KAMAKSHYA NARAYAN SINGH BAHADUR Vs. THBURNETT

JUDGEMENT

(1.) These two appeals arise out of Suit No. 81 of 1940 instituted by the plaintiff, Raja Kamakshya Narayan Singh Bahadur, for recovery of royalties and cesses together with interests from the defendants in respect of certain coal lands for a number of years. The learned Subordinate Judge has decreed the suit of the plaintiff in part with the result that the plaintiff has filed Appeal No. 127 and two of the defendants have filed Appeal No. 134. These two appeals will be disposed of together.

(2.) The facts which have been amply proved are these: On 9-6-1919, the Court of Wards, who were then in charge of the Ramgarh Raj during the minority of the father of the plaintiff and of the plaintiff, granted a lease of 200 bighas of coal lands in village Karmatanr to Mr. Burnett defendant 1, on the stipulation inter alia that the lessee will pay royalty and cess on the amount received if assessed on the proprietor on the royalties received. Mr. Burnett was in possession till 9-5-1922 when he transferred his interest to Kaluram Agarwala, defendant 2. Kaluram Agarwala after remaining in possession till 1929 transferred 100 bighas of coal lands on 17-12-1929 to Sreeram Coal Company. Sreeram Coal Company belongs to defendants 2 to 11, and the transfer of 100 bighas is spoken of in the proceedings as if it were a deed of release by Kaluram Agarwala in favour of the company in which he was a partner. The lease-hold lands were them treated as two separate entities from 1929 onwards after the date of this transfer, and the company and Kaluram Agarwala were liable to pay, and paid separately the dues of the proprietor. On 26-11-1932, Kaluram Agarwala surrendered the remaining 100 bighas to the Court of Wards and paid up all the royalties which were due from, him up to that date. The Court of Wards released the management of the estate to the plaintiff on his attaining majority on 10-8-1937, but apparently before that a certificate case had been filed against defendants 2 to 11, namely Sreeram Company for realisation of royalty from 1-6-1934 to 28 2-1937 and the certificate dues were realised. The plaintiff says that he served notice to quit on the defendant company and to all the defendants in October 1938 and March 1940, but the defendants have not given up possession with the result that the plaintiff filed the suit giving rise to these appeals on 9-8-1940 in which he prayed that owing to the non-payment of the royalties from 1-3-1937 to 31-7-1940, the lease of 9-6-1919 stands cancelled and he is entitled to recover possession of 100 bighas from defendants 2 to 11. The plaintiff has also claimed the amount due for arrears of royalty from these defendants. The plaintiff has further claimed from all the defendants cesses which should have been realised by the Court of Wards from the defendants which were paid on his behalf to the Government on the assessment made from the income of royalty. Interest had also been claimed on these two amounts. Originally, the plaintiff had laid a claim for income-tax and interest thereon, but that claim was abandoned at the time of the hearing of the suit. The case of defendant 1, the original Iessse was that the plaintiff was not entitled to claim any cess or interest thereon under the terms of the lease and that in any event he was not liable to pay any cess after the date of the transfer by him to defendant

(3.) The plea of Kaluram Agarwala, defendant 2, was also to the same effect and further that all the dues to the estate for the period prior to the assignment by defendant 1 in his favour were paid in full to the Court of Wards and defendant 2 could not be made liable for the dues for that period. His further plea was that when he surrendered 100 bighas to the Court of Wards, it was done on full payment of the dues to the estate, and the plaintiff is bound by the acts of the Court of Wards who did not make any further claim on him. It was also pleaded that the claim for cess not having been made in the certificate case against defendants 2 to 11, the claim in the suit to that extent is barred by the provisions of Order 2, Rules 2. Civil P.C.