Judgment

SUBBA RAO, J. : This appeal by certificate granted is directed against the judgment of the High Court of Judicature at Patna dated April 23, 1953, confirming that of the Subordinate Judge, Dhanbad, dated November 30, 1946.

2. The plaintiffs and the defendant are adjoining colliery owners at Kujama. The plaintiffs land lies immediately to the south of the defendants land. On August 2, 1894, Raja of Jharia granted mukarrari lease of the coal and coal mining rights in 300 bighas of land in village Kujama to Satya Karan Banerjee and Girish Chandra Samanta. On June 15, 1900, his son, Raja Durga Prasad Singh, granted coal and coal mining rights in respect of 400 bighas out of 592 bighas to one Jugal Kishore Lal. Samanta purchased the leasehold interest of Banerji, and thereafter on November 23, 1900, it appears that Samanta had surrendered his rights under the previous lease in favour of the Raja and taken a fresh lease of the same 300 bighas on a reduced rent. On June 10, 1901, Jugal Kishore Lal granted a lease of 96 bighas out of his 400 bighas to one D. M. Mathews. On the very same day D. M. Mathews, in his turn, granted a lease to one Walji Kheta in respect of the said 96 bighas. Walji Kheta executed a kabuliat in favour of D. M. Mathews on October 11, 1901. Walji Kheta represented the defendants. By diverse transfers, the interest of Samata vested in Bagdigi Kujama Collieries Limited. The plaintiffs case was that as a result of a letter written by the Inspector of Mines on August 18, 1941, the plaintiffs made an inquiry and came to know that the defendants had encroached upon their coal mines on the northern side and removed coal from the encroached portion and had rendered the remaining coal of the encroached portion unworkable. On these allegations, they asked for the following reliefs :

(a) That the intermidiate boundary line between the plaintiffs coal-land and the defendants coal-land be ascertained and fixed.

(b) That the area encroached upon by the defendants be ascertained and the defendants be directed to vacate the same.

(c) That a permanent injunction be issued against the defendants restraining them from encroaching upon the plaintiifs coal-land and cutting and removing coal therefrom.

(d) That an enquiry be made and the quantity of coal cut and removed by the defendants from the plaintiffs coal-land as also the quantity of the coal rendered unworkable be ascertained and a decree for the value thereof by way of damages be granted to the plaintiff against the defendants.

The defendants denied that they had encroached upon the plaintiffs coal-land and stated that the suit was barred by limitation. They further pleaded that the plaintiffs would not be entitled to any damages. The learned Subordinate Judge held that the defendants had encroached upon the plaintiffs coal-land, that the suit was not barred by limitation, and that they would be entitled to the reliefs prayed for. On appeal, the High Court of Patna accepted all the findings of the learned Subordinate Judge and dismissed the appeal. Hence the present appeal.

3. The first question that arises for consideration is whether the defendants had encroached upon the plaintiffs coal-land. The answer to this question depends upon the correct delineation of the boundary line between plaintiffs leasehold and the defendants leasehold. It is common case that the southern boundary of the appellants leasehold is conterminous with the northern boundary of the respondent s leasehold.

4. Learned counsel for the appellant contends that the said boundary should be fixed solely with reference to the boundaries given in the lease of 1894, whereas learned counsel for the respondents contends that no plan has been annexed to the said lease and, therefore, the boundary could more satisfactorily and definitely be fixed with reference to the plans annexed to the subsequent lease deeds executed in favour of the successors-in-interest of the appellant and the respondents. To