Lord Tomlin. -

The appellant in this case who is the plaintiff in the suit, and will be hereinafter referred to as the plaintiff, is appealing against a decree dated 31st March 1925, of the High Court of Judicature at Madras whereby the plaintiff's suit was dismissed and the plaintiff was ordered to pay certain costs.

The plaintiff as successor-in-title of his father holds 27 villages, formerly part of an estate known as the Totapalli estate situate in the Godaveri District in the Northern Circars of Madras. These villages were purchased in 1879 by the plaintiff's father from the then holder and Mansabdar of the Totapalli estate.

In the years 1913 and 1915 the Tahsildar of Peddapur collected from tenants of the plaintiff in two of the 27 villages royalties or penalties for the removal of gravel and stone from hills within the boundaries of such two villages. He did so on the footing that the underground rights in the villages belonged to the Government.

Thereupon the plaintiff launched in the Court of the District Munsif of Peddapur a suit against the defendant, the Secretary of State for India in Council claiming a declaration of his title to the underground rights in his villages formerly part of the Totapalli estate. He also asked an injunction to restrain interference with his rights and a refund of the amount collected from his tenants. The defendant denied the title of the plaintiff to the underground rights alleging that the Government retained the right to resume (i. e., to re-assess) the Totapalli estate and that the underground rights were therefore vested in the defendant respondent. The substantial issue between the parties is the title to the underground rights.

The Mansabdar of the Totapalli estate admittedly transferred to the plaintiff's father in 1879 all his interest in the 27 villages. It was open to the plaintiff to show either that the interest of the Mansabdar transferred in 1879 included the underground rights or that the plaintiff's father or he himself subsequently acquired them. In fact, in the first instance, he framed his claim on the footing that the underground rights passed to his father in or about 1883 by reason of the Government having at that time resumed the villages and enfranchised them in favour of his father.

This point is raised by para. 3 of the plaintiff's filed plaint in the following terms :

"The plaintiff is the owner of Nellipudi. Meraka Chamavaram and some other villages in the Totapalli estate as per the plaint schedule. The underground rights in the said villages had become absolutely vested in and been enjoyed by plaintiff and his predecessors-in-title and the said villages were purchased from the then Mansabdar by plaintiff's father in or about 1879. They were subsequently resumed by Government and enfranchised in plaintiff's father's favour and quit rent imposed on them."

As will be seen from the succeeding narrative, the plaintiff subsequently changed his ground more than once.

On 18th December 1916, the District Munsif pronounced judgment in the plaintiff's favour so far as his title to the underground rights was concerned, and gave him a declaration accordingly, but did not grant him any injunction and rejected his claim for a refund of the royalties or penalties which had in fact been paid not by him but by his tenants.

The District Munsif appears to have held that the alleged enfranchisement did not enlarge the appellant's rights but that the title to the Totapalli estate rested upon an ancient grant, which had not been produced, and that by virtue of a general rule to the effect that the grantor must in the absence of evidence to the contrary be taken to have parted with all his rights, the underground rights had passed by the grant and were therefore vested in the plaintiff.

An appeal was taken to the Subordinate Judge who, on 17th December 1917, also pronounced judgment in the plaintiff's favour. He appears to have held that there was an original service grant of the estate wh