Judgement

Consolidated Appeal and Cross-appeal (No. 6 of 1934) from two decrees of the High Court (May 31, 1931) affirming, subject to a modification, a decree of the Subordinate Judge of Dhanbad (July 30, 1927).

The consolidated appeal arose out of a suit in which the above named respondent to the first appeal was plaintiff, and parties represented by the appellants in the first appeal were defendants. The suit was to recover damages in respect of coal alleged to have been removed from a mine of which the

Law Rep. 62 Ind. App. 40 ( 1934- 1935) Maharaja Srischandra Nandy V. Baijnath Jugal Kishore

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plaintiff had a sub-lease, by the defendants, who worked an adjoining mine, and for other relief. The defendants denied the alleged facts and relied on the Indian Limitation Act.

An appeal and cross-appeal from the decree of the trial judge for damages and other relief were both dismissed by the High Court (Wort and Fazl Ali JJ.) subject to a modification as to the amount of damages.

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

1934. Nov. 2, 19, 20, 22. Dunne K.C. and Wallach for defendants Nos. 1 and 3.

Sir Dawson Miller K.C. and Pringle for the plaintiff.

Upon the question of limitation reference was made to Nageshwar Bux Roy v. Bengal Coal Co. (( 1930) L. R. 58 I. A. 29.); Secretary of State for India v. Debendra Lal Khan (( 1933) L. R. 61 I. A. 78.); Satya Niranjan Chakravarti v. Ram Lal Kaviraj (( 1924) L. R. 52 I. A. 109.); also (as to art. 48 of the Limitation Act) to Pugh v. Ashutosh Sen. (( 1928) L. R. 56 I. A. 93.)

Dec. 14. The judgment of their Lordships was delivered by

LORD THANKERTON. These consolidated appeals consist of an appeal by the defendants Nos. 1 and 3 in the suit and a cross-appeal by the plaintiff from two decrees of the High Court of Judicature at Patna dated May 21, 1931, which, subject to a slight modification, confirmed a decree of the Subordinate Judge of Dhanbad dated July 30, 1927.

The plaintiff, who is a sub-lessee of the coal-mining rights of a part of Mouza Gararia, instituted the present suit on May 28, 1925, against the predecessor of the present defendant No. 1, who was a similar lessee of Mouza Ekra, which lies immediately to the south of Mouza Gararia, and defendants Nos. 2 and 3, who were in succession the agents of defendant No. 1 in working his coal, defendant No. 3 having succeeded defendant No. 2 in May, 1924. The suit was based on the alleged conversion of an area of the plaintiffs coal, and he asked for an order on the defendants to vacate the land encroached on, for an injunction prohibiting future trespass and conversion, for an inquiry and ascertainment of the extent of the defendants encroachments and the amount of coal removed and for an inquiry as to the quantum of damages.

The plaintiffs sub-lease was obtained by him on April 26, 1922, and he set out his cause of action as having arisen in or about November, 1924, when he first came to know of the encroachments.

Gararia and Ekra are both part of the Jharia Raj. In 189G the then Raja granted a mokarrari lease of the coal-mining rights in Gararia to one Maheshwar Rai, and in 1898 he granted a similar lease of Ekra to the ancestor of defendant No. I. In 1901, 1902 and 1907 Maheshwar Rai granted sub-leases of the coal-mining rights in plots of 100 bighas, 100 bighas and 40 bighas respectively to the lessors of the plaintiff, who demised by way of sub-lease the rights in the whole 240 bighas to the plaintiff in 1922. The plot with which the present dispute is concerned is the plot of 100 bighas, sub-let by Maheshwar Rai in 1901, which is a comparatively narrow strip running north and south, and having Ekra as its southern boundary. The remaining plots of 100 bighas and 40 bighas may be disregarded.

In the present appeals certain facts are no longer in dispute. It is now agreed that the boundary between the plaintiffs coal area and that of the defendants is that fixed by the Revenue Survey maps, and that th