RAMESWAR MALIA Vs. RAM NATH BHUTTACHARJEE

JUDGEMENT

(1.) In 1854 Lakhan Acharjee Goswami granted a putni lease, dated the 30 Falgun, of mauza Alutia consisting of upwards of 500 bighas along with three other mauzas, to the defendant Krishna Kanji, through whom the Malia defendants, the appellants, claim. According to the kabuliyat (for the patta is not forthcoming) the coal and mineral rights and the surface of such of the lands in the mauzas as are coal-bearing were excepted from the grant. The translation in the paper book of the clause in the kabuliyat containing the exception is not quite accurate, but the translation by one of the sworn Interpreters of this Court, which is admitted to be correct, is as follows: Within the said lot such places where there are or shall be in existence coals, coal- pits, minerals, in land or water are reserved under your khas control. The same shall have no concern with me, the lessee.

(2.) Up to that time there had been no working for coal in the mauzaand the existence of coal in the mauza had not been established.

(3.) On the 26 Pans 1290 and 23 Srabon 1300, respectively, the successors in title of Lakhan Acharjee Goswami executed mokurrari maurmi leases in respect of the coal and mineral rights of the entire mauza Alutia to the plaintiff, Ram Nath Bhutta, charjee, and one Jadu Nath Roy, but the plaintiff subsequently obtained from the legal representatives of Jadu Nath Roy a dufmokuran lease in respect of his interest. In December 1895 the plaintiff granted a perpetual lease of the minimum right in the entire mauza to the defendants Madhab Prosad, who thereupon commenced to dig a pit in the land for the purpose of prospecting for coal, but he was stopped by the Malia defendants, who were in possession of the surface by virtue of the putni of the 13 Falgun 1261. Thereupon Madhab Prosad, being unable to get quiet possession, filed a suit in the High Court to have the perpetual lease cancelled and to recover the premium of Rs. 5 000 which he had paid to his lessor. Pending the hearing of that suit the plaintiff and Madhab Prosad on the 19 December 1899 filed a joint petition, in which it was agreed between them that the hearing of the suit should be postponed for a year to enable the plaintiff to bring the present suit to establish his title to the underground rights in the mauza and to put his lessee, the defendant Madhab Prosad, in such possession as would enable him to work the minerals. It was agreed that, if the intended suit should fail, the plaintiff was to repay the Rs. 5,000; but if it should be successful and the defendant Madhab Prosad should obtain possession under his lease, the suit in the High Court was to be withdrawn,