AMBEE INDIA PVT Vs. RAO RAJA JAMIRSINHJI DOLATSINHJI

JUDGEMENT

(1.) The first appeal is filed by the lessee original defendant No. 2 while the second appeal is filed by the State, original defendant No. 1. The plaintiff - respondent in both the cases in the Jagirdar of the concerned suit village. The learned Single Judge had confirmed the decree of the learned Assistant Judge, who had differed from the trial Judge and had allowed the plaintiff's claim for recovery of possession of the suit mine and for an injunction. The entire controversy has centered round the interpretation of the Paravan. Ex. 89, under which the plaintiff was by the then ruler of the Idar State granted two villages Techava and Achral on March 11, 1948. The Bombay Merged Territories and Area (Jagirs Abolition) Act. 1953, came into force on August 1, 1954 and it applied to this merged territory, because meanwhile from 1949 Idar State merged in the State of Bombay. There is no dispute that under the provisions of this Act the competent authority had declared this Jagir of the plaintiff to be a proprietary Jagir. The plaintiff had negotiated lease of China Clay mines in the Jagir Techava but thereafter defendant No. 2 got an order of lease on August 8, 1961 in his favour from the State of Gujarat and executed a lease on October 11, 1961 in favour of the State in respect of the suit China Clav mines. As defendant No. 1, therefore, violated the terms of the agreement of lease which was first entered into with the plaintiff, and the plaintiff's title was denied, the plaintiff terminated the lease of defendant No. 2 by a notice and filed the present suit. That is why both the defendants have taken the plea that the mineral rights belonged to the State and not to the plaintiff. This question can only be resolved by the true interpretation of the Parvana, Ex. 89 is in the following terms:-

(2.) At the outset it is obvious that this is a grant directly by a sovereign ruler to his brother. Ex. 97 shows that this plaintiff, brother of the ruler, was at that time getting Rs. 200/- as pay and the pay was discontinued after the present grant which was made on March on 11, 1948. While translating the aforesaid grant, the expression 'Padya Pan' has been translated not as fallen leaves but in its proper context in conveyancing by using the second meaning which is referred to in Bhagvat Go. Mandal a dictionary of words and phrases in Gujarati at page 5278. The second meaning is "Najivi Chijthi Mandine Sarva Utpana". Therefore, in the Conveyancing context the aforesaid term would mean that all income which accrued every year from the tow villages including that from the smallest thing and covering everything, was in terms granted. It is true that the expression 'Jivarak' has been used which means maintenance but it is equally certain that the grant is no a lifetime grant only to the plaintiff or one creating a life interest only. The purpose may be of maintenance but the operative portion of the grant in terms states at the outset that both the villages were given to the plaintiff by way of gift. To make the whole gift complete, it was further added that all kinds of income arising form the villages of whatever kind was to be enjoyed by the plaintiff and his heirs from generation to generation. The only reservation which was made by the sovereign ruler was in the last clause by indicating that he was creating a non-jurisdictional estate by reserving to him all sovereign powers of issuing, all sovereign orders, taxation and civil and criminal jurisdiction. Therefore, reservation makes it amply clear that a full non-jurisdictional estate was conferred on the plaintiff. The grant was not merely of the annual produce of the soil of these two villages but of the soil itself. The grant was not of any lesser interest by carving out something but a complete grant conferring full proprietorship in the soil of the two villages by in terms stating, that it was a gift from the sovereign. There was no reservation as regards any kind of revenue which was to accrue from the village, whether agricultural or other revenue from the trees, minerals or anything which was capable of yielding such a recurring annual income, but all income of whatever description was in terms granted. In the face of such a categorical sovereign grant, where not only the proprietorship of the village soil is transferred but where by express words income of all kinds is transferred to the plaintiff, there can hardly be any doubt in the present case that the sovereign did not intend to the plaintiff in the soil of these two villages, including, sub-soil rights.

(3.) There is ample authority that such a sovereign grant of proprietary interest in the soil where there is no reservation of the sub-soil rights by the sovereign operates as an absolute or complete grant of all rights in the soil including the rights to minerals. In Secy, of State for India v. Shantaram. AIR 1925 Bom 12, a Division Bench consisting of Shah Ag. C. J. and Fawcet. J. in terms held at page 15 even in the context or any Inam grant that it is not absolutely, necessary that express words referring to mines and minerals must used. Their Lordships pointed out that in this Presidency generally, the words indicative of rights to mines and minerals were-iala, taru, trina, pashana, nidhi, nikshepa. They were ordinarily used for indicating that all rights in the soil were conveyed. Their Lordships, however held that the absence of such words did not necessarily indicate that such right was reserved to the crown. The grant in question was of the village itself without any reservation to the Government of any kind of right and, therefore, it was held to be a complete grant including the right to mines and mineral in the land. Their Lordships distinguished the line of decisions of the Privy Council where the grants were not from the sovereign but form the Jamindar who was the owner of the soil and who created a tenure or a lease by creating a new estate, reserving reversion to himself, in which case in the absence of express words the right to mines and minerals could not be held to have passed to the lessee or alienee of the tenure land. This was because reversion was reserved to the Jamindar. Further proceedings at page 16, Jenkins. J.'s observations in Raghunath Roy Marwari v. Raja of Jheria. AIR 1919 PC 17 at page 19 were approved, as under:--