SACHIDANANDA Vs. JYOTI PROSAD SINGH DEO BAHADUR

JUDGEMENT

(1.) This is an appeal by the defendants against a judgment and decree of the Officiating Additional Subordinate Judge of Assansol partially decreeing the plaintiff's suit. The plaintiff has preferred a cross-objection against that part of the decree by which the learned Subordinate Judge dismissed a portion of his claim. The suit refers to a mouza called Itapara and the plaintiff claims that the property is situated within the ambit of this zamindari. An ancestor of his made a grant of the lands within the mouza to an ancestor of the defendants for performing the sheba of an idol named Sri Sri Gopi Nath Jue without payment of any rent. Recently, at the instance of the defendants the revenue authorities recorded the mouza in the Register under the Bengal Land Registration Act (Act 7 of 1876) as a revenue-free estate. Coal has recently been discovered underneath the mouza and the defendants have set up their right to the underground minerals. The plaintiff, therefore, brought the suit praying that his title to the mouza Itapara as zamindar might be declared and his possession of the uncultivated waste lands and subsoil minerals might be confirmed. No argument was addressed as regards those surplus waste lands. It was also prayed that it might be declared that the defendants are only entitled to the surface lands consisting of an area of about 121 big has and 18 cottas for the service of the idol above mentioned. There was a further prayer that the record of the mouza in the Register by the revenue authorities as a revenue-free property may be declared to be erroneous and ultra vires. The defendants pleaded that the mouza is their revenue-free property. It is admitted that the original grant of the property in suit was to one of their ancestors by an ancestor of the plaintiff. It was alleged that the land originally formed part of a mouza called Bilagram. Subsequently the land granted to the defendants ancestor formed a different mouza called Itapara a name which it now bears having been carved out of the parent village Bilagram. The grant was made prior to the accession of the East India Company to the Diwani of Bengal and this grant was confirmed by a Superintendent of Baje-Jamin-Duftar, the result of which was that it constituted a revenue- free estate quite unconnceted with the zamindari of the plaintiff. That being so, the defendants are the proprietors of the mouza including the subsoil minerals and the plaintiff has no connexion whatsoever with the property. This being the principal question in dispute between the parties several issues were framed in the Court below. It was found by the learned Subordinate Judge that the grant in this case was in the nature of a demise for divine service but that it was not a grant in favour of the deity and that, therefore, the idol was not a necessary party to the suit.

(2.) The main issues for trial are issues 6, 8 and 9. The learned Subordinate Judge held in favour of the defendants contention that the mouza in dispute formed part of mouza Bilagram alias Chaitanyapore.

(3.) It became subsequently necessary to give a separate name to the land demised and it was named Itapara. But the plaintiff was not in possession of any portion of the land in dispute and the land in dispute formed a separate revenue-free estate and it did not form a part of the revenue paying estate of the plaintiff. The learned Subordinate Judge, however, held that the defendants were not entitled to the subsoil minerals, because the grant in their favour was made by the zamindar who was an ancestor of the plaintiff and that, as there was no grant of the minerals by the zamindar, according to the long line of authorities the defendants are only entitled to live upon the land and to enjoy the profits from the surface and that they are not entitled to the subsoil minerals. On these findings he made a decree to the effect that the plaintiff's possession of the underground minerals in the disputed mouza be confirmed in view of the finding that he was the zamindar of the disputed mouza and was entitled to the minerals and did not part with them in the defendants favour, but that the other reliefs claimed by him including the prayer for a declaration that the said mouza appertained to his revenue-paying estate be disallowed. The defendants appealed against the former part of the decree declaring the plaintiff's right to the minerals and confirming his possession and the plaintiff preferred a cross-objection against the latter part of the decree principally against that portion where it is declared that the mouza does not appertain to his revenue-paying estate.