BROJANATH BOSE Vs. DURGA PROSAD SINGH

JUDGEMENT

(1.) The plaintiff respondent is the proprietor of the permanently settled estate of pergannah Jheria within which mouzahs Tasra and Raharaband are situated. Defendant No. 1 was in December 1887 appointed Digwar of Ghat Tasra by order of the Deputy Commissioner of Birbhoom, on the dismissal for misconduct of Digambar Singh, the previous Digwar. Defendant No. 1 at the same time received possession of the two mouzahs Tasra and Raharaband as the Digwari jaigir attaching to his office, and since that date continued to pay to the zemindar a yearly sum of Rs. 64 in respect of those two mouzahs. On the 2nd January, 1892, defendant No. 1 with the consent of the Deputy Commissioner of Manbhoom executed in favour of defendant No. 2, Mr. Mathewson, mokarari pottah of all the surface an sub-soil rights in mouzahs Tasra and Raharaband on which his kachari bari etc., stood. In that lease a clause was inserted that the rights and interests of Government over the surface lands and under ground rights in the said two mouzahs shall not in 17 December 1897, defendant No. 2 executed a deed of assignment of his rights under that lease to the Tasra Coal Co. Ld., defendant No. 3, on whose behalf he had been acting in taking the lease. The Coal Company in accordance with the settlement subsequently dug out and raised coal from the sub-soil of the two mouzahs.

(2.) The plaintiff alleged that Digamber Singh had been in possession of the two mouzahs under and ordinary sankarari (yearly) ijara settlement on payment of a yearly rent of Rs. 64, and that he had no permanent rights in the two mouzahs, and he contended that defendant No. 1. on his appointment as Digwar by the Deputy Commissioner of Manbhoom, did not acquire any higher right in the mouzahs than the sankarari ijara right, and therefore that he acquired no right to the minerals. He alleged that the mineral rights belonged to him as landlord, and that the defendants, by granting and receiving a lease of the sub-soil rights and by digging up the coal, had wrongfully infringed his rights. He accordingly brought the suit, (i) to have it declared that all sub-soil rights to the minerals in the two mouzahs belonged to him, (ii) to recover the sum of Rs 16,000 on account of 8,250 tons of coal dug up within the 3 years prior to institution of suit, and (iii) to obtain a permanent injunction restraining the defendants from digging up coal in future in the two mouzahs.

(3.) The defendant No. 1 in his written statement first contended that Government was a necessary party to the suit and that the suit could not proceed unless Government was made a party. He further alleged that the assertion made by the plaintiff in his plaint that Digamber Singh had held the two mouzahs under a sankarari ijara settlement was false, that on the contrary, the mouzahs had all along been held from before the advent of the British Government as a Digwari jaigir by the person who held the appointment of Digwar of Tasra Ghat and as such rendered Police services to Government, that the jaigir was permanent and hereditary, and had been held by the Digwar all along on payment of a fixed quit rent or Digwari panchak to the zemindar that Digamber Singh having been dismissed from his appointment as Digwar by Government for misconduct the jaigir had passed to him, defendant No. 1, on his appointment as Digwar, that the sub-soil rights as well as the surface rights in the jaigir belonged to him, and that as he had granted the lease to defendant No. 2 with the consent of the Deputy Commissioner of Manbhoom the lease was valid. He denied the right of the plaintiff, as zemindar, to the minerals. The other defendants supported this line of defence.