.

Judgment

Fazl Ali J.- This is an appeal from a judgment & decree of the H. C. of Judicature at Patna, affirming a judgment & decree of the Sub-ordinate judge of Monghyr in a title suit brought by the pltf. resp.

2. The pltf. the Maharaja of Gidhaur, who has succeeded in both the Cts. below is the proprietor of an impartible estate known as Gidhaur raj in the district of Monghyr. The ancestors of the defts. 1st party originally held a 4 annas share in a ghatwali tenure known as Mahal Dumri Nisf Katauna T. No. 325, & Sub-sequently by private partition they were allotted mouza Dumri with its 47 tolas which are detailed in Sch. I of the plaint. In execution of d mtge. decree obtained by one Chethru Rai against the ancestors of defts. 1st party, their interest, to which reference has been made, was purchased by the Maharaja of Gidhaur in the name of one of his employees, & the latter took delivery of possession of the property on 19-4-1904. On 13-8-1903, the ancestors of the defts. 1st party filed an appln. for setting aside the sale which was dismissed by the executing Ct. & the appeal from the order of the executing Ct. was dismissed by the H. C. as well as by the P. C. After certain disputes in the criminal Cts. the defts. second party alleging themselves to be the lessees of the defts. first party, obtained a mining license in 1937 from the Sub--divisional officer of Jamui, & the Dist. Mag. apprehending a breach of the peace, started proceedings u/s. 144, Cr. P. C., which ended in favour of the defts. first & second parties & against the pltf.

3. The pltf s case is that, emboldened by the order in the proceedings u/s. 144, the defts, started working mines in the tolas mentioned in Sch. II of the plaint & extracted a considerable quantity of mica & hence he was compelled to institute the present suit. In this suit, after reciting the facts to which reference has been made, he prayed for a deClaration of the Sub-soil rights with regard to the entire Mahal Dumri & for recovery of possession of the mtge. lands situated in, the tolas specified in Sch. II of the plaint. He also prayed for mesne profits & a permanent injunction restraining the defts. first & second parties from extracting mica or other underground minerals from the lands mentioned in Sch. II of the plaint. The grounds on which these reliefs were Claimed are summarized in para, 12 of the plaint in these words: "That the pltf. submits that he being the 16 annas proprietor at Dumri Nisf Katauna has got an indefeasible right & title to all the underground mineral insluding mica situate within the said talukas. The pltf. further submits that all the titles & interest in the said 4 annas mokrari shares of the ancestors of the deft. 1st party having been acquired by pltfs. ancestor by auction purchase in 1903, the deft. 1st party have no sort of right & interests in the mica & other underground minerals nor the deft. 2nd party have derived any lawful right under leases alleged to have been granted in their favour by deft. 1st party, the pltf. in law is entitled to get a declaration of his title & possession with respect to all the underground right insluding mica........."

4. The suit was contested by defts. No 1 to 11 (defts. 1st party), but as the trial judge has pointed out, the real deft. was deft. 1, father of the applt. The case of this deft. was that the four annas interest in village Dumri was a ghatwali tenure granted to the ancestors of the defts. first party by Muhammadan rulers to guard the hill passes in the taluka, & the grant under which they held was affd. Sub-sequently by Captain Browne, a representative of the East India Co. The deft. 1 further contended that the mineral & Sub-soil rights were vested in him as the holder of the ghatwali tenure, & that the pltf. had acquired no right by his auction-purchase in 1903 inasmuch as the property in suit being Govt. ghatwali tenure was inalienable & consequently the auction purchase was invalid. Lastly, it was cont