JUDGMENT

K. JAGANNATHA SHETTY, J. :— This appeal by certificate under Art. 133(1) of the Constitution is from a decision of the Patna High Court which reversed the decree in the suit filed by the appellants for declaration of title and confirmation of possession.

2. In the court of the Subordinate Judge, the First Court at Dhanbad, the plaintiff /appellants instituted a suit in respect of Schedule B of the plaint for a declaration of their homestead right thereto and for confirmation of possession or in the alternative recovery of possession. The suit property consists of 30 bighas, 18 kattar and 11 chhataks being part of plot Nos. 59 and 70 in village Dhansar. The plaintiffs claim was based on a registered indenture of lease dated Dec. 9, 1949 by which it is said that the possession in the zamindari right of Kali Prasad was settled to Ruplal Aggarwal, father of plaintiff No. 1 and grand father of plaintiffs Nos. 2 and 3. The plaintiffs claim that they have become the owners of the leasehold land and are in possession of the same by exercising diverse acts of possession, mutating their names and by payments of stipulated rents to the State of Bihar, who recognised the said lease.

3. The defendant is a Government company called Messrs. Bharat Coking Coal Limited (The Company). The Company resisted the suit on three main grounds : firstly that the disputed land formed part of North Bhuggatdih Colliery which had vested in the Central Government and thereafter in the company under the provisions of the Coal Mines (Nationalisation) Act, 1973, secondly, that the interest claimed by the plaintiffs automatically stood extinguished with the vesting of the estate of the plaintiffs lessor by reason of the vesting notification issued under S. 3 of the Bihar Land Reforms Act, 1950. Lastly, that actual lease of the land was taken much earlier expressly for the purposes of the mines and that the instrument of 1949 is contaminated with flaw and obtained with a view to certifying the vesting of the estates in the State of Bihar and even that on a misapprehension that the so called homestead land would not vest.

4. The trial court negatived all the defences and decreed the suit.

5. Upon appeal by the company, the Patna High Court reversed the decree of the trial Court and dismissed the suit. There are two main findings recorded by the High Court to allow the appeal. As to the scope and effect of the provisions of the Bihar Land Reforms Act, 1950 in respect of the suit property, the High Court held

"For the reasons indicated above, I am of the view that a lease granted to the plaintiffs in the instant case was an encumbrance and it was annihilated with the issuance of the notification under S. 3 of the Act. The submission urged on behalf of the appellants, therefore, in this behalf must be accepted. The lease of the plaintiffs having come to an end consequent upon the issuance of notification under S. 3 of the Act, the plaintiffs have no title to be declared and the decree of the trial court is liable to be set aside."

6. As to the nature of the suit property and the scope and effect of the Coal Mines (Nationalisation) Act, 1973, the High Court on an appraisal of the oral and documentary evidence led by both the parties said :

"I would, therefore, prefer their positive evidence (referring to the defendants/ respondents evidence) than to the negative evidence adduced on behalf of the plaintiffs. It will, however, be seen that the suit lands are adjacent to a coal mine, namely, North Bhuggatdih Colliery and were being used for the purposes of the said mine, namely, stacking of coal and effecting local sales thereof. The conclusion is, therefore, inescapable that the suit lands are more within the meaning of the Nationalisation Act. What vests under the Nationalisation Act is the mine and not merely the interest of the owner of the mine."

7. Having regard to these findings, the High Court did not find it necessary to examine whether the instrument of 1949