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 the p