BYOMESH MUKHARJI Vs. MADHABJI MEPA MARU

JUDGEMENT

(1.) This is an appeal by defendant 3 in the suit against a decree passed by the learned Subordinate Judge of Manbhum for a sum of Rs. 9416-14-3 for certain coal royalties due with interest thereon. On 16 June 1894, one Joseph Chater together with a Mr. Smith acquired by a lease the minerals underlying 838 bighas, 4 khatas in mouza Kusunda excluding two plots of 150 and 100 bighas respectively. The interest under this lease is now admittedly vested in the plaintiff. On 11 February 1896, Messrs. Chater and Smith gave a sublease of these minerals to two persons of the name of Patel, and this sublease contains terms as to the payment of royalty by the sub-lessees. On 15 January 1923, this sublease became vested in A. Patel by reason of an assignment to him of the interest held by D. Patel. On 16 November 1923, A. Patel, the sub-lessee, executed a mortgage in favour of defendant 4, the Central Bank of India, Ltd., and later, on 1 December 1925, A. Patel executed a deed of gift of this lease in favour of N. Patel. Obviously this deed of gift was subject to the mortgage which he had created in favour of the Central Bank of India, Ltd.

(2.) It appears that at the beginning of the year 1930, defendant 3 desired to purchase the interest of the Central. Bank of India, and there can be no question that defendant 3 did make a payment to the Bank and was put in possession of these minerals. The sale to defendant 3 however was never completed, and on 10 January 1931, the Central Bank of India transferred their interest in the minerals to one Bijoy Kumar Chatterji. The present appellant, defendant 3, and N. Patel, the donee under the deed of gift to which I have referred, joined in this transaction and transferred their interests for whatever they were worth to Chatterji. Royalties had not been paid by the sub-lessees to the plaintiff, and accordingly this suit was brought on 10 April 1934 to recover a sum of Rs. 25,020-12-3 as arrears of royalty together with interest thereon. There was also a claim to possession of the property comprised in the indenture of 11 February 1896, on the ground that the sub-lease had been forfeited by reason of the failure to pay the royalties. Eventually, the learned Subordinate Judge came to the conclusion that the present appellant, defendant 3, was liable to pay a sum of Rs. 9416-14-3 as arrears of royalty due for the period from March 1930 to January 1931. He further decreed the plaintiff's claim against defendants 1, 2 and 5 for Rs. 21,816-2-3 for arrears of royalty due from them and-interest thereon. Against this decree defendant 3 has preferred the present appeal.

(3.) In the first place, it has been argued by Mr. B.N. Mitter on behalf of the appellant that his client cannot be made liable for royalty for the period from March 1930 to January 1931. It is clear that Mr. Mitter's client was in possession of the coal seams during that period and that he actually worked the same. He contends that if he is liable to pay any royalty such liability is to the Central Bank of India who placed him in possession. In short his argument is that as between the appellant and the plaintiff there is neither privity of estate nor privity of contract of tenancy. The learned Subordinate Judge has agreed with this contention, but he has found as a fact that the appellant had entered into an independent or separate contract with the plaintiff to pay the royalty due in respect of coal mined during the period in which the appellant was actually in possession. As I have pointed out, the appellant was put into possession as a prospective purchaser of these coal seams by defendant 4, the Central Bank of India. The interest of the Bank had not been assigned to defendant 3 and was never in fact so assigned; It would appear that defendant 3 was some form of tenant of the Bank, and it is clear that such an arrangement would not entitle the plaintiff to sue the appellant direct. He did not hold the sublease by assignment: neither had he taken a tenancy from the plaintiff.