KUNJA BEHARI SEAL Vs. DURGA PRASAD SINGH

JUDGEMENT

(1.) The only question arising for our decision in the present appeal is whether the minerals lying beneath: the mauza Jitpur in the pargana of Jheria passed to the ancestor of the Tewari defendants by a Moghali brahmottar grant at a rent of Rs. 16 a year by the -ancestor of the defendant No. 1. The plaintiff has acquired a 15 annas, 2 1/4 gandas share in the subsoil of the mauza from the Tewaris and brought the suit for the declaration of his title to such share. His claim wag resisted by the contesting defendants on various grounds, the only one of which it is now material to consider is the defence that the brahmottar granted by the ancestor of the defendant No. 1 to the ancestor of the Tewari defendants did not pass the minerals to the grantee. The evidence before us is small and the case largely depends upon what are the proper inferences of fact to be drawn from certain admitted facts.

(2.) There is no document evidencing the grant of the brahmottar, although it would appear that it was grunted more than 100 years ago. At that time it is not probable that any one thought of there being coal under these lands. In an attempt to prove the origin of the brahmottar grant the plaintiff called the defendant No. 17 to prove the origin of the grant His statement was that he hoard from his grandmother, that his ancestor had become degraded for some spiritual services rendered to the ancestor of the defendant No. 1, and, therefore, the former Raja made a gift of the whole of his rights in the mauza. The learned Judge very properly refused to accept this statement as proving the origin of the grant.

(3.) The only facts proved we, first, that the grant was a Moghali brahmottar grant; and, secondly, that it has been held for more than 100 years at the same rent of Rs. 16. From these facts the learned Judge drew the inference, that the brahmottar was a permanent tenure held at a rent of Rs. 16 a year. He, however, came to the conclusion that such a grant did not transfer the minerals to the grantee. It is not suggested in the present case that there were any mines opened on the property at the date of the grant, nor that the plaintiff, or the persons from whom he derives title have a prescriptive right to work any of the minerals under the property. The learned Judge, therefore, came to the conclusion that the plaintiff had not shown that the former Raja parted with the minerals when he made the brahmottar grant to the Brahmin, Behari Tewari.