Lord Romer:-

This is an appeal from a judgment and decree of the High Court of Judicature at Patna dated 1st April 1937 which reversed a judgment and decree of the Subordinate Judge of Dhanbad dated 21st February 1933 and dismissed the appellants' suit. The question for decision is whether the appellants or some of them are entitled to recover damages from the respondents by reason of the respondents having cut and removed coal under a certain area of land which will be described later.

The appellants' claim to the coal in question is founded upon a lease or rather a sub-lease dated 17th July 1908 (hereinafter called the sub-lease) whereby there was demised to the Phularitand Coal Company Limited (hereinafter called the Phularitand Company) coal under the land described in Sch. 3 thereunder written and also delineated and described in the map or plan thereto annexed and thereon coloured blue. Amongst the land described in Sch. 3 was land situate in the mauza Ganeshpur and described therein as being bounded on the north by the mauzas Buddora and Kenduadhi. On the plan there is shown lying between what is marked as Ganeshpur on the south and what is marked as Kenduadhi on the north a streamlet or jore. The plan would seem to indicate that no part of this jore was situate in Ganeshpur inasmuch as it is not coloured blue thereon. So far as the plan is concerned therefore the northern boundary of that part of Ganeshpur which abuts on Kenduadhi is indicated as being the southern bank of the jore. The blue colour on the plan extends to that bank but no further. In the month of March 1926 the Phularitand Company went into voluntary liquidation with a view to effecting an amalgamation with the Baraboni Coal Concern Limited (hereinafter called the Baraboni Company) by means of a sale to them of all its assets. On 30th June 1927 accordingly by an agreement of that date the liquidators of the Phularitand Company agreed to sell to the Baraboni Company as from 1st April 1926 the whole of the assets of the Phularitand Company. According to this agreement the liquidators were to retain possession of the assets until completion of the sale which did not take place until much later. It is alleged however by the appellants that the Baraboni Company was in fact put into possession of the assets upon 1st April 1926.

On 29th January 1928 the Baraboni Company who are the appellants No. 2 discovered that the respondents who were leaseholders of the coal under the western part of Kenduadhi were or had been working a seam of the coal under the jore. In the belief that for the reasons hereinafter stated such coal was included in the sub-lease they in conjunction with appellant 1, Chandan Mull Indra Kumar, instituted on 29th August 1930 the present suit against the respondents claiming a declaration of title, an injunction and damages. The appellant last mentioned had in the year 1928 purchased some of the assets of the Baraboni Company and was under the impression that his purchase included the coal under Ganeshpur. In this he was mistaken. It is now conceded that he had no interest in that coal and he need not be further considered. Nor at the date of the institution of the suit had the Baraboni Company any property in the coal inasmuch as their purchase of the assets of the Phularitand Company had not been then completed. They based their claim to relief however upon their alleged possession of the demised coal since 1st April 1926 and merely brought in the Phularitand Company as formal defendants. But by order dated 12th August 1932 the Phularitand Company were struck out as defendants and added as plaintiffs and are now the appellants No. 3.

In view of what has been stated about the plan attached to the sub-lease, it would not appear at first sight that the appellants 2 and 3 could have any right to complain of the working by the respondents of coal under the jore. Their claim to do so however was as set out in their plaint founded upon the following al