BRAJENDRA NATH GHOSH Vs. SMKASHI BAI

JUDGEMENT

(1.) This is a plaintiffs appeal against the order passed by the Subordinate Judge of Dhanbad in Title Suit No. 16 of 1945 refusing to grant an interlocutory injunction to restrain the defendants from working the disputed coal mines. The plaintiffs in their suit claim the disputed part of the colliery as included in the lands demised as per a registered lease dated 1 Aghan 1301 B.S. granted by late Ganga Narain Singh, the then proprietor of pargana Katras, to late Ramdayal Mazumdar. The same landlord by another registered lease dated 21 Kartick 1301 B.S. leased out an adjoining plot of land in mauza Katras for the purpose of extracting coal to one Budhar Nath Roy. It is stated that a dispute having arisen about the intermediate boundary lines between the coal mines of Ramdayal Mazumdar and Budhar Nath Roy, there was Title Suit No. 32 of 1896 instituted by Ramdayal against the said Budhar Roy and Ganga Narain Singh, the proprietor, in the Court of the Subordinate Judge of Purulia. The northern boundary of the plaintiffs leasehold land was fixed and declared, and the plaintiffs claim that this decree fixing the boundaries is binding as between the parties. The plaintiffs thus claim that the present disputed inclines in the colliery now in possession of the defendants are all within the declared boundaries of the leasehold lands of Ramdayal Mazumdar, their predecessor-in-interest, and, therefore, they have a prima facie title to the same. How the leasehold interest came to be owned and possessed by the plaintiffs being derived from Ramdayal Mazumdar or his successors-in-interest has been elaborately described by the Subordinate Judge in his order under appeal, and it need not be repeated here. The proprietor of mauza Katras granted another lease of some coal lands in the same mauza to one Mr. Bennet and another in the year 1917 and the said Mr. Bennet, it is said, dug the two disputed inclines and air shafts in the northern portion of the coal land of the plaintiffs during the time of the plaintiffs predecessor-in-interest, namely, Lalit Mohan Bose and raised some coal without his knowledge and consent. Lalit Mohan having protested against the wrongful acts of Mr. Bennet, the latter quitted the inclines and the shafts and the land encroached upon. According to the plaintiffs, since then these inclines had never been worked for the purpose of raising coal until December 1944, when the defendants for the first time started working out the inclines for the purpose.

(2.) The defendants, it can be shortly stated, without narrating the history of their acquisition of the rights in question, are the successors-in-interest of Mr. Bennet and another. The plaintiffs, therefore, urged that the defendants are mere trespassers having no right to the inclines, air shafts and also the lands below them which are in dispute in this case as they form a part and parcel of their leasehold interest having been given up in their favour as stated above. The defendants, on the other hand, contend that the said inclines and air shafts have all along been in possession of their predecessors-in-interest including Mr. Bennet and his partner, the land in dispute being within their lease, that neither the plaintiffs nor their predecessor-in-interest have ever been in possession of the same, and that the plaintiffs, taking advantage of the fact that defendant 1 is a pardanashin lady and is an absentee, wrongfully encroached upon the said land and started working out certain shafts for extracting coal beneath the shafts which the defendants had started working out since December 1944, and that they anticipating the defendants contemplated suit against them for their act of trespass, filed the present suit which is not a bona fide one. The question at issue, therefore, is whether the lands in dispute are within the boundaries of the respective leases of the parties on which they base their title.

(3.) It is admitted on both hands that prior to December 1944 both the parties or their predecessors-in-interest had stopped working the coal mines respectively belonging to them on account of dullness of coal market. The plaintiffs have produced no document to show that Mr. Bennet had vacated the in-clines in dispute on protest of Lalit Mohan Bose as alleged by them in their plaint. The plaintiffs suit is in substance a suit in ejectment. The plaintiffs on bringing this suit moved the learned Court below to pass an order of interlocutory injunction against the defendants restraining them from working out the disputed mines.