the name of the plaintiffs, the plaintiffs have no right whatever to these lands. I entirely agree that so far as the surface is concerned, the Record-of-Rights is conclusive and the plaintiffs are not entitled to a declaration that they have any surface rights in respect of these 26 bighas 10 cuttahs and 6 dhoors of land. But the Record-of-Rights does not purport to deal with the underground rights. If the underground rights were recorded in the name of the proprietor no doubt u/s 25, Reg. 3 of 1872, the entry would be conclusive. Section 25 only provides that an entry in the Record-of-Rights shall be conclusive proof of the rights and customs therein recorded ; but it is admitted that the mineral rights have not been dealt with in the Record-of-Rights. This being the position, the plaintiffs are clearly entitled to a declaration of their mineral rights in respect of 26 bighas 10 cuttahs and 6 dhoors of land which are the subject matter of the cross appeal.

I would allow the cross appeal and give the plaintiffs a declaration of their underground rights in respect of the 26 bighas 10 cuttahs and 6 dhoors of land which are the subject matter of the cross appeal.

Adami, J.

I agree.