SATYA CHARAN SRIMANI Vs. RAMKINKAR BANERJI

JUDGEMENT

(1.) These two appeals have arisen out of a suit in which the plaintiff-respondent in this Court claimed Rs. 27,867-14-0 as the minimum royalty, cesses and price of coal, from the defendants the suit, basing the claim on a kabuliat executed on 3 June 1908(Ex. 11 in the case), evidencing a lease for 999 years of underground right in Chak Sitalpur in Lot Gopinathpur. The history of title of the plaintiff as lessor on which the claim in suit was founded, was given in detail in the plaint, and has been set out in the judgment of the trial Court against which these appeals are directed. It is not necessary for the purpose of these appeals to consider the materials relating to the accrual of the plaintiff's title as lessor, as indicated in the different documents filed in Court, entitling him to claim the amount sought to be realised by him in the suit. In the written statement filed by the contesting defendants the statements made by the plaintiff as to the devolution of interest and accrual of his title were not specially denied or controverted; and no issue was raised on the question of the plaintiff's title as lessor. The plaintiff's claim was resisted by the mortgagees of the interest created by the lease and the transferees from the mortgagees in respect of the underground rights in chak Shitalpur, defendants 2, 5, 6 and 7.

(2.) The defence of defendant 2 in the suit does not require consideration in view of the position that in these appeals it was conceded on behalf of the plaintiff-respondent, that defendant 2 was not liable either jointly or individually for any part of the claim in suit. Defendants 2, 5 and 6 denied liability and denied the plaintiff's statement in the plaint that they were in possession. On the pleading of the parties concerned, the material issue raised for determination in the suit was issue 7: Whether defendants 2, 5, 6 and 7 are necessary parties to the suit? Whether they are in possession of the mortgaged property? Are they or any of them liable for the dues or any part of the dues of the plaintiff.

(3.) The Additional Subordinate Judge of Asansol, by whom the suit was tried, passed a decree on the basis of minimum royalty as given in Schedule 2 of the plaint, holding defendants 2, 5, 6 and 7 liable jointly and severally to the plaintiff. As the Judge in the trial Court has observed in his judgment, the point that was "very much debated" before him was this: Whether the mortgagees and their transferees, the contesting defendants in the suit were liable for the plaintiff's claim for minimum royalty, etc.