BARBONI COAL CONCERN LTD Vs. PARICHARAK

JUDGEMENT

(1.) The suit out of which this appeal has arisen was instituted by the plaintiff for recovery of royalty, interest and cesses from the defendant from 14 April 1918 to 13 April 1924 under a mining lease executed in favour of the predecessor of the latter on the 24 May 1901. The lease was granted by four persons as sbebaits and servitors of a deity Gopinafch Jiu Thakur. The plaintiff is one of them and claimed a fourth share of the dues making the other three cosharers pro-forma defendants in the suit. The suit has been decreed for the amount claimed with a very small deduction. The principal defendants are the appellants.

(2.) To deal with the contentions that have been urged in this appeal a few facts have to be stated. The deity Gopinath Jiu Thakur is the family deity of the plaintiff and the pro-forma defendants. They jointly gave a lease and in the kabuliyat thereof the following recitals appear : the translation of the recital as it appears in the paper-book is not quite happy, and a more accurate translation of it is to be found in the judgment of the Privy Council in a litigation between the lessors and the original lessee which is reported in Trioomdas Cooveri v. Gopinathji [1917] 44 Cal. 759. On a proposal being made to take a settlement of the rights of your family deity in this mouzah for the purpose of raising coal from below the surface of the said mouzah by making pits, you for the benefit of your family god and with the object of increasing the income of the debtutter property, are making a settlement with me of the right and interest in the mouzah to the extent by your family deity.

(3.) Immediately before this there was another recital and on this a good deal of stress has been laid on behalf of the appellants that the mouzah is the rent free property of the said family god. Two of the paragraphs embodying the conditions of the lease have also to be referred to, namely para. 1 and para 17; in the former certain rates of commission are mentioned as being payable for and to the extent of the interest of the said family god, and in the latter it was declared that the lessees are the sole heirs of three persons their ancestors. In the schedule to the kabuliyat the whole mouza and no particular share or portion of it was described. The lease therefor proceeded upon the assumption that the family god Gopinath Jiu Thakur was the 16 annas owner of the mouza but it is now an admitted fact that the interest of the said family deity does not extend beyond an eight annas share. Prior to the lease there were two litigations, one commenced in 1884 and the other in 1895. The former was a suit for rent instituted by the predecessor of the lessors against certain other persons in respect of some lands of the mauza on the allegation that the latter or their predecessors had been possessing an eight annas share of the lands under a settlement from him. The defendants in that suit denied that the relationship of landlord and tenant ever subsisted between the said plaintiff and themselves, and asserted that they were in possession of eight annas share of the mouzah as sbebaits of their own family deity of the same name, viz., Gopinath Jiu Thakur. The suit succeeded in the trial Court but was dismissed on appeal. The other litigation was a suit for declaration of title and for other reliefs instituted by the successful defendants in the rent suit against the said four lessors on the allegation that Gopinath Jiu Thakur the family god of the said successful party was the owner of an eight annas share of the mouza and that they are entitled to the said share as. shebaits. The said lessors were worsted in this litigation both in the trial Court and in the appellate Court and their opponents were successful. In one of the paragraphs, viz., para. 5 of the kabuliyat, which forms the subject-matter of the present suit and to some of the terms whereof reference has already been made, it is stated: I have looked into the suits No. 21 of 1884 in the Court of the Munsif and No. 123 of 1884 in the Court of the Judge concerning your right to the said mouza Manoherbahai.