Midnapur Zamindari Co. Ltd. vs Maneck Homi and Others

Manohar Lall, J.—In this appeal by the plaintiff the principal question for decision is whether the appellant has title to the subsoil or mineral rights in the lands of village Mango and part of village Pardih lying within the ambit of Pergana Barabhum.

The plaintiff is the Midnapore Zamindary Co. Ltd. who claim title to the subsoil rights as the patnidar and permanent lessee of Taraf Satrakhani and others Tarafs in Pergana Barabhum under the zamindar Raja by various transfers from about 1885 onwards that will have to be noticed in detail hereafter--the villages in suit are admittedly situated, in the ambit of Taraf Satrakhani.

On 7-1-1941, the plaintiff- appellant instituted a suit, T.S. No. 3 of 1941, in the Court of the Subordinate Judge of Purulia upon the allegation that Radha Govind Singh, who was a tenure holder under the plaintiff, without any right to the subsoil and Liinerals in the properties in that suit, was allowing his servants, agents and employees to carry away, stone, ballast, boulders, morrum and sand by digging, quarrying, ballasting etc. and trying to realise royalties. Accordingly, the plaintiff asked for a decree that the rights of the plaintiff be declared to the mines, minerals and subsoil in the properties in suit and a decree may be passed for a permanent injunction restraining the defendant, his servants and agents from interfering with the rights of the plaintiff company to those minerals and subsoil rights. It was also prayed that the defendant may be asked to furnish an account of all the royalties realised by him in respect of the minerals.

Radha Gobind Singh in his written statement denied inter alia that the plaintiff had any rights whatsoever to the minerals and in the course of the trial further contended that his position was not that of a tenure-holder under the company but of an independent proprietor coeval with the zamindar of Barabhum from whom the company claimed title. He also pleaded that the suit of the plaintiff was barred by limitation, estopped and acquiescence.

On 20-3-1941, the plaintiff company filed another suit, Title Suit No. 109 of 1941, in the a Court of the same Subordinate Judge against Maneck Homi and Khurshed Maneokji Bharucha in which, after reciting the above facts upon which the plaintiff based his title, it was alleged that these two defendants were claiming to hold the property in dispute under an indenture dated 25-9-1919, executed in their favour by Radhagobind Singh and were threatening to interfere with the works of the contractors of the plaintiff and forcibly with the help of their creatures and lathials were threatening to stop the work of the plaintiff. Accordingly, the plaintiff prayed for a declaration that these two defendants had no right whatsoever to the minerals and subsoil rights in the property in suit and for a permanent injunction restraining them, their servants and contractors from interfering with the works of the plaintiff and his licensees.

In the written statement these two defendants took a similar plea as was taken by their lessor Radhagovind Singh. They pleaded that Radhagovind was a necessary party to the suit. They further alleged that the plaintiff had no title to maintain the suit which was barred by limitation.

These two suits were tried together by consent of the parties and were disposed of by one judgment dated 14-1-1948, by Mr. Upendra Narayan Singh, the learned Subordinate Judge of Purulia, who has written an able and exhaustive judgment. The learned Subordinate Judge held that neither the zamindar of Barabhum nor the plaintiff had any title to the minerals or to the subsoil rights in the villages in both the suits and that the entire Taraf known as Taraf Satrakhani was held by the ancestors of Radhagovind Singh from time immemorial not by virtue of any grant from the Baja of Barabhum but by virtue of their own independent rights of a full proprietor and that they were not subordinate to but coeval with the Baja of Barabhum. He also held that the plaintiff was precluded from claiming the rights by reason of estoppel and acquiescence. Lastly, he held that the two suits of the plaintiff were barred by limitation because, he was satisfied on the evidence that the possession of the defendants and their ancestors was adequate in continuity, publicity and extent so as to entitle them to claim right by adverse possession. Accordingly, the two suits were dismissed.

From these decisions and decrees two appeals were preferred by the plaintiff, one to this Court and the other to the Court of the District Judge and this has been transferred to this Court. In First Appeal No. 32 of 1943 filed directly to this Court Radha Gobind Singh was the respondent and in First Appeal No. 205 of 1944 which was transferred to this Court--Maneck Homi and Khurshed Maneckji Bharucha are the two respondents.

First Appeal No. 32 of 1943 was disposed of as a result of a compromise by a petition dated 5-9-1946, between the plaintiff and Raaha Govind Singh. One of the terms of the compromise was that on payment of a salami of Rs. 10,000 the plaintiff company will grant a permanent lease of the underground rights with respect to a number of villages including the villages in the suit against Homi and Bharucha to Radha Gobind Singh and that a regular lease will be registered containing the agreed terms--a draft of the proposed lease was also attached to the compromise petition. It was also stated in that compromise petition that the appeal against Maneek Homi and Khurshed Maneckji Bharucha will proceed and that the compromise was irrespective of the result of that appeal. In pursuance of that compromise we are informed a lease has since been registered.

First Appeal No. 205 of 1944 was taken up for hearing on 224-1947. On that date learned advocate for Maneek Homi raised the objection that as a result of the compromise decree passed by this Court in First Appeal No. 32 of 1943 and of the execution and registration of a lease by the plaintiff in favour of Radhagobind Singh, the plaintiff was no longer entitled to any relief and the decree of the lower Court should be affirmed irrespective of the correctness or other, wise of the findings of the Subordinate Judge. After hearing the parties we were satisfied that this objection was not well-founded (see our order dated 22-4.1947). We thought it desirable, however, that Radhagovind Singh should be made a party in this appeal. Accordingly he has been made a party and we have now heard learned advocates for the plaintiff-appellant, for the respondent Maneek Homi--respondent Khurshed Maneckji Bharucha has not appeared--and the learned advocate for Radha Gobind Singh who supports the appellant. Mr. S.C. Mazumdar on behalf of the appellant has presented a careful argument and we are indebted to Mr. R.S. Ghatterji for a very able and interesting argument.

Bights of Bag in Taraf Satrakhani : The zamindari of the Raja of Barabhum includes four principal Tarafs including Taraf Satrakhani in which the villages in suit are situated. The question whether the Raja of Barabhum with whom the permanent settlement of pergana Barabhum was admittedly made in 1793 is the sole proprietor of Taraf Satrakhani and the other three Tarafs, or whether the Taraf, Sardars are shikmi proprietors coeval with the Raja of Barabhum has been the subject of a most exhaustive and illuminating judgment by the late Sir Jwala Prasad in 3 Pat. 673.1 The question again came up for consideration in 13 Pat 5172 where Khwaja Mohammad Noor J., in a considerably shorter judgment has clerrly set out the real position of the Taraf Sardars. It has been held in these two judgments that the claim of the Taraf Sardars was to be treated as independent proprietors coeval with the Raja of Barabhum was not correct and that they were subordinate tenure-holders under the Raja to whom they paid Panchak or quitrents in addition to the performance of police duties for which they enjoyed the remaining portion of the villages in their respective Tarafs. These two judgments have discussed and considered the important materials that were relied on, viz, the oft-quoted judgment in the suit of 1872, the rafanama by which the dispute between the company, the predecessor of the plaintiff company and the Taraf Sardars was settled, the Ismnavisi of 1833 and the Report of Munshi Nandji of 1883, the notes and views of Col. Dalton, Strachy, Risley, Sifton and other public officers. Apart from some other evidence, these materials have again been placed before us in the record of these two suits.

It has been pointed out in the judgments in Mathewson v. Secretaty of State AIR 1924 Pat. 616 (which concerned Taraif Panchardari) and in Muktakeshi Patrani v. Midnapore Zamindary Co. Ltd. AIR 1935 Pat. 33 (which concerned Taraf Tinsaiya) that the comments and views of the public officers are entitled to weight but cannot form the basis of a judicial decision and that the origin of these Taraf Sardars and their relation with the-Raj Barabhum and matters of ancient history and reliable data are not available to come to any definite conclusion but this can be safely concluded that at the time of the Permanent Settlement and ever since the Taraf Sardars were undoubtedly treated as subordinate tenure-holders, and that when in 1833 a dispute arose between the zamindar, the Hatwals and the sardars as to whether the lajster held any mal land over and above the lands, which they held as ghatwali tenures, they filed is mnavisi showing what lands are held as mal and what as ghatwali lands, and the dispute further accentuated in or about 1884 when the Raja of Barabhum granted the patni lease, to Robert Watson & Company who threatened the Sardars and the Government with an expensive and protracted litigation. At that time the Taraf Sardars again appear to have claimed to be shikmi zamindars, but at the instance of the Government Mr. Risley brought about a compromise in 1884 in which the claim of the Taraf Sardars to be treated as shikmidars was disallowed. On an examination of this history the learned Judges in those two cases, as I have stated above, came to the clear conclusion that whatever the position of the Sardars may have been in the past, ever since the Permanent Settlement they have undoubtedly been nothing more than subordinate tenure-holders. The conclusions arrived at in those two judgments, however, are not binding upon Radha Gobind Singh, Maneck Homi and Khurshed Manekji Bharucha who were no party to those suits, but the reasonings of the learned Judges are entitled to the highest weight and must be followed by me unless I am forced to different conclusions from the very materials which they examined and which have also been placed before .us. Of course, if there are any materials other than those which the learned Judges examined, it will be the duty of this Court to come to an independent conclusion in deciding the title of the parties.

To begin with, it must at once be stated that as between the plaintiff and the two respondents the right in the minerals must be originally presumed to be either with the Raja of Barabhum or with the ancestors of Radha Gobind Singh. Thi3 view is based on the Privy Council case in Govind Narayan Singh v. Sham Lal Singh AIR 1931 P.X. 89 where it has been held that the subsoil rights in land forming part of a permanently settled zamindari are presumed at all events when they are not claimed by the Crown to belong to the zamindar and unless the grant expressly included the subsoil rights it would not convey them: see also Durga Prasad Singh v. Brojo Nath Bose (12) 39 Cal. 696 the case of a ghatwal of Manbhum which followed the decision of the Privy Council in Hari Narayan Singh Deo v. Sriram Chakravarti (10) 37 Cal. 723. I am, therefore, unable to entertain the argument of Mr. Chatterji that the title to the minerals should be held to be with the Government. This is against the defence taken by these two defendants in the written statement and was not raised in the Court below.

I now proceed to discuss the evidence which is to be found in the records of this case to show that the view taken by this Court in the two cases referred to above must be accepted as correct at least up to the year 1891.

The judgment of Mr. Rowlett (ex. 4) of the year 1872 clearly established that Taraf Satrakhani was a ghatwali tenure and that the Taraf Sardar of that date entirely failed to prove that he held it as a shikari zamindari. The Report of Muashi Nandji (Ex. 29) of 1883 clearly takes the same view in paras 84 and 85 and the conclusion reached there was that it was conclusively established that Taraf Satrakhani was a ghatwali tenure and there was no land within its ambit in the possession of the Sardar Ghatwal which could be said to belong to him as a shikmi zamindar. The learned Subordinate Judge has relied upon para. 51 of the Report, but, in my opinion, he erred in. treating the statement in this paragraph as the opinion of Munshi Nandji because the paragraph merely gives an extract from an earlier report of Babu Rai Charan Ghose, the Personal Assistant to the Commissioner of the Division, dated 25 3-1875. The rafanama or the deed of agreement between Manmohan Singh the father of Radha Gobind Singh and Robert Watson & Co. and the Government, known as the Ghatwali Rafanama--Ex. 11--also clearly recognizes this position in various paragraphs, erg.,-paras. 10, 13 and 15. The opinion of Sifton in the Settlement Report of Barabhum, of Mr. Dent, the Joint Commissioner for the year 1832, of Col. Doulton and of Strachey show that they took the opposite view and these have been chiefly relied upon by the learned Subordinate Judge. But it is now well settled that these opinions, although they are certainly entitled to weight, cannot form the basis of a judicial decision. As a contrast, Risley and Nandjee took the opposite view. It may also be stated here that in the Survey record of rights (Ex. 26 series) Manmohan Singh is recorded as a mukarraridar under the Midnapore Zamindari Co., who was recorded as patnidar under the Raja of Barabhum. This entry in the record of rights has a statutory presumption of correctness attached to it. For these reasons I am saitsfied that it must be held that up to the year 1891 the evidence discloses that the ancestors of the parties, namely, the Raja and the Taraf Sardar of Satrakhani, accepted the position which was undoubtedly the correct position in law on the evidence that the Raja of Barabhum was the zamindar with whom the whole of the pergana, including Taraf Satrakhani, was permanently settled by the Government and/that the Taraf Sardar was a subordinate tenure-holder under him.

Has the position then been altered by reason of any subsequent event as may appear from the evidence which is to be found in this case ? .

On 9-2-1892, Manmohan Singh instituted a title suit for a declaration that the rafanama or the Ghatwali agreement of 1884 should be set aside as the Commissioner of the Chota Nagpur Division, who signed the agreement on behalf of Manmohan Singh whose estate was then under the operation of Act 6 [VI] pf 1884, was not authorised in law or in fact to enter into this agreement which was alleged to have been entered into through foul and undue influence: see Ex. 7 (p. 42 of Part 3 of the paper book) In that plaint it was asserted in para. 1 that Taraf Satrakhani was the ancestral zamindari interest of the plaintiff for which he was liable to pay panchak jama of Rs. 873-10-0 annually to the Raja, but there is no specific allegation in tht. plaint that the Sardar was the shikmi proprietor or an independent proprietor of Taraf Satrakhani. In the written statement (Ex. 8) Robert Watson & Co. (who had obtained patni leases of pergana Barabhum from the Raja in 1885 and 1890) clearly stated in para. 7 that the plaintiff had no shikmi zamindari right in Taraf Satrakhani. The dispute between the parties was settled by a compromise (Ex. 9) dated 18-8-1893. The first term of the compromise was :

That out of Taraf Satrakhani appertaining to pergana Barabhum, the mouzas included in Schedule 1 below constitute ancestral ghatwali interest and the mouzas mentioned in Schdule 2 below constitute ancestral istimrari interest of the plaintiff and they are included in Taraf Satrakhani and Taraf Satrakhani constitutes patni taluq interest of us, the defendants.

The third term shows that in lieu of the deed of compromise of 1884 the rights of the parties will now be regularised by this compromise of 1893. By paras. 4 and 6, Manmohan Singh agreed to pay Rs. 840 for the ghatwali villages and Rs. 2100 for the non-ghatwali villages to the defendant company. The learned Subordinate Judge take3 the view that by this compromise the defendant company recognized the claim of Sardar Ghatwal to be the independent proprietor of the villages within the ambit of Taraf Satrakhani. Before considering whether this view is correct it is necessary to find out what was the title of Robert Watson & Co. on the date of this suit.

On 27-2-1883, the Raja of Barabhum made an ijara settlement with Robert Watson & Co. for a term of 21 years, 1290 to 1310 Fasli, at an annual jama of Rs. 20,000 which amount was reduced in the following year to Rs. 19,000; the ijara was for the entire zamindari and some portion of it was given in patni: see the recitals in Ex. 1 (p. 21) and Ex. 1 (a) (p. 30).

On 8-3-1885, the Raja executed a permanent patni lease at an annual mukarrari jama of Rs. 4500 on receiving a salami of Rs. 80,000. It is recited in Ex. 1 (at p. 22) that the Raja had promised at the time of the ijara that if within the term of the ijara, Robert Watson "& Co. desired to take patni settlement of the four Tarafs and the villages lying within the boundaries situated therein, that is to say, the ghatwali villages excepting the non-ghatwali villages, he will be prepared to grant a patni settlement and that it was in accordance with this promise that the Raja was making the patni settlement of the ghatwali villages only situated within all the four Tarafs together with the subsoil and mineral rights Paragraph 14 of ex. 1 excludes the non-ghatwali villages which are mentioned in para. 15.

On 29-6-1890, by Ex. 1 (a), the Deputy Commissioner on behalf of the Raj, after reciting fee ijara settlement of 1883 and the patni settlement of 8-3-1885, made a patni settlement of the non-ghatwali villages together with the subsoil rights in favour of Robert Watson & Co., on re-ceivisg, a salami of Rs. 30,000 and at a per-manently fixed patni jama of Rs. 3069-3-10 gandas.

It appears, however, that the subsoil rights in the whole of the pargana had already been transferred by the Raja to Mr. N. Kenny by a mukarrari patta--Ex.2 (a) dated 12-11-1881.

It is, therefore, clear that on the "date of the suit of 1892, Robert Watson & Co., did not possess the underground rights either in the ghatwali or in the non-ghatwali villages situated within the four Tarafs although the Raja purported to grant these by the two documents of 1885 and 1890.

By the compromise of 18-8-1893, Manmohan Singh and Robert Watson & Co. settled their differences by stipulating that the previous rafanama of 6-8 1884 will be now superseded by the terms of this compromise (Ex. 9) and further in accordance with another term of this compromise a mokarrari patta and a mokarrari kabu-liat were executed by Robert Watson & Co., in favour of Manmohan Singh and by the latter in favour of the company (Ex. 0, p. 62 and Ex. 3, p. 60) dated 16-2-1894; The recitals in Ex. c, the mokarrari patta, are that Taraf Satrakhani is included in the patni taluk of Robert Watson & Co., and the non-ghatwali villages described in Schedule. 1 are in the possession of Manmohan Singh. It also recites that with regard* to the non-ghatwali villages a sum of Rs. 2100 will be paid by Manmohan Singh and his successors perpetually to the company and that an annual jpanehak of Rs. 240 will be paid by Manmohan Singh and his successors with regard to the Ghatwali villages. It is also recited in the Mokarrari kabuliat that the company will possess and occupy the non-ghatwali villages mentioned in the schedule together with the dangas, hills etc.,--villages Mango and Pardih are specifically mentioned at pp. 61 and 63 in the schedule.

Upon a consideration of the terms of the compromise of 1894 and the terms of the mokarrari patta and the mokarrari kabuliat of 16-2-1894, I am of the opinion that the parties did not specifically alter the position in law, that the Raja of Barabhum was the zamindar of the entire pergana Barabhum but established the position that the company would be in possession of the entire underground rights in the non ghatwali villages and also in the ghatwali villages but the right of Manmohan Singh to be in possession of the ghatwali villages and the non-ghatwali villages was recognised.

The title of Watson & Co. in pergana Barabhum was conveyed by Ex. 18 (c) on 15.4-1896, to Herbert Mathewson who conveyed the whole of his interest to the plaintiff on 25-6-1906, by Ex. 18 (d).

It is well to recapitulate the position. The company, predecessor of the plaintiff, came to a settlement with regard to the underground rights in the Tillages, both ghatwali and the nonghatwali, in Taraf Satrakhani--the company was claiming to be entitled to the underground rights as a permanent lessee from the Raja and Manmohan Singh was claiming that right as an independent Shiknii proprietor. It may be stated here that I am not referring to the dispute which had been continuing for years past between the Raja and the Taraf Sardars as to the rights of the latter to remain in possession of the non-ghatwali villages over and above those which were found to be in their possession in the Ismnavisi of 1833--the number of such villages had increased since the time of the Permanent Settlement and I have seen it stated in several judgments of this Court that Robert Watson & Co. came on the scene as a powerful champion of the rights of the Raja to take possession from the Taraf Sardars of those villages of which they had been alleged to be in wrongful possession. It will be noticed that the com-promise of 1894 could affect the rights of Kenny, who, as stated above, had obtained a transfer of the entire mineral rights from the Raja as far back as 1881.

The rights of Kenny were transferred to the plaintiff in this way. On 24-2-1882, Kenny made a declaration of trust with respect to the underground rights in Raj Barabhum by Ex. 14. The schedule gives the names of all the cosharers who had acquired these underground rights. Kenny himself held a 3/32nd share. In 1891, the Barabhum Coal Co. was formed to acquire the rights of those cosharers--Ex. 16 is the Memorandum of Association dated 28-1-1891. On 5-2-1891, the cosharers including Kenny entered into an agreement for sale of their rights in the per-manent mukarrari of 1881 in favour of Barabhum Coal Co. (Ex. 15). Kenny died between 1891 and 1905 leaving a will. One Foley on 2-12-1905, obtained letters of administration from the Calcutta High Court to the assets of Kenny including the assets specifically disposed of by the will and those with regard to which there was an intestacy. Under the powers granted by the letters of administration, Foley transferred the rights of all the cosharera including Kenny''s rights in the mukarrari patta of 1881 in favour of Barabhum Coal Co.-Ex. 18. On 14-7-1916, Barabhum Coal Co. transferred their rights thus acquired in favour of Billinghurst--this document has not been printed in the paper book but the date has been supplied to us by the learned advocates appearing before no Billinghurst finally transferred the rights which he acquired in 1916, to Midnapore Zamindary Co., the plaintiff, on 15-1-1917, by Ex. 18 (b).

It will be seen, therefore, that the plaintiff acquired rights to the underground rights in the entire Ra; Barabhum only in 1917.

It is as well to dispose of here an argument of Mr. Chatterji that the plaintiff did not acquire any rights in 1917 as Foley had acquired no rights whatsoever under, the letters of administration. His argument is that the rights of Kenny under the mukarrari patta of 1881 were not disposed of by the will and as there was an intestacy the letters of administration gave no rights in law to Foley. It ia enough to refer to the Midnapur Zamindari Co. Ltd. ram Kanai Singh Deo AIR 1926 Pat. 130 where this argument was expressly considered and overruled by a Division Bench in the following words:

Now it is quite true that Kenny did not deal with the demised property in his will and the learned Subordinate Judge is right in saying that ''so far as this property is concerned, he died intestate.'' But even the estate of an intestate has to be administered in due course of law; and Section 179, Succession Act, says that the ''exeoutor or administrator, as the case may be, of a deceased person, is his legal representative for all purposes, and all the property of the deceased person vests in him as such.'' Now what is the meaning of the words ''all the property of the deceased''? There is high authority for the view that the words ''all the property of the deceased'' must be construed as meaning the actual property of the deceased, whether held by him for his own benefit or for the benefit of others : see De Souza v. Secretary of State (74) 12 Beng. L.R. 423 There is no reason to doubt therefore that the demised property vested in Foley as such administrator u/s 179, Succession Act.

Das J. who delivered the judgment, then goes'' on to consider whether Foley was entitled to convey the property to the Barabhum Coal Co. and comes to the conclusion on a consideration of various sections of the Succession Act that the conveyance in favour of Barabhum Coal Co. was not liable to be attacked and therefore the plaintiff company had established his title to the demised property in consequence of the transaction between Barabhum Coal Co. to Billinghurst and from Billinghurst to Midnapore Zamindary Co. Ltd. I am bound by the decision of a Division Bench and in my view it was a correct decision. I must, therefore, overrule this contention.

The learned Subordinate Judge thought that by the compromise of 1898, Robert Watson & Co. accepted the position that Taraf Satrakhani was an independent zamindari of Manmohan. As I construe the compromise, I do not accept that position. But, even if that position is accepted, it "does not alter the situation because Robert Watson & Co. acquired the rights to the minerals by the transactions of 1894, several times referred to above, and certainly the plaintiff as the transferee of Kenny''s interest acquired those rights only in 1917 and was not bound by the compromise between Manmohan Singh and Robert Watson & Co., because in that view Robert Watson & Co. had only the patni rights and not the subsoil rights even though the Raja purported to transfer the subsoil rights also to Robert Watson & Co. in 1885 and 1890.

But it is argued that there are some further transactions, both before and after the compromise of 1894, which alter the position. On 15-10-1890, Manmohan Singh made a permanent mukarrari settlement with A. Cohen of the underground mineral rights in Taraf Satrakhani in the non-ghatwali villages: see the kabuliat Ex. a(i) at p. so, where stone quarries in village Pardih, one of the villages in suit, are expressly excluded. On 11-10-1893, Manmoban Singh made a temporary settlement with A. Whyte for 30 years, 1801 to 1830 Pasli of the underground rights in the ghatwali and non-ghatwali villages of Taraf Satrakhani subject to the rights of Cohen in the non-ghatwali villages: Exhibit A (2) p. 48. In this document the previous lease to Cohen is recited in this way:

Prior to this, the settlement of subsoil fight of the mauza of Taraf Satrakbani mentioned in schedule ka which you made with Mr. Cohen was in respect of minerals only, you did not settle the aforesaid limestone, etc.

In schedule ka to this document, villages Mango and Pardih are specifically mentioned (at pp. 50 and 5l). .

On 20th February 1894, Manmohan Singh executed a darmokrrari patta having obtained a mukarrari patta from Robert Watson & Co, on 16th February 1894, as stated already, by which he settled some excess mal lands in Taraf Satrakhani with Robert Watson & Co., expressly excepting what was settled with Cohen and with Whyte in 1890 and 1898.

It is argued on behalf of the respondents that the effect of these transactions just refer-red to was that the plaintiff is estopped from denying that Manmohan Singh had a right to the underground rights which he transferred to Cohen and Whyte and also by darmukarrari transaction with Eobert Watson & Co., itself. In the first place, there is no evidence that Cohen and Whyte ever entered into possession of the underground rights which they obtained by the leases of 1890 and 1893, or even if they entered into possession that they remained in possession for any appreciable period. The leases in favour of Cohen and Whyte must, therefore, be ignored. The darmukarrari transaction in favour of Robert Watson & Co., did not relate to the lands of the villages in suit but expressly related to some excess villages which were outside those villages which were measured and demarcated as ghatwali both by Munshi Nandji and Mr. Risley--the villages in suit are not to be found in the schedule to the darmukarrari kabuliat. This transaction, therefore, is of no assistance to the defendants in the present case.

But the most serious contention which the plaintiff has advanced is that Robert Watson & Co., are not the plaintiffs. As I have shown above, the plaintiff became entitled to the mineral rights in 1917 and the mineral rights were with Kenny and his co-sharers ever since W81 and neither Kenny nor his co-sharers nor their successors were parties to these transactions.

I do not understand how the learned Subordinate Judge has come to the conclusion that in view of the terms of these two documents the plaintiff is precluded from claiming the rights of (by?) estoppel and acquiescence.

I, therefore, conclude as follows:

(1) The Taraf Sardar has not established on the evidence that he is a shikmi proprietor of the ghatwali or the non-ghatwali villages appertaining to Taraf Satrakhani.

(2) As between the zamindar with whom the Permanent Settlement of Raj Barabhum was made in 1798 and the Taraf Sardar, the title to the underground minerals and subsoil rights is with the Raja and, therefore, with his transferee Kenny and thereafter it has come to the plaintiff.

(3) Neither the compromise of 1894 nor the execution of the leases to Whyte and Cohen, nor the mukarrari lease of 1894 by Robert Watson & Co., in favour of Manmohan Singh nor the darmukarrari settlement of the same year by Manmehan Singh with Robert Watson & Co., affect the title of the plaintiff either in fact or in law or by reason of the doctrines of estoppel and acquiescence.

The underground rights having thus been found to be with the plaintiff, have those rights been transferred to the defendants Homi and Bharucha?

No document has been produced in this case to show that by any express words either the Raja or Kenny or the plaintiff transferred the underground rights to Manmohan Singh apart from the documents of 1894 which I have discussed above. The two defendants are in further difficulty because their title to the underground rights in the villages in suit is based upon the lease by Radhagobind Singh, dated 5th September 1919: Ex. 12 (e). A perusal of this lease would show that the underground rights have not been transferred expressly and clearly to Homi and Bharucha. These defendants, therefore, have no underground rights whatsoever in the village in suit.

I have already shown that the lessor of these defendants, Radhagobind or his father Manmohan Singh, had no claim to the underground rights in these villages as against the plaintiff.

One of the arguments accepted by the learned Subordinate Judge was that the lease of Kenny did not extend to the entire parganna Barabhum but only to some specified limit which was indicated in red in the map attached to the lease but as the map has not been produced it is impossible to find out what the area was.

On behalf of the appellant it has been argued that the operative part of the ''document is:

I settle in permanent mukarrari right with you the right of extracting and appropriating the underground minerals...lying within parganna Barabhum of my Raj specified in the schedule...and appertaining to pargannas Bharabhum...all tights to the underground minerals lying within the entire parganna...

It is argued that the words " lying within the boundaries shown in red line " towards the end of the western boundary (at p. 8) are reduadant and cannot contradict the recitals in the operative part which I have quoted above. It is also argued that the certified copy of the mukarrari patta which has been filed in the case does not show that any map was, attached to the document and that the defendants did not call upon the plaintiff to produce any map and, therefore, they are precluded from submitting that the map if produced would have destroyed the" plaintiff''s right and reliance was placed upon the 1-rivy Council case in Bilas Kunwar v. Desraj Ranjit Singh AIR 1915 P.C. 96. The learned Subordinate Judge, on the other hand, accepted the defendants'' argument that the description in the schedule should prevail over the recitals in the first part of the document.

I am inclined to agree with the appellant''s argument that it has not been established in this case that there was any map attached to the lease of Kenny. If the defendants had called upon the plaintiff to produce the map, the plaintiff would have shown why he was unable to produce the map. What I suspect, however, is that a portion in the map was to be made red in order to show the boundaries of parganna Barabhum and not to fix the boundaries of a part of the parganna. For instance, in the patni document of 1885 (Ex, 1) it is stated at p. 22:

In the copy of the survey map of 1869 of the district of Manbhum forming part and parcel of the Baid Ijara patta, the portion covered by parganna Barabhum was shown in red and yellow colours.

But be that as it may, I am satisfied that on the materials as they exist it cannot be held that the plaintiff has withheld any map which was ever attached to the mukarrari document in favour of Kenny. The plaintiff filed the certified copy and it was equally possible for the defendants to haw obtained a certified copy of the mukarrari patta with the map said to have been attached to it.

The learned Subordinate Judge also observes that from the recitals of the sale deed Ex, 18 executed by Foley, it would appear that the lease of Kenny was not in respect of the entire parganna Barabhum. I have read the recitals of Ex. 18 but I am unable to find anything to support the view of the learned Subordinate Judge. Perhaps the learned Subordinate Judge was thinking of the exception made regarding Taraf Dhadka stated in the body of the "document and also in the schedule, but in the present case we are not concerned with Taraf Dhadka.

The learned Subordinate Judge also took the view that Section 43, T.P. Act Operates against the plaintiff by reason of the execution of Ex. 3 and Ex. c, namely, the patta and kabuliat of 1894. I have already shown that I do not see how the plaintiff who acquired the underground rights not as transferee of Robert Watson & Co., but as transferee of Kenny can at all be affected by the doctrine of acquiescence and estoppel.

46 For these reasons, I must reverse the finding of the learned Subordinate Judge and hold that the title in the underground right was at all material times with Kenny from 1881 onwards and was with the plaintiff from 1917 onwards and that even as between Robert Watson & Co., and Manmohan Singh the rights to and possession of the minerals and other underground rights were with Robert Watson & Co,, and thereafter with the plaintiff.

The defendants not being entitled to any underground rights it is upon them to establish that the suit of the plaintiff was barred by limitation in that within the meaning of Article 144, Limitation Act they have been openly and adversely possessing the entire subject-matter of these two suits against the plaintiff: see among other cases the Privy Council cases in Nageshwar Bux Roy v. Bengal Coal Company and AIR 1931 89 (Privy Council) .

The learned Subordinate Judge has recorded a finding'' that the disputed rights in the villages in suit were all along in possession of Radhagobind Singh or his ancestors from long before 12 years of the institution of the , present suit and the plaintiff had full knowledge of his use of the mineral rights. Is this conclusion correct?.

It is important to remember that in the present appeal we are concerned with only two villages--Mango and Pardih.

The evidence of the defendants must now be examined. The two leases of Cohen and Whyte of the years 1890 and 1893 have already been dealt with by me and I have shown that there is no evidence on the record that these two lessees remained in possession for any material length of time. On the other hand, there are indications in the evidence that Whyte did not work the underground rights which he got by the lease and, therefore, in 1900 the same villages were granted in lease to Gopal Chandra Mitra.

Exhibit A(4) is a kabuliat executed by Gopal Chandra Mitra in favour of Manmohan Singh and is dated 6th March 1900. This was a settlement of a number of villages including the villages in suit for a period of 15 years--1807-1321 B.S. The learned Subordinate Judge has not referred to any evidence of actual working by Gopal Chandra Mitra so that it could be found out whether the working was openly hostile and continuous so as to attract the operation of the rule of adverse possession with regard to the mineral rights.

Exhibit A(6) is a kabuliat executed by Prabash Chandra Mitra on 6th November 1910, but it is only with regard to stone quarry in Tago Hills situated in villages Padri and Mirzadih it was admitted before us that the suit land in Pardih are not covered by this document.

On 2nd February 1916, Radhagobind gave a lease of stone quarry in village Pardih to Nityanand Dutta for 1323 to 1833 B. S., Exhibit B. It is impossible to believe the oral evidence of defendants'' witnesses 2, 3 and 4 that Nityanand worked out the stone quarry and took out stones from that to any substantial extent or for any considerable period. No account books or other papers of the time of Nityanand have been produced nor has any officer belonging the business of Nityanand come forward to give evidence. The evidence moreover is extremely vague and does not even give the year of the working, far less for how many years the working was continued. (After discussing the evidence the judgment continued).

This is all the evidence which has been adduced on behalf of the defendants. In my opinion, it is wholly insufficient to establish that Radbagobind was in adverse possession of the underground minerals of the villages in suit. The learned Subordinate Judge appears to have applied Article 142, Limitation Act, to the facts of this case, otherwise I cannot understand how on this evidence he could have come to the conclusion that the defendants have established a right by adverse possession over the mines of the villages in suit in favour of Radhagobind. The learned Subordinate Judge has shown that the evidence of actual working on behalf of the plaintiff is not very satisfactory and I agree ''with the conclusion, but the underground rights having been found with the plaintiff, his suit cannot be defeated because he is presumed to be in possession of the underground rights also unless the defendants establish by good evidence that the underground rights have ceased to be of the plaintiff on account of adverse possession by Radhagobind.

I may now briefly examine whether the defendants Homi and Bharucha have been able to give any reliable evidence of adverse possession. It will be remembered that the lease in favour of these two defendants is dated 1919. The learned Subordinate Judge does not refer to any evidence which has been adduced on behalf of these two defendants to show that they have been openly working the mines In the villages in suit to entitle them to the benefit of the rule of adverse possession. I have been unable to discover any evidence, oral or documentary, in favour of the working of the mines by these defendants for any substantial period of time, far less for the requisite period and indeed no serious argument was advanced on behalf of these two defendants that they have acquired any right to these mines by adverse possession. This is not to be wondered at in view of the averments in para. 8 of the written statement. In that paragraph they did not give any indication as to the period for which the defendants have been allowing their contractors to take away stones, boulders, gravel etc., from the mines in question.

For these reasons, I disagree with the finding of the learned Subordinate Judge that the suit of the plaintiff was barred by limitation.

Mr. Chatterji, on behalf of the respondents, argued that, in any event, the suit should fail with regard to the hills and the mines which were open in 1894, the date of the patta and kabuliyat by Robert Watson in favour of Manmohan Singh and vice vena. This question loses all importance in view of us finding that the execution of the kabuliyat and the patta of 1894 Gould not in this case affect the rights of the plaintiff who was no party to this kabuliyat and patta and who derived the rights to the minerals as a transferee of Kenny''s rights in 1917. As, however, the question is raised I propose to deal with it. In the first place, it is rightly contended on behalf of the appellant that this point was not, raised in the Court below and there is no decision of the Subordinate Judge on this point. Moreover, when it has already been found that Radhagobind had no right in the minerals, he. could not validly transfer those rights even in the open mines to Homi and further the lease in favour of Homi does not authorize him to work the mineral: see F.E. Cheistian v. Narbada Keori AIR 1915 Cal. 250 and Viner v. Vaghan (1840) 48 E.R. 1262.

With regard to the hills it is contended by Mr. Mazumdar that at the very highest Robert Watson & Co. conveyed only the rights to enjoy the stones and not to remove the stones from the hills. This contention is borne out by a recent decision of this Court in Kusum Kamini Sebya v. Jagdish Chandra Deo AIR 1941 Pat. 13 see also Purnendu Narayan v. Narendra Nath AIR 1943 Pat. 31.

Mr. Chatterji in the last place contended that as Badhagobind has now been accepted to be the lessee with regard to the underground rights by the plaintiff by reason of the execution of a lease as a result of a compromise in this Court we should hold that Homi and Bharucha have now a right to work the mines in the villages in question. I do not agree with this contention because we are deciding the rights of the parties on the date of the suit and not with regard to a new situation which has arisen as a result of a compromise in this Court between Radhagobind and the plaintiff. It may be that as a result of the compromise the plaintiff will not be able t& get any relief against Homi and Bharucha after the date of the lease and kabuliat executed in consequence of the compromise in this Court, but that question cannot be decided in the present appeal.

The result is that the appeal of the plaintiff must be allowed. The decision of the learned Subordinate Judge is set aside and the plaintiff will be entitled to the following relief. The plaintiff has a right to the mines, minerals and subsoil rights in Mauza Mango, Thana No. 135 and in the portions of Mauza Pardih, Thana No. 134, Survey plots 528 and 540 and the eastern part of plot 527 as described in the schedule to the plaint and it will be declared that the defendants have no right to the same or to interfere with the working of the same by the plaintiff. A permanent injunction will be issued against the defendants restraining them, their men, servants from interfering with the plaintiff''s possession direct or through their contractors of the minerals.

The plaintiff will get costs of this Court and of the Court below from these two defendants.

Mukharji, J.

I agree.