Judgement

Appeal (No. 51 of 1927) from a decree of the High Court (February 26, 1925) reversing a decree of the Subordinate Judge of Murshidabad.

The appellant claimed in a suit to restrain the respondents, assignees of and sub-lessees from persons to whom his predecessor had granted a patni lease, from excavating the land for the purposes of making bricks.

21 Law Rep. 55 Ind. App. 320 ( 1927- 1928) Bejoy Singh Dudhoria V. Surendra Narayan Singh

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The terms of the patni lease, dated July 18, 1853, appear from the judgment of the Judicial Committee.

The trial judge granted an injunction, but gave only Rs.10 damages.

Both parties appealed to the High Court, which allowed the appeal of the defendants and dismissed the suit.

Walmsley J. held, first, that the plaintiff could not complain unless the use made of the land either threatened the destruction of the property or endangered the rent, and in the present case neither of these risks was present. He referred to Barada Prasad Banerjee v. Bhupendra Nath Mukherjee. (( 1923) I. L. R. 50 C. 694.) The relation between a zamindar and patnidar was very different from that between an English owner and his lessee. Secondly, that in the absence of an express exemption from brickmaking, it was permissible. Thirdly, he held, on evidence rejected by the trial judge, that there had been acceptances of payments from the patnidar for brickmaking, and that thereby the plaintiff was estopped. Chakravarti J. concurred. He was of opinion that a patni taluk was really a grant of the zamindars interest without restrictions, unless they were specifically mentioned in the patta. Provisions of the Transfer of Property Act as to leases could not be applied by analogy to patnis. The appeal is reported at I. L. R. 52 C. 665.

1928. April 30; May 1. Dunne K.C. and E. B. Raikes for the appellant. The soil excavated was a mineral. It was held by the Board in Giridhari Singh v. Megh Lal Pandey (( 1917) L. R. 44. I. A. 246.), following previous decisions, that a mukarrari lease granted by a zamindar did not convey the minerals without special words. It is true that in Satya Niranjan Chakravarti v. Ram Lal Kaviraj (( 1925) L. R. 521. A. 109.), the question whether the previous decisions applied to a patni grant was expressly left open. There is however no difference material to this point between a mukarrari lease and a patni lease. The grantee of a mukarrari pottah is a leaseholder, a right being left in the grantor Abhiram Goswami v. Shyama Charan Nandi. (( 1909) L. R. 361. A. 148.) The position of a patnidar, as defined by Ben. Reg. VIII. of 1819 (preamble and cls. 2, 3, 8), is similar to that of a mukarraridar. Even if the nature of the tenure itself does not exclude the right claimed, unless given expressly or by clear implication, the language of the lease in this case shows that the intention was not to convey the soil. There was an express prohibition from excavating tanks ; excavating the soil for brickmaking was a fortiori a use in excess of the grant.

De Gruyther K.C. and Dube for respondent No. 1. The position of a patnidar differs materially from that of a mukarraridar. A patni is described in the regulation as a taluk, and a talukdar holds, as by substitution, all the zamindari rights; the method of realizing the revenue is the same as against a zamindar Tarini Churn Gangolly v. Watson & Co. (( 1869) 12 Suth. W. R. 413, 416.); Joykishen Mookerjee v. Collector of East Burdwan (( 1864) 10 Moo. I. A. 16.); AH Quader Hossein v. Jogendra Narain Roy (( 1889) 16 Cal. L. J. 7.); Ben. Reg. VIII. of 1819, preamble. The glossary to the Fifth Report refers to a talukdar as a " petty zamindar." Under cl. 3 (2.) of Ben. Reg. VIII. of 1819 patni talukdars are entitled to let " in any manner they may deem conducive to their interest” which includes a letting for the purpose of making bricks. Abhiram Goswamis case (L. R. 36 L A. 148.) does not apply to a patni talukdar. The only statutory restriction on a tenant i