DEVJI Vs. MAGAN LAL R ATHARANA

JUDGEMENT

(1.) This is an appeal by a certificate granted by the High Court of Patna under Art, 133(l) (a) of the Constitution, and arises out of a suit instituted by the appellant against the respondents for the recovery of a sum of Rs. 57,000/-.

(2.) The appellant holds permanent leasehold rights over a colliery called the Jealgora Govindpur Colliery and had worked the colliery himself for some time. On January 31, 1949, he granted a sub-lease of the colliery to respondent No. 4 for a term of five years. At that time, 2803 tons of slack and rubble coal was lying in the colliery, and under the terms of a separate agreement executed by respondent No. 4, he was liable to pay for this coal at the rate of Rs. 10/- per ton after selling it. According to the appellant, this coal was sold by respondent No. 4, but he was not paid its price amounting to Rs. 28,030/-. Further, according to him, royalty and commission were due to him from the respondents in respect of the coal extracted by them from the colliery, as also Rs. 1355/8/3 on account of a loan taken by them from him on February 17, 1949. The total claim was tentatively valued by him at Rs. 57,000/-. He joined respondents 1, 2 and 5 as defendants to the suit on the ground that these three persons along with respondent No. 4 formed a partnership firm known as Saurashtra Coal Concern which was joined in the suit as defendant No. 5 and is now, respondent No. 3 before us. The appellant's case was that respondent No. 4 was a benamidar for the partnership firm and, therefore all the respondents were liable for the claim.

(3.) Respondents 4 and 5, which are father and son, admitted the appellant's contention that the lease was obtained by respondent No. 4 on behalf of the partnership firm, but their contention was that they surrendered their lease-hold interest to the appellant on November 1, 1950, which was accepted by him, and that he was, therefore, not entitled to the claim in respect of royalty and commission from them for the period subsequent to November. 1, 1950. Further, according to them, the coal which was lying in die colliery was not actually weighed at the time of the agreement and that the figure of 2803 tons was put down only as a rough estimate, According to them, on the date of the surrender of the lease by them there was a stock of more than 2803 tons of slack and rubble, etc., as well as soft coke, including the stock left by the appellant at the time of granting the sub-lease, because that could not be sold, and the appellant took possession of the entire stock lying in the colliery in November, 1950, alter promising to adjust it towards the dues. They, therefore, disclaimed all liability, to pay the price of 2803 tons of coal. They also denied having taken a loan from the appellant as alleged by him.