Mangobinda Sahu and Others vs Satya Niranjan Chakraverty and Others

Das, J.—The plaintiff is the zamindar of considerable properties including mauza Palasthali. ON 9th May 1854 his predecessor-in-title made a grant of mauza Palasthali to the predecessors-in-title of the defendants in the following terms:

Executed in favour of Naba Krishna Sadhu to the following effect: After appointing you a patnidar of mauza Palashtali, appertaining to Tappa Kundohit Karaya and lying to the east of Kharimati, to the west of Bararampur and Sultanpur, to the north of the bathan (pasture land) of village Kista and the pahari below Bhaluksunda and to the south of Chhotasetta including the preserved jungle of Kashinath Singh, at an annual rental of Rs. 7-8-0 in sicca coin (which is equivalent to) Rs. 8 in Company''s coin and ON a premium of Rs. 91-5-6 pies I have received the full amount of premium. You shall be in possession of all the zamindari rights and interest as prevailing from before in the lands (included) in the said mauza from before tari (moist land) and khuski, mal, and khamar, hasil and patit, bil and jhil, khal and khandar, bankar, and bagat (orchard) tanks, nalkar, falkar, jalkar and jungles and forest produce etc., that are in existence within the four boundaries, and you shall pay the amount of rent in true Company''s coins, according to instalment, year after year, month by month, at my zamindari katchery. The rent at which you are appointed patni talukdar, shall never be enhanced or reduced, you will have no concern with the gardens, tanks and habelis in the khas possession of the sarkar (zamindar) nor with the other trees etc., and the tasarguti, aramahal and ranamahal that are in existence. They shall remain in my khas possession. You shall perform the duties, according to the terms of the kabuliyat, and keeping the tenants willing and contented you shall pay the rent to the sarkar (zamindar) year after year, and you and your sons and grandsons in succession shall possess and enjoy (the land) in great felicity.

Having regard to the fact that the defendants were raising coal from the mauza in question, the plaintiff instituted the suit out of which this appeal arises in substance for an injunction restraining the defendants from raising coal from the mauza and for recovery of damages in respect of the coal raised and carried away by the defendants. The defendants contested the suit substantially on three grounds; first, on the ground that the grant in their favour was a patni grant and that it carried with it the rights to the minerals in the absence of an express reservation to that effect; secondly, on the ground that on the true construction of the grant the mineral rights passed to them; and thirdly, on the ground that they acquired such rights by adverse possession. The learned Subordinate Judge has found each of these points in favour of the plaintiff and has given him a decree substantially as claimed by him and has awarded him Rs. 13,344 as damages. The defendants appeal to this Court.

The property in dispute is situate in the Santal Pargannas; and the defendants have been recorded as patnidars in the Record-of-Rights which was finally published on 24th June 1909. Under the Santal Pargannas Regulation the Record-of-Rights is conclusive proof of the rights and customs therein recorded; and it must follow that we must regard the defendants as patnidars, although it may be stated that the lease does not follow the terms of an ordinary patni lease.

The first question raised on behalf of the defendants is whether a patni grant carries with it the rights to the minerals without express words to that effect. It was held in Ali Quader v. Jogendra Narain Roy [1912] 16 C.L.J. 7 that in the absence of express reservation mineral rights pass to the patnidar. It may, however, be pointed out that in 1889 when this case was decided, the generally accepted view was that under-ground rights passed without express words in the case of every permanent transferable and heritable grant, It was, however, decided by the Judicial Committee in a series of cases that in the absence of express words mukarrari leases and other grants do not carry with them the rights to the minerals. Having regard to these decisions it was held by the Calcutta High Court that the decision in Ali Quader v. Jogendra Narain Roy [1912] 16 C.L.J. 7 was no longer binding on the Indian Courts. The question was discussed at great length in this Court in Ram Lal kaviraj v. Satya Niranjan Chakravarty [1920] 5 Pat. L.J. 563, where the learned Judges took the view that a patni lease stands on the same footing as a mukarrari lease so far as the right to the minerals is concerned and they expressed the opinion that the decision in Ali Quader v. Jogendra Narain Roy [1912] 16 C.L.J. 7 has been impliedly overruled by the Judicial Committee. But this opinion was not accepted as correct by their Lordships of the Judicial Committee in the appeal from the same case: see Satya Niranjan Chakravarti v. Ram Lal Kaviraj, AIR 1925 P.C. 42 . In dealing with this point their Lordships said as follows:

In their opinion the question so far as direct decision of this Board is concerned is still open. It really turns on what is the true nature of a patni tenure. Their Lordships think that the learned Judges have been misled by a wrong view of expressions used by Lord Shaw in Giridhari Singh v. Megh Lal Pande AIR 1917 P.C. 163, when quoting the judgment of Lord Buckmaster. His Lordship says that the decisions establish that whom a grant is made by a zamindar of a tenure at a fixed rent, although the tenure may be permanent, heritable and transferable minerals will not be held to have formed pact of the grant in the absence of express evidence to that effect.

But that only means that the mere facts of a lease being permanent, transferable, and heritable, does not necessarily carry with it the result that the lessee has all zamindari rights. His Lordship was dealing with a contention founded on mukarrari leases. The passing of a mukarrari lease does not says he, have the effect that ail the rights of a zamindar go with it, but his Lordship did not mean to say and did not say because a permanent lease does not entail that effect, therefore, inasmuch as a patni lease is a permanent lease, it does not entail that effect. That question was not before him and was not decided.

Their Lordships do not decide it now as it is not necessary for the judgment nor do they wish to express any opinion on the matter save one, viz., that they do not agree with the dictum of the High Court which says that the judgment of Prinsep and Hill, JJ. in the case of Ali Quader v. Jogendra Narain, Roy [1912] 16 C.L.J. 7 has been overruled by the decisions of this Board above cited. That decision is in conflict with the decisions of other Courts in India, and whether it or those other decisions are right must remain for settlement on another occasion.

It follows from this decision that the question is still an open one so far as the Privy Council is concerned, and that it is not correct to say that Ali Quader v. Jogendra Narain Roy [1912] 16 C.L.J. 7 stands over ruled as a result of the decisions of the Judicial Committee but it also follows that the view expressed by this Court in Ram Lal Kaviraj v. Satya Niranjan [1920] 5 Pat. L.J. 563 has not been overruled by the Judicial Committee; so that it must be taken that the decision of this Court is binding on us unless we are prepared to refer the question to a Full Bench.

In order to enable us to decide what course we should adopt in this case, it is necessary for us to examine the true nature of the patni tenure. In doing so I propose, in the first instance, to avoid embarrassing myself by concentrating on the word "taluk" though I must come to that term later on. We are not concerned in this case with a taluk that was in existence at the date of the acquisition of the Diwani by the East India Company or even at the date of decennial settlement. Little assistance, in my opinion, can be derived from an examination of the meaning of the word "taluk" in dealing with a grant which was made in 1854.

By the rules of the permanent Settlement proprietors were declared to be entitled to make any arrangements they liked for the leasing of their lands in taluks or otherwise. We know that the permanent settlement gave enormous impetus to the sub-infeudation which had already begun to be a marked feature of the land system of Bengal, As Sir George Campbell has pointed out:

At the permanent settlement Government by abdicating its position as exclusive possessor of the soil, and contenting himself with a permanent rent-charge on the land, escaped thenceforward all the labour and risks attendant upon detailed mufussil management. The zamindars of Bengal proper were not allow to follow the example set them and immediately began to dispose of their zamindaris in a similar manner. Permanent under-tenures, known as putni tenures, were created in large numbers, and extensive tracts were leased out on long terms: See Bengal Administration Report, p. 79, cited in Phillip''s on Land Tenure at p. 338.

By Regulation 44, 1793, however, all arrangements which the proprietors could make for the leasing of their lands were subjected to two limitations; first, it was provided that the jama or rant should not be fixed for a period exceeding ten years, and secondly, it was declared that in case of a sale for Government arrears such leases or arrangements should stand cancelled from the date of sale. Now although by Reg. 44, 1793 the proprietors were prohibited from leasing their lands for more than tea years, the terms of that regulation were disobeyed in practice, and it is well known that permanent alienations had been so extensively effected that the Government of the day found it necesto formally rescind the provision by which the period of all fixed arrangements for rent was limited to ten years. This they did by Section 2, Regulation 5, 1812. By another Regulation--Reg. 18 1812---it was declared that the zamindars were at liberty to grant taluks or other leases of their lands fixing the rent in perpetuity subject only to the liability of being dissolved on sale of the grantor''s estates for arrears of the Government revenue. Now notwithstanding the abrogation of the rules which declared perpetual leases null and void, it was omitted to declare in the regulations of 1812 whether the tenures at the time in existence and held under covenants entered into by the parties in violation of the rules of Reg. 44, 1793 should be deemed invalid and void. Having regard to the fact that a large number of perpetual settlement had been effected by the proprietors before 1812, the Government of the day thought it necessary to set the point at rest by a general declaration of the validity of any tenure that may be in existence notwithstanding that they may have been granted at a rent fixed in perpetuity: and this they did by Reg. 8, 1879, the celebrated Patni Regulation.

The preamble recites all the facts which I have already stated and points out that there has been created a tenure which had its origin in the estates of the Raja of Burdwan, the character of which was that it was a taluk created by the zamindar to be held at a rent fixed in perpetuity by the lessee and his heirs for ever, the tenant being called upon to furnish collateral security for the rent if the proprietor so desired, one of the terms of the engagement being that in case of an arrear occurring, the tenure might be brought to sale by the zamindar. The regulation points out that these tenures have been denominated patni taluks; and it deals with various questions arising in reference to these taluks and particularly with the procedure for sale of the taluks in case of rent being in arrear.

It is difficult to understand why these leases should stand on a different footing from the mukarrari leases. We know that the regulation was passed to validate perpetual leases granted by the proprietors before Reg. 5, 1812. Now it is conceded that the perpetual leases, to validate which the Patni Regulation was passed would not carry the rights to the minerals without express words; but it is contended that a different result would follow if these leases fall within the ambit of the Patni Regulation. In my opinion, the argument; is wholly fallacious. A patni lease is a perpetual lease. No doubt a special procedure is provided in the regulation for bringing the patni taluks to sale, in the event of rent being in arrears; but such a procedure does not affect the nature of the grant which consists of the creation by the zamindar of a subordinate tenure carved out of the parent estate to be held at a rent fixed in perpetuity. It seems to me that in dealing with this question it is impossible, to ignore the object which the legislature had in view in enacting the regulation which was to validate perpetual leases before 1812 and the description of a patni taluk given in the regulation. In my judgment the following observations of Sir Lawrence Jenkins in Kally Das Ahir v. Monmohini Dassee [1897] 24 Cal. 440 are equally applicable to a patni lease:

A man who being owner of land grants a lease in perpetuity carves a subordinate interest out of his own and does not annihilate his own interest. This result is to be inferred by the use of the word "lease" which implies an interest still remaining in the lessor.

I should now like to examine the provisions of Reg. 8, 1819 to see whether they give support to the theory that a patni lease is in fact an alienation of a zamindari interest and not the creation of a subordinate tenure. To start with, patni leases are throughout referred to as leases. No doubt by Section 3 it is provided that such leases shall be deemed to be valid tenures in perpetuity heritable and transferable; but istimrari mukarrari leases are also perpetual leases heritable and transferable, so that no distinction exists in point of fact between patni leases and mukarrari leases. Section 3 proceeds to provide that in case of an arrear occurring upon any such tenure, it shall not be liable to be cancelled for the same, but it shall be brought to sale, and the holder of the tenure will be entitled to any excess in the proceeds of such sale, beyond the amount of the arrear of the rent due. Now this provision is equally applicable to mukarrari leases; so that upon this provision it cannot be urged that there is a distinction between mukarrari leases and patni leases. Sections 5, 6 and 7 throw no light on the particular problem before us. By para. 1, Section 8, it is provided that zamindars shall be entitled to apply for periodical sales of any tenures upon which the right of selling for an arrear of rent have been specially reserved by stipulation in the engagements interchanged on the creation of the tenure. Paras. 2 and 3, 8. 8, lay down the procedure which should govern such a sale. Now no doubt the special procedure is not applicable to sales of mukarrari interest; but it is to be pointed out that this special procedure can only be taken advantage of by the zamindar where he reserves an express right to him of sailing the tenure for an arrear of rent. Where there is no special reservation of that right the procedure as laid down in the regulation cannot be followed by the zamindar. If authority is needed for this proposition, it will be found in Shahabooddeen v. Futteh Ali 7 W.R. 260. Section 9 provides how the sales are to be conducted, and Section 10 lays down that particular forms are to be scrupulously observed in selling the patni tenures. Section 11 provides that a taluk that may be sold under the rules of the regulation for arrears of rent due on it must be sold free from all encumbrances that may have accrued upon it by act of the defaulting proprietor unless the right to make such incumbrances shall have been expressly vested in the holder by a stipulation to that effect in the written engagements under which the said taluk may have been held. It also provides that no mortgage or other limited assignment shall be permitted to bar the indefeasible right of the zamindar to hold the tenures of his creation answerable in the state in which he created it, for the rent, which is in fact his reserved property in the tenure unless the transfer or assignment should have been made with a condition to that effect, under express authority obtained from such zamindar. There is, however, an exception in favour of bona fide engagements with khudkasht raiyats or residents or heritable cultivators. Considerable stress was laid on Section 11 of the regulation which, according to the argument of the appellant, lays down that the rent is the only reserved property of the zamindar in the tenure. It is to be noticed that the word "only" is not to be found in the section. Now the rent is undoubtedly the reserved property of the zamindar in the tenure; but the rent is also the reserved property of the zamindar in a property subject to a perpetual lease. In my opinion, there is not one word in Section 11 which is not equally applicable to mukarrari leases. In saying that the rent is the reserved property of the landlord in the tenure, the framers of the regulation mean no more than the rent is the first charge on the tenure, so that the holder of the tenure cannot enter into any transaction so as to bar the indefeasible right of the zamindar to hold the tenures of his creation answerable for the rent in the state in which he created it. But because the rent is the reserved property of the landlord in the perpetual tenure created by him, it does not follow that he has no interest in such tenure other than receiving rent in respect thereof. As Sir Lawrence Jenkins pointed out in the case to which I have already referred:

if the relationship be one of landlord and tenant, then there is the general rule which obtained in this country before the Transfer of Property Act that a tenant who impugns his landlord''s title renders his lease liable to forfeiture and this rule is only a particular application of the general principle of law that a man cannot approbate and reprobate, or, as it is more familiarly expressed, he cannot blow not and cold.

It follows that if the relationship created by a patni lease be one of landlord and tenant then the landlord has, under certain conditions, a right of reentry. There is direct authority in favour of this view in Godhadhar Das v. Dhunput Singh [l88l] 7 Cal. 585. The question in that case was whether a zamindar who had granted a patni lease, was entitled to any portion of the compensation money, where some of the land included in the patni was acquired by the Government for public purposes under the provision of the Land Acquisition Act. In dealing with this point, Garth, C.J., said as follows:

As regards the zamindar, it is a mistake to suppose that his interest in the land is confined entirely to the rent which he receives from the patnidar. He is the owner of it under the Government; and in the event of the patni coming to an end by sale, forfeiture, or otherwise, the property would revert to the zamindar, who might deal with it as he pleased in its improved stage; and although in some cases and possibly in this, the chances of the patni coming to an end may be more or less remote, there is no doubt that, in all cases, the zamindar is entitled to some compensation (small though it be) for the loss of rights. At any rate he would generally be entitled to receive at least as much as the patnidar to whom in this instance the whole compensation has been awarded.

It is true that in later cases the view has been taken that the chances of the patni reverting to the zamindar are so remote that they are not susceptible of a money appreciation: see Bir Chunder Minickya v. Nobin Chandra Dutt [1898] 2 C.W.N. 453; Satish Chunder v. Jatindra Nath [1908] 7 C.L.J. 284; Dinendra Narain Roy v. Tituram Mukharji [1903] 30 Cal. 801, but so far as I know, there as no decision which combats the view of the late Chief Justice of the Calcutta High Court that it is a mistake to suppose that the interest of the zamindar in the land in respect of which he has made a patni grant "is confined entirely to the rent which he receives from the patnidar." It was then can tended that, apart from this, there is no reversion in the landlord; but neither is there one in the case of a perpetual lease: see Sonet Kooer v. Himmat Bahadur [1875] 1 Cal. 391, and it is there fore difficult to understand why a patni lease should stand on a footing different from that of any other perpetual lease. According to the description given of a patni lease in Regulation 8, 1819 it is

a talook created by the zamindar, to be held at a rent fixed in perpetuity by the lessee and his heirs for ever; the tenant is called upon to furnish collateral security for the rent, and for his conduct generally, or he is excused from this obligation at the zamindar''s discretion.

It is difficult to understand how such a lease in any way differs from any other perpetual leases that may be granted by a zamindar.

I will now deal with some of the cases which have been referred to us. In the case of Gyaram Mundal v. Gyaram Naik 22 Marsh 28 it was held that a patnidar is presumably entitled to exercise all the rights of ownership with respect to the land which the zamindar himself might, but for the patni, have exercised. In this case the plaintiff as patnidar sued to resume the lakhiraj tenure u/s 30, Regulation 2, 1819. It was held that is the absence of limitation the patnidar could exercise all the rights of a zamindar. In my opinion, having regard to Section 30, Regulations, 1819, upon which the patnidar based his claim, a mukarraridar could also put forward the same right which was in this case put forward by the patnidar. In Tarinee Churn Ganguli v. Watson & Co. 12 W.R. 413, there are certain general observations of Markby, J., as to the nature of a patni grant, upon which reliance is placed. The question raised in that case was whether the grant in question was a patni grant. It was apparently contended on behalf of the plaintiff that the grant was not a patni grant, and that it was neither heritable nor alienable. The learned Judge had no difficulty in holding that when the parties used the words "patni taluk" and referred to Regulation 8,1819, they meant to describe an estate of the same general nature and with the same general qualities as the patni taluks described in that regulation, one prominent feature of which was that they were hereditary, He accordingly came to the conclusion that the estate created by the grant was both heritable and alienable. The actual decision in the case in no way touches the question which is in debate before us. But, in the course of his judgment, his Lordship said as follows:

Though, of course, we do not ''mean to deny that it is a tenure, yet the relation between zamindar and talukdar has scarcely any analogy to the ordinary one of landlord and tenant. The zamindar parts with all control over the property and all interest in it except to an annual rent which has been likened to what in England is called a quit-rent. The interest of the zamindar only requires that the taluk, should be kept whole and entire, so that his security for the rent may not be diminished. There is nothing in the smallest degree partaking of a personal character in the relation between him and the talukdar. Indeed, it was hardly contested that some special restriction was required to prevent the talukdar from alienating.

Now, although there is not one word in these observations which is not equally applicable to a perpetual lease, the view of his Lordship that the patni lease creates a tenure between the grantor and the grantee is destructive, in my opinion, of the case of the patnidars that the transaction upon which they are relying partook the character of a sale rather than that of a lease.

The point was directly involved in Ali Quader v. Jogendra Narain Roy [1912] 16 C.L.J. 7; but, as I have pointed out, the generally accepted view at the time this case was decided was that a perpetual, heritable and transferable grant in every case carried with it the right to the minerals unless there was express reservation. The case was largely decided on an interpretation of the terms of the grant; and with this we have nothing to do in this case. But it would be idle to deny that their Lordships were of opinion that the minerals passed in the absence of an express reservation. In dealing with this part of the case their Lordships said as follows;

We are further of opinion that para. 2, Clause 1. Section 11, Patni Sale Law, enacts, that the property reserved to the zamindar under an ordinary patni lease would be merely his right to receive rent. Consequently, unless any other rights are specially reserved under the terms of the lease between the parties, we think it must be held that all rights are conferred or the patnidar.

It is to be observed that their Lordships are not very accurate in quoting: the terms of Section 11 of the Patni Sale Law. The word "merely" is not to be found is Section 11; and the absence of that word in Section 11, in my opinion, makes all the difference to the interpretation of Section 11. As I have already pointed out, the idea conveyed by those words in Section 11 is reproduced in a more accurate form in the provisions in the later legislations to the effect that the rent shall be the first charge on the tenure. In Surendra Narayan Sinha and Others Vs. Raja Bijoya Singh Dudhuria and Another, the true nature of a patni taluk was much discussed by their Lordships of the Calcutta. High Court. Chakravarti, J., in dealing; with the question said as follows:

Regulation 8, 1798, Section 51, recognized the dependent taluks created by the zamindars before the permanent settlement and full protection was granted to them subject to the payment of the fixed rent. A number of these taluks were given the option of getting themselves separated from the zamindari and directly holding under the Government as owners of separate estates and the rent payable for the zamindari was fixed as revenue. This emphasizes the fact, that these talukdars though in one sense lessees, were looked upon as the absolute owners of the lands subject only to payment of the fixed rent. There was no restriction on or limitation to their rights as lessees.

With all respect I am unable to accept this view as founded on Regulation 8,. 1793 as correct. As I understand the position the object of Regulation 8 1793 was to decide the question with whom settlement was to be concluded by the ruling power. Section 4 adopted as a general rule that settlement was to be concluded with the actual proprietors of the soil. But then arose the question: Who were to be considered the actual proprietors of the soil? Section 5 deals with the question as to which of the talukdars are to be considered the actual proprietors of the lands. They are later on referred to as independent talukdars.

They are:

(1) Talukdars who purchased their lands by private or at public sale, or obtained them by gift from the zamindar or other actual proprietor of land to whom they now pay the revenue assessed upon their land or from their ancestors, subject to the payment of the established dues of Government and who received deeds of sale or gift of such land from the zamindar or sanads from the khalsa, miking over to them his proprietary rights therein.

(2) Talukdars whose taluks were formed be fore the zamindar, or other actual proprietor of land to whom they now pay their revenue or his ancestors succeeded to the zamindari,

(3) Talukdars, the lands comprised in whose taluks were never the property of the zamindar, or other actual proprietor of the soil, to whom they now pay their revenue, or his ancestors; and

(4) Talukdars who have succeeded to taluka of the nature of those described in the preceding clauses, by right of purchase, gift, or inheritance, from the former proprietor of such taluks.

It is obvious that the patnidars deriving their tenures from the zamindars do not fall in any of these categories and cannot, therefore, be recognized as actual proprietors of the land; or, in other words, as independent talukdars. Section 7 describes the position of dependent talukdars and expressly provides that they are to be considered as lease-holders only, not actual proprietors of the soil, and that they are not to be entitled to be rendered independent of the zamindar or other actual proprietor of the land from whom they derive their tenures. It is obvious that patnidars would be regarded as dependent talukdars and therefore as leaseholders u/s 7, Regn. 8, 1793. Section 51, to which Chakravarti, J., refers prescribes certain rules to prevent undue exactions from the dependent talukdars. No doubt, this section gives full protection to them as Chakravarti, J., rightly points out; but it is difficult to understand what this section has to do with the question whether dependent talukdars are to be regarded as proprietors of the soil. Mr. Justice Chakravarti proceeds to say that a number of these talukdars were given the option of getting themselves separated from the zamindar. If by "a number of these taluks" that learned Judge meant to refer to dependent taluks, as the context suggests, then with all respect, I am unable to agree with him. Regn. 8, 1793 clearly provided that although independent talukdara were entitled to get themselves separated from the zamindari, the dependent talukdars were not so entitled. If this be recognized, then the conclusion of Chakravarti, J.

that these talukdars though in one sense lessees, were looked upon as the absolute owners of the lands

must be rejected as an impossible one. It would be profitless to enter into a discussion of the nature of talukdari tenures. The word "talukdar" means the holder or possessor of a dependency. There is no doubt that tenures held by persons under this description were dispersed over the whole country and too various to be minutely ascertained; but the principal distinction in the rights of talukdars arises from the privilege which many possess of paying their revenue directly to the Government instead of to the zamindars from whose authority they were wholly exempt being immediately subordinate to that of the Government: Talukdars of this description differ but little from zamindars except in the limited extent of territorial jurisdictions There were others who paid their revenue through the zamindar. The discussion is undoubtedly an interesting one, but in this case we are not concerned with the position which the talukdars occupied before Regn. 8, 1793, but with the question: What is the nature of a patni taluk. I am of opinion that, if the question had to be decided by reference to the terms of Regn. 8, 1793, patni talukdars would be regarded as dependent talukdars and, therefore, as leaseholders. As soon as this conclusion is reached, it must follow that there is a tenure between the zamindar and the patnidar and that the cases which the Judicial Committee have already decided with regard to the mukarraridar must equally apply to the patnidar.

Chakravarti, J., proceeds to say as follows:

It is In this sense

that is to say, in the sense that there was no express limitation to their rights as lessees it has been said that these taluks were really transfers of the zamindars'' interests, the consideration being payable not in a lump sum but by annual payments in the shape of rent. The analogy of the leasehold interest as defined by the Transfer of Property Act is out of place here. There are some features which are common, but the distinctive features cannot be ignored and the existing mode of, enjoyment of these taluks disturbed.

I have not yet been able to appreciate how the patni leases differ from mukarrari leases. The learned Judge calls attention to the fact that there is no express limitation upon the rights of the patnidars; but I know of no limitation upon the rights of the mukarraridars. It would have been a great advantage if the learned Judge had told us what the distinctive features of a patni lease are. I know of the definition of a patni taluk in the regulation itself; and, for myself I cannot distinguish such a taluk from any other perpetual lease. The only other case to which I propose to refer is Rajeswar Prosad Bhakat and Others Vs. Bhupendra Narayan Sinha Bahadur and Others, . The learned Judges deciding that case placed considerable reliance on the decision of Chakravarti, J., to which I have already referred and they came to the conclusion that where there is no express grant of under-ground rights, in the absence of any explicit observation, the grant of patni conveys all rights including under-ground rights which belonged to the zamindar. This case is directly in point and, though not binding on us, is entitled to the greatest weight. Their Lordships certainly thought that they were bound by the decision of their Court in Ali Quader v. Jogendra Narain Roy [1912] 16 Cri.L.J. 7, but it would be idle to deny that, oven apart from that decision, they came to the conclusion that a patni lease carries with it the right to the minerals in the absence of an express reservation. Ghose, J., referred to Section 3, Regn. 8, 1819. He pointed out that in Clause (1) of that section it was mentioned that the interest of the patnidar was capable of being transferred by sale, etc., in the same manner as other "real property," and he thought that the argument before him, to the effect that the regulation being drafted by English lawyers, the expression "real property" has a particular significance was not without substance. He then referred to Section 11, Clause (1), where the defaulting patnidar is described as the defaulting proprietor and to the fact that the rent receivable by the zamindar is stated to be his reserved property in the tenure. Now, no doubt, the patnidar has in many places in the regulation been referred to as the proprietor; but there is no necessity to attach any special significance to that term, since the patnidar is also referred to as a lessee throughout the regulation. In regard to the other point, it is sufficient to say that the rent is also the reserved property of the zamindar in a mukarrari tenure. The learned Judge then refers to Section 36 of Mr. Field''s Introduction to the Regulations which is in these words:

Considerable sums are paid by way of fine in the creation of both the parent and subordinate taluks. Men who do not like to part with the status of zamindar by an absolute sale of the zamindar will readily enough raise money by allowing the proprietary right to be carved up into estates of minor value, the whole substance going into the hands of others, while the name alone remains to them.

But every word in the passage cited will equally apply to a mukarrari lease in respect of which considerable sums are paid by way of fine. The learned Judge also relied on Joy Kisen Mookerjee v. The Collector of East Burdwan [1863-66] 10 M.I.A. 16 and Raja Ranjit Singh v. Kali Dasi Debi AIR 1917 P.C. 8 With all respect, I do not see how these cases throw any light on the subject. The question in Joykisen Mookerjee v. The Collector of East Burdwan [1863] 10 M.I.A. 16 was whether a patnidar was entitled to possession of certain lands within the limits of his talukdari included in the decennial settlement which the Collector insisted were, previously to and at the time of that settlement, chakran lands, and had so continued up to the institution of the suit. The question, therefore, was a question between the settlement holder or one standing in the place of the settlement holder and the Government, as to the right to the chakran lands. Now the plaintiff happened to be not the zamindar but a patnidar; and all we get from the decision is the following passage:

The appellant became the purchaser and entered into the receipt of the rents and profits of the taluk, and it must be assumed that, as patnidar, be became entitled to the same rights in the subject-matter of the suit which were enjoyed by the zamindar.

Raja Ranjit Singh v. Kali Dasi Debi AIR 1917 P.C. 8 is to the same effect. But this proposition is not disputed in this litigation, and it is conceded by the respondent that in the property conveyed the patnidar has all the rights of a zamindar. But the question still remains whether a patnidar has the right to the underground rights which are not expressly conveyed to the patnidar. Upon this question the decisions of the Judicial Committee in the cases cited throw no light whatever.

I have considered the matter in some detail, as the question is an important one and has been left open by the Judicial Committee. For myself I am unable to see any distinction between the case of a patnidar and that of a mukarraridar and in any case I am unable to say that I differ from the decision of this Court in Ram Lal Kaviraj v. Satya Niranjan [1920] 5 Pat. L.J. 563. I must therefore affirm the decision of the learned Subordinate Judge on this point.

It was nest contended that mineral rights were expressly granted by the transaction of 9th May 1854. The contention is founded upon the following passage in the patta:

You shall be in possession, of all the zamindari rights and interest as prevailing from before in the lands included in the said mauza from before.

It was argued before us that the zamindari rights include all the rights of a zamindar; and that, therefore, as the zemindar could conduct mining operations and carry away the coal, so could the patnidar under the express terms of the grand. In my opinion the zamindari rights are conferred upon the subject-matter of the grant, so that we come back to the original question, whether the minerals are expressly granted. There is nothing to show that subsoil rights are included in the grant; and, it seems to me that the subject-matter of the grant being ascertained and there being nothing to show that subsoil rights were included in the grant, a grant of zamindari rights on what was expressly conveyed, to quote the words of their Lordships in Raj Kumar Thakur Giridhari Singh v. Megh Lal Pandey AIR 1917 P.C. 163

do not increase the actual corpus of the subject affected by the patta. They only give expressly what might otherwise quite well be implied, namely that corpus being once ascertained there will be carried with it all rights appurtenant thereto, including not only possession of the subject itself, but it may be of rights of passage, water, or the like, which enure to the subject of the patta and may even be derivable from outside properties.

In my opinion, therefore, the construction of the patta does not help the case of the defendants.

Lastly it was contended that the defendants have acquired a title by adverse possession- A large number of documents have been placed before us to establish that the defendants have carried on mining operations on a large scale for many years; but it seems to me that on the admitted facts of the case this point must be decided against the defendants. Now it is well known that every colliery has to submit a report as to the working of colliery. In pursuance of statutory obligation the defendants submitted returns from 1907 to 1921. Mr. Simpson, the Chief. Inspector of Mines in India produced those returns and in his evidence he said that the defendants did not make any returns before 1907. He definitely stated in his evidence that if the mine is worked even one day in a year, the return must be submitted. It follows from this that mining operations were not conducted by the defendants on a large scale before 1907. The suit was instituted in 1915. It follows, therefore, that the defendants have not been conducting under-ground operations on a large scale for twelve years before suit and that accordingly they have acquired no title by adverse possession.

There only remains the question of damages. Mr. B.C. Barat who is an expert on the subject was appointed a commissioner to ascertain the amount of coal extracted and the prices thereof and he submitted a report and this report was accepted by the learned Subordinate Judge. In my opinion no ground has been shown why we should interfere with the judgment of the learned Subordinate Judge on the question of damages. The appeal fails and must be dismissed with costs.

Allanson, J.

I agree.