GULZARILAL AGARWALLA Vs. ONKARMAL AGARWALLA

JUDGEMENT

(1.) This appeal is by defendant No. 1. It arises out of a suit filed by respondents 1 to 3 in which subject-matter of dispute was about 300 bighas of land in village Birsinghpur in the district of Dhanbad comprising two collieries known as Khudia Colliery and East Mahatadih Colliery. Main reliefs as originally claimed by plaintiff-respondents were as follows:--

(2.) In the memorandum of appeal large number of grounds were taken, but it appears from order No. 15, passed by this Court that in order to get the hearing of the appeal expedited, the appellant conceded that he would challenge the judgment and decree of the court below only on two grounds, namely. (1) that the purchases of plaintiffs were hit by the relevant provisions of Mineral Concession Rules. 1949 and (2) that the deed of managing contract (Ext. C) in form as well as in substance was a sub-lease in favour of the appellant. On account of this concession many documents which would have otherwise been included in the paper book were not included therein. At the time of the final hearing of the appeal Mr. Shreenath Singh, learned counsel for the appellant wanted to urge some other grounds as well taken in the memorandum of appeal, but in the circumstances, mentioned above, we did not allow him to do so. Thus he confined his arguments to three grounds only the aforesaid two and the effect of the Coal Mines (Taking Over of Management) Ordinance. 1973 (No. 1 of 1973) published in the Union Gazette dated the 30th of January. 1973 on the litigation.

(3.) Since the arguments were confined only to three grounds as aforesaid it is not necessary to state facts of the case in detail. I would briefly state only such of the facts which are necessary for the decision of the three grounds. Admittedly the property in dispute belonged to proprietor of Pandra Raj. The proprietor executed a lease in favour of the East India Coal Company. This Company granted a lease in favour of Rabindra Nath Sarkar in 1917 and after a few intermediate transactions the lease-hold interest came to be owned by Baidyanath Dutt and other members of his family (hereinafter referred to as 'the Duttas'). In Title Partition Suit No. 44 of 1950 of the court of the Subordinate Judge at Dhanbad which was being fought between family members of the Duttas, two Receivers Baldeo Singh and Bholanath Dey were appointed. With the permission of the court they executed on the llth of May, 1951 the deed (Ext. C) in favour of the appellant for a period of ten years. In the document itself it is stated to be a deed of managing contract. Subsequent to the execution of this deed within the period the 4th of June, 1952 to the 8th of February, 1955 different members of the family of the Duttas executed nine registered deeds (fully detailed in Schedule B to the plaint) in favour of one Shrimati Bhagwati Devi. According to the case of the a plaintiff-respondents she was a mere benamidar of theirs and they have acquired right title and interest of the Duttas in the disputed property by the aforesaid deeds and thus have become fully entitled to the entirety of the two collieries. In the plaint as originally filed they pleaded that the managing contract under Ext. C stood determined and terminated on account of violation of the terms and conditions of the contract, such as negligence in paying the current and arrears of the commission royalty or of minimum royalty, submission of statements of monthly raisings and despatches, delivery of fuel coal, payment of cesses taxes and other public charges and impositions and clandestine and stealthy removal of machineries, plant, tubs, boilers etc. By the amendments which they got subsequently made they averred that the managing contract under Ext. C stood determined and terminated by efflux or expiration of the period thereof and they were entitled to khas possession of the property in dispute. Defendant No. 2 (respondent No. 4) was made a party to the suit on the allegation that he had been taken in as a partner by the appellant for carrying on the contract work under Ext. C.