Das, J.:— (After stating the facts set out above proceeded to say as follows):
It will be convenient, first, to consider the applicability of Order IX, rule 9, of the Code. Rule 8 provides that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed; and rule 9 says that where a suit is dismissed under rule 8,
“the plaintiff shall be precluded from binging fresh suit in respect of the same cause of action.”
Mr. Pugh contends that the cause of action in this suit is wholly different; and he puts his arguments in two ways. First, he invites us to consider the reliefs claimed in the is suit and to compare them with those claimed in suit 98 of 1918; and, secondly, he contends that the assignments of the 31st May, 1919, and the 19th March, 1920, which bring the plaintiff into the Court, give him an additional cause of action sufficient to take the case out of the operation of rule 9. In my opinion, neither of these contentions is well founded. It is true that in the present suit the plaintiff is claiming a decree for possession, whereas in the previous suit there was no prayer for possession. But it is well-settled that the cause of action does not depend upon the character of the relief prayed for by the plaintiff, but that it refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour [Chand Kour v. Partab Singh]. Now the present plaint is an exact copy of the plaint filed in suit 98 of 1918 with two additional paragraphs, one setting out the two assignments which bring the plaintiff into the Court, and the other reciting the dismissal of the previous suit. Paragraph 9 of the plaint filed in suit 98 of 1918 alleged that the cause of action arose
“on the 5th April, 1917, and on subsequent dates when claim was put forward on behalf of the defendants before the Collector of Monghyr to the mica mines of the said Mahal Maheswari and to the compensation payable therefor.”
In the present suit the date 5th April, 1917, is again given as the date on which the cause of action arose; but the plaintiff goes on to assert that the cause of action also arose
“on the 31st August, 1919, the date on which Mr. A.C Boss took an assignment of the said Mahal Maheswari from Kumar Guru Prosad Singh, and on 9th March, 1920, the date of purchase by the plaintiff.’
He further asserts
“that the cause of action for this suit arose on 12th December, 1918, and on 15th January, 1919, on which dates the defendants claimed in Title suit no. 98 of 19.18 to be owners of Taluka Maheswari, and not mustajirs, and subsequently from day to day as the defendants have been asserting the said right and working file mines.”
I will consider the question of the assignments presently; but it seems to me impossible to accept the view that a fresh cause of action accrued to the plaintiff, because there was a fresh assertion of title by the defendants. In my judgment, the cause of action in the present suit, as also in the previous suit, was the denial of the title of the proprietor of Mahal Maheswari to the mica in the mahal, and the setting up of the title to the same in the defendants. The grounds set forth in the present plaint as the cause of action (apart from the assignments, the effect of which I shall presently consider) are exactly the same as those set forth in the plaint in the previous suit. In my judgment, the plaintiff is not entitled to succeed so far as this point is concerned.
Mr. Pugh next contends that the assignments to which I have referred have the effect of taking the case out of the operation of the rule. He argues that the assignments are material facts in the case for the plaintiff, which it would be necessary for him to establish, if traversed, in order to support his right to the judgment of the Court, and that, therefore, they constitute part of his cause of action. I entirely agree that, but for the assignments, the plaintiff would have no cause of action; but, in my judgment, it signifies nothing more than that certain transactions have taken place which gave the plaintiff the right to institute the present suit. The problem is, has he brought the suit in respect of the same cause of action in respect of which, the previous suit was brought? There can only be one answer to this question. The whole of the cause of action in the previous suit is included in the cause of action in respect of which the present suit has been instituted. The material facts, which gave occasion for and formed the foundation of the previous suit, have given occasion for and have formed the foundation of the present suit. It must follow, in my judgment, that the present suit has been brought in respect of the same cause of action in respect of which the previous suit was instituted.
But there is a, more serious argument on the point. It will be noticed that the Legislature has deliberately restricted the operation of the rule to the plaintiff and has not brought within the prohibition those claiming title through the plaintiff. Mr. Pugh formulates his argument thus: “The dismissal of the previous suit in terms of Order IX, rule 8, did not operate in favour of the defendants as res judicata: it merely imposed a personal disability on the plaintiff whose suit was dismissed. If the title which the plaintiff in the previous suit was claiming actually resided in him, then the dismissal of the suit in terms of Order IX, rule 8, did not have the effect of displacing that title, though it made it impossible for him to recover on the foot of that title. In other words, the dismissal of the suit in terms of Order IX, rule 8, did not affect his right but only affected the remedy which would be otherwise available to him to assert his right. If this be the correct position, then he was free to dispose of his title in any way he chose. He has in fact disposed of it, and the plaintiff in the present suit claims title through him. The present plaintiff has a title good on the assignments, and he is prepared to establish it in a court of law. What is there either in the general law or in the special law to prevent him from taking the appropriate proceedings for the purpose of establishing his title, since the dismissal of the previous suit did not operate as res judicata, and since he is not within the prohibition of Order IX, rule 9?”
The argument is a, weighty one, and it is necessary to proceed with care. The first branch of the argument is completely supported by the decision of the Judicial Committee in Chand Kour v. Partab Singh. It was held in that case that the dismissal of a suit in terms of section 102 of the Code of 1882—Order IX, rule 8, of the present Code—was plainly not intended to operate as res judicata, although it did impose a certain disability on the plaintiff whose suit was dismissed. The second branch of the argument is supported by reference to the actual words employed by the Legislature in enacting Order IX, rule 9. That rule provides that,
“where a suit is wholly or partly dismissed under rule H, the plaintiff,”
(not the plaintiff, and those claiming through the plaintiff)
“shall be precluded from bringing a fresh suit in respect of the same cause of action.”
Mr. Pugh contends that if the disability be a personal one and does not run with the land, then Order IX, rule 9, cannot be so construed as to operate as a, bar to the present suit. He refers us to section 11 and section 47 of the Code to make good his point that where the Legislature has intended that any proceeding between two parties should be binding on the representative in interest of those parties, it has expressed that intention in unambiguous terms.
It is unfortunate that there should be no direct authorities on the point except a somewhat unsatisfactory decision in the Punjab Chief Court in Mamraj v. Chandwa, Mal. The question was directly in issue in that case, and the learned Judges held that “the word ‘plaintiff’ as used, in section 103 of the Civil Procedure Code”—Order IX, rule 9, of the present Code—“must be held to include the plaintiff's heirs and representatives in interest, who cannot claim any better position as regards the maintenance of the second, suit than the person through whom they claim.” But, in so deciding, the learned Judges professed to be guided by the decision of the Judicial Committee in Thakur Shankar Baksh v. Dya Shankar, “a case,” in the view of the learned Judges. “which strongly resembles the present in all material features.” Now, in the Punjab case, one Budhu, brought a suit for redemption of a, mortgage which had been executed by him. The suit was dismissed under section 102 of the Code, the defendant having appeared. Another suit was then instituted by Budhu's heirs, and the question arose whether section 103 operated as a bar to the suit. In Thakur Shankar Baksh v. Dya Shankar a suit for redemption was instituted by one Bhup Singh. He died, during the pendency of the suit, and Shankar Baksh, the grandson, of Bhup Singh was substituted in the place of the latter. On the 18th July, 1868, which was the date fixed for the hearing of the suit, the defendants appeared, but Shankar Baksh did not appear, and the suit was thereupon dismissed. Subsequently Shankar Buksh instituted another suit for redemption, and he appears to have taken two points, one of which was that the defendants did not appear in the earlier suit, so that section 99—Order IX, rule 4, of the present Code—and not section 103 applied. The Judicial Committee investigated, the question and found that the defendants did appear in the earlier suit. The other question discussed by the Judicial Committee does not touch the present case.
It is obvious that the decision of the Judicial Committee does not establish that the term ‘plaintiff’ in Order IX, rule 9, includes the heirs and representatives in interest of the plaintiff. The question was not before their Lordships and could not be decided, for the plaintiff in the subsequent suit was, by substitution, the plaintiff in the earlier suit at the date of its dismissal. I am, therefore, unable to act on the Punjab Case which clearly proceeds on a misapprehension of what fell to be decided by the Judicial Committee in Thakur Shankar Baksh v. Dya Shankar.
The problem nevertheless remains. Some light is thrown on the question by certain cases decided under section 108 of the Code of 1882. That section provided that
“in any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and, if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall pass an order to set aside the decree, upon such terms as to costs, payment into court, or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.”
For reasons to be presently explained, the question cannot arise under Order IX, rule 13, of the present Code which corresponds to section 108 of the Code of 1882. The question, however, did arise under the old Code whether the representative in interest of the defendant was competent to apply under section 108 for an order to set aside the ex parte decree, if it so happened that the defendant died after the passing of the ex parte decree. It will be noticed that the problem presented is the same as that with which Ave are confronted in the present case. The remedy created by section 108 was in terms limited to the defendant against whom the decree was passed ex parte, just as the bar imposed by Order IX, rule 9, in terms affects the plaintiff whose suit is dismissed under rule 8.
In Janki Prasad v. Sukhrani, the right of the legal representative of a deceased defendant to apply under section 1.08 was denied by the Allahabad High Court. In delivering the judgment of the Court, the learned Chief Justice said as follows: “In order to make this remedy available to the legal representative, some general principle, of law would be necessary by which the word defendant should be construed as including the legal representative of a deceased defendant. No authority has been cited to us, and we are aware of none, which establishes any such general principle.” This decision was dissented from by the Calcutta High Court in Ganoda Prasad Roy v. Shib Narain Mukherji. In the course of his judgment, the learned Chief Justice said as follows: “That decision,” namely the decision in the Allahabad case, “appears to me to be based upon too narrow a construction of the section and one which might lead to various anomalies and much injustice, and, unless Ave are actually compelled by the language used to place such a construction upon it. I think we may fairly decline to do.” He added: “No doubt the section only refers to the defendant, but Ave may look at the whole Code to see who is meant by that term and who fills that position. There is ample provision, in the Code for bringing the representatives of a deceased defendant before the Court and substituting the former for the latter, and when that substitution has been duly effected such representatives become the defendants and subject to all the obligations, qua procedure, of the original defendant. And, if they became subject to the obligations, why are they not entitled to the rights and benefits, qua procedure, of the original defendants?” It appears that in the Calcutta case the plaintiff himself brought the representatives of the original defendant upon the record and made them defendants. Referring to this aspect of the case, the learned Chief Justice said as follows: “The decree is binding upon them as such representatives and if they are bound by the decree, as they are it would be inequitable that they should not enjoy the same right under section 108 as the original defendant enjoyed.” In Sambasiva Cketti v. Veera Penmal Mudali, the Madras High Court took a, middle course. That Court took the view that section 108 “only authorises applications by the defendant against whom an ex parte decree has been made”; but that, if the representatives of the, deceased defendant are brought on the record under section 234 of the Code, an application can be made by such representatives under section 108. Having regard to this conflict of authority, the Code of 1908 has provided by section 146 that
“save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.”
I confess that I have some difficulty in coming to a confident conclusion on this point. Section 146 removes the difficulty which used to arise under the old Code in cases coming under section 103 of that Code; but it leaves untouched the problem under Order IX, rule 9. On the one hand, I know of no principle which would enable me to construe the word ‘plaintiff’ as including persons claiming through the plaintiff, especially as I know that the Legislature has never left its meaning in doubt when it has intended that any proceeding by or against a person should be binding on those claiming through that person. On the other hand, I am in sympathy with the argument that where there is substantial substitution entitling the representative of the original plaintiff or defendant to the rights and benefits, qua-procedure, of the original plaintiff or defendant, such representative becomes the plaintiff or the defendant as the case may be; and subject to the disabilities which affected the original party. In order to understand the point, the following dates are material:
14th August, 1919—Suit 98 of 1918 dismissed.
31st August, 1919—Conveyance by Guru. Prosad Singh (the original defendant) to A.C Bose.
11th September, 1919—Guru Prasad Singh applied under Order IX, rule 9, of the Code for the restoration of the suit.
21st February, 1920—The application was dismissed.
9th March, 1929—Conveyance by A.C Bose to the present plaintiff.
25th May, 1920—Guru Prosad Singh appealed to the High Court from the order of the 21st February, 1920
18th December, 1920—The present plaintiff was substituted in the record of the appeal in the place of Guru Prosad. Singh.
4th January, 1922—The appeal was dismissed by the High Court
27th February, 1923—The present suit was instituted.
It will be seen that the present plaintiff got himself substituted in the record of the appeal in the place of Guru Prosad Singh, the original plaintiff to enable him to contest the order of the 21st February, 1920. Had his appeal succeeded, he would have been entitled to proceed with suit. 98 of 1918 as the plaintiff of that suit. In other words, he took the appropriate proceeding to entitle him to the rights and benefits, qua procedure, of the original plaintiff. It seems to me that he ought to be affected with the disability of the original plaintiff. By his own conduct, the present plaintiff placed himself in the position of Guru Prosad Singh for the purpose of Order IX, rule 9, as effectively as if he had been substituted in the record of suit 98, of 1.918 in the place of the original plaintiff. Without deciding the question whether Order IX, rule 9, would have been an answer to the suit if the present plaintiff had not taken advantage of the procedure of that rule for the purpose of securing an order to set the dismissal of suit 98 of 1918 aside. I are of opinion that his intervention on the 18th December, 1920, had the effect of placing him in the position of the original plaintiff for the purpose of Order IX, rule 9, and that he is, therefore, precluded from bringing a fresh suit in respect of the same cause of action. I hold that the Subordinate Judge was right in dismissing the present suit as against Chrestien.
I now come to the question of title. According to Register D, the Khaira Raj is the proprietor of taluka Maheswari. It is not disputed that on the 1st June, 1775, Capt. James Brown acting on behalf of the East India. Company settled Dumri, Maheswari and Katauna with Raja Amar Singh and Raja Dhurup Singh at a jama of Rs. 801 per year. Raja Amar Singh represented the elder branch of the Gidhaur family; whereas Raja Dhurup Singh represented the younger branch of that family now known as the Khaira family. Subsequently as a result of certain other transactions, to which it is not necessary to refer, taluka Maheswari and an eight-anna interest of Katauna became vested in the Khaira family for which the Khaira family had to pay Rs. 300/7 as Government revenue. It is not open to doubt, therefore, that the Khaira Raj is the proprietor of taluka Maheswari. Kumar Guru Prosad Singh was the last representative of the Khaira family; and, as I have already stated, he conveyed taluka Maheswari to Mr. Bose on the 31st August, 1919, who in his turn, conveyed it to the plaintiff on the 9th March, 1920. Now the proprietor of the Khaira Raj gave a permanent lease of taluka Maheswari to the predecessors in title of the Thakur defendants sometime in 1779. The rent payable by the Thakurs was Rs. 322; but subsequently it was reduced to Rs. 301 Now if these facts are understood, it is difficult to imagine how the Thakur defendants can be said to be the proprietors of Taluka Maheswari with undar ground rights therein. At all relevant times they held an interest in the taluka subordinate to that of Khaira Raj and it follows from the various decisions to which it is not necessary to refer that as the holders of a subordinate tenure, they have no title to put forward to or in respect of the minerals.
The case of the Thakur defendants on this point is to be found in the 9th paragraph of their written statement which runs as follows:
“That the fact is that since a long time before the advent of the British rule, Taluka Maheswari was the Ghatwali interest of the grand-ancestor of your petitioners and still it is so and your petitioners' ancestors used to earn their livelihood by cutting the jungles of the forest taluka. But after the advent of the British rule, when the above forest was being settled, the ancestor of Kumar Gur Prosad Singh, kept your petitioners' ancestors under inducement, from appearing before the officer and got the said Taluka along with half of Katauna settled in his name for a Jama of Rs. 300-7-0. Thereafter Ram Singh and others, the ancestors of your petitioners, heard this news and wanted to go to the officer in order to obtain settlement when the ancestor of Kumar Gur Prosad Singh, in order to conceal his fraud, and in consideration of the legitimate right of your petitioners' ancestors, kept them from going to the officer and executed, under his seal, a deed of permanent istamrari Mukarrari descendible to progeny, in respect of the said Taluka, at a Jama of Rs. 301, in favour of your petitioners' ancestors and since that date up till now these defendants and their ancestors have, from generation to generation, been in possession and occupation of everything in the said Taluka.”
It seems to me that there is no case of an independent talukdar to be tried on the allegation as actually made in the 9th paragraph of the written statement. Taluka, Maheswari is in Perganna Chakai and it appears that the estates in Perganna Chakai to the south were held at one time on ghatwali tenure. About 1774 the lawless state of this tract led the British to place it in charge of Cart. James Brown who, for political reasons, settled the estates with the ghatwals and not with the proprietors, with two exceptions. These two exceptions were Dumri and Moheswari which, were settled directly with the proprietors, the story being, as related in the Bengal District Gazetcei, Vol. 17, page 169
“that the ghatwali tenure-holders fled at the approach of Capt. James Brown, their reputation as dacoits and brigands being too strong for them to face a Government officer without fear of the consequences.”
The Thakur defendants maintain that their predecessors were the ghatwals of taluka Maheswari before the advent of the British and their case is that, but for a fraud, perpetrated on them by the Khaira Raj, Taluka Moheswari would have been settled with them as proprietors. There is however, no evidence of fraud in this case; and it is quite impossible to investigate such a ca?e at this distance of time. But it is important to remember that the defendants do not allege in their written statement that the ghatwali tenure held by them was at any material time independent of the Khaira Raj. It may be that the predecessors in title of the defendants were the ghatwals of Taluka Moheswari before the advent of the British; but this by itself does not advance their case unless they allege and prove that their tenure was in existence independently of the Khaira Raj before the permanent settlement was concluded with the Khaira Raj. There is no such allegation in the written statement, and in my opinion the question whether the predecessors in title of the defendants had an independent tenure did not fall to be considered by the learned Subordinate Judge.
But even were we to go into this question, the evidence is overwhelmingly in favour of the view that the Gidhaur family was the original proprietor of taluka Maheswari and that the ghatwals of Chakai held directly under the Gidhaur family. I have said that in 1774 Capt. James Brown settled some of the estates in Chakai directly with the ghatwals. That this does not indicate that the ghatwals were the original proprietors of the soil is established conclusively by the fact that malikana is still paid in respect of these estates to Gidhaur and Khaira. The claims of the ancient zamindars displaced by the paramount authority were usually recognised to the extent of giving them an allowance for subsistence, known as malikana [See Phillips' Land Tenure, page 126]. In giving his evidence on behalf of the defendants, Kumar Baidyanath Prasad Singh, a younger brother of Guru Prosad Singh, admits that his ancestors “used to get malikana, of Perganna Bisthazari and mahal Chakai”; but adds that they used to get malikana in respect of Maheswari. This is obviously inaccurate since Maheswari was settled with the proprietors. In Hunter's Statistical Account of Bengal, Vol. 15, page 115, the position is made perfectly clear. The learned author states that the ghatwali tenures in Perganna Chakai “were resumed by the English Government, and now pay a revenue, the original proprietors receiving an allowance called malikana, from Government.” In this connection reference may also be made to a petition presented on behalf of Raja Nawab Singh, before the Collector on the 24th February, 1834, Ex. Z(113). It is asserted in that petition that the entire Perganna Chakai formed the ancestral zamindari property of Raja Nawab Singh representing the Gidhaur branch, of the family and Raja Nirbhai Singh representing the Khaira branch it states that in 1184 Capt. James Brown settled taluka Dumri and “half of Katauna” with. Gidhaur and taluka Maheswari and another half of Katauna, with Khaira and let out the remaining nine taluks in mustajiri settlement to ghatwals. It then asserts that Raja Nawab Singh and. Raja, Nirbhai Singh have “up to this time been receiving the malikana in respect of the settlement of the said perganna from the Government Treasury.” There is therefore no reason to doubt that malikana is being paid to the proprietors in respect of those estates in Chakai which were settled directly with the ghatwals. The inference is that the Gidhaur family with the Khaira branch are the original proprietors of Perganna Chakai and therefore, of Mahal Maheswari.
It is interesting to turn to the history of the, Gidhaur family to show that family is the original proprietor of Perganna Chakai. The founder of the family appears to have been Bir Bikram Sah of the Chandel sect of Chandrabansi Rajputs. He is said to have accompanied Shah Sultan Shahabuddin Ghori on a journey to Bengal in 473 Fs. corresponding to 1066 A.D and settled at Gidhour which was at one time surrounded by dense jungles. The Emperor gave him the title of Raja and conferred on him six Pergannas: (1) Gidhaur (including Mahal Chakai) (2) Rohini (including Deoghar) (3) Bithaur; (4) Chandan; (5) Bhukha and (6) Bisthazari. The property remained undivided until the time of Raja Puran Mall who died in 1680 A.D He had two sons Hari Singh and Bisambher Singh amongst whom the property was divided. The present Maharaja of Gidhaur is descended from the elder of these sons, Raja Hari Singh and the Kumar of Khaira from the younger, Raja Bisambher. The history of this family will be found at page 201 of the Bengal District Gazetteer, Vol. 17 and at page 12 of the Final Report on the Survey and. Settlement Operations in the District of Monghyr (South).
Now if this account be correct, then there is no doubt whatever that pergannah Chakai was acquired by the Gidhaur family in 473 Fs. corresponding to 1066 A.D Ex. 10 is a statement made by Raja Gopal Singh and Raja Nirbhai Singh as to their family history on the 11th September, 1798. No doubt the statement mixes up truth with fiction, for it does not seem very probable that the Great God Sri Sri “put Tilak and Bhabhut with his own hand on the forehead, of Bikram Singh” and that “when Bikram Singh awoke he found that the mark of Bhabhut was visible on his forehead”; but the account is nevertheless of value and it shows that according to the tradition of the family Chakai was acquired by Bikram Singh in 1066 A.D According to the statement in Ex. 10 the properties were acquired by Raja Bikram Singh from Sultan Ghyasuddin; and it was contended before us that the statement must be inaccurate inasmuch as Sultan Ghyasuddin reigned in Bengal from 1320-1325. I am not prepared to reject the statement because there is an error in the name of the Sultan. According to the account as given in the Final Report to which I have just referred, it was Sultan Shahabuddin who conferred the Rajaship on Bikram Singh and gave him six pergannahs including mahal Chakai.
There are important admissions by the defendants or their predecessors in title to the effect that the Gidhaur family is the original proprietor of Mahal Chakai. Ex. Z(112) is a petition filed by Thakur Kanhaiya Singh and others, the predecessors in title of the defendants on the 23rd January, 1835. I have said that the defendants admittedly held under a permanent lease executed in favour of their predecessors in title by the Gidhaur family. It appears that there was default in the payment of Government revenue by the proprietors and the predecessors in title of the defendants filed a petition before the Collector for permission to pay the Government revenue out of the rent payable by them to the proprietors so as to save their mokarrari from sale. In this petition Thakur Kanhaiya Singh and others stated as follows:
“Taluka Maheshwari, pargana aforesaid, had been acquired as Ghatwali Istimrari Mukarrari twenty-seven generations back in the name of your petitioners' ancestors. However, since the Mukarrari was acquired a rent of rupees three, hundred and one had continued to be paid to Raja Nirbhai Singh and his ancestors.”
It is clear that in this petition the predecessors in title of the defendants were setting up an ancient ghatwali in their favour; but they were also making it clear that they held the ghatwali under Raja Nirbhai Singh and his predecessors in title since the acquisition of the ghatwali. It appears that in 1840 the predecessor in title of the plaintiff instituted a suit to eject the predecessors in title of the Thakur defendants on the ground that the lease in favour of the defendants was an ordinary mustajiri lease. That suit was ultimately dismissed on the ground that it was barred by limitation; but it is important to remember that in that litigation the predecessors in title of the defendants did not deny the proprietary right of the plaintiffs. This will appear from the following passage in the judgment of the Sudder Diwani Adulut: “The respondents do not deny the proprietor's right; their plea is based upon it: and the Patta for the cancellation whereof this suit has been instituted, is admitted by the proprietor himself to have been executed by his father sixty years before this suit was brought.”
In my opinion there is no doubt that the predecessors in title of the plaintiff were the original proprietors of Taluka. Maheswari and that the defendants have all along held the taluka under the Gidhaur family at first on a ghatwali tenure and since 1775 on a permanent lease executed in their favour. If this be so, then there is no doubt whatever that the defendants have no title whatever to the minerals.
Mr. P.K Sen appearing on behalf of the defendants contends before us that there is nothing to show that permanent settlement was concluded in respect of mahal Maheswari with the predecessors in title of the plaintiff. In all probability the decennial settlement patta is not on the record; but the question was not at issue in the court below and we decline to enter upon it in this Court. The plaintiff has produced various pattas executed by the East India Company in favour of the predecessors in title of the plaintiff. On the 1st June, 1775, a patta was executed by Capt. James Brown in favour of Raja Amar Singh and Raja Dhurup Singh in respect of mauzas Dumri, Maheswari and Katauna. A kabuliat was executed by Raja Dhurup Singh and Raja Gopal Singh agreeing to pay Government revenue up to 1193 Fs. The kabuliat is dated the 20th Kartik but the year is not mentioned. On the 28th October, 1788, another kabuliat was executed by Dharup Singh, the predecessor in title of the plaintiff, agreeing to pay the Government revenue in respect of taluka Maheswari and Nisf Katauna, that is to say, 8-annas interest of Katauna settled with him. On the 21st February, 1790, there is another kabuliat executed by Raja Gopal Singh and Raja Dhurup Singh agreeing to pay Rs. 801 as revenue for talukas Dumri, Maheswari and Katauna. Then there is another kabuliat without date executed by Raja Gopal Singh and Raja Nirbhai Singh in favour of the Governor-General of India. Mr. Sen contends that this is the last of the kabuliats and as it contains a covenant to the effect that the grantees
“shall not out and destroy the fruit bearing and non-fruit-bearing trees appertaining to the said taluks”
the grant in favour of Raja Gopal Singh and Raja Nirbhai Singh could not be in the nature of a proprietary grant. I am unable to decide this case on a casual statement of this nature since the document leaves no doubt in my mind that what was actually granted was a proprietary title. There is an unqualified statement in the kabuliat that in the event of non-payment of revenue the properties would be liable to be sold by auction and the grantees will be entitled to the surplus money after satisfaction of the Government revenue. As I have sain the decennial settlement patta is not on the record; but there is an unqualified admission by the predecessors in title of the defendants that taluka Maheswari was permanently settled with the predecessors in title of the plaintiff. This admission will be found in a petition filed by Thakur Udwant Singh and others, the predecessors in title of the defendants, on the 6th June, 1870. The material passage in that petition runs as follows:
“Taluka Maheshwari, pargana Chakai, the Mahal settled by the Government in 1196 Fash, corresponding to the 28th October, 1788, was settled permanently with Raja. Dhurup Singh,” ancestor of Raja Rum Narain Singh:”
The petition goes on to assert that
“before the permanent settlement being made by the Government the said Mahal was given by the said Raja Dhurup Singh in Istimrari Mukarrari, under a patta, dated the 1st Bhado, 1186 Fasli, to Ram Singh Rai, Prem Singh Rai, Manik Singh Rai and Ajit Singh Rai, ancestors of the applicants.”
The plaintiff is the purchaser of only one, taluka out of the considerable zamindari which was settled with the two branches of the Gidhaur family; and it is unlikely that the decennial settlement patta should be with him. Had the question been raised in the Court below, it would have been possible for the plaintiff to call for the material document. As it happens his predecessor in title is recorded as the proprietor of taluka Maheswari both in Register D as also in the khewat prepared under Chapter 10 of the Bengal Tenancy Act. I hold that the plaintiff is the proprietor of taluka Maheswari and that the Thakur defendants are mukarraridars under him.
I should like to say one word about the judgment of the learned Subordinate Judge. He says:
“The conclusions which can be deduced from the facts stated above are: (1) Taluka Mahesri was not a service tenure, (2) it existed from before the settlement with the Khaira Raj of Taluka Mahesri Nisf Katowana by the East India Company, (3) the Khaira Raj was unsuccessful in ejecting the Thakurs of Mahesri from possession of Taluka Mahesri, (4) the Government revenue payable from Taluka Maheswri Nisf Katowna has been paid since. 1870 directly to Government by the Mahesri Talukdars who used to pay 9 as the yearly quit rent to the Khaira Raj besides cess which has been imposed by the Cess Act of 1880, (5) the Maheswri Talukdars have been claiming Milkiat ghatwali interest in the Taluka and deny that the Khaira Raj had any legal proprietary right over the same, (6) there is no evidence on behalf of the plaintiff to show that the Khaira Raj was proprietor of Taluka Maheswri before the settlement by Capt. James Browne with. Raja Dhurup Singh, (7) the District Gazetteer shows that the ghatwals of Maheswrl and Dumri did tot turn up to take settlement worn Capt. James Browne and so the settlement was made with Khaira and Gidhour Raj, respectively;”
and he concludes
“Taluka Mahesri therefore falls under the definition of actual proprietors of land under clauses 3 and 4 of section V of Regulation VIII of 1793.”
Why the learned Subordinate Judge says that taluka Maheswari was not a service-tenure in its inception it is difficult to say. The learned Subordinate Judge himself concedes that the defendants and their predecessors in title have been claiming taluka Maheswari as their ghatwali interest. In my opinion when all the facts are properly understood there is no doubt whatever that the Chakai ghatwals including the predecessors in title of the defendants held the properties on ghatwali tenure under the proprietors. It is true that for political reasons Capt. James Browne settled directly with some of the ghatwals; but he made it clear that the Gidhaur family was the proprietor of those properties since it is conceded that malikana is still paid in respect of these properties to both the branches of the Gidhaur family. That the tenure existed; “from before the settlement with the Khaira Raj by the East India Company” may be conceded; but a case under clause (3), section 5 is not made out unless it is established that the taluks of the talukdars who now pay their revenue to the proprietor were formed before the zamindari was formed. As I have shown not only from Ex. 10, the statement of Raja Gopal Singh and Raja Nirbhai Singh to which I have already referred, but also from the Final Report on the Survey and Settlement Operations, the zamindari of the predecessors in title of the plaintiff goes back to the year 1066 A.D, and I have also shown that the predecessors in title of the defendants admitted on the 23rd January, 1835, that their predecessors acquired the ghatwali istimrari mokarrari from the predecessors in title of the plaintiff. That the Khaira Raj was unsuccessful in ejecting the Thakurs of Maheswari from possession of taluka Maheswari leads to no inference whatever. The suit of 1840 was dismissed on the ground that it was barred by limitation; and, apart from other circumstances, the fact that the predecessors in title of the defendants acquired a permanent mokarrari right in the taluk does not bring the case within section 5 of the Regulation. It is true that the Government revenue payable for taluka. Maheswari Nisf Katauna has been paid since 1870 directly to Government by the. Maheswari Talukdars, but that was purely a matter of arrangement between the proprietors and the mokarraridars and does not justify the inference which the learned Subordinate Judge has drawn. The position is that the predecessors in title of the plaintiff had to pay Rs. 300/7 as Government revenue in respect of Maheswari and Nisf Katauna. The predecessors in title of the defendants had to pay Rs. 301 as rent for Maheswari. Defaults were being made by the predecessors in title of the plaintiff in the payment of Government revenue and it was open to the defendants to protect their interest to pay the Government revenue direct; but the Government is not a party to this arrangement; and in my opinion, no inference can be drawn from the fact that in order to protect their interest the defendants and their predecessors in title have been paying the Government revenue out of the rent payable by them to the proprietors. It is quite true that Maheswari talukdars have been claiming milkiat ghatwali interest in the mauza; but a claim of a ghatwali interest is not sufficient. It must, be shown that they had an interest independent of the Khaira Raj and they, have neither claimed such an interest nor have they established such an interest. The learned Subordinate Judge proceeds; to say that the defendants have denied
“that the Tihaira Raj had any legal proprietary right over the same.”
There is no evidence to support this conclusion; on the other hand, they have never denied the proprietary title of the predecessors in title of the plaintiff. The learned Subordinate Judge then says that there is no evidence on behalf of the plaintiff to show that the Khaira Raj was proprietor of taluka Maheswari before the settlement by Capt. James Browne with Raja Dhurup Singh. This is a complete misstatement of facts. The evidence is furnished by Ex. 10, the passage from the District Gazetteer to which I have already referred, the admission of the defendants as contained, in Ex. Z(112) and the admission to be found in the litigation of 1840, Ex. Z-59. The last point taken by the learned Subordinate Judge leads to no inference at all. He admits that the settlement was made directly with the two branches of the Gidhaur family and that is sufficient for the purpose of the plaintiff. In my opinion the defendants have not established a case either under clause (3) or under clause (4) of section 5 of Regulation VIII of 1793. On the other hand they obviously come under section 7 of the Regulation which provides that:
“Talookdars, whose talooks are held under writings or sunnuds, from zamindars, or other actual proprietors of the lands, which do not expressly transfer the property in the soil, but only entitle the talookdar to possession so long as he continues to discharge the rent or perform the conditions stipulated therein, are considered as leaseholders only, not actual; proprietors of the: soil, and consequently are not entitled to be rendered independent of the zamindar, or other actual, proprietor of the land, from whom they derive their tenures, provided they now pay the rent assessed upon their talooks to him.”
I hold that, the mineral rights are in the plaintiff, and that the defendants have no right to them.
There remains the question of limitation. Taluka Maheswari consists of 155 villages and has an area of 71, 282 acres [See Khewat of Maheswari, Ex. 15]. It is true that from time to time the Thakur defendants' gave underground leases to Chrestieh; but the mere grant of leases of subsoil rights will not in itself give a title by adverse possession; what we must consider is the evidence, of actual, working. It is quite true that there may be cases in which a title by adverse possession can be made out in respect of the minerals; but it does not follow that by working a part of the minerals or opening up particular quarries, possession over a continuous field of minerals of which the portion worked forms part can be obtained. It is well-settled that a trespasser wrongfully extracting minerals acquires possession only of the minerals worked; but cannot be said to be in possession of the mine itself [See Ashton v. Stock and Thompson v. Hickman] unless it is shown that the working of the minerals has been on a large scale; that is to say, to adopt the words of Lord Dunedin, there has been “a proper working of the field” [See Satya Niranjan Chakraverti v. Ram Lal Kaviraj]. Now there is absolutely no evidence in this case that there has been a proper working of the field. The learned Subordinate Judge has given three grounds in support of his conclusion that the suit is barred by limitation. First, he says that there were successive leases in favour of Chrestien from the 27th January, 1887, to the 7th July, 1896. It is not disputed that Chrestien continued to be in possession up to 1913; but, as I have already said, the question which has to be considered is whether there has been a proper working of the field and the learned Subordinate Judge has made no attempt to discuss the case from this point of view. The learned Subordinate Judge then refers to a passage in the District Gazetteer, Vol. 17, that a mica mine was opened at Pankatwa in Mahesri in 1906. This is true enough; but the passage itself shows that the actual working must have been on a very moderate scale. It is stated in that passage at page 139 that.
“there are four-mines at work, viz., at Pankatwa in Gadi Mahesri opened in 1906, Behara (1900), Kunrus (1906) and Baramasia (1906).”.
The learned author then proceeds to say that the
“average yield during the five years ending in 1904-1905 was about 14½ tons, as compared with near 21 tons in the previous quinqueniun the decline being attributed chiefly to the product being outclassed by that of the Hazaribagh mines. In 1907 the outturn was 36½ tons, and the total number of employees was 452”
Now we are only concerned with the working in Gadi Maheswari. It appears that the average yield in 1907 was 36½ tons. When it is remembered that Moheswari consists of 155 villages and has an area of 71,282 acres, it does not seem from the passage just cited that the working has been on any scale at all.
The learned Subordinate Judge also relies upon the entry in the record of rights which is to the effect that the subsoil rights were in the mokarraridars; but the record-of-rights was prepared at a time when the Calcutta, High Court had decided that a grant of a permanent heritable and transferable lease carried with it the minerals unless they were expressly reserved. In my opinion the entry in the record-of-rights throws no light on the question as to the actual working of the mines.
Beni Lal examined on behalf of the defendants admits that “expenses and accounts are written of the mines which are now being worked”; and that “those papers are in the office of Mr. Chrestien”. Now these accounts would have been valuable evidence on the question as to the actual working of the field; but they have not been produced. On the other hand certain documents called muster rolls of coolies have been produced. Only one of these muster rolls has been printed; but we have a summary of the others — in the paper book. It is, therefore, impossible for us to consider the value of these documents. The one that has been printed is the weekly muster roll of coolies from 12th to 18th December, 1898. This document shows that there were 65 coolies “engaged in prospecting mine in Maheswari Division from 12th to 18th December, 1898”. It is impossible to say from this document that there was any working over the entire field. These muster rolls are not referred to in the judgment of the learned Subordinate Judge at all. In my opinion the defendants have not established a case of adverse possession. It is well-settled that in the case of mineral rights, non user is not an abandonment of possession on the part of the owner, whose right is not barred so loner as the minerals are not worked by some one else; and that by working a part of the minerals or opening up particular quarries, possession over a continuous field of minerals or of quarries cannot be obtained.
While dismissing the appeal with costs as against Chrestien, I must allow the appeal, so far as the defendants other than Chrestien are concerned, set aside the judgment and the decree passed by the Court below and give the plaintiff a decree as against those defendants in terms of the relief claimed in this suit. The result is that the plaintiff will be entitled to joint possession with Chrestien, Chrestien's interest being restricted to the shares acquired by him from the Thakur defendants on or before the 14th August, 1919, the date on which the suit 98 of 1918 was dismissed.
The plaintiff is entitled to his costs throughout as against the Thakur defendants.
Wort, J.:— I agree.
Appeal allowed in part.