SRI SHIBA PRASAD SINGH DECEASED NOW REPRESENTED BY KALI PRASAD SINGHA Vs. MAHARAJA SRISH CHANDRA NANDI

JUDGEMENT

(1.) The appellant is the owner of the Jharia estate. In 1898 his predecessor granted a mining lease of a part of that estate to the predecessor of respondent 1. The terms of that lease are set out in a kabuliyat of 22nd October, 1898, which begins "This kabuliyat regarding Mourushi Mukarrari, i.e. permanent settlement on commission of coal land is executed to the following effect." The provision the meaning of which is in dispute in the present litigation is as follows : "1. That for the quantity of coal which I shall raise from the leasehold entire 1103 bighas 13 kathas of coal land of Ektra I shall pay commission, i. e., royalty on steam coal, rubble coal, hard coke and soft coke at the rate of 3 annas pet ton and for rubble and dust for burning bricks at 1 anna 6 pies per ton. Be it stated that I shall pay royalty at the present fixed rate for the coals, which will be despatched by the East Indian Railway line. But in rotate if the Bengal Nagpur Railway line is constructed and the freight of coal becomes less by 2 annas at least or more than what is fixed at present per ton. I shall pay royalty for those coals, which shall be despatched in the aforesaid manner at the said reduced freight, at 5 annas per ton on steam, steam rubble, soft coke and hard coke and 2 annas 6 pies per ton on rubble and dust for burning bricks. But if the said railway freight becomes less than 2 annas per ton, the amount which will be reduced will be enhanced on the rate of royalty at present fixed on steam, steam rubble, soft coke and hard coke and enhanced by half thereof on rubble and dust for burning coal."

(2.) There follows a number of other provisions for an annual minimum royalty, for interest, for hypothecation of the tenant's property at the colliery and for other matters which need not be farther referred to at this point

(3.) In 1898 when the lease was granted the only railway available for transport of coal from this district was the East Indian Railway but it was contemplated that the Bengal Nagpur Railway might be extended so as also to serve this district. The Bengal Nagpur Railway was so extended and the extension was opened for traffic in 1908. At the time when the lease was granted the freight for coal from the colliery to Calcutta was Rs. 3, 11 annas but in 1902 this freight was reduced to Rs. 3, 2 anaas and after some fluctuation both the East Indian Railway and the Bengal Nagpur Railway maintained the freight at Rs. 3, 2 annas from 1904 for many years.