Judgment

Consolidated Appeals (No. 51 of 1923) from a decree of the High Court (June 24, 1921) reversing a decree of the District Judge of Burdwan (May 28, 1918).

The suit was brought by the first respondent, the Raja of Pachete, to establish his right to certain digwar ghatwali lands, together with the minerals lying thereunder, and for an injunction to restrain the defendants from working coal mines therein. The defendants were the Secretary of State for India in Council, appellant in one of the consolidated appeals, the New Birbhum Coal Co., Ld., and the Bengal Iron and Steel Co., Ld., appellants in the second consolidated appeal; the digwar ghatwals were also joined as defendants.

The Secretary of State pleaded that the suit was barred by limitation, as the defendants had held adverse possession of the minerals for more than twelve years, that neither at the permanent settlement of 1793, nor at any other time, were the villages permanently settled, that they never formed part of the plaintiffs permanently settled estate, and that the villages had been digwari chakran from before the permanent settlement.

The two companies raised by their written statements substantially the same pleas as the Secretary of State.

The digwar ghatwals filed a similar written statement, and in addition pleaded that the digwars were the owners in perpetuity by grant of the villages, including both the surface and the minerals.

The District Judge who tried the case dismissed the suit. He held that the lands had not been taken into account in fixing the revenue at the permanent settlement, and that they did not form part of the zamindari. He further held that the right to the minerals remained in the Crown.

On appeal to the High Court the decree was reversed. The learned judges (Chatterjea and Newbould JJ.) found, on the evidence that the digwari tenures had been created by the Pachete raj, that the Rajas appointed the digwars, who performed police services and held the lands in lieu of wages. The learned judges held that the lands were either thanadari lands within the meaning of s. 8, cl. 4, of Ben. Reg. I. of 1793, or "other chakran lands" within s. 41 of Ben. Reg. VIII. of 1793. They however rejected the second alternative, and said " The lands being thanadari within the meaning of s. 8, cl. 4, of Reg. I. of 1793, the plaintiff will be entitled to possession of the same on their resumption by Government, subject to the payment of separate revenue; but so long as the mauzas are not resumed, the plaintiff is not entitled to any rent or compensation for use and occupation." With regard to the minerals the learned judges said that varying opinions had been expressed in many official papers cited, and numerous cases had been referred to. The conclusion arrived at was that at the permanent settlement the right of the Crown in the minerals was parted with, and that " the digwars holding as chakran cannot have a right to the minerals, and we are of opinion that the right to the minerals is in the zamindar." On the question of limitation it was held that possession for the statutory period adverse to the plaintiffs claim had not been established.

The argument on behalf of the appellants as to the ownership of the villages was heard by the Judicial Committee in December, 1925, the respondents not appearing, owing to the conduct of their then solicitor. The respondents shortly after obtained leave to appear, and the argument was ordered to be heard de novo.

1926. Jan. 18, 19, 21, 22, 23, 25, 26, 28, 29. Dunne K.C. and Kenworthy Brawn for the Secretary of State, appellant Sir George Lowndes K.G., E. B. Raikes and G. D. McNair for the appellant companies. It is a question of fact whether the digwar ghatwali lands are part of the permanent settled estate, and the onus was upon the plaintiff Forbes v. Meer Mahomed Tuquee (( 1870) 13 Moo. I. A. 438.); Jagadindra Nath Roy v. Secretary of State for India. (( 1902) L. R. 30 I. A. 44, 52.) The plaintiff failed to