BHUPENDRA NARAYAN SINHA, BAHADUR Vs. RAJESWAR PROSAD BHAKAT

JUDGEMENT

(1.) The question for determination in these consolidated appeals is as to the subsoil rights in a hill in mauza Nalhati, in the Birbhum District. There, beneath a stratum of stones and gravel, a valuable deposit of yellow ochre has been found, which is claimed by both parties-by the appellant as the zamindar and by the respondents as darputnidars holding by virtue of two putni grants dating from 1861. The respondents have worked the deposit on a considerable scale and have sold the ochre, for which there seems to be a ready market.

(2.) The suit was instituted by the appellant on 12 December 1919, for a declaration of his ownership and possession of the subsoil, and an injunction restraining the respondents from digging and removing the stones, earth or minerals, including the ochre, and claiming a large sum as damages. The respondents pleaded that the subsoil rights had passed to them under the putnis and darputnis, and alternatively that they had acquired a prescriptive right to them by adverse possession. A further question was also raised as to the title of the appellant. He was the eldest of four brothers, representing a zamindari known as the Nashipur Raj, which he alleged to be an impartible estate vested in him alone. He joined his brothers as pro-forma defendants to the suit and they supported his claim. The Subordinate Judge of Birbhum, by whom the suit was tried, held that the respondents were entitled to remove the superficial stratum of stones and gravel, but not the underlying ochre, and that they had acquired no title to this by adverse possession. He gave the appellant the declaration and injunction asked, in respect of the minerals, but holding that his sole title to the zamindari was not established, gave him only a quarter of the damages proved in respect of the removal of ochre, which he estimated at a total sum of Rs. 46,800.

(3.) Both parties appealed to the High Court. For the appellant it was contended that the Subordinate Judge was wrong in holding the respondents entitled to remove the stones and gravel and that he ought to have awarded to him the full amount of the damages claimed, and not a quarter share only. His appeal met with no success on either point, and was dismissed. The respondents' appeal raised the question of their title under the putnis to all subsoil rights, and of their adverse possession of the ochre deposit. The High Court allowed their appeal under both heads, with the result that the appellant's suit was dismissed with costs. Separate appeals have been taken in the usual course to His Majesty in Council, which have been consolidated, and all the questions above referred to have been raised before the Board.