RAJESWAR PROSAD BHAKAT Vs. BHUPENDRA NARAYAN SINHA BAHADUR

JUDGEMENT

(1.) These two appeals arise out of one suit brought by the plaintiff Baja Bhupendra Narain Sinha Bahadur for declaration of his right to a certain hillock within his estate as shebait of idol Parbati Mata, and in the alternative for a declaration, by virtue of his right as zemindar of the estate, that the principal defendants have no right to take away earth and stones and minerals from the hillock in the exercise of the right that the defendants have as darpatnidars under the patnis within his estate. The plaintiff is one of the four sons of Maharaja Ranajit Sinha. The other sons and grandsons by those sons are defendants 16 to 20 in the case. The patni was created of three mehals within the estate No. 1152/1 by a predecessor in interest of the plaintiff's father. The patni was granted to two persons in equal shares by deeds dated the 30 May 1851. The throe mauzahs of which the patni was granted were called Tarof Nal-hati, Hat Nalhati and Kalindipur.

(2.) Out of these three mauzahs the patnidars granted darpatni of Taraf Nalhati and Hat Nalhati by separate leases to Ganga Prosad Saha in 1862; the defendants 1 to 9 came into the possession of the darpatni interest through various mesne purchases by their deed dated 11th October 1898. Defendant 9 died during the pendency of the suit and is represented by his sons defendants 9ka, 9kha, 9ga. 9gha and grandson 11ka. Defendants 10 and 11 were lessees under the darpatnidars of the portion of the property now in suit. The plaintiffs claim with regard to ownership on the ground that the hillock is the property of the idol Parbati Mata has been found against him in the Court below, and no question has been raised before us about that right of the plaintiff; so we have to consider only the question as regards the plaintiffs right as zemindar.

(3.) The plaintiff claims the zemindari right in himself on the ground that by custom of primogeniture prevailing in his family he is entitled to the entire estate to the exclusion of his brothers and their descendants. He also relies upon an ekrar said to have been executed in his favour by his adult brothers and his mother acting as guardian for his infant brother with regard to his sole right to succeed to the estate left by his father. The defendants disputed the title of the plaintiff on the ground of primogeniture to the entire property. They further alleged that they were entitled to take away stones and earth and minerals within their darpatni by virtue of the right granted to the patnidars under the patni settlement, and they also pleaded limitation. The Subordinate Judge found in favour of the plaintiff with regard to the question of title to the minerals and gave a decree to this effect that the plaintiff's title to the minerals lying in the hill by virtue of his being the zemindar be declared, and a perpetual injunction be issued restraining the principal defendants from raising the said minerals by digging and from appropriating the same, but it is ordered that the defendants will be competent to dig and take such stones and gravel as are found on the surface of the hill. The Subordinate Judge found against the plaintiff on the question of primogeniture and he held that the plaintiff was entitled to only 1/4 of the property and gave him a decree for a fourth of the sum which he found the defendants are liable to pay on account of damages for the quantity of earth or minerals taken away by them. The principal defendants 1 to 11 appeal to this Court with regard to that portion of the decree which is against them, namely, the injunction granted against the defendants from raising minerals and the amount of damages allowed to the plaintiff. Their appeal is No. 70 of 1924. The plaintiff appeals against that part of the decree which dismissed a portion of his claim. His appeal is No. 123 of 1924.