KUNJA BEHARI SEAL Vs. RAJA DURGA PRASAD SINGH

JUDGEMENT

(1.) The only question arising for our decision in the present appeal is whether the minerals lying beneath the Mauza Jitpore in the Fergana of Jheria passed to the ancestor of the Tewari defendants by a Mogoli Brahmottar grant at a rent of Rs. 16 a year by the ancestor of the defendant No. 1. The plaintiff has acquired annas 15-2 1/2 gandas in the sub-soil of the mauza from the Tewaris and brought the suit for the declaration of his title to such share. His claim was 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 granted 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 heard 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 are, first, that the grant was a Mogoli 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 Bekari Tewari.