NAGESHWAR BUX ROY Vs. BENGAL COAL CO , LTD

JUDGEMENT

(1.) The subject-matter of dispute in this appeal is the right to the minerals and particularly the coal lying under the village of Rajhara. The plaintiff, now the appellant, claims that these minerals belong to him in virtue of his proprietorship of the Bisrampur Estate, within which the village of Rajhara lies, and in his plaint prays for a declaration to that effect.

(2.) It appears that by sanad dated 21 February 1789 an ancestor and predecessor-in-title of the plaintiff granted the village on jamabrit tenure to Pande Shiva Ram and Pande Shankar Ram. The successors of the latter in turn granted in 1855 a mukarrari patta or lease of the village to the Secretary of the Bengal Coal Company Limited, on behalf of that company, with an express right to work the underlying coal. The suit is directed against the Coal Company and the present representatives of the grantees under the sanad of 1789, who are also the representatives of the grantors of the lease of 1855 in the company's favour. So far as the lease of 1855 is concerned, its validity as a title to the mineral rights in question depends upon the title of the lessors to grant these rights. The sole title of the lessors consisted of the jamabrit grant of 1789. Now it is well settled that in the case of such a grant nothing short of express words will convey the mineral rights, and the sanad of 1789 contains no express grant of the minerals. It therefore conferred no mineral rights on the grantees, and this, indeed, appears to have been conceded by the defendants in the High Court. It follows that the grantors of the lease of 1855, having themselves no title to the mineral rights in the village, were not in titulo to let them to the Bengal Coal Company. Both the Subordinate Judge and on appeal the High Court of Judicature at Patna have accordingly held that the defence fails, so far as founded on the lease of 1855 taken by itself that lease, as regards the mineral rights, having been granted a non dominis. With this conclusion their Lordships agree.

(3.) But the defence contained a challenge of the title of the plaintiff himself to the ownership of the minerals, and thus attacked the plaintiff's title to sue for the declaration which he asked. The precise ground of this attack was not specified in the defendants' pleadings, but, despite the plaintiff's protests, was developed in the course of the proceedings and the topic was fully investigated both by the Subordinate Judge and by the High Court. The former held that the attack failed, while the latter held that it succeeded. As will appear, their Lordships do not find it necessary to examine this aspect of the case and need only mention that in the view of the High Court the title to the mineral rights in question was at least till 1895, and probably still is, vested in the Government. Consequently when the present appeal was partly opened before their Lordships on 26th February 1929, attention was drawn to the fact that the Government was not a party to the case and was not represented although important questions possibly affecting the title of the Government to minerals in India generally were raised. The appeal was therefore directed to stand over in order that its dependence might be intimated to the Secretary of State for India. In reply to their Lordships' communication, the Secretary of State for India has intimated that the Government of India does not propose to intervene in the appeal, and the case having again been set down for hearing, their Lordships now proceed to dispose of it.