STATE OF BIHAR Vs. SAUBHAGYA SUNDARI DEVI

JUDGEMENT

(1.) These two appeals arise out of the same suit. Hence, they have been heard together and are being disposed of by a common judgment. F. A. 248 of 1964 is by defendant No. 2 the State of Bihar, which was added as a party to the suit on 11-12-1963 after its institution. F. A. 304 of 1964 is by defendant No. 1.

(2.) The plaintiffs-respondents claimed a decree for the following--

(3.) Defendant No. 1 in his written statement averred that the suit was barred by limitation and bad for nonjoinder of the State of Bihar which was a necessary party to the suit. The plaintiffs were left with no right, title or interest in the suit land after vesting of their estate in the State of Bihar under the Bihar Land Reforms Act and, therefore, the suit was not maintainable. He admitted that there was a lease in favour of his father dated 5th September, 1914 and a compromise in Title Suit No. 17 of 1943, but challenged the correctness of the terms of the lease as stated in the plant. He denied to have committed any breach of the covenants and conditions of the lease. No royalty or commission payable under the lease was paid to the plaintiffs from 1952 September Kist because of the vesting of their estate under the Bihar Land Reforms Act. He also denied his liability to pay road cess and mines board cess etc. As all kinds of coal despatched from the colliery used to be weighed at Patherdih Railway Weigh Bridge, there was no necessity for keeping a weighing machine at the colliery. No colliery in the locality kept any weighing machine and no weighing machine was kept in this colliery since the very inception of the lease and it was to the knowledge of the lessor. Therefore, the plaintiffs could not complain of this breach. They were also not entitled to have from this defendant statements about raising and despatch of coal since the date of vesting. Before vesting, the representative of the plaintiffs used to take copies of despatch from this defendant and his predecessor-in-interest. After vesting, the plaintiffs sent no representative to the colliery for that purpose. This defendant did not receive the notice dated the 12th October, 1961 alleged to have been sent through Shri M.N. Deogharia. No such notice was delivered or tendered by the postal peon to him. The alleged notice was illegal and invalid. The plaintiffs having lost their interest in the suit property after vesting of their estate could not determine the lease in favour of this defendant. No officer of the plaintiffs went to the colliery on 1st April, 1962 to take possession. The correctness of the accounts submitted by the plaintiffs in Schedule 'B' to the plaint and the plaintiffs' right to receive that sum were also challenged. In time it was pleaded that the plaintiffs were not entitled to any of the reliefs they claimed.