SHIVA PRASAD SINGH Vs. MAHARAJA SRIS CHANDRA NANDI

JUDGEMENT

(1.) This is a plaintiff's appeal from a decree of the Subordinate Judge of Dhanbad passed in a suit for an account of royalties due from the defendant to the plaintiff under a certain mining lease and recovery of the sum so found due by enforcement of a charge upon the demised premises. The suit was decreed in part, and the plaintiff, being dissatisfied with the decision, has preferred this appeal. The defendant has filed a cross-objection and contends that no g sum was due to the plaintiff and that the suit should be dismissed in its entirety. The plaintiff claimed an account of royalty from the defendant who was working coal under a mining lease of 6 Kartik 1805 B.S. (corresponding to 22 October, 1898) granted by the plaintiff's predecessor to the defendant's father benami in the name of Gosta Bihari Nandi. It is common ground that the latter was a benamidar of the father of the present defendant.

(2.) By the terms of this lease, it was provided that the lessee should pay royalty of 3 annas a ton on steam coal, soft coal, etc., and 1 1/2 anna a ton on brick burning rubble and dust. It was further provided that if on the extension of the Bengal Nagpur Railway to the district the freight on coal decreased by more than 2 annas per ton then royalty on steam coal, etc., would be payable at the rate of 5 annas a ton and on brick burning rubble and dust at the rate of 2% annas per ton. If the freight was reduced by less than 2 annas, then such amount would be added to the royalty of 3 annas per ton on steam coal, etc., and half the amount to the royalty of 1 1/2 anna on brick burning rubble and dust. Such royalty was to be payable in four kists according to the Bengali year. It appears, however, that by arrangement between the parties the royalty was payable on 1 April, 1 July, 1 October and 1 January.

(3.) The defendant took possession of the property demised under the said lease and shortly afterwards (i.e. in August 1902) the Bengal Nagpur Railway was extended to the Jharia coal field and in consequence of the competition between the East Indian Railway and the Bengal Nagpur Railway freight on coal to Calcutta was reduced on both the railways by an amount considerably more than 2 annas per ton. The lessor thereupon called upon the lessee to pay the increased royalty of 5 annas and 2 1/2 annas on the various classes of coal as provided in the said lease; but the lessee, however, refused to pay at this increased rate. The lessor sued the lessee for this increased royalty in the Court of the Subordinate Judge, but the suit was dismissed. On appeal, however, the decision of the learned Subordinate Judge was reversed by the High Court at Calcutta and the suit for arrears of royalty at the increased rate with interest thereon was decreed in full. The lessee preferred an appeal to His Majesty in Council, but this appeal was dismissed and the decree of the High Court at Calcutta affirmed.