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Judgment
Lord Dunedin
The present action is as to the right to the minerals in a Mauza at Sultanpur. The plaintiffs are the Zamindars of a Zamindari within the bounds of which the said Mauza lies. The defendants are the putnidars and darputnidars of the said Mauza. The defendants are working, and, as the High Court have found - as to which finding no dispute has been raised before this Board - have worked the mines on a large scale since 1894 and to the knowledge of the plaintiffs since 1898.
The present suit was raised in 1915. The defendants rely upon three sepa rate defences. First, they say that being putnidars they are in possession of all the zamindari rights appertaining to the territory embraced in the putni lease unless exception has been expressed, and that no exception of minerals was express ed. Secondly, they say that the putni lease gives them the right to the minerals in express terms. Thirdly, they say that the suit is barred either under article 120 or article 144 of the schedule to the Limi tation Act.
The learned Subordinate Judge decided all three questions against the defendants and gave decree. On appeal the High Court of Patna affirmed the view of the Subordinate Judge on the first question, but reversed it on the second. It is some what difficult to say whether they affirmed or reversed on the third, but, as they were in favour of the defendants on the second, they dismissed the suit.
On appeal to this Board all these ques tions have been argued at great length, and it has been urged that the first ques tion is one of very general importance. Their Lordships, however, think that the case may be disposed of on the second and third questions. To take the third question first, the relief asked by the plaintiff''s was at once possessory and declaratory, for they ask "that it should be declared that the plaintiffs are entitled to and are in possession of the underground rights of the said Mauza." Their Lordships think that they are placed in this dilemma.
The suit is admittedly raised more than 12 years after the working of the minerals on a large scale, that is to say a proper working of the field. It must be assumed for the purposes of this plea that the plain tiffs are right on the first and second points. The working by the defendants was, therefore, working not under a lease, but by a mere trespasser. If, therefore, the suit is possessory, then it is barred under article 144 of schedule 1, for more than 12 years have elapsed since the possession became adverse.
If, on the other hand, the suit is decla ratory, it is barred under article 120, for more than 6 years have elapsed since the right to sue for the declaration emerged.
Further, their Lordships agree with the High Court on the second question. This depends on the document of title. It runs as follows :
DEED OF PATNI SETTLEMENT.
" We let out to you in Mofussail Putni settlement the Mauza Sultanpur, as per boundaries given in the Thakbasta papers, appertaining to Taraf Afzalpur and com prised in our Zamindari share, amounting to 4 annas in Tappa Kuntahit Karaya, excluding the Chakran Jagir, Debotar, Brahmotar and other extra lands, etc., and the Katai Jungles included in Tikish (?) at an annual rental of Rs. 25 in Company''s coin and a premium of Rs. 45 in Company''s coin. You will hold possession of all the lands appertaining thereto from a very long time, such as Mal, Khamar, Hasil, Patir, Bil, Jhil, Khal, Kandar, Pahar and Parbat, Jalkar, Falkar, the fruit-bearing and non-fruit-bearing trees and the Jungles and all rights and interests appertaining to all such things lying within the four bounda ries and above and below (the surfaces). You will not be ousted from the Zamindari."
There have bean a series of cases before this Board in which their Lord ships have held, in the case of leases of Mokurari and other tenures, that, in order to pass minerals to the lessee, ex press words must be used. They are :
Tituram Mukerji v. Cohen (1906) 33 Cal 203 : 32 IA 185 : 2 CLJ 408 : 9 CWN 1703 : 15 MLJ 379 : 7 Bom LR 920 : 3 ALJ 59 : 8 Sar 908 (PC). Hari Narayan Singh v. Sriram Chakravarti (1910) 37 Cal 723 : 37 IA 136 : 14 CWN 746 : 11 CLJ 653 : 7 ALJ 633 : 20 MLJ 569 : 12 Bom LR 495 : 8 MLT 51 : 6 IC 785 : (1910) MWN 309 (PC). Durga Prasad Singh v. Braja Nath Bose (1912) 39 Cal 696 : 39 IA 133 : 16 CWN 482 : (1912) MWN 425 : 11 MLT 337 : 9 ALJ 462 : 15 C LJ 461 : 14 Bom LR 445 : 15 IC 219 : 23 MLJ 26 (PC). Sashi Bhushan Misra v. Jyoti Prasad Singh Deo AIR 1916 PC 191: 44 Cal 585 : 44 IA 46 : 1 Pat LW 361 : 21 CW IN 377 : 15 A LJ 203 : 32 M LJ 245 : (1017) MWN 226 : 25 C LJ 255 : 21 M LT 305-19 Bom LR 416 : 6 LW 2 (PC). Giridhari Singh v. Megh Lal Pandey. AIR 1917 PC 163: 45 Cal 87 : 44 IA 246 : 7 LW 90 : 3 Pat LW 169 : 26 C LJ 584 : 22 CWN 201-22 MLT 358 : 33 MLJ 687 : 15 ALJ 851 (PC). Raghunath Roy Marwari v. Raja of Jherix AIR 1919 PC 17: 47 Cal 95 : 46 IA 158 : 17 ALJ 597 : 36 MLJ 660 : 23 CWN 914 : 26 M LT 76 : 30 C LJ 160 : 21 Bom LR 895 : 10 LW 347 (PC). Both the Subordinate Judge and the Judges of the High Court have decided that these cases equally apply to putni tenures. With out so deciding, this must be assumed for the purpose of deciding the second ques tion.
The Subordinate Judge thought that such words as " adha " " urdha " " Hadud Mahdud" were mere words of style commonly used by writers of deeds with out a proper understanding of their meaning, and therefore, refused to give any effect to them.
This seems a mistaken view. Common words of style used in conveyances of any sort may be, and often are, words of surplusage, but when they are not words of surplusage, they must be given the proper effect of their own meaning. This view was taken by the High Court. They thought that, looking to the anxious expression of the generality of the grant as evidenced by the long category of things conveyed, the words " adha " and urdha " made it plain that there was every intention to convey all below the surface as well as all on it or above it. With this view their Lordships agree.
Two more contentions of the appellants must, however, be stated in order to be set aside. Their counsel argued that S. 108 (o) of the Transfer of Property Act settled the question. Their Lord ships consider this an impossible conten tion. The meaning of the section is clear enough. It is obviously dealing with the ordinary rights of a lessee, in an ordinary lease but it would be nothing less than an absurdity to hold that its terms cut down the right to work a mineral field expressly conveyed. Even if the words " with leave to work " were added, the words of the section, if taken literally and as of uni versal application would prevail, because an Act of the legislature must prevail against private action.
They further argued that a right to the minerals does not infer a right to work. It is a general principle of all grants quando aliquid conseditur id etiam conseditur sine quo res ipsa non esse potesti. This is always true as between grantor and grantee, but it does not necessarily apply as against third parties.
If the grantor has granted the surface to A and the minerals to B, it may well be that the mere grant of the mineral will not include a right to bring down on otherwise injure the surface in the process of winning the mineral. But her there is no question of that sort. This grantee of the mineral is also the grantee of the surface.
Their Lordships have, therefore, no hesitation in saying that this grant of the minerals, is a question with the grantor, which is the only question here, included the right to work. Such being their Lordship''s views, which directly lead to an affirmance of the judgment of the High Court, they would, in ordinary circums tances, have said no more as to the first and general question of whether a putni tenure, without more said, transfers, as has been contended by the respondents, all the rights of the Zamindari, including the right to the minerals.
There is admittedly conflicting autho rity on the point, but the learned Sub ordinate Judge, and also the Judges of the High Court, considered that the authorities in favour of the putnidar were overruled by the decisions of the Board in the series of cases mentioned above.
Their Lordships cannot agree with that view. Tituram Mukerji v. Cohen (1906) 33 Cal 203 : 32 IA 185 : 2 CLJ 408 : 9 CWN 1703 : 15 MLJ 379 : 7 Bom LR 920 : 3 ALJ 59 : 8 Sar 908 (PC) was the case of a maintenance grant. This was held not to include minerals. Hari Narayan Singh v. Sriram Chakravarti (1910) 37 Cal 723 : 37 IA 136 : 14 CWN 746 : 11 CLJ 653 : 7 ALJ 633 : 20 MLJ 569 : 12 Bom LR 495 : 8 MLT 51 : 6 IC 785 : (1910) MWN 309 (PC) was debottar tenure. Durga Prasad Singh v. Braja Nath Bose (1912) 39 Cal 696 : 39 IA 133 : 16 CWN 482 : (1912) MWN 425 : 11 MLT 337 : 9 ALJ 462 : 15 C LJ 461 : 14 Bom LR 445 : 15 IC 219 : 23 MLJ 26 (PC) was the case of lease held as the appanage to the office of Digwar. Sashi Bhushan Misra v. Jyoti Prashad Singh AIR 1916 PC 191: 44 Cal 585 : 44 IA 46 : 1 Pat LW 361 : 21 CW IN 377 : 15 A LJ 203 : 32 M LJ 245 : (1017) MWN 226 : 25 C LJ 255 : 21 M LT 305-19 Bom LR 416 : 6 LW 2 (PC) was the case of a Brahmottar tenure, which means that was a grant to Brahmins for their support, Girdhari Singh v. Megh Lal Pandey AIR 1917 PC 163: 45 Cal 87 : 44 IA 246 : 7 LW 90 : 3 Pat LW 169 : 26 C LJ 584 : 22 CWN 201-22 MLT 358 : 33 MLJ 687 : 15 ALJ 851 (PC) was an ordinary Mokurari lease. Raghu nath Roy Marwari v. Raja of Jheria AIR 1919 PC 17: 47 Cal 95 : 46 IA 158 : 17 ALJ 597 : 36 MLJ 660 : 23 CWN 914 : 26 M LT 76 : 30 C LJ 160 : 21 Bom LR 895 : 10 LW 347 (PC) was again a case of Brahmottar tenure. Not one of these was the tenure of a putnir taluk in the hands of a putnidar. In their opinion the question, so far as direct decisions of this Board are concerned, is still open. It really turns on what is the true nature of a putni tenure. Their Lord ships think that the learned Judges have been misled by a wrong view of expres sions used by Lord Shaw in Giridhari Singh v. Megh Lal Pandey AIR 1917 PC 163: 45 Cal 87 : 44 IA 246 : 7 LW 90 : 3 Pat LW 169 : 26 C LJ 584 : 22 CWN 201-22 MLT 358 : 33 MLJ 687 : 15 ALJ 851 (PC) when quoting the judgment of Lord Buckmaster.
His Lordship says :-
"The decisions establish that when 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 part of the grant in the absence of express evidence to that effect."
But that only means that the mere fact 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 deal ing with a contention founded on Mokurari leases. The passing of a Mokurari lease doss not, says he, have the effect that all 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 putni 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 Nawab Sir Ali Quader Syed Hussein Ally Mirza Bahadur v. Rai Jagendra Narain Roy (1912) 16 C LJ 7 : 16 IC 441 has been over ruled 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.
Their Lordships will humbly advise His Majesty to dismiss the appeal with costs.