Judgement

Appeal (No. 101 of 1926) from a decree of the High Court (June 11, 1925) reversing a decree of the Special Subordinate Judge of Daltonganj (July 21, 1921).

The suit was brought in 1919 by the proprietor of the Bisrampur estate in the district of Palamau, who

3 Law Rep. 58 Ind. App. 29 ( 1930- 1931) Nageshwar Bux Roy V. Bengal C oal C ompany, Limited

174

had since died and was represented by the appellant as manager of the encumbered estate on behalf of his son, against the respondents, for a declaration of title to the coal under the village of Rajhara in that estate. The respondent coal company by their written statements claimed in effect that they and their co-defendants were proprietors both of the surface and underground rights in the village; further, that the suit was barred by limitation.

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

The High Court (Das and Adami JJ.), reversing the trial judge, dismissed the suit, holding that it was barred by limitation. Other points arose in the case, but they are not material to the present report.

1930. July 18, 22, 24, 25. Upjohn K.C., E. B. Raikes K.C. and Jardine for the appellant. The High Court was wrong in holding that the coal company had a title by adverse possession to the whole coalfield. A title by adverse possession is good only as to so much of the property in suit as the defendant had in his physical possession for the required period. The possession must be such as would support an action of ejectment. No presumption extending the actual possession can be made in favour of a trespasser, even if he believed that he had a title to the subject-matter. Those propositions have been applied frequently to cases as to mineral rights Glyn v. Howell ([ 1909] 1 Ch. 666.); Low Moor Co, v. Stanley Coal Co. (( 1876) 34 L. T. (N. S.) 186.); Ashton v. Stock (( 1877) 6 Ch. D. 719.); Thompson v. Hickman ([ 1907] 1 Ch. 550.); McDonnell v. McKinty. (( 1847) 10 Ir. L. R. 514.) So far as Pramatha Nath Malia v. Meik (( 1920) 5 Pat. L. J. 273.) held otherwise it was wrongly decided. There was no continuous working of the coalfield as a whole. Two or three pits were sunk at certain points, but they were not continuously worked, except possibly pit No. 3, for twelve years. [Reference was made also to Jones v. Williams (( 1837) 2 M. & W. 326.); Taylor v. Parry (( 1840) 1 M. & G. 604.); Thew v. Wingate. (( 1862) 10 B. & S. 714.)] If art. 142 applies there is now no question as to the onus; the evidence shows no dispossession as to the whole village.

Dunne K.C. and G. D. McNair for the respondent Company. Upon the evidence the Company acquired a good title to the whole coalfield by adverse possession. In Satya Niranjan Chakravarti v. Ram Lal Kaviraj (( 1924) L. R. 52 I. A. 109.) the Board held in similar circumstances that the suit was barred as to 1 the minerals under the whole village. That there may, in certain circumstances, be a constructive possession of the whole of a mineral area, although working has been confined to certain parts, is shown by cases referred to for the appellant. Here there was an undisputed title to the surface, and the Company believed that it had a title to the minerals; until the decision in Hari Narayan Singh v. Sriram Chakravarti (( 1910) L. R. 371. A. 136.) it was supposed that an istimrari mokarrari grant carried the minerals. That there had never been any separation of the title to the minerals strongly supports the inference that the workings were acts of possession as to the whole field Lord Advocate v. Wemyss. ([ 1900] A. C. 48. 68.) The evidence shows that the Company since 1865 had openly worked the coal and sunk trial bore-holes where it pleased. Further they paid rent to the zamindar, who must have known of the working. If art. 141 applies the evidence shows a dispossession more than twelve years before suit. Upjohn K.C. replied.

Nov. 24. The judgment of their Lordships was delivered by

LORD MACMILLAN. The subject-matt