NOWRANG SINGH Vs. JANARDAN KISORLAL SINGH DEO

JUDGEMENT

(1.) This is an appeal by the first defendant in a suit for recovery of minimum royalty and other dues under a mining lease granted by the predecessor of the plaintiffs on the 28th Septembers 1901. The suit was instituted on, the 6 July 1917 and the claim covered the period of six years between the 14 April 1911 and the 13 April 1917. The defendant resisted the claim substantially on two grounds, namely, first that he was entitled to abatement, inasmuch as six bighas out of the thirty-two bighas of coal land included in the lease had been acquired under the and Acquisition Act; and, secondly, that as his possession of the mine had been interrupted by Mayer & Co., who were lessees of an adjoining mine under a grant made by the predecessor of the plaintiffs on the 22 April, 1897, the entire rent was suspended. The Subordinate Judge gave effect to the first contention and overruled the second, with the result that, on the 30 April 1919, the claim was decreed in part. The present appeal, preferred by the defendant against this decree, was heard on the 17th January 1921. In support of the appeal it was urged that, in view of the provision of Section 108(c) of the Transfer of Property Act, the appellant was entitled to a reduction of the rent payable by him, as a considerable portion of the mine let out to him had been flooded by reason of the act of Mayer & Co., who held the adjoining mine under the plaintiffs. The Court held that before the question of the true construction of Section 108 could be usefully discussed, it was necessary to ascertain facts which had not been investigated by the Court below. The Court accordingly directed the lower Court, under Order XLI, Rule 25 of the Civil Procedure Code, to try the following issues on additional evidence and to return the evidence to this Court together with the findings thereon and the reasons therefor: first, was there in fact an interruption of the possession of the defendant during the years in suit within the meaning of Clause (c) of Section 108 of the Transfer of Property Act; secondly, if there was such an interruption, was it attributable to any act on the part of Mayer & Co., as alleged by the defendant; thirdly, what were the terms of the grant made by the plaintiffs in favour of Mayer & Co.? The Subordinate Judge has held a local enquiry, taken the additional evidence required and submitted his findings. We have now to determine the appeal under Order XLI, Rule 26, Sub-rule (2). 3. The findings of the Subordinat Judge have been accepted by both the parties before us and may be summarised as follows: First, that during the period from the 14 June 1911 to the 13 April 1917, there was interruption of the possession of the defendant in respect of an area of ten bighas fifteen cottahs and twelve chhattaks approximately in the top seam, while the balance, fifteen bighas four cottahs and eight chattaks, remained in fully workable condition and had during this period a shaft pit by which the first defendant extracted coal; 4. Secondly, that this interruption of possession was due to the unlawful act of Mayer & Co. in joining their mine to the defendant's mine by galleries encroaching upon the defendant's coal land; 5. Thirdly, that the terms of the grant in favour of Mayer & Co. were set out in the lease granted by the predecessors of the plaintiffs on the 22 April, 1897 to Hari Charan Singh. 6. The Subordinate Judge has found that, if Mayer & Co. had not driven galleries by encroaching into the coal land of the defendant and had not thus joined their mine to his mine, no water from their mine could have entered his mine which was thereby flooded and submerged. The immediate cause was the destruction of the barrier by Mayer & Co.; the ulterior cause was the robbing of pillars in the mine of Mayer & Co., and also in a natural channel which carried the surplus rain water of the locality into a neighbouring river. This removal of pillars naturally caused subsidence in their mine and also in the channel, thereby creating a passage for rush of a large volume of rain water and flood water into the mine of the defendant. There can be no doubt that the act of Mayer & Co. was, as between them and their landlords, entirely unauthorised by the terms of their lease and must be regarded as unlawful. In these circumstances, we have to decide whether such unauthorised act on the part of the lessees of the plaintiffs, absolves the defendant from liability to pay rent in accordance with his lease. The solution of this question depends upon the true construction of Section 108. 7. Clause (c) of Section 108 provides that, in the absence of a contract or local usage to the contrary, the lessor of immoveable property shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption. This provision secures for the lessee the benefit of an unqualified covenant for quiet enjoyment. A qualified covenant for quiet enjoyment protects the lessee against interruption by the lessor, his heirs and assigns, or any other person claiming by or under him, them, or any of them, whereas an unqualified covenant, protects the lessee against interruption by the lessor, his heirs and assigns or by any other person or persons whomsoever. The covenant, in the unqualified form, covers the case of interruption by the superior landlord or other person claiming by title paramount, exercising a power of re- entry, or otherwise dispossessing the lessee. But even such a covenant does not include a case of disturbance by persons having no lawful title or right of entry; for, against them the lessee has his proper remedy and does not require a covenant, nor can he, on account Of being evicted by such persons, be relieved of his liability to pay rent. Reference may be made in this connection to the exposition contained in the classical judgment of Sir John Vaughan, Chief Justice of the Court of Common Pleas, in the case of Hayes V/s. Bickerstaff (1669) Vaughan. 118 : 124 E.R. 997 where he shows that the express covenant, like the implied covenant, protects the lessee only against lawful disturbance of strangers, and then summarises the "inconveniences if the law should be otherwise.:" I A man's covenant, without necessary words to make it such, is strain d, to be unreasonable, and therefore improbable to be so intended; for, it is unreasonable a man should covenant against the tortious acts of strangers, impossible for him to prevent, or probably to attempt preventing.

(2.) The covenantor, who is innocent, shall be charg d, when the lessee hath his natural remedy against the wrong-doer: and the covenantor made to defend a man from that from which the law defends every man, that is, from wrong.

(3.) A man shall have double remedy for the same injury against the covenantor, and also against the wrong-doer.