A mining lease is a lease under the Transfer of Property Act and the defendants became tenants under the plaintiff's predecessor in respect of the disputed underground of Mouza Duburdihi.

( 1 ) THIS appeal is by the defendants and it arises Out of a suit for a charge decree for recovery of minimum royalty, price of royalty coal and interest. The suit which was valued at RS. 8,819-1-0 was decreed in part for Rs. 7,319-1-0 with proportionate costs Rs. 831-10-6 pies, making up a total of Rs. 8,150-11-6 pies, and from that preliminary charge decree the contesting defendants have preferred the present appeal.

( 2 ) THE plaintiff respondent claims under a lease dated 4-5-1919. That lease was created by the Patta, Ext. E, and the kabuliyat, Ext. 2. This Kabuliyat was executed by the defendants' father in favour of the plaintiff's father who in his turn granted the Patta Ext. E. It was a lease of the "coal land" of Mouza Duburdihi. Under the lease the lessee obtained settlement of and became entitled to the "underground coal" of the said Mouza upon an undertaking to pay royalty or commission at the rate of 2 annas per ton on coal, raised and despatched or sold from the said Mouza, a minimum royalty of Rs. 480/- per annum and also two wagons of coal for the lessor's personal use every year. The commission (royalty) and minimum royalty were payable In two kiste every year namely, in Aswin and Chaitra. There was also provision in the lease for payment of interest by the lessee at the rate of 12 per cent per annum on defaulted kists of minimum royalty and commission. It was also expressly pleaded in the plaint that the defendants' father who was the original lessee duly obtained possession of the underground from the lessor (the plaintiff's father) and such possession was continuing through the defendants as lessees under the plaintiff.

( 3 ) FOR an earlier default in the payment of royalty etc. , namely, from 1332 to 1343 B. S. , the plaintiff's father brought Mortgage Suit No. 9 of 1938 and recovered a decree which was eventually realised by the plaintiff by levying execution against the defendants, the fathers of the parties having died in the meantime. The present suit (Mortgage Suit No. 15 of 1945) was thereafter brought on 11-4-1945, for recovery of minimum royalty and price of royalty coal (payable as fuel for the lessor's personal use) from 1344 B. S. to Aswin 1351 B. S. , for which period there was no payment made by the defendants and no information was also available to the plaintiff whether any coal had been raised or despatched or sold from the leasehold Mouza during the said years.

( 4 ) THE suit was contested by the defendants. Their defence inter alia was as follows:1. That the plaintiff had no title to the underground of Mouza Duburdihi which belonged to the defendants by virtue of their purchase from the Goswamis of Bero who had obtained the same along with other properties from the plaintiff's predecessor under a revenue-free grant, made in the remote past. This was said to have been decided in T. S. No. 37 of 1936 of the court of the Subordinate Judge of Asansol and the said decision was claimed to operate as res judicata in favour of the defendants on the question of title in the present suit, necessarily involving a dismissal of the plaintiff's claim. 2. That the kabuliyat (lease) was vitiated by fraud, coercion, misrepresentation and/or mistake or mutual mistake and no claim was sustainable on the basis thereof, and 3. That the defendants or their predecessor did not obtain possession of the underground from the plaintiff or his predecessor but they were in possession by virtue of an independent and paramount title obtained from the Goswamis.

( 5 ) THERE was also a plea that a part of the plaintiff's claim was time-barred.

( 6 ) OF the seven issues framed in the trial court, issues Nos. 1, 2, 3, 4 and 7 were not pressed and the two remaining issues, namely, :-"issue No. 5:- Has the plaintiff title to the property in suit? Can the defendants deny the title of the plaintiff or his predecessor?" and "issue No. 6:- Is the plaintiff entitled to a decree for the claim in suit? "wer