DURGA PRASAD SINGH Vs. GOSTA BEHARI NANDI

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff, the Raja of Jheria, in a suit for recovery of royalty due under a mining lease granted by his predecessor, on the 20th October 1898, to the second defendant, the Maharaja of Cassimbazar, in the name of the first defendant. The claim covers the period from the 14th April 1903 to the 16th October 1908. The controversy between the parties relates to the rate at which the royalty is payable, and must be determined upon a true construction of the first clause of the lease, which may be literally rendered as follows: In respect of the coal, which I may raise from the entire 1103 bighas 13 kottas of coal land in Mouza Ekra under Settlement and despatch or sell, I shall be bound to pay commission, that is, royalty, on steam coal, rubble coal, hard coke and soft coke at 3 annas per ton, and 1 shall pay commission for brick burning rubble and dust at 1 1/2 annas per ton. Be it known that I shall pay royalty, at the present fixed rate, for all the coal that may be despatched by the East India Railway line. But if, in future, on construction of the Bengal Nagpur Railway line, the freight for coal be reduced, from what is at present fixed, by at least 2 annas or more per ton, then with regard to all the coal which may be despatched at such reduced freight, I shall pay royalty for steam (coal), steam rubble, soft coke and hard coke at 5 annas per ton, and for brick burning rubble and dust at 2 1/2 annas per ton; but if the said railway freight be reduced by lees than 2 annas per ton, such amount of reduction shall be added to the present royalty rate for steam (coal), steam rubble, soft coke and hard coke, and half thereof shall be added to that for brick burning rubble and dust.

(2.) It is not disputed that the Bengal Nagpur Railway, which was in course of construction at the time of the grant of the lease, was extended to Jheria in February 1903. Shortly before this, in August 1902, the Bast India Railway reduced the rate of freight for the carriage of coal, with the result that the freight from Jheria to Calcutta was reduced from Rs. 3-11 to Rs. 3-2 per ton. The Subordinate Judge has found that this reduction was made in anticipation of the competition likely to follow upon completion of the Bengal Nagpur Railway line. This conclusion is manifestly sound and has not been challenged before us. The action of the Bengal Nagpur Railway authorities, after their line had been opened, and the infructuous attempt made by them to reduce the rates further, need not be considered for our present purpose; it is sufficient to state that the two Railway authorities subsequently agreed that Rs. 3-2 would be charged by both Railways on every ton of coal carried from Jheria to Calcutta. The fact, therefore, is well established that the rate of freight on coal from Jheria to Calcutta has been reduced by 9 annas per ton. The plaintiff contends that this entitles him to royalty at the increased rate mentioned in the first clause of the lease. In my opinion, there is no answer to this claim.

(3.) The Subordinate Judge has entirely misdirected himself in the decision of the fairly simple question in issue between the parties. He has allowed oral evidence to be adduced in proof of their intention and has based his conclusion upon what he assumes must have been the intention of the grantee. The course pursued by the Subordinate Judge contravenes the elementary test laid down by Lord Wensleydale in Monypenny v. Monypenny (1861) 9 H.L.C. 114 at p. 146; 31 L.J. Ch. 269; 131 R.R. 72: "The question is not what the parties to a deed may have intended to do by entering into the deed, but what is the meaning of the words used in the deed-a most important distinction in all cases of construction, and the disregard of which often leads to erroneous conclusions". This vital distinction was emphasised by Baron Parke in Dungannon v. Smith (1846) 12 Cl. & F. 516 at p. 599; 69 R.R. 137; 10 Jur. 721 and by Lord Selborne in Pearks v. Moseley (1880) 5 App. Cas. 714 at p. 719; 50 L.J. Ch. 57; 43 L.T. 449; 20 W.R. 1 and was concisely summed up by Lord Halsbury in Leader v. Duffy (1888) 13 App, Cas. 294 at p. 301; 58 L.J.P.C. 13; 59 L.T. 9 in the following terms: "You will be arguing in a vicious circle if you begin by assuming an intention apart from the language of the instrument itself, and, having made that fallacious assumption, you bend the language in favour of the assumption so made". If the first clause of the lease be examined in view of this rule of construction, the case turns out to be reasonably free from all difficulties. In the first sentence, the lessee undertakes to pay commission upon the different kinds of coal at 3 annas and 1 1/2 annas respectively per ton. The second sentence is introductory to the provision in the third sentence and is intended to emphasise it. The lessee affirms that on all the coal despatched by the East India Railway line, which at the time was the only Railway available, he would pay royalty at the fixed rate, that is, at the rate specified in the first sentence. The third sentence then proceeds to provide for a contingency anticipated by the parties, namely, a reduction in the freight for carriage of coal, upon construction of the Bengal Nagpur Railway line. That contingency has happened. The Bengal Nagpur Railway line has been constructed and extended to the Jheria coal fields. The rate for carriage of coal has been reduced. The plaintiff has, consequently, become entitled to the increased royalty. A simple recital of these facts makes it abundantly clear that the claim is well founded, What, then, is the answer suggested by the defendant?