GOLAB CHAND Vs. JANKI KOER

JUDGEMENT

(1.) The subject of this litigation is the nimak-sayar mehal of sarkar Champaran, to which the plaintiff, the present owner of the Bettiah Raj. claims to be entitled. The defendant is the zemindar of the village Manpura, within the limits of which the plaintiff claims to exercise the rights that, in her view, appertain to and substantially constitute her mehal. The plaintiff s claim has been embarrassed by the unhappy language in which her plaint was originally framed, for, as expressed, it claims the affirmation of a monopoly. But notwithstanding this the substantial meaning of the document is fairly evident, though it might possibly be misunderstood. We have accordingly allowed an amendment, so that the plaintiff s claim might be formulated in happier and more precise language. It is a mistake to suppose that the plaintiff seeks a monopoly; all she really asks is the affirmation and protection of an exclusive right in accordance with the mode in which it has been exercised by her and her predecessors for generations. The plaintiff asserts, and it is the fact, that this mehal was settled with a predecessor-in-title at the time of the Permanent Settlement. The defendant alleges, and it is also the fact, that the zemindari in the village Manpura, over which the plaintiff claims these rights was also settled at the Permanent Settlement.

(2.) The rights claimed by the plaintiff are to collect either herself, or by those claiming under her, nitrous earth throughout an extensive area, which includes village Manpura, in order to extract therefrom the saltpetre that it yields. The mode of operation is described in Harington s Analysis Vol. III and Sir William Hunter s Statistical Account of Bengal, Vol. XIII. No separate or further right to this earth is claimed. The defendant maintains that this would be inconsistent with his zemindari rights and cannot be upheld. All that the plaintiff can claim, according to him, is the right to collect revenue, if saltpetre happens to be manufactured, a possibility of which he claims to be the sole arbiter, and nothing more. As authority for this view, The Government of Bengal v. Nawab Jafur Hossein Khan (1854) 5 Moo. I.A. 467 has been cited to us, and no doubt it was said of the nimak-sayar mehal there in question that it was revenue. If by that is meant that every nimak-sayar mehal is a right to collect revenue, if any chanced to be earned, and nothing more, then we should of course follow the decision without question. But that is not how we read the decision and we think this case must be determined on its own circumstances.

(3.) When considering the effect of a Permanent Settlement, the first matter to be determined is what were the assets of the estate, then settled, and here we have to consider what were the assets of the two estates, the zemindari and the nimak-sayar mehal. It is very necessary not to be influenced by the doctrines of English real property law with its maxim cuius est solum ejus est usque ad coelum et ad inferos. On the settlement of estates in Behar, interests could be moulded in disregard of this maxim. Thus in the well known case of the aurungs of Birbhum, Gooroopershad Bose v. Bishnoochurn Heyra (1811) 1 Mac. Sel. Rep. 337 there was a separation of the aurungs and the surface of the soil, and there were two separate estates, the zemindari and loha mehal. So again in Byjnauth Mujoomdar v. Deen Dyal Gooput (1814) 2 Mac. Sel. Rep. 133; I.D. 6 (O.S.) 460 there was a similar separation of the zemindari and the bankar, of the soil and the trees. We start here with the fact that there was a settlement of the zemindari and a separate settlement of the nimak-sayar mehal, and further that the assessment on it shows that the mehal was of considerable value. What passed under this settlement cannot have been of the precarious character suggested on behalf of the defendant, for it was argued that the plaintiff had no right to come on to the land except by the leave and license of the defendant, or to authorise others to utilize the nitrous soil for the collection of saltpetre. The plaintiff in that case would be in a sorry plight. She is under an obligation to pay a considerable revenue to the Government in respect of the mehal, but would have no right, except on sufferance, to make the mehal a source of profit for the discharge of that revenue. This appears to me to be an untenable position that is taken up by the defendant, a recent purchaser of the zemindari. It is an innovation which has originated with him and offends the principle that a grant carries with it the means reasonably necessary for its enjoyment: cuicunque aliquis quid concedit concedere videtur et id sine quo res ipsa esse non potuit. Both the Litigants claim under the same grantor and date from the permanent settlement; both grants must have been intended to be effective; and yet, if the defendants view be right the grant of the mehal would have been deceptive and futile. The answer to his contention is that the nimak-sayar mehal was no part of the assets of the zemindari. It is interesting to note that even in England a separate right in respect of saltpetre has been recognised. It was held in the case of King s Prerogative in Saltpetre (1607) 12 Coke 12 that the King had a prerogative entitling him to enter into any man s land and dig saltpetre for making gunpowder. In Bacon s Abridgement, Vol. VI, p. 416 the result of the case is summarised as follows: "My Lord Coke observed, (i) That it must be done with as much conveniency and as little to the prejudice of the owner of the ground as possible; and consequently that the digging in a man s house, barn, out-house, etc., or weakening the walls of any such house, etc., was unlawful: (ii) That the soil or ground must be made and left as commodious to the owner as it was before: (iii) That it was in the nature of a purveyance and an incident inseparable to the Crown and could not be granted or demised over to another: (iv) That the owner of the land could not be restrained from digging and making saltpetre; the King not having an interest in it as he had in gold and silver in the land of the subject."