RAJPUR COLLIERY CO Vs. PURSOTTAM GOHIL

JUDGEMENT

(1.) This is an appeal by defendants 1 to 4 against the Judgment of the Subordinate Judge of Dhanbad decreeing the suit filed by the plaintiff-respondent No. 1 for declaration or the right of way for vehicles, men and others in the shape of a road 1030 feet x 20 feet shown on the sketch map attached to the plaint between letters A and C and for a mandatory injunction compelling the defendants to provide a diversion indicated by letters B. C. D, from the road A to C, There was also an alternative relief for compensation estimated at Rs. 2000/-for the loss of the road A to C if the first relief was not available to the plaintiff. He also claimed Rs. 2000/- as damages for the loss already suffered by him by having been deprived of the use of the road A to C.

(2.) The facts for the purpose of this appeal briefly stated are as follows. Raja Durga Prasad Singh, herein-after referred to as the lessor, was the owner of a large area of coal bearing land. On 14-7-1908 the lessor granted a coal mining lease of 95 bignas of land to Hardayal Singh and other in village Bherakatta for 999 years. On 13-11-1912 these lessees granted a sub-lease to Sheikh Imam Ali and Ramnath Banerji. It was aliened by the plaintiff that these sub-lessees developed the collieries and carried on their business in the name and style of "North Jharia Colliery". The plot, which was the subject matter of this lease and sub-lease, was plot No. 23 of the above village. The sub-lessees, Sheikh Imam Ali and Ramnath Banerji were alleged to have made residential quarters, office, bungalows and Dhowras (Blochi for labourers to live in) in the plot in or about the year 1913 and they and their successors, assignees and representatives were in possession thereof. In the month of August, 1934 the plot in question, namely, plot No. 23, together with, the colliery building etc. appertaining thereto were sold in auction sale in Execution case No. 520 of 1933 of a mortgage decree which had been obtained by the lessor for royalty due from the lessees, sublessees and their assignees and representatives, and was purchased by him. The lessor took delivery of possession of this property through court and a few months thereafter by a registered Indenture dated 26-2-1935, he granted a lease of the said coal land and collieries with surface and all other rights concerning or relating thereto together with all inclines, pits etc. to the plaintiff for a term of 999 years and since then the plaintiff claimed to have been in possession of coal land with all other rights by carrying on coal business therein in the name and style of "Khas Bhagatdih Colliery".

(3.) It may be mentioned that plot No. 24 adjoins plot No. 23 and this had been acquired by one Bhaban Jeba and others by a lease from the lessor in 1914 by a registered lease. This lease was transferred to the defendants-appellants in or about 1920, since when they have been in possession of that coal land and have been carrying' on business of coal and have set up a colliery in that plot named "Rajapur Colliery".