Judgment

GROVER, J.:- This is an appeal by certificate from a judgment of the Patna High Court. The facts may be shortly stated. By a registered indenture of lease dated December 18, l900 the Eastern Coal Co. Ltd., was granted a lease by the Zamindar of Jharia of certain land in mauza Gourkhanti in pargana Jharia. The Eastern Coal Co. erected buildings for manufacture of coke and also constructed office and the quarters for the staff and the labourers. On May 17, 1946 the Eastern Coal Co. sold the machineries on the demised land to the appellant and also granted a lease of the land on which the buildings stood to him. One of the terms of the lease was that royalty would be paid by the appellant at the rate of Re. 1/- per ton on dispatches of coke. The rate was subject to being revised from time to time by mutual arrangement between the parties "as may be justified by market condition". According to the appellant the Eastern Coal Company came to an arrangement in 1950 with him by which royalty on breeze coke was to be paid at the rate of 2 As. per ton. In December 1951 another arrangement was arrived at by which royalty on hard coke was to be paid at the reduced rate of 8 As. per ton instead of Re. 1 per ton stipulated in the lease dated May 17, 1946. This arrangement was to be given effect to from July 19, 1952. On January 5 1955 the Eastern Coal Company informed the appellant that the colliery had been sold to the Bhowra Kankanee Collieries Ltd. respondent No. 1, the sale being effective from January 1 1955. Respondent No. 1 claimed royalty on all despatches of coke including breeze coke at the rate of Re. 1 per ton. The appellant took up the position that by mutual agreement Eastern Coal Company had agreed to the royalty being payable on hard coke at the rate of 8 As. per ton and on breeze coke at 2 As. Per ton. The appellant paid to respondent No. 1 the amount calculated according to the above rates.

2. On January 31, 1956 respondent No. 1 instituted a suit against the appellant claiming a sum of Rs. 23,287-4-3 on account of royalty on all kinds of coke despatched during the period January 1955 to November 1955 at the rate of Re. 1 per ton. The Company further claimed damages at 6% per annum amounting to Rupees 1212-l1-9. The appellant contested the suit, his main plea being that by virtue of the arrangement arrived at with the Eastern Coal Company in accordance with the terms of the lease dated May 17, 1946 the royalty was payable at the rate of Re. 1 per ton for hard coke and 2 As. per ton for breeze coke. The trial Court accepted the plea of the appellant about reduction of the rates of royalty in terms of the arrangement arrived at with the Eastern Coal Company. It was further held that the document Exh A-4 in which this agreement or arrangement was incorporated did not require registration compulsorily and was admissible in evidence. The suit was dismissed. Respondent No. 1 preferred an appeal to the High Court. Although the Point with regard to the admissibility of Exh. A-4 for lack of registration was raised before the High Court it did not give any decision on it. The judgment of the High Court rested on the finding that the appellant had failed to prove that the reduction in the rate of royalty had been given effect to from July 1952.

3. Mr. B. Sen for the appellant sought to raise the question about the admissibility of Exh A-4 for want of registration: In the first place this contention cannot be entertained so long as the finding of the High Court on the only point which was canvassed before it about the reduction of the rate of royalty is not set aside. The High Court had held after an examination of the evidence that it had not been proved that there was any change in the market condition in July or in December 1953 to call for a reduction in the rate of royalty or that there was any mutual arrangement or agreement between the lessor or the lessee for such a reduction which was to become effective from July 1952.