Satya Niranjan Chakravarty and Others vs Sushila Bala Dasi and Others

Ross, J.—The plaintiffs are the owners of 12 annas 7 gandas share in four taluks: Jamjuri, Nagori, Chhota Ashna and Bara Ashna in pargannah Kundahit Kareya in the Santhal Pargannas. They allege that the principal defendants took the settlement of these taluks from their predecessors at an annual rental of Rs. 706 (sikka.) They themselves, being the zamindars, have all the sub-soil rights in the said taluks and the defendants have no right to the sub-soil or to the minerals. In 1912 the plaintiffs brought a suit for a declaration of their title to the minerals, but this suit was dismissed by the Subordinate Judge and on appeal, by the High Court on the ground that the Specific Relief Act did not extend to the Santhal Pargannas and on the ground that as no overt act was alleged against the defendants the plaintiffs were entitled to no relief. Thereafter, in June 1917, the defendants prevented the plaintiffs'' agent from boring for minerals. They, therefore, claim a declaration of their right to the sub-soil and pray for a permanent injunction and damages.

The defence was that there had been a proceeding u/s 145, Criminal P.C., regarding the right to the sub-soil of the disputed taluks which was decided against the plaintiffs and, as the present suit was not brought within three years of the decision in that case, it was barred by limitation. The defendants claimed that the mineral rights belonged to them. They alleged that Nagori and Jamjuri consisting of 60 mouzas formed ghatwali tenures belonging to the predecessors of their ancestor Mahadeo Sadhu, and that Chhota Ashna and Bara Ashna consisting of 35 mouzas formed ghatwali mouzas belonging to Ratan Singh and Gobinda Singh who, however, abandoned them, whereupon they were settled with Mahadeo Sadhu by Raja Bahadur Uz-Zaman Khan on the 15th of Baisakh 1189 at a rental of Rs. 706 (sikka) by a sanad. They claimed that under this sanad, as well as under the legal incidents of Birbhum ghatwali tenures, Mahadeo Sadhu had acquired a mokarrari mourashi istemrari and transferable interest in the said tenures with full rights in the surface and the subsoil. They further pleaded that Raja Ram Ranjan Chakraburty and Rani Padma Sundari Debi, predecessors of the plaintiffs, brought a suit No. 60 of 1892 for enhancement of the rent of the disputed taluks against the Defendants 1 and 2 and the father of Defendant 3, and that this suit was compromised in terms which admitted the said defendants to be entitled to all sorts of rights in mokarari right in respect of the disputed mouzas.

Sixteen issues were framed and the Subordinate Judge recorded evidence on all the issues. But he decided only the twelfth issue "was there any decision u/s 145, Criminal P.C. o the disputed mouza and is the suit barred by limitation?" He held that the suit was barred and, therefore, dismissed it. The plaintiffs appealed to the High Court which, without deciding the issue of limitation, remanded the case for a decision of the other issues. The remaining issues have now been decided in favour of the plaintiffs; except the issue on damages but as they failed on the issue of limitation, their suit was dismissed and they have appealed. (The judgment here dealt with the evidence about the existence of an order u/s 145, Criminal P.C. and continued.) Even if there had been a judgment of this kind it could have no effect in barring the present suit because the first party to the proceedings was the present plaintiff who at that time had neither title nor possession because his father was alive and was the owner and possessor of the estate: Babajirao Gambhir Singh v. Laxmandas Guru Raghunath Das (1904) 28 Bom 215 and Bolai Chand Ghosal v. Samiruddin Mondal (1892) 19 Cal. 646. I am unable to believe that Ex. J. is a genuine document or that there was a proceeding or a decision u/s 145, Criminal P.C. I, therefore, hold that the suit is not barred by limitation on this ground.

It was further contended, however, that the suit is barred by six years'' limitation because the cause of action for a declaratory decree was alleged in the suit of 1912 to have arisen in 1317, that is, 1910, whereas the present suit was not brought until 3rd December 1917, Similarly it is argued that the limitation for an injunction is six years and that this relief is also barred. But the suit of 1912 was dismissed on the ground that there was no overt act on the part of the defendants and, therefore, no cause of action. The present suit is for an injunction on a declaration of the plaintiff''s title and the overt act which was alleged took place within six, months of the filing of the suit. The suit is, therefore, not barred by limitation on this ground. The appeal of the plaintiffs must, therefore, succeed unless the objections by the defendants result in the dismissal of the suit on the merits.

I shall now deal with these objections.

As already stated, the first title which the defendants set up is the title by the sanad granted by Raja Bahadur Uz-Zaman Khan (Ex. 1). This is a short document which purports to settle with Ruplal Sadhu, son of Mahadeo Sadhu, as an ancient ghatwali, mokarari taluks Jamjuri, Nagori Ashna Chota and Bara within Tappa Kundahit Kareya the jama of the 95 mouzas being Rs. 706 (sikka) annually. It declares that the grantee and his heirs have every right to remain in possession of the said taluks and mouzas including hills and mountains, jungles and pits, cultivated and waste lands of the entire mouzas above and below (zer-oo-bala) the taluks with all rights. The document is dated the 15th of Baisakh 1189 and is in the Persain language. The signature is illegible but it bears a seal with the name of Bahadur Uz-Zaman Khan. The learned advocate for the defendants relies on this document. The learned Counsel for the plaintiffs contends that the document is a forgery, both on the internal evidence and on the fact that in a long course of litigation the document was never produced when its production was to have been expected. (The judgment then dealt with evidence in detail and proceeded). The conclusion seems to me to be inevitable that this document is not document upon which any Court can act. I hold, therefore, that the defendants have failed to establish their title to the minerals of the taluks in suit by express grant.

The second title relied upon by the defendants is that the lands in suit are a Birbhum ghatwali. There are numerous references in the judgments in the earlier litigation about this property, which, have been referred to above, to its being a ghatwali. Thus in Ex. L the District Judge held that the mahals were ghatwali mahals. The provincial Court at Murshidabad held that the lands had not been proved to be ghatwali, but the Sadar Dewani Adalat in view of the respondents'' admission of the appellants'' right to the possession of the lands the ghatwali taluks in dispute, on condition of payment of the actual jama, ordered that the appellants should be put in possession of these lands and should perform the ghatwali duties. So in Ex. M the provincial Court upheld the decision of the District Judge that the defendants should, on payment of the annual jama, perform the duties of ghatwali. In Ex. N the following passage occurs in the judgment of Robertson, J., which eventually prevailed. "Though the disputed mouzas are not the ghatwali mahals settled by the government under Regulation 29 of 1814 and it appears that the settlement of those was not made by the Government servant, it seems that before the Settlement Tappa Khondahit Kareya which includes the disputed mauzas having been Sold by auction the Government servant had nothing to do with the question of the ghatwali affairs thereof. But it is evident from the existing papers especially from the criminal Court rubakaris and parwanas produced by the appellants that according to the rules and custom the predecessors of the respondents'' father and the respondents with their own employees had been supervising the ghatwali duties and performing the police duties and they are bound to guard the paths and thoroughfares and responsible for occurrences and liable to damages on account of stolen property like the ghatwal of the mahals settled by the Government". Stockwill, J., in his judgment, pointed out that the mahal was not a ghatwali mahal "as described in Regulation 29 of 1814 and was not settled along with other ghatwali elakas, from the copy of the rubakari of the Judge of Zila Birbhum and the copy of the rubakari of the Collector, dated 15th August 1834 which are received in this Court on requisition." In Ex. P it was held that these mahals being ghatwali mahals could not be sold in auction. But in a later judgment (Ex. Q) it was decided according to the decision of the High Court that the second class of ghatwalis could be sold in auction. These classes of ghatwalis were defined in that judgment as first the ghatwali right mentioned in Regulation 29 of 1814, the rent whereof is paid direct to Government but in spite of the same it is considered to be a part of the zamindari of Birbhum and they pay a portion of their fixed rent to the Raja of Birbhum. The second class of ghatwalis at first belonged to the first class ghatwalis, i.e., those who were in possession in the said manner in that right on condition of service but they instead of paying rent to the officers of Government pay rent to the zamindar. The third class of ghatwalis are like chakran and chaukidari lands and they hold possession of the same on condition of service." The argument is that although the lands in suit may not be a Birbhum ghatwali within the meaning of Regulation 29 of 1814 yet that Regulation did not alter the status of the ghatwalis. All these ghatwalis had their origin in the same circumstances and all Birbhum ghatwals as such had a right to the minerals. Alternatively it is argued that if this is not shown yet, the legislature in Act 5 of 1859, which was an exposition of the law as it stood, acknowledged that the ghatwalis under Regulation 29 had the mineral rights and there is no ground for distinction between the first and the second classes. Reliance was also placed on the record of rights of Bara Ashna (Ex. 27), Chhota Ashna(Ex. 28), Jamjurj (Ex. 29) and Nagori (Ex. 30) where the names of the Sadhus are shown as maurashi mokarraridars in Part 1 which deals with proprietary rights and duties. Clause 10 of Part 1 states that "The proprietor shall enjoy all the rights and shall perform all the duties of a proprietor according to the customary or enacted laws locally in force, except as restricted by the record of rights." Section 12 of Regulation 3 of 1872 gives the Settlement Officer power to enquire into and decide and record the rights of zamindars and other proprietors, and also any other landed rights to which by the law and custom of the country any person may have local or equitable claim. Section 25 makes the record after a period of six months from the date of publication conclusive proof of the rights and customs therein recorded. Mr. McPherson in para. 88 of his Settlement Report expressly refers to mineral rights as being also covered by Part. 1, Section 10. The learned Subordinate Judge has relied up on the record of rights as showing the defendants to be mourashi mokarraridars and has inferred from this that they were not ghatwalis. This argument is unsound, because a person may be a maurashi mokarraridar and also a ghatwal, as for instance in the Handwe case [Keshobati Kumari v. Satya Niranjan Chakraberty AIR 1918 Pat 240 and Kumar Satya Narain Singh v. Raja Satya Niranjan AIR 1924 PC 5.] But the argument for the respondents, that because they are recorded in Part 1 as mokarraidars and Clause 10, declares that the proprietors shall enjoy all the rights of a proprietor (which by implication include mineral rights), therefore they have the mineral rights appears to me inconclusive. Both the proprietors and the mokarraridars are recorded in this part and there is no reason why the mineral rights would belong to the mokarraridars and not to the proprietors; it is not suggested that they belong to both and as they are not expressly recorded as belonging to the mokarraridars the question as between the proprietors and the mokarraridars must be decided independently of the record of rights. I take it then as established that these lands are ghatwalis which are not within Regulation 29 of 1814 both because no settlement was made with the ghatwals such as is referred to in the Regulation and because it is admitted that the rent is paid not to the Government but to the zamindar. What then is the position as regards minerals? Act 5 of 1859 applies only to ghatwalis within the meaning of the regulation and even with regard to them it does not confer the mineral rights but merely proceeds on the assumption (which may be erroneous) that they have these rights. The distinction between a ghatwali within the regulation and a ghatwali which is outside the regulation is that in the former case there is no tenure between the zamindar and the ghatwal who holds direct from the Government, while in the latter the tenure exists. In the former case, while the lands of the ghatwali are still deemed to be within the zamindari the zamindar no longer pays the Government revenue for them and has, therefore, no claim to the underground rights; his only right connected with these lands is to receive the difference between the rent paid by the ghatwal and the amount of Government revenue which was assessed on this part of the zamindari. If the Government does not claim the mineral rights there is no one to whom they can belong but the ghatwal. But in the latter case the zamindar still pays the Government revenue on these lands, and if the ghatwal claims the minerals he must show some transaction which grants him the minerals either expressly or by necessary implication. It is not suggested that in the present case there is any such transaction. The ghatwal, whatever the origin of his estate may have been, undoubtedly and admittedly holds, and for more than a century has held, of the zamindar and unless the minerals have been expressly or by necessary implication granted to him (and of this there is no evidence) they must be held to have been reserved. In short, the position of the ghatwals of the second class is indistinguishable from that of the Digwars of Jharia and what Lord Macnaghten said of the Digwars in Durga Prashad Singh v. Brojo Nath Bose (1912) 39 Cal 696 is exactly applicable to the position of the defendants in the present case: "The two mauzas are within the plaintiff''s zamindari. Both the Courts below have so held. The Permanent Settlement was made with the zamindar of Jharia. No separate settlement was made with the Digwar of Tasra, if there was a Digwar of Tasra at the date of the Permanent Settlement which seems more than doubtful. No attempt was made to prove that the mineral rights now in question were vested in the Digwar before or at the time of the Permanent Settlement if the lands were then held on Digwari tenure. Nor is there the slightest evidence tending to show or to suggest that the zamindar ever parted with his mineral rights to the Digwar. Mineral rights were vested in the ghatwals of pargannah Sarhat in the northwestern part of the Birbhum zamindari, but those ghatwals paid their rent direct to the Government, and in other respects they were in a very peculiar position. They were dealt with by Regulation 29 of 1814. They obtained the right to lease the minerals by Act 5 of 1859. With every respect to the learned Judges of the High Court no inference can be drawn from the circumstances of their case that the Digwars in Manbhum had similar rights or powers."

The learned Subordinate Judge has laid down five tests of a Birbhum ghatwali tenure and has held that the defendants have failed by all these tests. It is certain that rents are not paid direct to Government and that the property has been partitioned on at least two occasions between members of the family once in 1834 when Gourhari Sadhu and Ruplal Sadhu, the sons of Mahadeo Sadhu took respectively 6 annas and 10 annas shares in the taluks, and again in 1899 in the compromise (Ex. 7) referred to above. I hold, therefore that as ghatwals the defendants have no right to the minerals.

The learned advocate for the defendants however strongly relied upon the third title, the petition of compromise in the suit of 1892 (Ex. J-1) as an acknowledgment by the plaintiff''s predecessor that the defendants had every right and interest in the lands in suit. The learned Subordinate Judge in his judgment has quoted the material part of this document in the original Bengali and has given a translation. The words upon which the defendants rely are the words "the entire property detailed in the said schedule in all respects with all the rights and interests therein," and they contend that these words include the sub-soil rights. Now, in order to understand the effect of the compromise, it is necessary to read it along with the pleadings in the suit. The plaint (Ex. E) was simply a plaint in a suit for enhancement of rent. In the written statement (Ex. 10) the defendants pleaded that they were tenure-holders at a fixed and permanent rate liable to pay sikka Rs. 501 for Nagori and Jamjuri and sikka Rs. 205 Chhota Ashan and Bara Ashna and that the permanent nature of their tenure had been repeatedly admitted and acknowledged by the plaintiffs and that the plaintiffs'' suit for enhancement of rent was not maintainable u/s 11 of Regn. 3 of 1872. This being the scope of the suit it is difficult to see how any admission with regard to sub-soil rights can be read into the document by which it was compromised. To read the document in this way is to put the plaintiffs in a worse position than they would have been in if their suit for enhancement of rent had been dismissed. No question of sub-soil rights was in issue or could have been in the contemplation of the parties. The plaintiffs simply admitted that they could not enhance the rent and the construction which the learned advocate for the defendants seeks to place upon this document cannot, in my opinion, be supported. The passage on which reliance is placed contains the words "mokarrari satwa" that is "in mokarrari right" and it seems to me that these words govern the whole clause. They lay down the ambit within which the rights are defined and the agreement comes to nothing more than this that the defendants have every possible right that a mokarraridar can have as such. The defendants read the words as admitting that they enjoy every sort of right but only as mokarraridars, that is, on condition of payment of the reserved rent; but to read the words in this way, in my opinion, begs the question as to what is meant by the mokarrari right because it implies that the mokarrari right imports the whole estate subject to the payment of a reserved rent. The argument is sought to be supported on the doctrine in Abdul Aziz v. Appayasami Naicker (1904) 27 Mad 131 and Lloyd v. Guibert (1865) 6 B & S 100, namely, that "the rights of the parties to a contract are to be judged by that law which they intended or rather by which they may justly be presumed to have bound themselves." It is further contended that this is a case of contract and not of grant and that the cases which decide that where there is a mokarrari lease, the minerals remain in the lessor unless granted expressly or by necessary implication do not apply, as the parties must be understood to have contracted understanding that the law was that a mokarraridar had the minerals.

The first case referred to was Sriram Chakravarti v. Hari Narain Singh Deo (1906) 33 Cal 54 in which it was decided by the Calcutta High Court that a permanent tenure-holder would possess all underground rights unless there was something express to the contrary. The learned Judge in deciding that case relied upon a passage in Mitra''s Land Law of Bengal to the effect that "a person holding under a permanent lease in which there was no reversion to the landlord, has the right to open mines," and reliance was placed especially upon a passage in the judgment of Pratt, J., where he said: "But in this Province the grantors of such tenures consider that they have parted with all their interests in the soil and are entitled only to the quit-rent reserved. "Now it is to be observed that no authority is given for this dictum while the statement in Mitra''s Land Law of Bengal is expressly made as the opinion of the learned author and not as a statement of the Common Law. When this case came before the Judicial Committee: Kumar Hari Narayan Singh v. Sriram Chakravarti (1910) 37 Cal 723, the decision of the High Court was reversed, and the passage in Mitra''s Land Law of Bengal was referred to put preference was given to the statement of the law in Field''s Introduction to the Bengal Regulations. p. 36, where he says: "The zamindar can grant leases either for a term or in perpetuity. He is entitled to rent for all land lying within the limits of his zamindari and the rights of mining, fishing and other incorporeal rights are included in his proprietorship." Their Lordships observed that: "It would seem therefore that Mr. Field did not regard his letting the occupancy right as presumptive evidence of his having parted with his property in the minerals," and they decided that the zamindar must be presumed to be the owner of the underground rights in the absence of any evidence that he had ever parted with them. Field''s statement of the law was taken to be the correct statement of the Common Law on the subject.

The next case referred to was Megh Lal Pandey v. Raj Kumar Thakur (1907) 34 Cal 353 in which It was held by the High Court that the mokarrari lease of a mauza "mai huk hakuk" conveyed minerals which were not expressly reserved. Thus decision was reversed by the Judicial Committee in Girdhari Singh v. Megh Lal Pandey AIR 1917 PC 163, where it was held that the expression "mai huk hakuk" in a mokarrari lease of land did not add to the true scopes of the grant nor cause mineral rights to be included in it. Their Lordships observed that: "On the assumption that the expression means ''with all right''s or may be properly amplified as ''with all right, title and interest, such expressions in their Lordships'' opinion do not increase the actual corpus of the subject affected by the pattah. 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 pattah and may even be derivable from outside properties. It must be borne in mind also that the essential characteristic of a lease is that the subject is one which is occupied and enjoyed and the corpus of which does not in the nature of things and by reason of the user disappear. In order to cause the later specially to arise, minerals must be expressly denominated, so as thus to permit of the idea of partial consumption of the subject leased. Their Lordships accordingly are of opinion that the words founded on do not add to the true scope of the grant nor cause mineral rights to be included within it." Similarly in Sashi Bushan Misra v. Jyoti Prasad Singh Deo AIR 1916 PC 191, it was held that a talabi brahmottar grant at a fixed rent did not carry with it the mineral rights in the soil and that mineral will not be held to have formed part of the grant in the absence of express evidence to that effect. Finally in Raghunath Roy Marwari v. Durga Prashad Singh AIR 1919 PC 17 it was held that where a zamindar grants a tenure of land within his zamindari and it does not clearly appear by the terms of the grant that the right to the minerals is included, the minerals do not pass to the grantee. The only case which was cited on behalf of the defendants as expressing what they contend to have been the Common Law on the subject Ali Quadir Syed v. Jogendra Narain Roy (1912) 16 CLJ 7, in which it was held that a patni lease which contained the words "darabust zamindari hakook" conveyed mining rights. That decision stands by itself and it relates to a patni lease which may give rise to different considerations, and moreover whereas in the document now under consideration the words are "haq hakuk darabust mokarari" the words in the patni lease were "darrabust zamindari hakook." Now while it is true that the cases above referred to are cases on the construction of deeds of grant, they lend no support to the contention that the Common Law of the country by which the parties to the present contract may be presumed to have bound themselves was that the minerals passed to the mokarraridar. If such was the Common Law, it should have been proved either by evidence or by numerous decisions which would have shown that this law was so notorious that nothing else could have been contemplated by the parties. The Judicial Committee has consistently held that this is not the law in Bengal and there is nothing in any of the cases to afford any ground for supposing that it was ever believed to be the law. On the contrary it has been held that the law has always been otherwise, namely, that the mineral rights are in the zamindar and he is not divested of them by a lease of the land unless the minerals are expressly granted. Consequently the words in the petition of compromise must be construed in their natural sense, namely, as acknowledging in the defendants all the rights that a mokarraridar as such can have and these rights do not include the right to the minerals. The third title set up by the defendants, therefore, also fails.

There remains only one small point which was urged on behalf of the defendants, that as the plaintiffs are only co-sharers to the extend of 12 annas 7 gandas while one of the defendants Chain Kumari is not only guardian of one of the Sadhus, a minor but is herself proprietor of a small share, the plaintiffs are not entitled to an injunction. Now the plaintiffs do not claim any injunction against Chain Kumari as proprietor. She is not said by the defendants to have given to them any right to work coal. If she herself is working coal no injunction is sought against her. Injunction is sought against strangers. The defendants do not allege that they have taken any settlement from Chain Kumari and evidently they cannot do so because this would go to the root of their own alleged title. There is no substance in this objection. The result therefore is that the appeal is decreed with costs. The title of the plaintiffs to the sub-soil of the taluks Jamiuri, Nagori, Chhota Ashna and Bara Ashna, to the extent of their interest, is declared and it is further declared that the defendants have no right to the minerals of these mauzas and it is ordered that an injunction do issue permanently restraining the defendants from working coal or other minerals lying on or under the said taluks and from obstructing the plaintiffs in exercising their rights to the sub-soil in the said talukas. As the learned Subordinate Judge found that no damage had been proved there will be no decree for damages. The plaintiffs are entitled to their costs in both Courts.

Das, J.

I agree.