Equitable Coal Co. Ltd. vs Amrita Nath Mitter and Others

Rowland, J.—The defendant who appeals is the landlord of the plaintiff. The latter, it is not disputed, has a house and compound surrounded by a pucca wall in Mauza Makatpur in Giridih Municipality as a tenant of the defendant, the Equitable Coal Co. This bungalow and compound bear survey plot No. 45. Outside the wall on the west is an irregular triangle of land plotted in survey Nos. 42,43 and 44 and beyond these plots is a nala or municipal drain running approximately north to south and bearing plot No. 41.

The dispute between the parties, put in the briefest terms, is whether the lease granted by the defendant company to the predecessor-in-interest of the plaintiff included or excluded these three plots, and whether by the successive transfers of the leasehold property through which the title has devolved on the plaintiff, the latter has acquired a title to these plots, in addition to plot No. 45 as claimed by the plaintiff or to plot No. 45 only as is the case of the defendant. The Munsif in a considered judgment was of opinion that the property to which the plaintiff was entitled did not include the land in suit. There was, h& thought, discrepancies between the area and boundaries, but the grant did not extend right up to the western boundary mentioned in the document of lease.

The Subordinate Judge who heard an appeal from this decision came to a different view. He considered that the central point in the case was as to the position of the nala referred to as the western boundary, and he found that this nala was at the time of the grant in the same position as at present. He says:

Where the area goes against the boundaries the boundaries should prevail," and on this view he has allowed the appeal and decreed the suit.

The observation of the Subordinate Judge just quoted cannot be accepted as a universal proposition although there are observations in Raghunandan Thakur Vs. Babu Kishundeo Narain Mahta and Others, , which lend colour to-the view taken by the Subordinate Judge. The legal position is more precisely stated in the decisions I shall now refer.

In Durga Prasad Singh v. Rajendra Narayan Bagchi (13) 41 Cal. 493, the parties were in dispute as to the construction of a kabuliyat, the appellant''s contention being that the respondents were entitled to the coal underneath such quantity of land only as was contained within the boundaries given in the schedule, the contention of the respondents, on the other hand, being that they were entitled to the coal underneath the full quantity of 400 bighas of land. The lease purported to grant 400 bighas within stated boundaries. Their Lordships observed that the question as to what had been demised turned upon the true construction of the kabuliyat.

The other case to which I propose to refer is Linton Molesworth and Co. Limited Vs. Jagannath Supakar and Others, , a case which turned on the construction of a lease or grant. The property had been described both by area and by boundaries, the area mentioned being 13 bighas. Actually it was found that the amount of land situated within the four boundaries mentioned in the schedule was a larger area. The grant was expressed to be of "the entire land known as East Swardih whose area is 13 bighas and whose boundaries are the following."

The question to be decided was whether the lease was of 13 bighas of land situate within certain boundaries mentioned in the lease or whether the lease was of the entire block of land within the boundaries given in the foot of the, lease. Now in coming to the conclusion that the lease was of the entire block, it was emphasized that the operative part of the lease does not give the area of the demised land, but expressly that the lease is of the entire land.

On the basis of these decisions what the Court will have to see is what are the operative provisions of the document of title and what was actually granted by those operative provisions. In the present instance, the leasehold property has been the subject of more than one transaction. The earliest document exhibited is the kabuliyat dated 9th July 1909, executed by Rai Bahadur Jogendra Nath Ghose in favour of the Equitable Coal Co. Ltd., which recites that the lessee has proposed and the lessor has accepted the proposal for taking settlement of 3 bighas of land as detailed in schedule and demarcated by posts and as per map prepared. On its face the grant is not a grant of the entire area within the boundaries but of a specified area of land. There is a proviso that if in future at the time of survey the area of the land is found to be in excess of 3 bighas by standard measurement, the lessor will settle the said excess land with the lessee on the same terms provided that the lessee agrees to give proportionate excess salami and rent for the excess land. If the lessee does not take settlement then the Jessor will be competent to take the said excess of land into his khas possession or to settle the same with others.

A plain reading of this document conveys to my mind the impression that the grant was of an area believed to be 8 bighas which area was demarcated by posts and a map prepared. The map unfortunately is not available. The plaintiff called for it from the defendant company and the company have replied that the map was taken away by the lessee Rai Bahadur Jagendra Nath Ghose. There is no evidence to show that this explanation is not true and in the circumstances no inference can be drawn for or against either party from the non-production of the map.

We do know that Rai Bahadur Jogendra Nath Ghose, the lessee, put up a surrounding wall completely enclosing a quadrangular block. The disputed land was left outside of this enclosure. The area within the enclosure was found on survey to be three bighas, 2 kathas, and 4 dhoors. The lessee did not at any time apply to the lessor for settlement of the additional 2 kathas and 4 dhoors, nor does it appear that the lessor ever made any demand for additional rent or salami in respect of this small area. The lessee and his successors, however, have been continuously in undisputed possession of at any rate 3 bighas, 2 kathas, and 4 dhoors.

As regards the area in excess of three bighas, the passages I have quoted from the kabuliyat Ex. 8 seem to contemplate that any area in excess of the 3 bighas was not by this kabuliyat settled with the lessee, but that he was given an option of taking settlement of it if it was found that the land in his possession at the time of survey was in excess of 3 bighas.

If, therefore, the lessee at or after the time of the preparation of the record of rights bad desired to include the additional 6 kathas now in suit being in excess of the area of 3 bighas granted to him, it was under the kabuliyat open to him to tender proportionate excess salami and to take settlement thereof; but no step was taken by Rai Bahadur Jogendra Nath Ghose for taking settlement of the excess of 2 kathas 4 dhoors, not to speak of any additional area beyond what was comprised within the four walls of his compound.

On 25th January 1913, Rai Bahadur Jogendra Nath Ghose sold the leasehold premises by kobala Ex. 14 to Sushil Chandra Bandopadhya. The subject of the document is said to be darmokarrari jamai land bounded on all sides by pucca walls and the history of the property is recited. It is stated that Dr. V. Roy of Giridih, Munsif, had taken settlement of three standard bighas of land in the name of his brother Sarat Chandra Roy on whose death by arrangement the said land was settled with Rai Bahadur Jogendra Nath Ghose who took a darmokarrari lease of the said 3 bighas of land and at his own expense constructed pucca wall all round the same. The western boundary in the schedule to this document is nala as in the schedule to the kabuliyat Ex. 8; but the effect of the document depends, in my opinion, on the operative portion rather than on the descriptive schedule and it does not operate to convey to Sushil Chandra Bandopadhya more than the compound enclosed by pucca wall, firstly, because on my view the original grant did not purport to convey more than this and Rai Bahadur Jogendra Nath Ghose could not transfer more than what had been granted to him; and secondly, because the deed of sale itself is expressed to convey land bounded on all sides by pucca wall and is not expressed to convey any other land outside the wall. Therefore, even if the original grant had been of more than survey plot No. 45 the conveyance was of survey plot No. 45 only.

This position in fact appears to have been recognised by Sushil Chandra Banerji himself. In 1914 he wished to get settlement of the land adjacent to his bungalow and compound and for this purpose wrote a letter Ex. Al dated 11th September 1914, to the Superintendent Equitable Coal Co., stating that he had applied to Mr. Fluker, for a settlement "of the land adjoining mine on the south and west side." In a post script he also referred to the "the narrow strip of land between the public municipal ditch and my boundary walls" and asked he might have this strip of land. He received a reply that the company were agreeable to let him have that strip of land, but apparently no lease in respect of it was executed. The correspondence is relevant as containing an admission by Sushil Chandra Banerji the predecessor-in-title of the plaintiff as to the extent of the land at the time held by him. In 1920 Sushil Chandra Banerji by a deed of gift Ex. B transferred the leasehold property to his son Achal Kumar Banerji. The property is described "all the right, title and interest in the house known as''Santi Nibas'' including the land on which it stands as well as the land and appurtenances etc., attached thereto in the town of Girdih, area of land 3 bighas more or less" and in the schedule of boundaries the western boundary is given as land of Equitable Coal Co. It is clear that at this time no claim of title or possession to the strip of land outside the enclosing wall was being put forward, and in my view, Ex. B did not purport to convey to the donee that strip of land. The last of the plaintiff''s documents of title is the conveyance by which he himself acquired the leasehold property. The property is described as a plot of land measuring 3 bighas more or less and more fully described in the schedule.

In the schedule the property is described as the piece of parcel of land measuring 3 bighas more or less being holding No. 70, Ward No. 1 in the register of Giridih Municipality. Neither party, however, has produced this register showing the entry of holding No. 70. The description by boundaries gives as the western boundary, nala, next to which is the playground of the Boys H.E. School. It is on this description that the plaintiff relies for his contention that the premises transferred to him extend right up to the nala; but in the earlier recitals of the document after mentioning the lease in favour of Rai Bahadur Jogendra Nath Ghose, it is stated that the said Rai Bahadur being in peaceful possession of the said land by putting pucca compound walls around it and by sinking a well thereon transferred his rights to the late Babu Sushil Chandra Banerji. The recitals do not indicate any claim that Rai Bahadur Jogendra Nath Ghose had been in possession of more than the land, around which he put pucca compound walls.

On these documents of title, I am of opinion that the operative portion of the lease was that which conveyed 3 bighas and that the boundaries given in the schedule do not control the operative portion in the body of the lease. They are merely description. There is no doubt that the plaintiff''s predecessor was put in possession of the full area of 3 bighas which the company had agreed to let to him. It was within the contemplation of the parties that the area demarcated and made over to the lessee might possibly on scientific measurement prove to be in excess and as above stated an excess of 2 kathas & dhoors was found. That is a difference of about 3 or 3&frac; per cent, which is not an excessive discrepancy between an area arrived at by rough measurement and the same area measured by scientific measurement; but according to the plaintiff''s case the area demised must have been nearly 3 bighas 10 kathas a discrepancy of about 16 per cent, between the area said to have been let and the area actually made over to the lessee. When the documents show that there had been actual demarcation by pegs and a map prepared, it seems in the highest degree improbable that there would be so large a margin of error or difference between the contemporary estimate of the area made over to the lessee and the actual area as found by scientific measurement.

These matters of fact are not to be regarded as controlling the construction of the document for the true view is that the documents of title are to be construed in accordance with their own terms which are sufficient for the decision; but I have referred to these matters as they seem to me to lend some independent corroboration of the view that I have taken on a construction of the documents themselves.

It must be held that the plaintiff has no title to the land in suit and, therefore, the appeal must be allowed and the suit dismissed with costs throughout. Leave to appeal under the Letters Patent is refused.