Back
1931 Supreme(SC) 34
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD MACMILLAN, SIR GEORGE LOWNDES, AND SIR DINSHAH MULLA.
BHUPENDRA NARAYAN SINHA - Appellant
Versus
RAJESWAR PROSAD BHAKAT (DEFENDANTS) - Respondents
On Appeal from the High Court at Calcutta.
Decided On : March 24. 1931.
Solicitors for appellant: T. L. Wilson & Co.
Solicitors for respondents Nos. 1 to 9: Francis & Harker.
Subsoil and mineral rights are not transferred by general terms in a zamindari grant and require express conveyance. Adverse possession of a superficial mineral stratum does not extend to a deeper, separate mineral deposit, as title is limited to the area actually possessed.
Headnote:(A) Limitation Act - Articles 142 and 144 - Civil Procedure Code - Order I, Rule 10 - Subsoil and mineral rights - Grants by a zamindar do not carry minerals unless expressly stated - General terms such as "with all rights" are insufficient to convey subsoil rights.
(B) Adverse possession - Possession of a superficial stratum of minerals does not constitute adverse possession of a deeper, separate mineral stratum - Title acquired by adverse possession is strictly limited to the area actually possessed - The owner of the surface is presumed to have constructive possession of the subsoil until adverse possession is established.
(C) Civil Procedure - Where all members of a joint family are parties to a suit, the court may, under Order I, Rule 10, add pro forma defendants as co-plaintiffs to ensure complete adjudication and avoid multiplicity of proceedings.
Facts of the case:
A suit was filed by a zamindar for a declaration of ownership of subsoil rights in a hill, specifically a deposit of yellow ochre, and for damages regarding its removal. The respondents, holding the land under patni grants, claimed the subsoil rights passed to them via the grants or were acquired through adverse possession by quarrying stones and gravel from the hill for over twelve years.
Findings of Court:
The court held that the patni grants did not contain express words conveying subsoil rights. While the respondents acquired title to the stones and gravel by adverse possession, they did not acquire title to the ochre, as it formed a separate stratum and had been worked for less than the statutory period.
Issues: Whether general terms in a patni grant convey subsoil rights; whether adverse possession of a superficial mineral layer extends to an underlying separate mineral deposit; and whether a single member of a joint family can recover full damages when other members are joined as pro forma defendants.
Ratio Decidendi: Subsoil rights do not pass under a zamindari grant unless expressly granted; general phrases indicating "all rights" are insufficient. Adverse possession is limited to the specific stratum actually possessed; thus, possession of surface stones does not grant title to deeper minerals. The zamindar retains constructive possession of the subsoil. Procedural requirements for joinder of plaintiffs in a joint family suit can be remedied by the court to avoid multiplicity of proceedings.
Result: Decree of the High Court set aside and that of the Subordinate Judge restored, awarding full damages of Rs. 46,800.
Legal Category Hierarchy
-
property law
-
land tenure
- patni grants
-
mineral rights
- subsoil rights
-
land tenure
-
civil law
-
limitation
- adverse possession
-
limitation
-
practice and procedure
-
civil procedure code
- joinder of parties
-
civil procedure code
Judgement
Consolidated Appeal (No. 137 of 1929) from two decrees of the High Court (February 28, 1927) reversing a decree of the Subordinate Judge of Birbhum (November 28, 1923).
The suit was brought by the appellant in the first appeal for a declaration that he was entitled to the ownership and possession of the subsoil rights in a certain hill, for damages in respect of the removal of stones, gravel, and ochre therefrom, and for an injunction. The defendants Nos. 1 to 9 were darpatnidars of land including the hill under patni grants made in 1861 by the plaintiffs predecessor ; defendants Nos. 10 and 11 were lessees from the darpatnidars. The brothers of the appellant zamindar were joined as pro forma defendants.
The Subordinate Judge held that under the patni grants the defendants were entitled to remove the stones and gravel, but that they were not entitled to the underlying deposit of ochre. He held also that the suit was barred by adverse possession for over twelve years as to the stones and gravel, but that it was not so barred as to the ochre, as that had been worked only within six years of the suit. He assessed the damages in respect of the removal of ochre at Rs.46,800, but he gave the plaintiff a decree for only a fourth of that sum, in the view that he was one of four joint brothers.
Both parties having appealed to the High Court, two decrees were made with the effect of dismissing the suit. The learned judges (B. B. Ghose and Roy JJ.) held that under the terms of the patni grants the defendants were entitled to the subsoil rights. They pointed out that in Satya Niranjan Chakravarti
v. Ram Lal Kaviraj (( 1924) L. R. 52 I. A. 109.) the Privy Council had held that the question whether a patni grant carried the subjacent minerals without express words was still open, and they therefore followed the decision of the High Court in Ali Quader Hossein v. Jogendra Narain Roy (( 1889) 16 C. L. J. 7.) that express words were not necessary. The learned judges were also of opinion that adverse possession as to all the subsoil rights began when the stones and gravel were first worked, and that therefore the suit was wholly barred. The judgments are fully reported at
I. L. R. 55 C. 35.
1931. Feb. 23, 24. Dunne K.C. and Dube K.C. for the appellants. By a series of decisions commencing with Hari Narayan Singh v. Sriram Chakravarti (( 1910) L. R. 37 I. A. 136.) and including the judgment delivered by Lord Buckmaster in Sashi Bhushan Misra v. Jyoti Prashad Singh Deo (3), which was in comprehensive terms as to grants by a zamindar, the Board has held that such grants do not carry the minerals unless it is expressly so stated. In Satya Niranjan Chakravarti v. Ram Lal Kaviraj (( 1924) L. R. 52 I. A. 109.), which related to a patni grant, the Board held that the terms used expressly included all the subsoil rights, and it therefore became unnecessary to decide whether
Law Rep. 58 Ind. App. 228 ( 1930- 1931) Bhupendra Narayan Sinha V. Rajeswar Prosad Bhakat 83
the general rule applied to a patni grant; as the contrary had been argued, the judgment stated that that question was still open. If, having regard to the terms of the judgment in Sashi Bhushan Misras case (( 1916) L. R. 44 I. A. 46.), and cases following it, there was any substantial doubt upon the question it has been since removed by Bejoy Singh Dudhoria v. Surendra Narayan Singh . (( 1928) L. R. 55 I. A. 320.) That case also related to a patni grant, and the same argument was advanced, but it was held that although the grant expressly included " all interest " in the land, it did not carry the right to excavate clay for brick making. In the recent decision of the Board in Gobindra Narayan Singh v. Sham Lal Singh (( 1931) L. R. 58 I. A. 125, 132, 153.), the general rule was affirmed, as applying to all grants by a zamindar. For the purpose here the words " patni taluk " should not be construed according to the old significance of the word " taluk." The general terms used in
