Judgement

SHAH, J. : Subodh Gopal Bose - hereinafter called the plaintiff - commenced an action in the Court of the Subordinate Judge, Sasaram, against four defendants - the State of Bihar the Collector of Shahabad, the Additional Sub-Divisional Officer Sasaram, and Dalmia Jain and Company Ltd. - for a decree declaring that he was entitled to quarry limestone for trade purposes from the Murli Hills described in the Schedule annexed to the plaint, and for an injunction restraining the defendants from dispossessing the plaintiff or granting a lease of the land to any other person. In the Schedule, the two properties in respect of which relief was claimed were: (i) the Upper Murli Hill admeasuring 137 acres together with subsoil and mineral rights situate in pargana Rohtas bearing Touzi No. 4769 Tahsil Circle Sasaram; and (ii) the Lower Murli Hill comprising an area of 250 bighas within the Banskati Mahal together with the surface, subsoil and mineral rights situate in pargana Rohtas, Touzi No. 4771 Tahsil Circle Sasaram. The Trial Court dismissed the suit. In appeal the High Court of Patna modified the decree passed by the Trial Court and declared that the plaintiff was entitled to quarry limestone for trade purposes from the Lower Murli Hill, "subject to the right which the owner of the Banskati Mahal had therein as set out in the judgment", and restrained the defendants by a permanent injunction from dispossessing the plaintiff from the Lower Murli Hill described in the Schedule annexed to the plaint. With certificate granted by the High Court the State of Bihar and the Dalmia Jain and Company Ltd., have separately appealed.

2. The Murli Hill which forms a spur in the Kaimur range of Hills is shaped like a truncated cone with a plateau at the top. The plateau is called the Upper Murli Hill and the slopes are called the Lower Murli Hill. After the battle of Buxar in 1764, Raja Shah Mal, Diwan of Rohtas Fort handed over to the East India Company the entire Rohtas pargana including the greater part of the Kaimur range in the Sasaram sub-division as well as the land lying below it in the Sone valley. The East India Company granted a major part of the pargana to Raja Shah Mal as a reward for services rendered by him. Rai Harbans Rai - successor of Raja Shah Mal - imposed sair - duties called Banskati on all wood bamboos and other forest produce taken out of any part of the pargana. About the year 1812 the representatives of Harbans Rai surrendered the grant to the East India Company with the exception of 12 mauzas which they retained for themselves. The territory so surrendered was shortly thereafter settled permanently in 116 estates containing 271 mauzas, but the Government of the day retained the Banskati Mahal", or the right which Harbans Rai had exercised in the territory granted to Raja Shah Mal of collecting "spontaneous products" of the land and of levying duties thereon when collected by others. The right to levy the Banskati was later restricted in its exercise to an area of 200 sq. miles in 108 villages including Mahal Chandanpura bearing Touzi No. 4771. When the produce of the land was taken to carry on a trade an annual fee was levied from each person carrying on trade or for each kiln. Permit fees were levied from persons entering the forest to collect produce and when, the produce was collected for exportation, a duty calculated on the quantity exported was levied at toll stations.

3. Mahal Chandanpura which was permanently settled in favour of Rani Gulab Kunvar, included two villages - Baknaur and Samahuta - which formed part of the Lower Murli Hill. The village Baknaur consisted of six plots - one of which was plot No. 168, and the village Samahuta consisted of eight plots which included plots Nos. 42, 128, 130 and 44. Originally the Banskati right was framed out to contractors, but after 1885 it was administered directly through the officers of the Government. It appears that between the years 1879 and 1907 enqu