MAHARAJA SRISCHANDRA NANDY Vs. BAIJNATH JUGAL KISHORE(FIRM)

JUDGEMENT

(1.) These consolidated appeals consist of an appeal by the defendants 1 and 3 in the suit and a cross-appeal by the plaintiff from two decrees of the High Court of Judicature at Patna dated 21 May 1931, which subject to a slight modification, confirmed a decree of the Subordinate Judge of Dhanbad dated 30 July 1927. The plaintiff, who is a sub-lessee of the coal-mining rights of a part of Mouza Gararia, instituted the present suit on 28 May 1925, against the predecessor of the present defendant 1, who was a similar lessee of Mauza Ekra, which lies immediately to the south of Mauza Gararia, and defendants 2 and 3, who were in succession the agents of defendant 1 in working his coal, defendant 3 having succeeded defendant 2 in May 1924. The suit was based on the alleged conversion of an area of the plaintiff's coal, and he asked for an order on the defendant to vacate the land encroached on, for an injunction prohibiting future trespass and conversion, for an inquiry and ascertainment of the extent of the defendants' encroachments and the amount of coal removed and for an inquiry as to the quantum of damages.

(2.) The plaintiff's sub-lease was obtained by him on 26 April 1922, and he set out his cause of action as having arisen in or about November 1924, when he first came to know of the encroachments. Gararia and Ekra are both part of the Jharia Raj. In 1896 the then Raja granted a mukarrari lease of the coal-mining rights in Gararia to one Maheshwar Rai, and in 1898 he granted a similar lease of Ekra to the ancestor of defendant 1. In 1901, 1902 and 1907 Maheshwar Rai granted sub-leases of the coal-mining rights in plots of 100 bighas and 100 bighas 40 bighas respectively to the lessors of the plaintiff, who demised by way of sublease the rights in the whole 240 bighas to the plaintiff in 1922. The plot with which the present dispute is concerned is the plot of 100 bighas, sub-let by Maheshwar Rai in 1901, which is a comparatively narrow strip running north and south, and having Ekra as its southern boundary. The remaining plots of 100 bighas and 40 bighas may be disregarded.

(3.) In the present appeals certain facts are no longer in dispute. It is now agreed that the boundary between the plaintiff's coal area and that of the defendants is that fixed by the Revenue Survey maps, and that the defendants have encroached over the boundary on to the southern part of the plot of which the plaintiff is now sub-lessee. Further the area of encroachment has been worked as follows, viz.: prior to 1911 coal amounting to 8,209 tons had been removed by working in galleries, leaving 6,643 tons of coal in the pillars: at some time during the years 1924 and 1925, 4,422 tons of the pillar coal was removed, and the remaining 2,221 tons of coal in the pillars have been rendered unworkable, except at heavy expense, by the defendants' working and the consequent subsidence. The total tonnage of coal thus involved was 14,852 tons.