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, b