Judgement

Consolidated Appeals (No. 35 of 1936) from a decree of the High Court (July 20, 1934) reversing a decree of the Subordinate Judge of Asansol (December 23, 1929).

In the action out of which these consolidated appeals arose the appellant Kumar Raj Krishna Prosad Lal Singha Deo claimed arrears of rent and royalties due on coal raised during the year ending October 17, 1927, from the Monoharbahal Colliery under the terms of a lease dated January 25, 1912. The lease was granted by the Raja of Panchkote, the father of the plaintiff, and the latter claimed the royalties by virtue of a korposh deed of September 29, 1926, which vested the landlords reversion in him. The first defendants, the Baraboni Coal Concern, Ld., were sued as assignees of the term of the lease, their assignment from the original lessee, who was not impleaded, being by deed dated February 14, 1914. The other defendants, Chandanmull Karnani and Chandanmull Indra Kumar, a firm, were sued as persons claiming to have purchased the right, title and interest of the first defendant company. The first defendants pleaded by their defence that the Raja had no title to the underground rights in Mousa Monoharbahal which was the lakheraj debutter property of a certain deity, and the main question in this appeal was whether, in view of the provisions of s. 116 of the Indian Evidence Act, 1872, the lessee-defendants were estopped from challenging their lessors title. The other defendants pleaded that they did not obtain possession under their purchase until March 20, 1928.

The further facts appear from the judgment of the Judicial Committee.

The Subordinate Judge held that the plaintiff had no title to the colliery, and he dismissed the suit.

On appeal the High Court (Mitter and Patterson JJ.) held (inter alia) that under s. 116 of the Indian Evidence Act, 1872, the defendant company was precluded from disputing the Rajas title.

1937 April 29, 30. Dunne K.C. and J. M. Parikh for Kumar Raj Krishna Prosad Lal Singha Deo.

Sir Thomas Strangman for the Baraboni Coal Concern, Ld. Vaisey K.C. and

H. S. Chatfield for Chandanmull Karnani and Chandanmull Indra Kumar, a firm.

June 4. The judgment of their Lordships was delivered by Sir George Rankin. The plaint in this case was filed on November 18, 1927, and the claim of the plaintiff is for royalties due on coal raised during that year (up to the end of Aswin October 17) from a colliery known as Monoharbahal under the terms of a lease, dated January 25, 1912. The grantor of the lease is the Raja of Panchkote (defendant No. 3) ; the plaintiff, who is his son, claims the royalties due thereunder by virtue of a maintenance (korposh) deed, dated September 29, 1926, which vests the landlords reversion in him no dispute arises upon this assignment. The original lessee, one Radha Balla v Mukherjee, has not been impleaded, the defendants being the Baraboni Coal Concern, Ld., defendant No. 1 (" the defendant company "), and two others (defendants Nos. 2 and 2 (a)). The defendant company are sued as assignees of the term, their assignment being by deed, dated February 14, 1914 ; the other defendants as persons claiming to have purchased the right, title and interest of the defendant company at a sale held under the Public Demands Recovery Act (Bengal Act III. of 1913) on August 17, 1927. These defendants (Nos. 2 and 2 (a)) say that they did not obtain possession under their purchase until March 20, 1928. The lease contained a clause (cl. 14) giving the lessor a charge for royalties upon the colliery and its plant, and the plaint seeks to enforce this/charge by sale.

The defend of the defendant company was that the Raja had no title to the underground rights in Mousa Monoharbahal which was the lakheraj debutter property of a certain deity. This allegation was in the written statement embroidered with, or encumbered by, allegations of fraud and misrepresentation on the part of the Raja and mistake on the part of the defendant company. The