Judgement

Appeal from a judgment and decree of the High Court (December 19, 1906) reversing a decree of the Subordinate Judge of Manbhum.

The appellant instituted a suit claiming a declaration that the respondents had no right to the coal or other minerals under certain lands which had been leased by the appellant to the respondents predecessor in title by a mokarari pottah dated July 10, 1865. He also claimed an injunction and damages.

The material terms of the pottah were as follows " I settle in mokarari the whole of mauza Baramashya, with all rights (mai hak hakuk) as per boundaries given below appertaining to my zamindari, the third kismat, perganna Nawagarh, which is in my possession, together with bil, jhil, orchards, tanks, cultivated lands, with homestead and jungle standing on the same .... at an annual jamma of Rs.59 and two seers of ghee and one goat. You shall enjoy and hold possession of the aforesaid village with your sons and grandsons at your full bliss on payment of the said rent to me every year. If you do not pay the rent .... the mokarari will be cancelled at the end of the year.....You shall be entitled to the extra collections which will be realized in the village, and you will take the price of the tolls of the same by cutting and selling them, to which I shall not have any right. There will never be any increase in this rent."

The Subordinate Judge made a decree in favour of the appellant. On appeal the High Court (Rampini and Mookerjee JJ.) set aside the decree, relying in part upon decisions of that Court subsequently reversed by the Privy Council. The appeal is reported at I. L. R. 34 Calc. 358.

1917. June 18, 19. De Gruyther, K.C., and Dunne, for the appellant. The decision of the Board in Sashi Bhushan Misra v. Jyoti Singh (1) is conclusive in the appellants favour, unless it can be shown that the terms of the pottah amount to an express grant of the minerals. The language of the pottah shows that surface rights only were intended to be granted. The words " mai hak hakuk " mean all rights relative or appurtenant to the surface rights.

Sir Erle Richards, K.C., and Sir W. Garth, for the respondents. In Sashi Bhushans Case (Ante, p. 46.), and the decisions of the Board there followed, the actual grant was not in evidence. Those decisions establish only that a grant of the minerals is not to be inferred merely because the tenure is permanent and heritable. There must be express evidence of a grant of the minerals, not necessarily evidence of an express grant; a grant in general terms is sufficient if, according to the ordinary rules of construction, it includes the minerals. Here the grant is in evidence, and the words " mai hak hakuk " include every right in the soil. The generality of those words is not cut down by the limited words which follow. There is nothing in the pottah to limit the grant to surface rights. [Kerr v. Pawson (( 1858) 25 Beav. 394, 406.) was also referred to.]

July 19. The judgment of their Lordships was delivered by

LORD SHAW OF DUNFERMLINE. The appellant is the proprietor of the zamindari of perganna Nawagarh, being mahal No. 16 of the taujeh of the collectorate of district Manbhum. In 1865 he executed a mokarari pottah of a small portion of mauza Baramashya " with all rights" (this being the translation of the expression " mai hak hakuk ") " as per boundaries .... appertaining to my zamindari, the third kismat perganna Nawagarh, this is in my-possession." An annual jamma was fixed of Rs.59 and two seers of ghee and one goat.

It is admitted that the possession was of a permanent and heritable character, subject to the payment of rent, failing which latter the mokarari " will be cancelled at the end of the year." There is also a clause as to trees in these terms " You shall be entitled to the extra collections which will be realized in the village, and you shall take the prices of the trees of the same by cutting and selling them, to which I shall not have any right."

In 1903,