ONKARMAL AGARWALLA Vs. BIRESWAR HAZRA

JUDGEMENT

(1.) The subject matter of dispute in this appeal by the plaintiffs is subsoil right in an area of 382 acres of land out of which 340 acres appertain to R. S. mouza Sangramgarh and 42 acres to R. S. mouza Samdi. These two mouzas are two of 32 mouzas of Taraf Achra and they appertain to four Touzis, viz., Tauzi Nos. 21, 22, 23 and 24 of the Manbhum Collectorate, 1/3rd to Tauzi No. 21, 1/6th to Tauzi No. 23 and the remaining 1/2 share to Tauzis Nos. 22 and 24. According to the plaintiffs all the four tauzis are parts of a permanently settled estate known as Pandra Estate which consists of three branches, the senior branch being known as Pandra Raj, another branch being known as Sambandhapur Babus and the third and the juniormost branch as Jemeri Thakurs. According to some family arrangements the Pandra Raj which is represented in this litigation by Raja Sam Sundar Sing (Defendant No. 22) became entitled to Tauzis Nos. 21 and 23 and the Sambandhapur Babus to Tauzis Nos. 22 and 24. At some time in the past now lost in antiquity Raja Saheb Sing, the founder of the Pandra Estate made a grant of 32 villages included in Taraf Achra to his youngest son, Shib Sing, who is the founder of the line of the Jemery Thakurs. According to the plaintiffs this grant was in the nature of a khorposh grant and confined to surface rights only, the underground rights remaining vested in the grantor who is now represented by Raja Shamsundar Sing (Defendant No. 22). On 27-9-1932 one Kaluram Agarwalla, predecessor-in-interest of plaintiffs Nos. 2 to 10 and one Bhusan Chandra Ukil purchased the interest of Raja Sham Sundar Sing in Tauzi No. 23 at an auction sale held by the Subordinate Judge, Dhanbad and obtained a sale certificate which is Ex. 17. This sale was set aside by the Dhanbad Court but was upheld on appeal by the Patna High Court and the judgment of the Patna High Court was affirmed on appeal by the Privy Council by a judgment dated June 17, 1938. By this auction purchase Kaluram Agarwalla and Bhusan Chandra Ukil acquired title to 1/6th, i.e., 2as 8pies share of the two mouzas Samdi and Sangramgarh which appertained to Tauzi No. 23. Bhusan Chandra Ukil sold his interest on 29-6-38 to one Bimalananda Tarkatirtha who in his turn sold his share to Shib Chandra Banerjee Plaintiff No. 11 by a conveyance dated February 13, 1944. By an indenture of lease dated September 22, 1941, the Agarwalla plaintiffs Nos. 1 to 10 acquired title to underground rights in respect of 6as 8pies share of the two mouzas Samdi and Sargramgarh comprised in Tauzis Nos. 22 and 24 from the Sambandhapur Babus (See Ex. 21). Thereafter on 22-8-47 the Agarwalla plaintiffs purchased 4as 8pies share of the proprietary interest of Tauzis Nos. 22 and 24 from the Sambandhapur Babus by a conveyance Ex. 20 (c). Thus, according to the plaintiffs, they acquired title to 2as 8pies plus 6as 8pies equal to 9as 4pies share of the underground rights in the two mouzas in dispute.

(2.) The plaintiffs further allege in their plaint that defendants 1 to 20, who will hereafter be described as Hazra defendants, "surreptitiously made some sporadic and intermittent attempts" to extract coal from a portion of mouza Sangramgarh; but after the decision of the Privy Council in what is known as the Dendua case, made no further attempt to raise coal. Dendua was one of the 32 villages in Taraf Achra. In 1915 the Manager of the Pandra Estate, appointed under the Chhotanagpur Encumbered Estates Act (Act VI of 1876) instituted a suit on behalf of the proprietors of the Estate against the Jemery Thakurs for a declaration that the subsoil rights in mouza Dendua remained in the proprietors of the Estate and did not pass to the Jemery Thakurs under the grant by Raja Saheb Sing to Thakur Shib Sing. That suit was dismissed by the two Courts in India but was decreed by the Privy Council by a judgment reported in 58 I. A. 125. The plaintiffs further allege that though the Hazra defendants removed their belongings from mouzas Samdi and Sangramgarh after the decision of the Judicial Committee in 1931, they were making fresh attempts to start a colliery in the said two mouzas. Accordingly the plaintiffs prayed for a declaration of their right to nine annas four pies share of the subsoil of the two mouzas and for an injunction restraining the Hazra defendants and their agents and servants from carrying on mining operations therein.

(3.) The suit was contested by the Hazra defendants by two written statements, one filed by defendant No. 8, Ram Bandhu Hazra and the other filed by the rest. Both the written statements, however, challenge the plaintiffs' claim on similar grounds. It is asserted that the interest of the Jemery Thakurs in Taraf Achra is not subordinate to the Pandra Estate but constitutes an absolute zemindary interest including all subsoil and mineral rights, although the revenue of Taraf Achra is paid through the holders of the residuary share, the Pandra Estate; that the predecessors of the Hazra defendants acquired title to the minerals in mouza Sangramgarh by three documents (a) Potta dated 20th Sraban 1232--August 13, 1825, (b) confirmatory potta dated 14th Falgun--1250 March 24, 1844 and (c) Decree in T. S. 259 of 1889 and in mouza Samdi by a putni lease dated 25th Sraban 1277--August 9, 1870; that after acquiring mineral rights by the aforesaid documents the predecessors of the defendants dealt with coal mining rights in respect of different portions of the property by various documents ranging from 1871 up to 1905, that the defendants and their predecessors have at all material times been in possession of all coal and coal mines within the two mouzas continuously, openly and as of right from the year 1884 at the latest and that they have from time to time dug inclines, sunk pits and quarries, made airshafts, purchased machinery for extracting coal, constructed bungalows, dhowras and Railway siding for working coal.