In a grant of tenure at a fixed rent, even if the tenure is permanent, heritable, and transferable, mineral rights are presumed to remain with the zamindar unless there is express evidence that the zamindar parted with them.

Judgement

Appeal from a judgment and decree of the High Court (July 11, 1911) reversing a judgment and decree of the Subordinate Judge of Burdwan (May 16, 1906).

The suit was instituted by the Raja of Pachete, the first respondent, against the appellants and persons (joined as respondents to the appeal) who were the appellants lessees of lands in mauza Panchgachia, a village within the ambit of the zamindari of Pachete. The plaintiff alleged by his plaint that the mauza was an ordinary mal village of his zamindari, that the appellants had no rights in the subsoil, and that the defendants, their lessees, had been wrong fully working the coal under the mauza. The Raja claimed a declaration that he was entitled to the mineral rights in the village, an injunction, and damages. The appellants by their written statements pleaded, so far as is material, that the mauza was held by them and their predecessors under talabi brahmottar rights from a date before the permanent settlement. They claimed that their rights were those of proprietors, subject to the payment of a fixed rent, and that they had full rights in the subsoil.

The grant relied on was stated to have been lost, and no copy of it or evidence as to its terms was given at the trial. There was, however, in evidence a copy of a statement made by a predecessor of the plaintiff to the Revenue authorities in 1790. This document was produced from the Collectorate of Mandbun, and referred to mauza Panchgachia as talabi brahmottar, its jamma being stated to be sicca Rs.25. Evidence was also given of a judgment in Persian in a suit brought in 1808 in which the appellants predecessors claimed the return of rent paid in excess. This judgment referred to the mauza as held on talabi or mogli brahmottar rights. A body of evidence was called as to the rents paid and as to transfers having taken place.

The Subordinate Judge found that the mauza was held since before the permanent settlement in talabi brahmottar rights by the three classes of Brahmans—Upadhyas, Mukerjis, and Misra— in Panchgachia in distinct shares of three, six, and seven annas; that the appellants predecessors had been paying fixed rents certainly since 1808, and had exercised transferable and heritable rights. He said "The term brahmottar is quite familiar in Bengal; it undoubtedly means land granted rent free to Brahmans for their support and that of their descendants, probably as a reward for their sanctity and learning, or to enable them to devote themselves to religious duties and education, as we find in Wilsons Glossary. If the word brahmottar conveys this meaning, the prefixing of the word talabi, kheraji or mogli imports the modification only that the grant is made subject to the condition that a fixed rent should be paid by the grantee to the grantor." Upon a consideration of Regulation I. of 1793 he rejected a contention on the part of the plaintiff that previously to the permanent settlement the zamindars were not owners of the land and consequently could not demise the minerals. He thought, on this point, that, though the authorities differed in their opinion as to the actual status of the zamindars immediately before the settlement, the Government at the time classed the zamindars among actual proprietors of the soil. It was, he thought, the surface only which was in the contemplation of the parties to the grant, but, the grant being a permanent one without any reservation, the inference, on the authority of Sriram Chakravarti v. Hari Narain Singh Deo (( 1905) I.

L. R. 33 Calc 54.), was that the minerals passed under the talabi brahmottar grant. He accordingly dismissed the suit.

Upon appeal the High Court (Coxe and Teunion JJ.), by a judgment reported at I. L. R. 38 Calc. 985, reversed the decision. Upon the facts the learned judges found that the appellants predecessors had held since before the permanent settlement under a talabi brahmottar grant at a fixed rent and with transferable rights, and that with