Srish Chandra Nandy vs Ramji Bechar Das and Others

Mohammad Noor, J.—The facts of the case out of which this appeal has arisen are these: Two adjoining villages, Gararia and Ekra, belong to the Raja of Jheria, Gararia being to the north of Ekra. The mineral rights of these two villages have been leased out by the proprietor; those of Ekra to defendant 1, the Maharaja of Kasim Bazar, whose estate is at present managed by the Court of Wards, and those of Gararia to one Maheshwar Roy who subleased them to several persons in blocks. One such block of 50 bighas adjoining Ekra was on 22nd March 1901 subleased to the plaintiff, and another of 110 bighas to the east of the above block, also adjoining Ekra, was on 8th June 1901 subleased to one Sourendra Nath Dutta who is said to be a benamidar of defendant 1. Sourendra Nath Dutta in his turn transferred in 1905 his block to the plaintiff, though the deed was executed in 1907. The plaintiff thus got rights in the minerals of two blocks of one land of Gararia, one of 50 and the other of 110 bighas. To the south of these blocks is the colliery of defendant 1 in village Ekra. The plaintiff''s case is that defendant 1, while working his colliery of village Ekra encroached upon the lands of village Gararia just to the north of Ekra and extracted coal from the two blocks the minerals of which belonged to him as stated above. He brought this suit for recovery of the price of the coal thus removed and for restraining the defendants by injunction from trespassing into the plaintiff''s lands and removing any more coal therefrom.

Defendant 1 denied that he had encroached upon Gararia lands or removed any coal therefrom and in the alternative pleaded limitation and adverse possession. The learned Subordinate Judge has given the plaintiff a decree for Rs. 17,512-12-0 and also for injunction as prayed for by the plaintiff. Defendant 1 has preferred this appeal. The money decree has since been assigned by the plaintiff to Ramsewak Singh who has been added as respondent in the suit. The original plaintiff Ramji Bechar Das died during the pendency of the appeal and his four sons have been substituted in his place. There is also a cross-objection on behalf of the original plaintiff claiming Rs. 13,268-10-9 in excess of the amount decreed by the trial Court.

The southern boundary of village Gararia (as mentioned in the lease in favour of Maheshwar Roy and in the two subleases granted by him, one in favour of the plaintiff and the other in favour of Sourendra Nath Dutta for 50 and 110 bighas of land respectively) is village Ekra according to the Thak (revenue survey) map. In the sale of the sublease by Sourendra Nath Dutta to the plaintiff the southern boundary ''of the 110 bighas of land is "Ekra according to the Thak map and the railway line." The case of defendant 1 before the learned Subordinate Judge was that village Gararia extended only up to the railway line which runs from east to west, or, in other words, the boundary of the village according to the revenue survey map coincided with the railway line. It was on this basis that the defendant denied the fact of encroachment, as his operations end south of the railway line. But the boundary line between the two villages has been found by the Court below on the report of the Commissioner to be a few hundred yards south of the railway line. It is, therefore, not disputed now that defendant 1, did in fact encroach upon the minerals of Gararia and extracted coal lying under its lands. The appeal is, therefore, confined to three points only:

(1) That the suit in respect of the coal removed is barred by limitation: (2) that the encroachment on the 110 bighas of land was in no case unlawful in view of the fact that the southern limit of those lands as mentioned in the sale deed of Sourendra Nath Dutta in favour of the plaintiff is the railway line, and the plaintiff is not entitled to any relief in respect of any act done by the defendant south of that line; (3) that defendant 1, by working the colliery and removing the gallery coal has acquired, by adverse possession, title over the area covered by his operations including the pillar coal which has been left and is entitled to remove it and the plaintiff is not entitled to an injunction to restrain the defendant from doing so.

The first question to be determined is whether the plaintiff''s suit in respect of the coal removed is barred by limitation. As held by the Judicial Committee of the Privy Council in L.P.E. Pugh v. Ashutosh Sen 1929 PC 69 and Adjai Coal Co. Ltd., v. Panna Lal Ghosh 1930 PC 113, the period of limitation in such cases under Article 48, Lim. Act, is three years from the date when the person having the right to the possession of the property first learns in whose possession it is. Two questions therefore arise. One is as to when the conversion or wrongful taking of the coal took place and the second is as to when the plaintiff came to know of it. The defendant''s case is that he worked in the area in dispute openly and publicly during the years 1900 to 1911, that the taking away of the coal complained of was much before the period of limitation and that the plaintiff had full knowledge of it all along. Now the coal of the disputed area has been removed from two seams 12 (upper) and 11 (lower). The extent of the defendant''s operations in these two seams within the plaintiffs lands as the Commissioner found them is shown in his maps Nos. 2 and 3 which are parts of the decree. The former refers to seam No. 12 and the latter to seam No. 11. I shall first deal with seam No. 12. Ex. D is the working plan of the defendant, showing the work done in that seam up to 30th May 1911. The genuineness of this plan is not disputed.

Now the two maps (Commissioner''s map No. 2 and Ex. D) show that this seam of the encroached area is reached and has obviously been worked by two inclines i.e., Nos. 8 and 13, the former being to the east of the latter. The total length of the encroached area in this seam between the foot of these two inclines is about 500 feet and the maximum breadth is about 70 feet. There is also some encroachment on the west of the foot of incline No. 13 which is not very large and this is in the 50 bighas of land which the plaintiff got from Shivnath directly. Almost the whole area between the two inclines is within the 110 bighas of land which the plaintiff obtained from Sourendra Nath Dutta. Only a small portion just on the east of incline No. 13 is within the said fifty bighas. A comparison of the two maps referred to above, i.e. the commissioner''s map (scale 50 feet = 1 inch) and Ex. D (scale 100 feet = 1 inch) clearly shows that the entire encroachment, with a slight exception, was prior to 30th May 1911, and almost all the coal of this seam for which compensation is sought in this suit was removed before that date. The condition of the encroached area as found by the Commissioner is, with a slight difference, the same as in 1911. Since then there has been a slight encroachment at one place only. Two galleries, which commence from the Commissioner''s station, Nos. 11 and C-1, have been further extended northwards. The extent of this extension has been given by the Commissioner in his evidence in Court. The former (11) has been extended by about 58 feet and the latter (C-1) by about 36 feet. Perhaps the thickness of some of the pillars may have also been reduced in some cases. It is, however, necessary to determine whether there was any encroachment between 1905 and 1909 and if so the extent of it, as it is during this period that the plaintiff''s connection with the defendant''s colliery, as I shall show later, has been established.

The defendant has produced his account-books, the genuineness of which is not questioned. An extract from these accounts has been printed in part 3 of the paper-book. It shows that incline No. 8 was worked from 1900 up to the year 1909 and incline No. 13 from July 1901 onwards. Goal was taken out from these two inclines regularly. The encroached area is nearer the foot of these two inclines and one can reasonably hold that the area nearer the feet of the inclines was worked before the area further removed. Furthermore, the foot of incline No. 13 is in the plaintiff''s land and in whatever direction from it gallery was first driven it must have been through the plaintiff''s coal. I find the main eastern gallery from incline No. 13 was being driven in October 1901. This gallery goes towards incline No. 8 and for about 100 feet passes through the plaintiff''s 50 bighas of land. Similarly, expenditure was incurred in 1901 for driving the main western gallery from incline No. 8. This gallery leads to the encroached area. The work from this incline must have been considerable because as early as 27th August 1901 a boiler was installed there (Part 3, page 52). On these facts I am clearly of opinion that a very large part of the encroachment in this seam was prior not only to 1911 but to 1909 or even to 1905, and not an inconsiderable quantity of coal from the 110 bighas was removed before 1905, i.e. before the plaintiff purchased this land from Sourendra Nath Dutta. By that time (1905) galleries were being driven and coal taken out from incline No. 8 for about six years and from incline No. 13 for about 5 years.

I now come to seam No. 11. The maps of this seam are Commissioner''s map No. 3 and the defendant''s working plan Ex. D-l. This seam was being worked from incline No. 21, the mouth of which is within village Ekra itself. In this case a very large portion of the encroachment was after 31st May 1911, as a comparison of the two maps will show. The encroachment prior to that date is comparatively small. The encroached area of this seam is covered in the Commissioner''s map by two pillars and a portion of the third on the north and only a portion of a pillar in the south. Mr. Wardlow, defendant''s witness 2, in his deposition after referring to the Commissioner''s map stated that the plan showed seven pillars. In the other plan (Ex. D-l) only four pillars were shown and one more was in formation. The seven pillars of the Commissioner''s plan seem to have been formed out of the five of the other plan. In this case the western gallery from incline No. 21 through which this seam has been worked does not touch the plaintiff''s land for about 160 feet. Therefore, though there was some encroachment by 1911, there is nothing to show when the encroachment actually took place, nor is there any evidence to show when the bulk of the coal of this seam was removed. There are also no materials to show that the coal, which appears to have been extracted prior to 1911 was extracted before 1909, when the plaintiff was the raising contractor of the defendant. The account books of the defendants show that the plaintiff was paid bills in 1909 for raising coal from incline No. 21, but there is nothing to show that the plaintiff''s coal was encroached upon by that time.

The next question is whether the plaintiff had knowledge of this taking away of the coal by the defendant. According to him, he first came to know of the wrongful extraction in November 1924 in the course of a survey by a Commissioner appointed by the Court in a similar suit against this very defendant instituted by Maheswar Rai, the original lessee of the minerals of Gararia. Then he made enquiries and discovered the full facts in June 1925. The defendants'' case, on the other hand, as I have said, is that the plaintiff knew it all along, but he did not interfere as it was understood by all concerned that the railway line constituted the boundary, though as now found the actual boundary is farther south. The defendant''s case is that the plaintiff was his raising contractor between 1905 and 1909 and also used to purchase coal from him and as such had free access to the colliery and the >mines and used to visit them. To prove this the defendant relied upon his account-books already referred to and has examined witnesses. These accounts show that from time to time money was paid to the plaintiff for raising coal from the mine. The explanation of the plaintiff''s son, who has been examined, is that the plaintiff was only a financier of the business and got his share of profit from the contractor.

The name of his contractor has not been disclosed. On the other hand, there is the evidence of the defendant''s witness No. 4 Earn Chandra to the effect that the plaintiff himself was the raising contractor and also used to purchase coal from the defendant and used to come to the colliery in those connections. Furthermore, this witness deposes that the office and house of the plaintiff were near the inclines of Ekra colliery. His siding was just on the other side of the railway line. The learned Subordinate Judge has found as a fact from the account-books of the defendant that the plaintiff was a raising contractor in the years 1906 and 1907 and perhaps in 1909 also. Mr. Mahabir Prasad, who appeared on behalf of the assignee of the decree, has not seriously challenged this finding, but has contended that he was only a financier and has also adopted in his argument the reason given by the learned Subordinate Judge that the fact that the plaintiff was a raising contractor is not sufficient to establish that he had knowledge of the encroachment as it has not been shown that the encroachment was made during those years. I have already shown that a considerable quantity of coal of seam No. 12 of the plaintiff''s land was certainly removed between 1900 and 1905 through inclines Nos. 8 and 13. It is to be noted that the plaintiff has not offered his own evidence. It was said that he was lying ill at his home in Bhavnagar and his limbs trembled. But the plaintiff''s son Jeoraj Ramji Das admits that about three or four months before the trial of the suit the plaintiff came to Gaya for pilgrimage and on that occasion he stayed at Gararia for three or four days. The plaint was not verified by the plaintiff himself, but by his son Ranrjiwan Ramjidas who described himself as the agent of his father. This son also has not been examined. No explanation for this omission has been offered.

The position therefore is that neither the plaintiff nor his son, who had verified the plaint, has pledged his oath about the date of knowledge. The defendant''s evidence about the plaintiff being his raising contractor and his visiting the colliery during the period has not been rebutted by any reliable evidence. There is no reason therefore why that evidence should not be accepted. Now the mouths of inclines Nos. 8 and 13, through which seam No. 12 was worked, are within Gararia north of the boundary line according to the survey map. The former is about 35 feet from it and the latter about 145 feet. Incline No. 8 is in the 110 bighas of land which the plaintiff bought from Sourendra Nath Dutta and that of No. 13 is in the 50 bighas of land which the plaintiff got directly from Shiva Nath. The foot of incline No. 8 is about 35 feet south of the boundary line, that is, it is in village Ekra, but that of incline No. 13 is within the land of Gararia and is at a distance of about 45 feet north of the boundary line. These inclines are so close to the boundary line of the two villages that the plaintiff must have been aware of their existence. Incline No. 13 is at such a distance from the boundary line that the plaintiff must have known that the shaft of the incline ended in the plaintiff''s land, the coal layer of seam No. 12 being not at a very great depth from the surface. The plaintiff was not a layman who did not know anything about coal mines. He was a colliery owner and was in mining business. When the plaintiff''s son, his witness No. 6, was questioned about his knowledge of these inclines he stated that there were inclines on the plaintiff''s plot since before his purchase but that they did not touch the coal and that there never was any working from the said inclines in his time.

This is obviously untrue as I have shown that coal was being regularly taken out of inclines Nos. 8 and 13. Then this witness stated that the inclines south of the railway line were about 600 feet from the plaintiff''s siding and that his house is about 300 feet from the siding and his office is also about 300 feet from it. Later on he was forced to admit that two inclines of the defendant on the plaintiff''s land are inclines of seam No. 12. Then he stated that he saw a ditch in the shape of an incline in November 1924 for the first time; before that he always found it to be a simple ditch the length of which was 10 or 12 feet. This is again untrue as these inclines were in use from 1900 and 1901 respectively, and it cannot be believed on the face of the unimpeachable testimony of the defendant''s account-books supported by the evidence of the witnesses of the defendant. It has been established, as I have said, that the plaintiff as a raising contractor used to visit the colliery. A raising contractor has to employ labourers to cut coal and to raise it up to the mouth of the pit. It can hardly be believed that during the four or five years when the plaintiff was the raising contractor he never visited the galleries of the mine. If he did (as he must have done, being a man connected with coal mining), it would not have been difficult for him to appreciate that his own lands were being encroached upon and coal was being removed from it. According to the plaintiff he acquired the 110 bighas of land from Sourendra Nath Dutta in 1905, though the actual deed was executed in 1907. The plaintiff''s son deposes that when he bought this land the southern boundary of it was shown to him; it was south of the railway line. If he saw the boundary line at that time he must have noticed that coal was being taken out of the inclines, and, as I have shown, from the distance of the mouth of this incline from the boundary line it must have been apparent to him that the foot of the incline No. 13 was in his own land of 50 bighas. Coal from the encroached area was being taken out publicly and openly, and I am convinced that the plaintiff knew of it.

The only explanation of the plaintiff''s conduct is what has been stated by defendant 1, that nobody knew that the actual boundary line was south of the railway line. This was discovered much later. I have stated above that a very small portion of the encroachment was subsequent to 30th May 1911, and that must have been at the most within a few years of 1911. Therefore, I have no doubt in my mind that the plaintiff knew of the encroachment and of the removal of the coal long before three years from the date of institution of the suit. It may be that the plaintiff did not know that the area from which coal was being removed was his, but that will be of no advantage to him and will not save the suit from being barred by limitation. The knowledge referred to in Article 48, Lim. Act, is the knowledge of the taking away of the property. A mistaken belief by the plaintiff that the property removed was not his, will not affect the running of the period of limitation unless, of course, the knowledge of the fact was kept back from him by the fraudulent conduct of the defendant. In this case there is absolutely no fraud. I am therefore of opinion that the plaintiff''s suit in respect of the coal removed from seam No. 12 is not only barred by limitation, but that a large quantity of the coal from 110 bighas of land was removed before that land became the property of the plaintiff.

Seam No. 11, however, stands upon a different footing. I have already indicated that up till 1911 removal of coal from this seam of the plaintiff was not very large, and the situation of incline No. 21 through which this seam was worked need not necessarily have aroused the suspicion of the plaintiff. He might not have known that the galleries from the foot of that incline were being driven in the plaintiff''s land. There is no direct evidence on this point, and the onus being upon the defendant it must be held that so far as the coal of this seam is concerned the defendant has failed to prove that the plaintiff knew prior to three years of institution of the suit that it was being taken away. Therefore in my opinion, the suit in respect of the coal of this seam is not barred by limitation. The next point to be considered is whether the plaintiff, is entitled to any compensation for encroachment on that portion of his 110 bighas of land which is south of the railway line, the southern limit of the lands mentioned in the sale deed of Sourendra Nath Dutta in his favour being the railway line. The appellant''s contention is this: he says that Sourendra Nath Dutta was the benamidar of the plaintiff. Therefore it must be taken that when the plaintiff took the transfer from him he accepted the limit of the land to be only up to the railway line and impliedly abandoned his claim in respect of the coal underlying the strip of land between the railway line and the boundary of the two villages according to the revenue survey map and therefore he was not entitled to any compensation in respect of coal removed from this area. I am unable to accept this contention. I cannot find any principle of law which exonerates a trespasser from the consequences of his act on the ground that the owner of the land trespassed was not aware that the land was his. The sublease of Shiva Nath to Sourendra Nath Dutta clearly specified the southern limit of the property to be the southern boundary of Gararia according to the revenue survey map. The railway line was not mentioned in that deed. The area was specified to be 110 bighas.

When Sourendra Nath Dutta transferred this sublease to the plaintiff he clearly stated in the sale deed that he was selling all what he got from Shiva Nath. There was no reservation. The same 110 bighas of land of which he took a sublease was transferred to the plaintiff. It is true that the railway line was also mentioned as the boundary, but it was under a misapprehension that the real boundary according to the survey map coincided with the railway line. The specification of the land however in the deed is very clear. A wrong boundary will not affect the plaintiff''s title, especially when the boundary according to the survey map was also mentioned along with the railway line in the deed of sale. The sale deed gave the plaintiff title to all the lands for which the sublease was granted by Shiva Nath to Sourendra Nath Dutta. It is clear therefore that the plaintiff had title to the coal which was removed by the defendant. It is true that the defendant removed the coal from the plaintiff''s land under a mistaken belief that the land appertained to Ekra and that the plaintiff was also under the same misapprehension. But this will not entitle the defendant to retain the property so removed or its price when the mistake is discovered, provided that the suit is within time. In my opinion therefore the plaintiff is entitled to succeed in respect of the coal removed for which his suit is not barred by limitation.

The next point is whether the defendant has acquired title by adverse possession to the coal of the pillars and on the area covered by his operations. In my opinion he has not. First of all, the removal of the coal was not adverse to the defendant. It was admittedly under a mistaken belief of the defendant about the extent of his land, and the plaintiff also, as I have said, shared that mistaken belief. Secondly, there is no evidence that after the removal of the coal the plaintiff exercised any act of possession over the area from which the coal was removed. It seems to me that when after the removal of coal the defendant realised that the land appertained to Gararia he refrained from further encroachment on the land in question. The defendant apparently realised the true state of affairs in the previous litigations with the owners of coal of other blocks of land just north of Ekra. In my opinion therefore this point must be decided" against the defendant. I now come to the cross-objection of the original plaintiff which has been pressed on behalf of his four sons and who on his death during the pendency of the appeal were substituted in his place. This cross-objection refers to the rate of coal which has been allowed to the plaintiff by the learned Subordinate Judge. He has found the price of coal to be Rs. 4 per ton, but has allowed a deduction of Rs. 2/4 per ton for the cost of raising and establishment charges. Therefore, he has decreed the suit at a net rate of Rs. 1 /12 per ton. He has allowed the cost of raising on the basis of Exs. A-l to A-18. The objection of the respondents is that the learned Subordinate Judge has entirely misunderstood these exhibits. They are bills submitted by the plaintiff to the defendant for the supply of soft coke, and not for raising coal. They point out that the cost of raising the coal has been given by the plaintiff''s son at the end of his examination-in-chief which comes to 13 annas 6 pies per ton. In my opinion the contention is well founded.

The learned Subordinate Judge has wrongly treated Exs. A-1 to A-18 as bills for raising coal. In fact they are bills for the supply of soft coke. This being the case, the question is how much should be allowed as cost for raising the coal. The plaintiff''s son, no doubt, stated the cost of raising the coal to be 13 annas 6 pies per ton, but it appears from the account-books of the defendant that the plaintiff himself was being paid at the rate of Rs. 1/2 per ton. It is true that this amount includes the middleman''s profit also, but when a large number of miners have to be employed, the employment of a middleman is always resorted to. In, my opinion, therefore, Rs. 1/2 must be allowed as cost of raising to which two annas per ton should be added for establishment and overhead charges, with the result that Rs. 1/4 should be deducted from Rs. 4 as cost of raising. The learned Subordinate Judge has given the plaintiff a decree at the rate of Rs. 1 / 12 per ton. The plaintiff is, therefore, entitled to an additional sum of Re. 1 per ton. As a result of my findings I would partly allow the defendant''s appeal. The decree of the learned Subordinate Judge, in respect of injunction will stand. The money decree in favour of the plaintiff now assigned to the respondent Earn Sewak Singh will be modified. The claim in respect of the coal of seam No. 12 will be dismissed. There will be a decree in favour of the assignee only for 4,496 tons of coal which, according to the Commissioner''s report, was removed from seam No. 11 at the rate of Rs. 1 / 12 per ton, the rate which was allowed by the learned Subordinate Judge. The decree will also be modified in respect of the costs in the lower Court. Defendant 1 will pay costs of the plaintiff on the sum which is decreed and will get his costs in respect of the claim which has been dismissed. The assignee of the decree and the plaintiff will bear their own costs in this Court in respect of this part of the case.

The cross-objection will also be partly allowed. There will be a decree against defendant 1 in favour of the respondents 1 to 4 who have been substituted in place of the original plaintiff Ramji Bechar Das for Rs. 4,496 in respect of 4,496 tons of coal removed from seam No. 11 at the rate of Rs. 1 per ton, with proportionate costs. The court-fee payable on this sum will be realisable by Government from defendant 1. The defendant will get from the respondent''s costs in respect of such portion of the cross-objection having been valued at Rs. 13, 268/10/9. The defendant''s costs will be set-off against the decree which is being passed in favour of respondents 1 to 4. Prom the sum which will thus be payable by defendant 1 to respondents 1 to 4, the Government will ''be entitled to realise as a first charge the court-fee on that portion of the claim in the cross-objection which has been disallowed.

Courtney-Terrell, C.J.

I agree entirely.