PRAVESH CHANDRA AGARWALA Vs. NARINDAR SINGH

JUDGEMENT

(1.) This appeal by the plaintiff arises out of a suit instituted by him to recover from the defendants, Messrs Sindri Fertilisers and Chemicals Limited, defendant No. 4 (hereinafter referred to as the Fertilisers) and their sub-levees, defendant Nos. 1 to 3, a sum of Rs. 13,950/- on account of damages for wrongful removal by them of sand from the bed of river Damodar. The plaintiff claims exclusive right to the sand as sub-lessee.

(2.) Shortly put the facts are these : On the 2nd December, 1940, late Raja Shiva Prasad Singh, the proprietor, granted by a registered instrument (exhibit 6) lease of the sub-soil rights of the entire pergana Jharia, including Mauza Sindri, and the river Damodar to Messrs Bhutan Bararee Coal Company Limited (hereinafter referred to as the Company) for 15 years commencing from 1st Bhadra 1348 B. S. to the end of Sravan 1363 B. S., which on his death was ratified and confirmed by his successor-in-interest, Shri Kali Prasad Singh, by an indenture dated the 5th January, 1951 (exhibit 5). By virtue of this grant, the Company acquired exclusive right of taking sand, morum, stones, materials, bricks etc. and had also the right to grant sub-lease of those rights. Pursuant to this right, the Company sub-let their aforesaid right to one Mohipal Chandra Darolia from September, 1943, to 31st August, 1946, by a registered instrument dated the 22nd November, 1943, (exhibit 4/d), which was subsequently renewed up to the 31st August, 1949, by another registered instrument dated the 5th June, 1948 (exhibit 4/b). In his turn Darolia transferred his rights for the unexpired Period of the sub-lease to the plaintiff by a registered deed of convevance dated the 16th June, 1947 (exhibit 4/c). On the expiry of the term of this grant on the 31st August, 1949, by an indenture of lease dated 1st July, 1951 (exhibit 4) the Company granted sub-lease in respect of the sub-soil rights of the entire prrgana Jharia to the plaintiff for a period of 3 years commencing from September, 1949, to 31st August, 1952, which was subsequently renewed by another indenture of lease dated the 1st May, 1933 (exhibit 4/a) for the residue of the term of their lease of the 2nd December, 1940 (Exhibit 6). It is how the plaintiff came to acquire the rights of sub-lessee. His case is that he was in possession of those rights and had permitted various persons to remove sand from the bed of river Damodar for valuable consideration. The plaintiff complained that since after the 15th January, 1951, the defendants wrongfully removed huge quantity of sand from the bed of river Damodar commonly known as "Sindri Ghat" within the Pergana Jharia. When he protested, defendants 1 to 3 gave out that they had taken settlement of the right to remove sand from the bed of the river Damodar first from the Government of India and thereafter from the Fertilisers. The plaintiff asserted that neither the Government of India nor the Fertilisers had any right to the sand in the bed of the river Damodar and claimed exclusive right thereto. Accordingly, the plaintiff claimed tentatively Rs. 13,950/- as damages and mesne profit for wrongful removal of sand.

(3.) The Fertilisers, defendant No. 4, filed a written statement denying the right of the plaintiff and his predecessor-in-interest, and asserting their own rights, to appropriate and carry away the sand from the bed of the river Damodar. Their main defence is that the Government of Bihar acquired the entire village Rohraband Sindri and other villages, which include the bed of the river Damodar, under the Land Acquisition Act for the purposes of location of the factory for the manufacture of ammonium sulphate and allied industries and for the establishment of Bihar Grid Power Station and incidental purposes. The possession of the lands including the bed of river Damodar was delivered and handed over by the Special Land Acquisition Officer to the then Administrative Officer of the Fertilisers, who was authorised to take possession on behalf of the Government of India, on the 15th June, 1946. It is alleged that since then the Government of India remained in peaceful possession of the "acquired land, including river Damodar commonly known as "Sindri Ghat" by exercising various acts of Possession and statutory rights therein. By virtue of this acquisition the plaintiff lost all rights, if he had any, to the bed of river Damodar. It is pleaded that the suit is misconceived and is liable to be dismissed.