Judgment

RAGHUBAR DAYAL, J. : This appeal, on a certificate granted by the High Court at Calcutta, raise the question whether the person with whom a resumed invalid Lakhraj (revenue free) land was permanently settled has rights in the sub soil minerals or not. The necessary facts are briefly these :

2. The plaintiffs are the proprietors of the land in suit in C. S. Khatian No. 611 and Sub-Khatians Nos. 612 and 613 of village Sripur in Touzi No. 2597 of the Burdwan Collectorate.

3. The Maharaja of Burdwan is the proprietor of the lands in village Sripur appertaining to Touzi No. 12 of Burdwan Collectorate. He let out those lands to the Pals and Goswamis of Sripur in Putni right. The Putnidars also took coal mining lease of those lands from the Maharaja and, thereafter, both the Maharaja and the Putnidars granted the coal mining lease of those lands to one P. K. Chatterji of Ikrah who, in his turn, granted a sub-lease of the same to Messrs. Lodna Colliery Co. Ltd., the predecessors-in-interest of the defendant company, the Lodna Colliery Co. (1920) Ltd.

4. A portion of the lands in suit, subsided and on enquiry the plaintiffs found that the defendant company had cut away a large quantity of the underground coal from the lands in suit. It is on account of such unjustified conduct of the defendant company that the plaintiffs, on the basis of their proprietary right, sued for the recovery of damages for coal wrongfully taken away by the defendant from the land in suit and for other wrongs. The defendant company contested the suit and denied the plaintiff s alleged rights on the ground, inter alia that the plaintiffs had no title to the sub-soil of the land in suit and consequently to the coal. The contention really is that the land in suit had been permanently settled with the plaintiffs after it had been resumed as invalid Lakhraj land an that such settlement conferred no better rights than what they originally possessed on account of the land in suit being granted to their predecessors-in-interest under Brahmottar and Debutter grants, the grantees under which had no rights in the sub-soil of the land granted.

5. The Trial Court held that the invalid Lakhraj tenure in the land in suit in favour of the predecessors-in-interest of the plaintiffs was resumed by the Government under the provisions of Regulation II of 1819 and, thereafter, was permanently settled with them at the fixed revenue and that therefore the plaintiffs had right to the minerals under the soil of the land settled with them. It accordingly decreed the suit in part and the decree was confirmed by the High Court.

6. It is contended for the appellant that the person with whom resumed invalid Lakhraj land had been settled has no rights in the sub-soil. The respondents rely on the provisions of the Regulations enacted by the Governor-General in Council in support of their claim to the sub-soil in such land held by them.

7. The Governor-General in Council passed a number of Regulations on May 1, 1793. We shall first consider Regulation XIX of 1793.

8. Regulation XIX of 1792 was made for re-enacting with modifications the Rules passed by the Governor-General in Council on December 1, 1790, for trying the validity of the titles of persons holding, or claiming a right to hold, lands exempted from the payment of revenue to Government, under grants and for determining the amount of the annual assessment to be imposed on lands so held which might be adjudged or become liable to the payment of public revenue. The preamble makes it clear that the Regulation was creating an agency for determining the title of the proprietors of land who claimed to hold it free from the liability to pay revenue on account of certain grants, that from time to time the British Government had declared all grants for holding land exempt from the payment of revenue without their sanction since the date of the accession of the East India Company to the Diwani on August 12, 1965, illegal and void and that no s