Judgement

Appeal from a judgment and decree of the High Court (March 26th, 1914) reversing a decree of the additional Subordinate Judge of Purulia.

The suit was instituted by the appellants claiming a declaration that under a patta granted to them in 1908 by the respondents Nos. 2 and 3 they were entitled to work and get the coal underlying lands included in the patta. They alleged that they had been dispossessed by the first respondent against whom they claimed mesne profits. Further relief, not material to this report, was claimed against the respondents Nos. 2 and 3. The first respondent by his written statement asserted his title to the mineral rights throughout his zamindari, but denied that he had interfered with the plaintiffs possession. The other defendants asserted their title and denied the alleged ouster.

The question arising upon the appeal was whether a grant made in 1791 by the predecessor in title of the first respondent to the predecessor in title of the second and third respondents carried the right to the subjacent minerals. The terms of the grant appear from the judgment of their Lordships.

Evidence of the alleged interference with their possession was given by the appellant, no evidence being given by the first respondent, his managers or servants.

The Subordinate Judge, by his judgment delivered on June 24, 1912, held that all the subsoil rights in the land in suit had passed under the grant of 1791, and that there had been a dispossession for which the first respondent alone was responsible. He made a decree declaring plaintiffs title and for possession, and that they should receive Rs. 11334 8 from the first respondent.

The first respondent alone appealed to the High Court.

That Court (Fletcher and Richardson JJ.) by a judgment delivered on March 26, 1914, found that the evidence did not establish that there had been a dispossession of the plaintiffs ; they accordingly allowed the appeal and dismissed the suit. The learned judges did not deal with the question of the title under the grant of 1791.

1919. Jan. 27, 28, 30, 31. De Gruyther K.C. and Kenworthy Brown for the appellants. The High Court erred in reversing the decree so far as it declared the plaintiffs title and awarded them possession ; the Rajas appeal was limited to the decree for money. The evidence established that the Raja wrongfully disturbed the plaintiffs in the exercise of their rights under the patta and was liable to them in damages. The appellants were entitled to a declaration of their mining rights against the Raja. In any event the suit should not have been dismissed as against the other defendants since they had not appealed.

Upjohn K.C, Dunne K.C, and Sir William Garth for the first respondent. Decisions of the Board clearly establish that no title to the subjacent minerals passed by the brahmottar grant of 1791 . Hari Narayan Singh Deo v. Sriram Chakravarti (( 1910) L. R. 37 I. A. 136.); Durga Prasad Singh v. Braja Nath Bose (( 1912) L. R. 39 I. A. 133.); Sashi Bushan Misra v. Jyoti Prashad Singh Deo (L. R. 44 I.

A. 46.); Giridhari Singh v. Meghdal Pandey. (( 1917) L. R. 44 I. A. 246.) The third of those decisions related, like the present case, to a brahmottar grant. The grant in that case was subject to a quit rent, but the principle laid down applies at least equally to a rent free grant. There is however no need in this case to apply the presumption because the grant here is extant, and by its terms clearly does not include minerals. As a matter of construction this case is a fortiori the last of the four cases above named, since in that case the grant was " with all rights." This was a mall village forming part of the zamindari, as is stated in the first paragraph of the plaint.

Dube for the respondents other than the Raja. The appellants having failed to appeal against the decree of the Subordinate Judge cannot maintain the present appeal against this respondent.

De Gruyther K.C. in reply. The four decisions of the Board