Judgement

Appeal (No. 64 of 1923) from a decree of the High Court (June 16, 1920) reversing a decree of the Subordinate Judge of Jamtara.

In 1852 the zamindars granted a deed of patni settlement in respect of mauza Sultanpur, which was within their zamindari. The material portions of the deed as translated from Bengali appear from the judgment of the Judicial Committee. It appeared from the judgment of Jwala Prasad J. that .the Bengali words translated "within the four boundaries and above and below "were" adha urdha hadud mahdud," after which occurred the words " hak hakuk."

In 1915 the appellants, who with certain pro-forma defendants were holders of the zamindari, instituted a suit against the patnidars and darpatnidars of the mauza (the present respondents Nos. 1 to 10), alleging that the defendants were raising and appropriating large quantities of coal from the mauza. The plaintiffs prayed for a declaration "that the plaintiffs are entitled to and are in possession of the underground rights of the said mauza, and that the defendants had no right or interest in the sub-soil of the said mauza"; they also claimed damages and an injunction.

The principal defendants, who were in possession by purchase, pleaded among other things that their predecessors in interest were entitled to the minerals underlying the mauza by the terms of the patni grant; they also relied upon the long period during which they had worked the minerals to the knowledge of the plaintiffs and their predecessors in title, and they pleaded that the suit was barred by limitation.

The Subordinate Judge held that the patni deed did not convey to the grantees any right in the minerals; also that the suit was not barred by limitation or any estoppel. He accordingly made a decree for the plaintiffs.

Upon appeal to the High Court the decree was reversed and the suit dismissed.

Jwala Prasad J., with whose judgment Adami J. concurred, was of opinion that, as the effect of the inclusion of the words " adha " and " urdha " in the deed, there was a conveyance of the underground rights, including a right to work the mines; though in his view, having regard to the decision of the Board in Giridhari Singh v. Megh Lal Pandey (( 1917) L. R. 44 1. A. 246.), the minerals would not have been conveyed had the words "hak hakuk" stood alone. Upon the evidence it was found that the defendants and their lessee had worked the mines continuously since 1894, and that they had done so with the knowledge of the zamindars since 1898 or earlier. No decision was given upon the question of limitation, but the view was expressed that the delay in bringing the suit showed that the plaintiffs understood that the minerals were included in the grant.

1924. Oct. 23, 24, 27. Upjohn K.C., Dunne K.C. and Dube for the appellants. A series of decisions of the Board establish that the grant of 1852 did not include the subjacent minerals in the absence of express words. [Reference was made to the six decisions mentioned in the judgment of their Lordships.] The grant contained the words showing a clear intention to convey the underground rights. [Reference was made to Wilsons Glossary, s.v. "adha," "adhi."] The grantor of 1852, not knowing that there were any underlying minerals, could not have intended to grant them. In any case there was no right to open new mines and work see Transfer of Property Act, 1882, ss. 105, 108 (o). That right could not be acquired by prescription Lord-Advocate v. Wemyss ([ 1900] A. C. 68.); Glyn v. Howell. ([ 1908] 1 Ch. 666.)

De Gruyther K.C. and Kenworthy Brown for the respondents Nos. 1 to 10. The decisions of the Board relied on by the appellants do not apply to a patni grant. A patni is a taluq and a patnidar holds, as by substitution, all the zamindari rights there is no reversion in the zamindar Tarini Churn Gangolly

v. Watson & Co. (( 1869) 12 Suth. W. R. 413, 416.); Joykishen Mookerjee v. Collector of East Burdwan (( 1864) 10 Moo. I. A. 16.); Ali Quader Hossein v. J