SUBODH GOPAL BOSE Vs. PROVINCE OF BIHAR

JUDGEMENT

(1.) This is an appeal from an order dated 21st September 1949, of the learned Subordinate Judge of Sasaram, rejecting an application for an ad interim order of injunction made by the plaintiff of Title Suit No. 51 of 1949 pen-ding before the said Subordinate Judge. The plaintiff-petitioner is the appellant before us. The respondents, who were defendants in the action, are (1) the Province of Bihar, (2) the Collector of Shahabad, (3) the Additional Sub-divisional Officer, Sasaram and (4) Dalmia Jain and Co. Ltd.

(2.) The material facts are the following: The appellant styling himself as the proprietor of Kuchwar Lime and Stone Company (which company has to be distinguished from Messrs. Kuchwar Lime and Stone Company Limited, now in voluntary liquidation) brought the suit for a declaration that he is entitled to quarry lime Stone and manufacture lime from certain properties known as upper Murli hill and lower Murli hill, with details of area, boundaries, etc., mentioned in a schedule appended to the plaint, and for a permanent injunction restraining the respondents from dispossessing, or disturbing the possession of, the plaintiff from the said properties. The allegations made by the appellant in his plaint were of the following nature. It was alleged that with regard to upper Murli hill, which has an area of about 137 acres, the appellant was the local agent of Messrs. Kachwar Lime and Stone Company Ltd., now in voluntary liquidation (hereinafter to be referred to as the lessee company for brevity and convenience). On 1st April 1928. the Secretary of State of India in Council, the then competent authority, gave a lease to the lessee company in respect of the said 137 acres, being the upper portion of Murli hill, with amongst other rights, the right to quarry lime stone and convert it into lime and do all acts necessary for the extraction of the stone or the manufacture of lime including the erection on the land leased of buildings and plants required for these purposes. There were various other clauses in the lease providing for the payment of rent and royalty with which we are not at present concerned except one clause, Clause 20. This clause was a renewal clause and read as follows; "That on the expiration of the period of this lease the lessee may, if it has duly observed all the foregoing conditions, have a renewal of the lease on terms to be agreed upon by the Collector and the lessee, subject to the approval of the Commissioner." The lease was for a period of twenty years commencing from 1st April 1928, and ending on 31st March 1948. The lessee company went into voluntary liquidation in 1933, and on 30th September 1933, there was a deed of agreement between the liquidators and the appellant, the liquidators being Messrs. Lovelock and Lewes, Chartered Accountants of Calcutta. This agreement of 1933 does not appear to have been printed in the paper book, but was the subject-matter of protracted litigation resulting in the decision of their Lordships of the Judicial Committee in Secretary of State v. Kuchwar Lime & Stone Co. Ltd., 65 I. A. 45 : (A. I. R. (25) 1938 P. C. 20). In the lease of 1928, there was a clause against transfer or assignment without the assent of the Board of Revenue, and the penalty for an infringement of this clause was forfeiture of the lease. The agreement of 1933, which the lessee company made in favour of the appellant, was treated by the Board of Revenue as a sub. lease without the Board's assent, resulting in forfeiture of the lease. The lessee company then brought a suit in 1934 (Title Suit no. 39 of 1934) against the Province of Bihar and its officers. This litigation ultimately went up to the Privy Council, the decision of which we have already referred to above. Their Lordships of the Judicial Committee held that the deed of agreement dated 30th September 1933, in favour of the present appellant did not constitute a sub-lease, but created an agency in favour of the appellant with regard to certain matters coupled with an interest in the property. As, however, the document was not registered, there was no effective transfer of any interest in the property. There, fore, the document did not, in law, constitute an infringement of the clause against assignment or transfer. The agreement of 1933 was renewed in favour of the appellant in 1943, and the appellant continued as the local agent of the lessee company until 29th February 1948. There is an endorsement at the foot of this agreement of 1943 which states that the agreement has been renewed for a term of three years with effect from the date of its termination; therefore, the allegation of the appellant is that he still continues as the local agent of the lessee company and is entitled to quarry lime stone in upper Murli hill. We may here state that Mr. P.R. Das appearing for the appellant based the case of the appellant with regard to upper Murli hill, not on any legal title acquired by the deeds of agreement; for, it is obvious that no legal title with regard to any interest in the leasehold property itself passed under the said deeds of agreement, which were not registered. Mr. Das has referred to the title, if any, of the appellant with regard to upper Murli hill as au equitable title; in other words, he has contended that with regard to upper Murli hill the appellant may be a person in possession without legal title, but he is entitled to the protection of his possession against another trespasser. We have mentioned this aspect of the case at the very outset, because this is the principal point to be considered in connection with upper Murli hill. We shall advert to the details of the argument on this point in due course. Thus, though the appellant said in his plaint that he was a local agent of the lessee company in respect of upper Murli hill, his claim was not based on mere agency. It is urged that the averments made in the plaint show that the appellant has been in possession of upper Murli hill for a number of years--may be without title--and is entitled to the protection of his possession against another trespasser.

(3.) With regard to lower Murli hill, the position is somewhat different. The case of the appellant with regard to lower Murli hill, which has an area of about 250 bighas, is that the appellant is the owner of the entire surface land having purchased the right of the tenants or the maliks therein. The surface of lower Murli hill appertains to two villages Baknaur and Samhauta. It is alleged that between the years 1908 and 1928 the lessee company purchased the rights of the tenants and the maliks in the surface land. This was done because there was some opposition by the tenants to possession of the lessee on the strength of two leases made in 1908 in favour of Octavius Steel Company, the then Managing Agents of the Kuchwar Lime and Stone Company Ltd. Those two leases were also for twenty years and related, one to upper Murli hill and the other to lower Marli hill. On 1st April 1928, the lessee company got two fresh leases : the one relating to upper Murli hill, which we have already mentioned the other relating to lower Murli hill, which contained similar clauses with one material difference. The lease relating to lower Murli hill made no reference to the surface land, but gave merely the right to the lessee to quarry lime stone and convert it into lime. When, therefore, the lessee met with opposition from the owners of the surface land, it purchased the rights of such owners. On the same day, on which there was the deed of agreement in favour of the appellant (namely, 30th September 1933) by which the local agency was created, there was a sale by the lessee company of its goodwill, etc. and all the movable and immovable properties of the lessee company, set forth in Schedules, A and B, for a consideration of Rs. 35,000. This deed of sale was duly registered, Now, Schedule A, it is stated, related to the rights which the lessee company had acquired over the surface land of lower Murli hill, namely, the rights of the tenants and maliks therein. Therefore, with regard to lower Murli hill, the claim of the appellant is a two-fold claim. Firstly, the appellant claims that as owner of the surface land he cannot be dispossessed or evicted. Secondly, it is claimed, on the strength of certain entries in the Fardreyaz, of villages Baknaur and Samhauta, that the tenants have the customary right to quarry limestone and manufacture lime for sale, and those rights the appellant has now got by reason of his purchase. As the respondents wish to dispossess the appellant from the property and deprive him of his right, the appellant seeks an order of interim injunction.