Judgement

Appeal (No. 101 of 1928) from a decree of the High Court (May 15, 1925) affirming a decree of the Subordinate Judge of Burdwan (May 13, 1921).

In 1915 the appellants, who held a permanently settled zamindari in the Manbhum District known as the Pandra, instituted a suit praying for a declaration that the subsoil rights in a village called Dendua belonged to them, an injunction and mesne profits. Dendua was one of the villages of Taraf Achra which had been included in the zamindari at the permanent settlement. Taraf Achra had at one time been part of the zamindari, but from an early date, apparently about 1700, it had been in the possession of a junior branch of the zamindars family, who paid to the zamindar the annual sum of Rs.21.4.0 in respect of it. The defendant-respondents were the Thakur of Achra and purchasers from him.

The plaint alleged that Taraf Achra had been granted to the junior branch as a khorposh or maintenance grant, which by custom was resumable, and that the subsoil rights belonged solely to the proprietors of Pandra. The first respondents written statement denied the facts so stated and alleged that Taraf Achra was held in indefeasible and absolute proprietary right; it was further pleaded that the suit was barred by limitation.

A great amount of documentary evidence as to the history of Pandra and of Achra from an early date was adduced.

The facts appear more fully from the judgment of the Judicial Committee. With reference to the partibility of Pandra it appeared that in addition to the judgment and decree for partition in the suit of 1793, which is referred to in their Lordships judgment, a further suit for partition had been brought in 1882, and that it had been dismissed in 1887, the decree being affirmed by the High Court in 1889, both Courts holding that the zamindari was by custom impartible.

The Subordinate Judge found that it was not proved that Achra was held under a khorposh grant, and that view was affirmed on appeal. He held that Achra including the subsoil rights, had been acquired by the junior branch by partition or allotment by way of family settlement, the annual payment being an agreed contribution to a share of the revenue paid to the Mussalman Government by the zamindar. He held also that the suit was barred by adverse possession of the surface rights, though he found that coal had first been worked in Dendua within six years of the suit.

An appeal to the High Court was heard by Walmsley and Mukerji JJ. and was dismissed upon grounds which appear from the present judgment.

The present appeal was originally heard in July, 1930, by a Board, which included the late Sir Binod Mitter, and in consequence of his death before the judgment was delivered was ordered to be reargued.

1930. Oct. 30, 31 ; Nov. 3, 4, 6, 7. Dunne K.C. and Wallach for the appellants. Achra was included in the Pandra zamindari at the permanent settlement, there is therefore a presumption that it was held under a grant from the zamindar Ranjit Singh v. Kali Dasi Debi (L.R.44I.A.117,122.); also that the subsoil rights belonged to the zamindar Durga Prasad v. Braja Nath Bose. (L. R. 39. I. A. 133.) The Board has held in a series of cases that a grant of whatever nature from a zamindar, even if it is permanent, heritable and transferable, does not convey the minerals unless they are expressly included Hari Narayan Singh v. Sriram Chakravarti (( 1910) L.R. 37. I. A. 136.) ; Sashi Bhushan Misra v. Jyoti Prashad Singh Deo (L. R. 44. I. A. 46.); Giridhari Singh v. Megh Lal Pandey (( 1917) L.R. 44.

I. A. 246.) ; Raghunath Roy Marwari v. Raja of Jheria (( 1919) L.R. 46.I. A. 158.) ; Satya Niranjan Chakravarti v. Ram Lal Kaviraj (( 1924) L. R. 52.I. A. 109.) ; Bejoy Singh Dudhoria v. Surendra Narayan Singh (( 1928) L. R. 55.I. A. 320.) ; Raja of Pittapur v. Secretary of State for India. (( 1929) L. R. 56.I. A. 223.) The presumption therefore is that Achra was held under a grant which may or may not have included the min