GOBINDA NARAYAN SINGH Vs. SHAM LAL SINGH

JUDGEMENT

(1.) The appellants, the plaintiffs in the suit out of which this appeal arises, represent in two moieties an important permanently settled zemindari known as the Pandara Raj. It seems to have been originally part of the Jungle Mehal, but is now included in the District of Manbhum. The appearing respondents are the Thakur of Achra and two other persons representing part-purchasers of the Achra estate. The Thakurs are a junior branch of the Pandara family and are in possession of the remnants of 32 villages known as Taraf Achra. The question for determination in the appeal is as to the coal-mining rights in one of these villages named Dendua. In 1912 the guardian of the Thakur, who was then a minor, and his co-owner leased Dendua for mining purposes to the Dendua Coal Company, who, in the same year transferred their rights to the New Manbhum Coal Company. In 1915 the appellants sued the latter company and the present respondents in the Court of the Subordinate Judge of Burdwan, praying for a declaration that the subsoil rights of Dendua belonged to them (the appellants), and for an injunction and mesne profits. Subsequently they came to a settlement with the company, and the suit was fought out only between the present opposing parties, each of whom claimed to be entitled to the coal. The Subordinate Judge decided in favour of the respondents, and his decision was confirmed on appeal to the High Court, but the grounds of decision differed substantially in the case of each of the three Judges before whom the suit and appeal were heard, Under the settlement with the New Manbhum Company the claim for mesne profits seems to have dropped out, and the questions for decision by the Board are only as to the title to the coal and a plea of limitation.

(2.) The record in the case is a heavy one, and the facts are complicated. There has been litigation in the family from very early times, and their status has been the subject of conflicting decisions in the Indian Courts. Two central facts however stand out from the confusion of details. It is admitted in the first place that the Achra villages were at one time an integral part of the Pandara estate, and that they are held by the Achra branch subject to an annual payment of Rs. 21-4-0. In the second place it is beyond dispute that at the permanent settlement the villages were included in Pandara. Under these circumstances their Lordships have no doubt that the burden of proving their title lies upon the respondents. The presumption arising from the Permanent Settlement has been considered by the Board in several cases but it is sufficient to cite a well known passage from the judgment of Lord Parker in Ranjitsingh V/s. Kalidasi Debi, AIR 1917 PC 8 p. 122 (of 44 IA) : "Passing to the settlement of 1798, it appears to their Lordships to be beyond controversy that whatever doubts be entertained as to whether before the British occupation the zamindars had any proprietary interest in the lands comprised within their respective districts, the Settlement itself recognizes and proceeds on the footing that they are the actual proprietors of the land for which they undertake to pay the Government revenue. The settlement is expressly made with the zamindars "independent talukdars and other actual proprietor of the soil," see Regn. 1, S. 3, and Regn. 8, S. 4. "It is clear that since the settlement the zamindars have had at least a prima facie title to all lands for which they pay revenue, such lands being commonly referred to as malguzari lands.'

(3.) It follows from this pronouncement that in the case of any claim against the zamindar to lands which were included in his zamindari at the Permanent Settlement the burden of proof is upon the claimant; but though the long possession of the Achra villages by the Thakurs might well be good evidence of their title to surface rights, the question as to subsoil rights stands upon a different footing. These, at all events where not claimed by the Crown, will be assumed to be in the zamindar. Raja Shri Durga Prasad V/s. Braja Nath Bose, [1912] 39 Cal 696 and a long series of recent decisions by the Board has established that if a claimant to subsoil rights holds under the zamindar, or by a grant emanating from him, even though his powers may be permanent, heritable and transferable, he must still prove the express inclusion of the subsoil rights. This is laid down in a passage from the judgment of Lord Buckmaster in Sashi Bushan Misra V/s. Jyoti Prashad Singh, AIR 1916 PC 191, at p. 53 (of 44 I. A.) which has been so often quoted in subsequent judgments of the Board that it is unnecessary to repeat if? here. In Raghunath Roy V/s. Raja of Jheria, AIR 1919 PC 17, this principle was applied to a rent-free brahmottar grant from a zamindar, and finally, in Bijoy Singh Dudhoria V/s. Surendra Narayan Singh, AIR 1928 PC 284, it was held to be applicable to a patni grant.