Judgement

Appeal (No. 130 of 1928) from a decree of the High Court (April 30, 1926) varying a decree of the Subordinate Judge at Asansol, Burdwan District.

The appellant company and a firm carrying on business as the Nandi Coal Association were lessees of adjacent coal mines. On September 22, 1919, the appellant company instituted a suit alleging that the firm had encroached upon their mine and removed coal therefrom. They claimed as damages the value of the coal removed and the cost of erecting a barrier to cut off their mine from the defendants ; they also claimed an injunction.

The only survivor of the firm as constituted at the date of the alleged trespass was made defendant No. 1; he died during the suit and his son and heir, respondent No. 1, was substituted for him. Defendants-respondents Nos. 2 to 6 were the widows and minor sons, and representatives, of deceased members of the firm.

The defendants by their written statements denied that the plaintiffs had " any right or title to the property in suit," and pleaded that the plaintiffs had " no cause of action " against them ; they alleged that the coal was not within the boundaries of the plaintiffs lease, but of their own ;