RAGHUNATH HOY MARWARI Vs. RAJA OF JHERIA

JUDGEMENT

(1.) This in an appeal by the plaintiffs from a decree, dated the 26th March, 1914, of the High Court at Calcutta, which set aside a decree, dated the 24th June, 1912, of the Additional Subordinate Judge of Purulia, and dismissed the suit.

(2.) The suit in which this appeal has arisen was brought on the 25th April, 1911, by the plaintiffs for a declaration that they were, under a pottah of the 15th May, 1908, entitled to work and get the coal underlying 450 bighas of land in Mouzah Chandkuia, and to use and occupy certain waste danga lands of the Mouzah as they might require them for the purposes of the colliery. They alleged that they had been dispossessed by the Raja of Jheria, the defendant No. 1, and as against him they further claimed a decree for mesne profits. The defendants Nos. 2 and 3 had granted the pottah under which the plaintiffs claimed title, and as against them the plaintiffs sought certain other relief-s to which they alleged that they were entitled. One of these other relief-s which the plaintiffs claimed as against the defendants Nos. 2 and 3 was an order that the defendants Nos. 2 and 3 should demarcate the 450 bighas of land, the coal underlying which had been leased to the plaintiffs by the pottah. The Subordinate Judge who tried the suit refused to make an order for demarcation on the ground that other persons interested had not been made parties to the suit. The other relief-s claimed by the plaintiffs were not investigated by either of the Courts below. The Raja of Jheria s answer to the suit, so far as he was concerned, was a denial of the title of the plaintiffs to the coal, an assertion of title in himself to all the coal in Mouzah Chandkuia, and a denial that he had dispossessed the plaintiffs and of their right to a decree for mesne profits.

(3.) The Subordinate Judge found the issue as to title in favour of the plaintiffs, declared their title, and gave them a decree for Rs. 11,334-8-0 as mesne profits as against the Raja of Jheria. From that decree the Raja of Jheria appealed to the High Court at Calcutta. One of his grounds in his memorandum of appeal to the High Court distinctly alleged that the minerals were vested in him alone. The learned Judges who heard the appeal in the High Court did not express any opinion on the question of the title to the coal, but having come to the conclusion that the plaintiffs had failed to prove a dispossession by the Raja of Jheria or his servants, set aside the decree of the Subordinate Judge, and by their decree dismissed the suit. What these learned judges apparently considered was that the plaintiffs had failed to prove any facts which would make the Raja of Jheria liable to have a decree for mesne profits made against him as the expression "mesne profits" is defined in Section 2 (12) of the Code of Civil Procedure 1908 (Act V of 1908), As the claim for mesne profits was not dismissed on the ground that the plaintiffs had failed to prove that the title to the coal was vested in them, the claim of the plaintiffs for a declaration of title should have been considered and disposed of by the High Court. From that decree dismissing the suit this appeal to His Majesty in Council has been brought.