AMBALAL KHORA Vs. BIHAR HOSIERY MILLS LTD

JUDGEMENT

(1.) This appeal is by the defendants and arises out of an action in which the plaintiffs claimed damages against the defendants for working their colliery in such a manner as to cause the surface to subside. The learned Judge in the Court below has decided the case in favour of the plaintiffs but allowed damages to the extent of Rs. 61, 349-13-3 only out of a total claim of Rs. 1,09,500. The plaintiff is a company in liquidation engaged in the manufacture of hosiery, the factory being situate on survey plots Nos. 458, 463, 465 and 467. The proprietor of the land and of the colliery interest was the Jharia Raj. In August 1895, the coal mining rights were demised to one Bhoja Dhanji. The patta was in respect of coal mining rights in plots Nos. 458 and 463 which were 135 bighas in area under villages Fatepur and Jharia. Another 6 bighas were demised to the same person in June of 1901. In 1901 and 1902 Bhoja Dhanji sold 45 bighas to one P. D. Hamid and Gangi Dosha and 2 1/2 bighas to the said P. D. Hamid; the remaining 93 1/2 bighas were transferred by a deed dated November 17, 1902 to Khora Ramji deceased who was the father of defendants Nos. 1 to 3. There was an exchange in 1911 between Khora Ramji and the Jharia Raj under which Khora Ramji got 12 1/2 bighas in exchange for 12 1/2 bighas out of 93 1/2 bighas held by him. But in the meantime on January 17, 1923, Khora Ramji acquired mineral rights with regard to an additional 32 bighas. The subsided area is confined to about 3 acres of which plots Nos. 458 and 463 have completely subsided and plot No. 465 has subsided in part. Plot No. 467 has not sunk. The plaintiffs acquired the surface rights by a registered deed (Ex. 2-h) from persons described as the Bauris and Malliks who were labourers.

(2.) It has been one of the contentions of the defendants that the plaintiff had no title to the land and that, therefore, the present action is not maintainable. The Record of Rights describes the predecessors-in-title of the plaintiffs as persons in possession rent-free, and it is the finding of the learned Judge in the Court below that there is nothing on the record which would indicate that the Bauris and Malliks had not such a permanent" interest. The Judge in the Court below has entered into a some what elaborate examination of this point and has come to a conclusion in favour of the plaintiffs. It is true that the Record of Rights is not conclusive of the title of the predecessors of the plaintiffs, but in the absence of any evidence on the part of the defendants, especially with regard to any objection on the part of the Jharia Raj, in my judgment the plaintiffs have disclosed a sufficient title to enable them to claim damages in this suit if they have otherwise established their right.

(3.) There is no dispute about the subsidence, and apart from the question with which I have already dealt, the case was confined in the Court below and in this Court to the, question whether defendants Nos. 1 and 2 were liable in damages to the plaintiffs. The facts as regards the position of the defendants are as follows : The father of defendants Nos. 1, 2 and 3 died in the year 1923, Defendants Nos. 1 and 2 were born in 1916 and 1918 and were, therefore, minors at the time of the death of their father. As far back as 1908 defendant No. 3 separated from his father, and it was the contention of defendants Nos. 1 and 2 that neither defendant No, 3 nor defendants Nos. 4 to 9, who claimed at one time to have been partners in respect of a 10 anna share in the colliery business with the defendants father, had any interest in or in connection with this colliery. This has been accepted by the Judge in the Court below and now no question arises as to this. When the colliery business was started, it appears as I have stated that defendants Nos. 4 to 9 were share-holders to the extent of 10 annas, and of the remaining six annas share of the father, two annas were given to defendant No. 3. In February 19215, this two annas snare was sold to the mother of defendants Nos. 1 and 2 as their guardian and again in 1927 the share of defendants Nos. 4 to 9 was purchased by defendants Nos. 1 and 2. At the time of the action defendants Nos. 1 and 2 owned the 16 annas interest in the colliery by reason of these purchases and the death of their father in 1923. In these circumstances the liability of defendants Nos. 1 and 2 alone arises.