SRISH CHANDRA NANDY Vs. RAMJI BECHAR DAS

JUDGEMENT

(1.) The facts of the case out of which this appeal has arisen are these: Two adjoining villages, Gararia and Ekra, belong to the Raja of Jheria, Gararia being to the north of Ekra. The mineral rights of these two villages have been leased out by the proprietor; those of Ekra to defendant 1, the Maharaja of Kasim Bazar, whose estate is at present managed by the Court of Wards, and those of Gararia to one Maheshwar Roy who subleased them to several persons in blocks. One such block of 50 bighas adjoining Ekra was on 22 March, 1901 subleased to the plaintiff, and another of 110 bighas to the east of the above block, also adjoining Ekra, was on 8 June 1901 subleased to one Sourendra Nath Dutta who is said to be a benamidar of defendant 1. Sourendra Nath Dutta in his turn transferred in 1905 his block to the plaintiff, though the deed was executed in 1907. The plaintiff thus got rights in the minerals of two blocks of one land of Gararia, one of 50 and the other of 110 bighas. To the south of these blocks is the colliery of defendant 1 in village Ekra. The plaintiff's case is that defendant 1, while working his colliery of village Ekra encroached upon the lands of village Gararia just to the north of Ekra and extracted coal from the two blocks the minerals of which belonged to him as stated above. He brought this suit for recovery of the price of the coal thus removed and for restraining the defendants by injunction from trespassing into the plaintiff's lands and removing any more coal therefrom.

(2.) Defendant 1 denied that he had encroached upon Gararia lands or removed any coal therefrom and in the alternative pleaded limitation and adverse possession. The learned Subordinate Judge has given the plaintiff a decree for Rs. 17,512-12-0 and also for injunction as prayed for by the plaintiff. Defendant 1 has preferred this appeal. The money decree has since been assigned by the plaintiff to Ramsewak Singh who has been added as respondent in the suit. The original plaintiff Ramji Bechar Das died during the pendency of the appeal and his four sons have been substituted in his place. There is also a cross-objection on behalf of the original plaintiff claiming Rs. 13,268-10-9 in excess of the amount decreed by the trial Court.

(3.) The southern boundary of village Gararia (as mentioned in the lease in favour of Maheshwar Roy and in the two subleases granted by him, one in favour of the plaintiff and the other in favour of Sourendra Nath Dutta for 50 and 110 bighas of land respectively) is village Ekra according to the Thak (revenue survey) map. In the sale of the sublease by Sourendra Nath Dutta to the plaintiff the southern boundary of the 110 bighas of land is "Ekra according to the Thak map and the railway line." The case of defendant 1 before the learned Subordinate Judge was that village Gararia extended only up to the railway line which runs from east to west, or, in other words, the boundary of the village according to the revenue survey map coincided with the railway line. It was on this basis that the defendant denied the fact of encroachment, as his operations end south of the railway line. But the boundary line between the two villages has been found by the Court below on the report of the Commissioner to be a few hundred yards south of the railway line. It is, therefore, not disputed now that defendant 1, did in fact encroach upon the minerals of Gararia and extracted coal lying under its lands. The appeal is, therefore, confined to three points only: (1) That the suit in respect of the coal removed is barred by limitation: (2) that the encroachment on the 110 bighas of land was in no case unlawful in view of the fact that the southern limit of those lands as mentioned in the sale deed of Sourendra Nath Dutta in favour of the plaintiff is the railway line, and the plaintiff is not entitled to any relief in respect of any act done by the defendant south of that line; (3) that defendant 1, by working the colliery and removing the gallery coal has acquired, by adverse possession, title over the area covered by his operations including the pillar coal which has been left and is entitled to remove it and the plaintiff is not entitled to an injunction to restrain the defendant from doing so.