Reuben, J.

1. The applts. whom I shall call the Roys, wore defts. 4 to 13 in the suit out of which this appeal arises.

2. The suit was brought by the pltf. resp. to recover arrears of way-leave rent for the year 1931 to 1942 from defts. l to 3 under the terms of an agreement dated 14-4-1925 & also for a declaration that the pltf. & not the Roys, is entitled to the way-leave rent under this agreement. The facts leading up to the suit are as follows. In the year 1908, Banwari Lal, the father of the pltf. granted a mining lease to one Debendra Nath Ghosh for a period of 999 years in respect of coal lying subjacent to a block mauza Dharmaband representing a share of fourteen annas in the mauza. In 1911, Ghosh in his turn made a sub-lease of his interest excluding coal seams Nos. 17 & 18 to Mr. H. A.; Pringle, whose widow is deft. l. Pringle also possessed the mining rights in the coil lying under the block of Dharmaband mauza representing the two annas share of that mauza. For convenience of reference, I shall speak of his block as Block B & shall refer to the fourteen annas block as Block A. Defts. 2 & 3 have acquired an interest in both these properties from Pringle by subsequent assignments. The way-leave agreement, on which this suit is based, was entered into between Pringle & Banwari Lal, while Pringle was still interested in both these properties, & gave him the right to bring coal from his workings in Block B to the surface through Block A, using the existing passages & making such fresh passa ges as might be necessary. For this permission, he was liable under the agreement to pay Banwari Lal one anna per ton of foreign coal so carried. The Roys derive their interest in the pro party from a sale-deed dated 4-7-1931 executed in their favour by the pltf. According do the pltf. by this kebala, he transferred to the Roys merely his interest in the coal subjacent to Block A, thus entitling them to realise from Debendra Nath Ghosh the royalty due under the lease of 1908 &, in case of surrender, to enter into direct possession of the coal & work the coal either themselves or through fresh lessees. Difficulty arose soon after the sale-deed, however, because the Roys claimed that, under the sale-deed, the right to the way-leave also passed to them. The pltf., therefore, brought this suit having failed to recover any way-leave rent after the execution of the sale deed. The suit having been decreed, the present appeal has been filed.

3. Three points have been pressed before us: (1) that the suit is barred under the proviso to P. 42, Specific Relief Act, 1877 ; (2) that the suit, as far as it is a suit for a declaration against the Roys, is barred by limitation, & (3) that, on a correct construction of the sale-deed, the right to way-leave passed to the Roys.

4. Point No. 2.--It is the admitted case of the pltf. that, since 1931, he has not realised any way-leave rent from defts 1 to 3--It appears from the record that way-leave rent due under the agreement of 1925 has been recovered by the Roys. This fact was asserted by the Roys in para. 8 of their written statement, which statement was supported by deft. 3 in para. 8 of its written statement, & the evidence of Shibram Mandal (D. W. l) regarding the realisation has not been challenged, the only suggestion in cross-examination being that the realisation was not made before the execution of an indemnity bond, which indemnity bond was executed by the Roys in favour of defts. 2 & 3 on 18-5-1935. It is contended that, on these facts, it must be held that, even supposing that the right in question did not pass to the Roys & remained vested in the pltf., the pltf. was dispossessed by the interception of the way-leave rent & is, therefore, not entitled to sue for a mere declaration u/s 42, Specific Relief Act. It is pointed out that there were three different reliefs which, supposing the title to be in him, he was entitled to seek against the Roys, namely; (l) recovery of possession,