BHUDEB CHANDRA ROY Vs. BHIKSHAKAR PATTANAIK

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of Rs. 5278-5-0 on account of rent and cess, including interest and also value of fuel coal due in respect of 444 bighas and 2 kathas of coal land in village Kusunda, Pargana Jharia. The claim is based on a registered lease dated 16 June 1894, executed by Kenaram Sarkar in favour of Gadadhar Ray and Ashutosh Ray. Kenaram Sarkar was a benamidar for Pran Krishna Pattanaik and Chintamoni Pattanaik, and on 16 Bhado 1301, (September 1894) he executed a deed of release in their favour. Both Pran Krishna Pattanaik and Chintamoni Pattanaik are dead. The plaintiffs in this suit are sons and grandsons of Pran Krishna Pattanaik, and the pro forma defendants 6 and 7 are sons of Chintamoni Pattanaik. Gadadhar Eay and Ashutosh Ray are also dead. The defendants 1 to 4 are the sons and grandsons of Ashutosh Ray, and defendant 5 is his widow. These defendants are the principal defendants in the suit. The heirs of Gadadhar Ray are not parties to this suit. The annual rent reserved by the said registered lease is Rs. 1,554-9-6 besides cess, payable in four instalments. The lease also provides for delivery of four cartloads of coal every month. The plaintiffs case is that out of the entire jama of Rs. 1,554-9-6 a jama of Rs. 410 was transferred to some other persons and the balance of Rs. 1,144-9-6 was being realised by the plaintiffs ancestors and afterwards by the plaintiffs. Subsequently by mutual consent this jama of Rs. 1,144-9-6 was split up as between the heirs of Gadadhar Ray and those of Ashutosh Ray, and each of these two groups of heirs was separately paying annual rent of Rs. 572-4-9, besides cess. The present suit has been brought for recovery of the rent payable by the heirs of Ashutosh Ray at the rate of Rs. 572-4-9 per year besides cess, for the period from Asarh 1338 to chait 1348 B.S. There is also a claim for recovery of the value of fuel coal. The pro forma defendants 6 and 7 who are entitled to a half share of the rent, etc., claimed in the suit have been impleaded on the allegation that they refused to join with the plaintiffs in bringing this suit. Defendant 5 who is the widow of Ashutosh Ray was impleaded as she claimed to have acquired the interest of defendants 1 to 4 in the leasehold property by gitt.

(2.) The suit was contested by the defendants 1 to 5. Their substantial defence is briefly as follows: The plaintiffs predecessor-in-s interest who granted the mining lease dated 16 June 1894, had only an intermediate tenure-holder's right in village Kusunda. The late Raja Durga Prasad Singh, the then zamindar of Jharia, instituted suit No. 66 of 1906 in the Court of the Subordinate Judge at Purulia against the predecessors-in-interest of the plaintiffs and the predecessors-in- interest of the defendants and other interested persons, claiming right and title to the underground coal, mineral, etc., of the entire village Kusunda. The said suit was compromised between the plaintiff Raja and several defendants including Gadadhar Ray, Ashutosh Ray and the predecessors-in-interest of the present plaintiff's and the suit was decreed in terms of compromise. One of the terms was that out of the total jama of Rs. 1554-9-6 payable under the lease in question half, that is Rs. 777-4-9, would be paid by Gadadhar and Ashutosh to the Raja plaintiff and the remaining half would be paid by them to the predecessors-in- interest of the present plaintiffs and pro forma defendants. Subsequently the Raja transferred his interest in village Kusunda to one Mr. C.J. Smith. Since then the latter and his transferees have been realising amicably and by suit the jama of Rs. 777-4-9. The remaining jama of Rupees 777-4-9 was due to the predecessors-in- interest of the plaintiffs and pro forma defendants. Out of this they transferred a jama of Rs. 150 to one Babu Lalit Kishore Mitra and a jama of Rs. 260 to one Jadumani Gupta, now dead. Therefore, the plaintiffs and the pro forma defendants and Babu Lalit Kishore Mitra and the heirs of Jadumoni Gupta are jointly entitled to get the annual jama of Rs. 777-4-9 only. Babu Lalit Kishore Mitra and the heirs of Jadumoni Gupta are necessary parties to this suit, and they not having been impleaded the suit is bad for defect of parties. The plaintiffs and pro forma defendants never realised the jama at the rate claimed from the defendants.

(3.) At the trial the plaintiffs asserted that even assuming that the Raja of Jharia had acquired under the compromise decree in Title Suit No. 66 of 1906 a right to recover half the jama, that is Rs. 777-4-9, that right was transferred by him to C.J. Smith who in his turn made a gift of it to Pran Krishna Pattanaik and Chintamoni Pattanaik predecessors of the plaintiffs and pro forma defendants by a registered deed dated 24 March 1908. This deed was produced by them and admitted in evidence as Ex. 8. The learned Subordinate Judge who tried the suit has held (1) that the compromise decree in Title Suit No. 66 of 1906 is inadmissible in evidence inasmuch as it creates a lease and, therefore, required registration; (2) that the alteration in the jama which had been effected by the compromise decree was never given effect to; (3) that the defence in this suit regarding the amount of the jama is barred by res judicata by reason of the judgment Ex. 5 (a) given in a previous suit (No. 124 of 1913) brought by Chaintamoni Pattanaik and the present plaintiffs against the heirs of Gadadhar Ray for recovery of the half share of rent payable by them, Ashutosh Eay being impleaded in that suit as pro forma defendant 6; (4) that whatever right, title and interest the Raja of Jharia acquired by virtue of the compromise decree he settled in mukarrari with C.J. Smith, and the latter by a deed of gift Ex. 8 dated 24th March 1908 made a gift of his right to the jama of Rs. 777-4-9 to Pran Krishna Pattanaik and Chintamoni Pattanaik; (5) that even assuming that the deed of gift was invalid as asserted by the defendants, the plaintiffs have acquired a perfect title by prescription; (6) that the plaintiffs are entitled to rent at the rate claimed and (7) that Lalit Kishore Mitra and the heirs of Jadumoni Gupta are not necessary parties to this r suit. The learned Subordinate Judge accordingly decreed the suit. Defendants 1 to 5 preferred this appeal.