The Judgment of the Court was as follows:—

Mukerji, J.:— This appeal arises out of a suit for damages for underground trespass committed and coal extracted by the Defendants Nos. 1 to 6, and for a permanent as well as a temporary injunction and for other reliefs.

The facts which led up to the institution of the suit are these:—The Plaintiffs are the Adjai Coal Co. Ltd. Before the Company was incorporated as a joint stock Company with limited liability, some of the members thereof had formed a syndicate known as the Adjai Coal Syndicate. On the 6th August 1891 the syndicate obtained an amalnamah from the patnidars of village Raipur Nandi by which the latter agreed to grant the syndicate a mining lease in respect of 500 bighas of coal lands in the village and within certain boundaries tod upon certain terms and conditions. The patnidars were divided into 2 groups, namely, the Laiks and the Chakrabartis, the former having a 12 annas share and the latter the remaining 4 annas. Of the Laiks Kaliprasanna had a 6 annas share, Bejoy Gobinda 1 anna 6 pies, Ram Sankar and Earn Bishnu 1 anna 6 pies, Khetramani 1 anna 6 pies and Bimala Sankar, Gouri Sankar and Durga Sankar 1 anna 6 pies. Of the Chakrabartis Sib Narain had a 2 annas share and Khudiram the remaining 2 annas. The patnidars subsequently refused to execute the mining lease and upon that the syndicate instituted a suit for specific performance being suit No. 339 of 1892. Certain petitions of compromise were filed in the said knit by which the patnidars consented to hate a survey and demarcation made by a Civil Court Amin in respect of such lands amounting to 500 bighas in area as would be selected by the syndicate, out of the lands of the amalnamah, to have a plan made thereof and to grant the syndicate a mining lease in respect of the same; and on the 11th July 1893 the Court ordered a decree to be drawn up embodying those terms. The Civil Court Amin who was deputed to do the work in pursuance of the above agreement filed his report on the 5th September 1893 and on the 16th September 1893 the Court disposed of certain objections to the report and drew up a decree which bore both the dates, viz., 11th July 1893 and 16th September 1893. The decree stated that in accordance with the terms of the petitions of compromise the syndicate would get settlement from the patnidars in respect of 500 bighas of land out of the lands in the schedule to the plaint as demarcated by the black lines in the Amin's map and further that out of the said 500 bighas of land 253 bighas 11 cottas was cultivated land and the remainder, namely, 246 bighas 9 cottas was patit land. On the 20th March 1897 an amendment was made in the decree by inserting therein that the plan prepared by the Civil Court Amin should be considered a part of the decree. In accordance with the aforesaid decree, the Court on the 24th September 1897 executed leases in favour of the syndicate on behalf of the patnidars Guru Prasanna Chakraburty, the son of Sib Narain Chakraburty (owner of 2 annas share), Bimala Sankar, Gouri Sankar and Durga Sankar Laiks (owners of 1 anna 6 pies share), Bejoy Gobinda Laik (owner of 1 anna 6 pies share), Ram Sankar and Earn Bishnu Laiks (owners of 1 anna 6 pies share) and Khudiram Chakraburty (owner of 2 annas share). Khetramani Debi (owner of 1 anna 6 pies share) having died her three daughters executed similar leases in respect of her share, two of the daughters on the 9th January 1900 and the third daughter on the 26th February 1900. Kali Prasanna Laik (owner of 6 annas share) had died before the decree was drawn up and certain proceedings took place between the song Kristodhan and Sudhakrishna on the one hand and the syndicate on the other, the result of which was that the suit in so far as it was against them was revived and on the 21st December 1901 a decree was passed from which it appears that there was a compromise between the parties under which the syndicate had obtained leases from the said Kristodhan and Sudhakrishna according to the plan of the Civil Court Amin. This lease appears to have been executed on the 23rd September 1901 and it was in respect of the 6 annas share of the executants in the 500 bighas of land demarcated in the Amin's map as aforesaid. The final decree disposing of the suit in this way was drawn up and signed by the Subordinate Judge on the 4th January 1902, and it was also stated therein that the report and the map of the Civil Court Amin would be considered as a part of the decree. It should be mentioned here that in the meantime by an Indenture, dated the 30th September 1893, the syndicate transferred and assigned to the Plaintiff Company all their interest in, amongst others, the 500 bighas of land to be selected by them in accordance with the compromise decree which had been passed shortly before.

It appears that sometime before the 23rd April 1894 the patnidars had promised a settlement of some coal lands to Dr. Radharaman Ghose, who was the Defendant No. 1 in the present suit but who died sometime after its institution. In the course of these negotiations two surveys were made, the last one of which was by an Amin named Madhusudan Dutt who prepared a map of the land to be settled. As a result of these negotiations the patnidars granted leases to the said Radharaman Ghose and his co-sharers in respect of about 74 bighas of land out of an area of 101 bighas and also in respect of their demarcated lakheraj lands lying within the said area. These leases bear different dates; the lease by Bejoy Gobinda Laik (owner of 1 anna 6 pies share) was on the 11th March 1895, by Khetramani Debi (owner of 1 anna 6 pies share) on the 10th April 1895, by Ram Sankar and Ram Bishnu Laiks (owners of 1 anna 6 pies share) on the 9th May 1895, by Kristodhan and Sudhakrishna Laiks (owners of 6 annas share) on the 13th May 1895, by Guru Prasanna Chakraburty (owner of 2 annas share) on the 19th January 1897, and by Bimala Sankar, Gouri Sankar and Durga Sankar Laiks (owners of 1 anna 6 pies share) on the 27th April 1897. Khetramani's daughters executed a further lease on her death on the 30th January 1899, evidently as there was some question as to whether Khetramani had only a widow's interest in the property or not. Khudiram Chakraburty did not execute a lease in respect of his 2 annas share. Radharaman Ghose thereupon instituted suit No. 114 of 1897 against Khudiram Chakraburty for specific performance of an alleged contract for granting a lease in respect of his share. This suit was instituted on the 24th March 1897 and it appears that the map prepared by the Amin Madhu Sudhan Dutt was filed with the plaint in this suit. The suit, however, was dismissed on compromise on the 1st February 1900, Khudiram Chakraburty having on the day before executed a lease in favour of Radharaman Ghose and his co-sharers on lines similar to the leases executed by the other co-sharers.

On the 5th February 1901, the Nandi Coal Association, which is a firm at present constituted by the Defendants Nos. 1 to 6 in this suit and at that time was composed of Radharaman Ghose and the predecessors of the Defendants Nos. 2 to 6, commenced an action for damages for underground trespass alleged to have been committed in respect of lands acquired as aforesaid by Radharaman Ghose and his co-sharers and for other consequential reliefs against a Company known as the Nandi Coal Company, Limited. This suit was suit No. 37 of 1901. In this suit a pleader named Babu Eakhal Chandra Das, who was deputed to ascertain the boundaries of the lands of the Nandi Coal Association and of the Nandi Coal Company, Limited, surveyed the lands, prepared a map and field book and also submitted a report. With the result of this suit we are not concerned here.

In April 1901 the Plaintiff Company instituted two suits being Nos. 173 and 174 of 1901, the former against the Nandi Coal Company and the patnidars and the latter against the Defendants Nos. 1 to 6 in this suit or their predecessors as well as the patnidars, on the basis of a clause in the amalnamah, dated the 6th August 1891 which provided that if any land other than the aforesaid 500 bighas of land was wanted by anybody the syndicate would have a preferential right to obtain settlement thereof if they agreed to pay the rent offered by such other person and upon the allegation that the patnidars had granted settlement to the Nandi Coal Company and to the Defendants in the present suit or their predecessors in respect of the lands of those two suits in contravention of the condition embodied in the aforesaid clause Suit No. 173 ended in a compromise, the Plaintiff Company giving up their right of pre-emption under the amalnamah; and suit No. 174 was dismissed, the Plaintiff Company having withdrawn their claim. Some controversy has arisen as to the exact circumstances connected with the withdrawal of his claim as the predecessors of the Defendants Nos. 1 to 6 appear to have been ordered to pay the costs of the patnidars in the suit, but I do not think it matters much, for so far as our present purposes are concerned it may be taken that the claim of the Plaintiff Company was dismissed, no permission having been granted to them to institute a fresh suit on the same cause of action.

It appears, however, that in 1901 Mr. Mitchell, the then manager of the Plaintiff Company, obtained leases from some, if not all, the co-sharers of the patni in respect of the whole mouzah Rajpur Nandi with the exception of the lands which had been already let out to the Plaintiff Company, the lands in respect of which Radharaman Ghose and his co-sharers had obtained leases and some other lands.

On the 28th August 1917 the Maharajadhiraj Bahadur of Burdwan granted a lease of underground rights in all coal and fireclay in the entire mouzah Rajpur Nandi, except in such portion of the mouzah as was in the possession of the Nandi Coal Association. The Respondents Messrs Andrew Yule & Co., it should be stated, are the Managing Agents of the Plaintiff Company.

The present suit was instituted by the Plaintiff Company on the 22nd September 1919 against the Defendants, who, as I have said, constitute a firm carrying on business in coal under the name and style of the Nandi Coal Association. The Plaintiffs' allegation, shortly stated, was that the Defendants taking advantage of the fact that their lands lay contiguous to those of the Plaintiffs, secretly, fraudulently and furtively trespassed into the Plaintiffs' underground land and extracted a large quantity of coal therefrom, that the Defendants manipulated their trespass in such a way that it was not perceptible from outside and the Plaintiff Company remained unaware of the same until only about six months before the suit. In the written statement originally filed by the Defendants various defences were taken, amongst which may be mentioned the plea of limitation, the plea that the underground land from which coal was taken lay within the Defendants' title and not within the leases under which the Plaintiff Company claim, the plea that in any event the Defendants' title should prevail and other objections dealing with the question of the damages claimed. Two other facts need be mentioned here. The Defendant No. 1, Radharaman Ghose, died after the written statement was filed as aforesaid; and on his death his son Panna Lal Ghose was substituted in his place and he filed an additional written statement on the 8th December 1921 to which reference will have to be made hereafter. Thereafter on the 17th January 1922 on the application of the Plaintiffs Messrs Andrew Yule & Co., who, as I have said, are the Managing Agents of the Plaintiff Company, were added as the Defendant No. 7 and they filed a written statement on the 16th February 1922.

The learned Subordinate Judge granted the Plaintiffs a decree for Rs. 56,018 as damages for the coal extracted by the Defendants and Rs. 18,223 as costs for constructing an artificial barrier which in his opinion was necessary to ensure the safety of the Plaintiffs' mines, the same having been endangered by the extraction of coal by the Defendants Nos. 1 to 6; the said amount of Rs. 74,241 together with interest and cost was decreed against the Defendants Nos. 1 to 6 to the extent of the assets of the deceased partners of the Defendant firm, namely, the Nandi. Coal Association in their hands. He also granted the Plaintiff Company a decree for a permanent injunction restraining the said Defendants from committing any further trespass into the Plaintiff Company's land as demarcated by the Civil Court Amin in suit No. 339 of 1892 and relayed and Shown by the Commissioner appointed in the present suit in the surface and underground plans prepared by him and he also directed the said plans with the field book, Part I, to form part of the decree. From this decree, the Defendants Nos. 1 to 6 have preferred this appeal and the Plaintiff Company as well as the Defendant No. 7 have also filed certain cross-objections.

The first contention urged on behalf of the Appellants and one which they have been at great pains to establish is that the portion of the underground from which coal has been taken does not fall within the 500 bighas demised to the Plaintiffs.

[On a consideration of the evidence his Lordship held that the Subordinate Judge was right in holding that the Plaintiffs' land had been encroached upon and coal had been taken from it to the extent found by the Commissioner in his map.]

The next contention urged on behalf of the Appellants is that the Defendants have title to the disputed portion of the underground. It is necessary to examine this contention notwithstanding the finding in Plaintiffs' favour at which I have already arrived, because if it is well-founded, several other questions will arise.

[On a consideration of the evidence his Lordship held that the Appellants' second contention also failed.]

The judgment continued:—

Upon the aforesaid conclusion, viz., that the underground to the west of the line J.K is within the Plaintiff title, and is outside the leases from the) patnidars under which the Defendants claim the question of priority of title by reason of some of the patnidars (viz., Bijoy Gobinda, Khetramani, Ram Sankar and Ram Bishnu, Krishnadhan and Sudhakrishna) having executed leases in favour of Radharaman and his co-sharers before any leases were granted to the syndicate does not arise. There are, however, a few other contentions relating to the validity of the Plaintiffs' title which may be conveniently dealt with here. The first contention is that the leases were in respect of 500 bighas obtained from the patnidars by the syndicate but they were not assigned to the Plaintiff Company and so the latter have acquired no rights under them. Now, on the incorporation of the Plaintiff Company as a joint stock Company with limited liability the syndicate executed a deed of Indenture, dated the 30th September 1893, in favour of the Plaintiff Company. It should be remembered that at that point of time and only a few days before, that is to say, on the 16th September 1893, the decree had been passed in suit No. 339 of 1892 under which the patnidars were to execute mining leases in respect of the 500 bighas delineated by the Amin in his map. The operative part of the Indenture ran in these words: “Do hereby transfer and confirm unto the Company and their assigns all and singular the premises in the first, second and third schedules hereto respectively described and all the mining and other rights of the vendors and of each and every of them in and over the same and all the estate, right, title, interest, claim and demand of the vendors and of each and every of them into, out of and upon the premises, etc.” The first schedule in that document consisted of the 500 bighas of land to be selected from the land within the boundaries as given in the schedule to the plaint of suit No. 339 of 1892. In these circumstances even if the syndicate thereafter acquired the said leases from the patnidars they must be regarded as having done so on behalf of, and as trustees for, the Plaintiff Company, who, it may also be noted, got themselves added as Plaintiffs in the suit when the final decree by which the suit was disposed of was passed on the 4th January 1902. It is next said that though there is a lease by the Court on behalf of Guru Prasanna Chakraburty, son of Khudiram Chakraburty, in respect of his 2 annas share, Khudiram Chakraburty, who was alive at the date of the decree, was not a party to the compromise and no decree had been passed against him. It is true that it does not appear that there was any compromise petition filed on behalf of Khudiram Chakraburty and the decree as drawn up shows only that it was passed on compromise against all the Defendants in the suit including Khudiram Chakraburty and that it was also passed in the presence of the pleader for Khudiram Chakraburty. The fact, however, remains that the decree has been treated all along as a binding decree against Khudiram Chakraburty and the patta executed on behalf of his son has not been challenged during all these years, a fact which suggests that there was the consent of Khudiram to the decree as passed; and in any event the Plaintiff Company must be regarded as having acquired an indefeasible right to the extent of this share by possession extending over this long period. There is therefore no substance in this contention as well.

Some argument has been next adduced to make out a title in the Defendants by adverse possession. In this behalf reliance has been placed upon the statements made by the Defendants' witnesses which tend to show that the Defendants made a survey of the lands in 1897 in which they included the portion of the land now in suit as within their boundaries and that this was done to the knowledge of the Plaintiff Company. The Appellants rely in particular upon the evidence of their witnesses Kamakshya and Binode in support of their case as to adverse possession. It has also been contended on their behalf that Mr. Mitchell who was appointed Receiver of the Defendants' colliery and acted as such in 1904 or thereabouts knew that the Defendants were claiming this portion of the underground as belonging to them and were taking coal therefrom. It has been said that Mr. Mitchell must have been the working plan of the Defendants at the time and if he did so he could not have failed to notice that this portion of the underground was being worked. The evidence bearing on these matters has been placed before us in great detail, but it will serve no useful purpose to discuss it here for, in my opinion, the evidence is utterly unreliable. I am of opinion that the Defendants have signally failed to prove the facts which would constitute such possession as would in law amount to adverse possession. As regards the survey alleged to have been made by Kamakshya in 1897, during which, he says, the patnidars pointed out the boundaries of the lands of the Plaintiffs and the Defendants and Mr. Mitchell and the other officers of the Plaintiff Company pointed out the eastern boundary of the lands of the Plaintiff Company, I am unable to accept the evidence by which this story is sought to be supported. As regards Mr. Mitchell's knowledge, it should be noted that he acted as Receiver for 1 a few months only in 1904 and I am not at all sure that this portion of the underground was worked during that period, or that the working plan, if any, which he may have seen, gave him any notice of the Defendants' claim to this portion. I do not think that the Defendants' working plan which has been produced in this suit was prepared as a result of this survey of 1897 which the Defendants have sought to prove and I am disposed to take the view that this working plan is a mere reproduction of the map prepared by the Commissioner Babu Rakhal Chandra Das. I am also of opinion that the explanation offered by the witness Kamakshya as to how the entries in the index on the map came to be made is not acceptable. On the whole I am strongly inclined to take the view that this map had no existence when Babu Rakhal Chandra Das made his survey, for if it was in existence at that time it would surely have been produced before him as a strong piece of evidence in support of the claim of the present. Defendants in that suit; while, on the other hand, as far as may be judged from the materials now before us, no such map was produced before him; and the evidence, which the Defendants have adduced to prove that it was, cannot be believed. In connexion with the question of adverse possession a further argument has been advanced. It is said that in Suit No. 174 of 1901 the Defendants asserted their right to this portion of the lands and that with the Plaintiffs' knowledge and it has also been contended that by reason of the dismissal of the suit the Plaintiff Company are debarred from pressing their claim to this portion in the present suit. So far as this matter is concerned what happened, exactly was this. The Plaintiff Company in their plaint in that suit gave the boundaries of the lands, in respect of which they instituted the suit according to the leases which the Defendants had obtained from the patnidars; but the Defendants in their written statements gave the boundaries of their lands as in Suit No. 37 of 1901. The suit was eventually dismissed as I have already stated. The dismissal of the suit could only relate to the claim as laid by the Plaintiff Company; and if the claim was in respect of the lands which lay to the east of the line J.K of the Amin's map, as it was, because, as has already been found, the Defendants' leases from their patnidars only purported to give him lands on the east of the line, it is not possible to see how the claim in the present suit which relates to the underground on the west of that line can be said to be barred. As regards adverse possession I am not prepared to hold that assertion in a written statement that one is in possession, in the absence of anything else, can be regarded as actual possession of the land itself which may go to constitute adverse possession. On the whole I do not find on the record any sufficient materials on which the Defendants may be held to have acquired a title by adverse possession to the portion of the underground with which we are concerned in this case. If in point of fact the Defendants took coal from any particular spot within this portion, their possession was that of trespassers and must be deemed to have been limited to that particular spot only and no more.

The next contention of the Appellants is that the Plaintiffs had, under the leases obtained from the patnidars, acquired no title to the underground. This argument is based upon the series of decisions of the Judicial Committee which have laid down that the title to the underground lies in the zemindar and remains in him unless it has been expressly parted with. So far as this contention is concerned the learned Subordinate Judge was of opinion that the pleadings cannot be construed to mean a denial of the patnidars' right to the sub-soil and that if this objection which was urged at a late stage of the suit had been taken earlier, he would have been prepared to hold that the patnidars had no right to the sub-soil. The learned Judge has observed in his judgment that the patni lease had not been produced by the Plaintiff Company to show that there was an express grant of the sub-soil by the zemindar to the patnidars, and further that the lease of 1917 by the Maharajadhiraj to Messrs Andrew Yule & Co. expressly excluded the land which was then in the possession of the Defendants. On behalf of the Appellants reference has been made to paragraph 6 of the additional written statement filed by Panna Lal Ghose when he was substituted in the place of his deceased father Radharaman Ghose as suggesting this defence, and reference has also been made to the observations of the learned Subordinate Judge in his judgment which are to the effect that he did not think it necessary to frame any new issue on the said additional written statement as the issues already framed covered the new pleadings and it has been urged that the issues relating to the Plaintiffs' title were sufficient to include this question and that this matter should therefore have been investigated. In the original written statement the patnidars were described in several places as the real maliks or proprietors and it was thus conceded that they were entitled to the sub-soil and the Defendants also based their own title to the sub-soil under the leases obtained from the patnidars. Paragraph 6 of the additional written statement runs thus: “That this Defendant has come to know on enquiry and believes to be true that the Plaintiff Company gave out that they took settlement of the underground rights of some lands of Mouza Nandi from the patnidars under the zemindari of the Maharaja Bahadur of Burdwan; thereafter having been advised that the said patnidars had no right to make any settlement in respect of the underground rights, they, with a view to have the underground rights in respect of the said lands settled in the benami of other people, executed fresh documents in favour of the Maharaja Bahadur aforesaid. On the basis of such documents no interest in the underground rights or any right can accrue to the Plaintiffs and for this reason the Plaintiffs are not at all entitled to institute this suit. This Defendant further begs to submit that the land in suit is not included in any such document. What seems to be meant by this paragraph evidently is that the validity of the documents executed between the Maharajadhiraj Bahadur of Budrwan and Messrs Andrew Yule & Co., as creating a title in the Plaintiff Company, is challenged on the ground that the Plaintiff Company cannot derive any benefit under them, and I am not prepared to say that the learned Judge was wrong in supposing that the question as to the patnidars' right to the underground was not raised in this paragraph. As regards the contention that is thus put forward in this paragraph, there is no substance, for Messrs Andrew Yule & Co. were made parties Defendants to the suit and they in their written statements filed on the 16th February 1922 stated that they had taken the lease from the Maharajadhiraj Bahadur as Managing Agents of the Plaintiff Company. If, however, the patnidars had no title to the minerals, the Plaintiff Company could have acquired none in taking leases from them, and the leases from the Maharajadhiraj Bahadur would not be of any avail to them as it expressly excluded lands which were in the possession of the Defendant Company. If the Defendants intended to plead that the Plaintiff Company acquited no title to the underground under the leases obtained from the patnidars, as the patnidars themselves had no such title, they should have stated this clearly in their written statement. I am disposed to think that they did not intend to raise this issue and, for the obvious reason that it would have hurt their own title. In paragraph 19 of the written statement originally filed they took pretty good care to assert, that they were not trespassers and that even if the Plaintiff had any right to the property in suit they were the Plaintiffs' co-sharers. The Defendants, I am of opinion, did not want this question to be gone into; and in this view of the matter I do not think that the Plaintiff Company can be blamed for not having attempted to prove their lessors' title to the underground, a matter which requires for its determination a reference to the patni lease, if avails able, or if the patni lease is not produced, then, consideration of the effect of the provisions of the Patni Regulations.

Before dealing with the other questions that, have been raised before us, it would be convenient to deal with two of the matters upon which there has been a good deal of controversy before us. They relate to the time when the acts of trespass took place and the exact character of that trespass. It will be convenient to deal with these two questions, at this stage, because on the result of our investigation into these two matters will largely depend the solution of the other problems that have been raised. The learned Subordinate Judge has found as a fact that the coal was extracted before 1915. This finding has been sought to be supported by the Appellants by reference to the plans, Exs. M1, M2 and M3, which are said to be tracings made from their working plan, Ex. M, from time to time. These tracings purport to show the extent of the workings up to the 13th August 1905, 1913 and July 1915 respectively. The Plaintiff Company challenges the authenticity of these plans and endeavours to show that comparing the last of these plans which shows the working up to July 1915 with the Commissioner's underground plan in the suit and also with certain remarks which appear in the Defendants' working plan, Ex. M, it is proved that there has been working even after July 1915 and they also contend that the onus is on the Defendants to show when they extracted the coal and that they have failed to discharge the same. Now as regards the authenticity of the plans, Exs. M1, M2 and M3, I may say at once that I entertain grave doubts, and I am unable to accept as true the story which has been given as to their origin. On the other hand, I do not see sufficient materials upon which I can safely hold that there was really any working of coal after July 1915 or at any rate after the end of that year. The Defendants definitely stated in their written statement filed on the 27th July 1920 that no coal had been extracted within 6 years before that date. They have produced not only those tracings but all their books down to the time when they ceased to work. They have also given oral evidence in respect of their working and also some evidence in the shape of expert evidence. The determining factor in the case seems to me to be the evidence of the Defendants' witness Babu Harish Chandra Roy who when deposing on the 1st August 1924 stated that the working was not less than 10 years old, though he added that he could not be accurate. The witness has given his reasons for the opinion that he gave and as far as may be judged he is an independent witness on whom one may rely. The Commissioner in the present suit who inspected the underground in 1920 was also of opinion that the workings seemed to be old. It was suggested on behalf of the Plaintiff Company that the Defendants had other materials at their disposal which could have shown the dates of the workings, but it has not really been shown that they have any other materials on the point or that they have withheld any. The onus no doubt is on the Defendants, but in view of the circumstances of the case I must hold that they have discharged it. Allowance of course must be made for the uncertainties of expert testimony; but making every such allowance against the Defendants, I find myself unable to disagree with the view which the learned Subordinate Judge has taken. In agreement with him I find that it is reasonable to hold that the extraction took place before 1915 or, to put it more accurately, before the end of that year. As regards the time when the acts of trespass began, there is hardly any data to go upon but I am not prepared to hold that this portion of the underground was worked when Mr. Mitchell was the Receiver. It seems to me altogether improbable that if it was worked at that time, Mr. Mitchell would not have known of it. It is reasonably certain therefore that the acts of trespass commenced sometime after the middle of the year 1904.

As regards the character of the trespass in the plaint it was stated that the trespass was committed fraudulently, secretly and furtively and the Defendants had carefully manipulated it in such a way as not to be perceptible from outside and had taken systematic steps to conceal the same. Underground trespass must in its very nature be secret and not perceptible from outside; but I have not been able to discover anything either in the evidence or in the circumstances suggesting that there was any fraud on the part of the Defendants or that they had taken any steps to conceal their workings. The workings do not seem to have been carried on otherwise than in the usual way in which coal is worked in everywhere.

It has been urged on behalf of the Plaintiff Company that Radharaman in his deposition in suit No. 37 of 1901 admitted that he had no underground rights in any lands outside the limits of those which he had acquired under the leases from the patnidars, that the Defendants must be presumed to know what the boundaries of those lands were, that the question of boundaries was on several occasions before the Court in suits in which the Defendants were parties, that the Defendants must have had the map of the Amin Madhusudan Dutt with them and that from these and other circumstances it should be inferred that the Defendants knowingly and wilfully committed the trespass. I have given these matters all the consideration they deserve but I am unable to disagree with the view which the learned Subordinate Judge has taken. The Defendants no doubt overstepped their boundaries, but I am unable to find upon the materials on the record that they did so intentionally or wilfully. They worked with their working plain: before them—a plan which was very likely a copy of the map prepared by the Commissioner Babu Rakhal Chandra Das, and which showed the lands in which they worked as theirs. It does not appear that the map of the Amin Madhusudan Dutt was thought of during all these years and it is pretty obvious from the stations I and J of the said map that the Defendants had at their disposal the map of the Amin in suit No. 339 of 1901, the figures “509” in which were sufficient to mislead anyone as to the extent of the Plaintiffs' lands. It is true that the Defendants have not expressly said anywhere that they had a copy of that map, but not much importance should be placed upon this omission. Moreover, it is obvious that unless and until a proper survey and relaying was made it was not possible to ascertain whether the limits had overstepped or not. The trespass was in my opinion inadvertent and I am prepared to go further and say that it was due to want, of reasonable care which the circumstances of the case called for, the two premises being contiguous, but it was not intentional, wilful and fraudulent.

The next contention of the Appellants relates to the question of limitation. The learned Subordinate Judge has observed in his judgment that this was a question about which he experienced considerable difficulty in coming to a decision which would satisfy both law and equitable considerations. He has held, though not without some diffidence as he has put it in his judgment, that Art. 96 of the Limitation Act applies to the case. As to the applicability of this article he has observed thus in his judgment: “The trespass in the present case appears to me to be due to mistake regarding the actual boundary line between the collieries of the Plaintiff Company and the Defendants. The trespass was due to inadvertence caused by mistake and confusion created by the circumstances already discussed. The Art. 96 relates to relief on the ground of mistake. The wordings are perfectly general and would seem to apply equally to the case of mistake on the part of the Plaintiff and the case of mistake on the part of the Defendant. I hold that the Plaintiff is entitled to get three years from the time when the mistake became known to the Plaintiff. On the evidence I find that the mistake was discovered by the Plaintiff in 1919 and not earlier. There might have been some suspicion before, if I should take the letter, Ex. P. to be genuine. But suspicion is not knowledge.” He has also recorded his opinion that if Art. 36 or 39 applied, as appears to have been urged on behalf of the Defendants before him the Plaintiff Company were not entitled to take advantage of sec. 18 of the Limitation Act. He, however, appears to have been of opinion that the Court was not merely a Court of law but of equity and good conscience and that fraud was not the only circumstance which would prevent the statute running and that in the present case in view of certain equitable considerations which arose in favour of the Plaintiffs, limitation should run from the date of the Plaintiffs' knowledge, even if Art. 36 or 39 applied. Now, as regards the date of the Plaintiffs' knowledge I entirely agree with the learned Subordinate Judge in holding that the Plaintiffs were not aware of the trespass before 1919, and in this connexion I am of opinion that although I do not see any good reason to doubt the genuineness of the letter of which Ex. P. is the copy, I do not find that the Defendants have proved that the said letter ever reached the Plaintiffs, a fact which the Plaintiffs deny, and I am also unable to hold that there is any such presumption either in law or in fact that the said letter must have reached its destination, when in point of fact there is nothing to show that it was ever despatched. I am, however, clearly of opinion that the learned Subordinate Judge was in error in importing considerations of equity in the application of such a statute as the statute of limitation. I agree with him in holding that nothing has been proved which may enable the Plaintiff Company to avail themselves of the provisions of sec. 18 of the Limitation Act. The simple question then remains as to the article to be applied.

To answer this question the main reliefs claimed by the Plaintiffs have got to be separated. They may be taken to be three in number:—(1) Damages for the coal taken, (2) costs of a barrier, and (3) a permanent injunction restraining the Defendants from overstepping the boundary. So far as the last of these reliefs is concerned there is no period of limitation prescribed for it in the Limitation Act, and the claim is within time if there is a cause of action. In view of the facts which have been already found there is no question as to the propriety of the relief that has been granted under this head, and it is not necessary to refer to it again. As regards the damages for the coal taken, the law is well settled in England. The following passage giving a summary of the law may be usefully quoted from Lightwood on the Time Limit on Actions, p. 300:—

“Fraud which will exclude the statute is frequently referred to as ‘concealed fraud.’ It has always been a principle of equity that no length of time is a bar to relief in the case of fraud, in the absence of laches on the part of the person defrauded. There is, therefore, no room for the application of the statute in the case of concealed fraud, so long as the party defrauded remains in ignorance without any fault of his own.” Per Lord James of Hereford in Privy Council in Bulli Coal Mining Company v. Osborne (1). This, however, does not imply that there must be active concealment. It is no more than an assertion that the fraud, which in its nature is secret, is also undiscovered. Thus in case of fraudulent taking of minerals by underground trespass, it is not necessary, as was suggested in Dean v. Thwaite (2) and held in Re: Asthy, etc., Coal Co. and Tyldeshy Coal Company (3), that steps should have been taken to conceal the fact. And although the mere breaking of bounds into a neighbour's colliery is not to be regarded as fraudulent for the purpose of the statute—as was suggested by Mallins, V.C in Ecclesiastical Commissioners v. N.E Railway Company (4), yet the fact that the taking of coal is in pursuance of a wilful trespass and is secret, makes the taking fraudulent, and an account will be directed of the whole coal taken and will not be limited to six years; Bulli Coal Mining Company v. Osborne . In cases of inadvertent trespass the account is limited to six years; Llynvi Company v. Brogden (5), Hilton v. Woods (6), Trotter v. Maclean (7) and Dawes v. Bagnall (8).

It is plain, therefore, that under the English law the limit of time runs from inadvertent wrongful taking and from discovery of fraudulent taking. If this principle be applied to the present case in view of the facts found the statute would begin to run from the last act of trespass, that is to say, from the end of 1915. As regards the article of the Limitation Act applicable to the case I am of opinion that Art. 96 is limited in its application to cases of mistake committed in transactions arising in the course of relations which are more or less contractual in character and the article in any event has no application to a case where, as here, there is no question of mistake on the part of the Plaintiff. Art. 36 obviously has no application if any other article applies. One of the other articles to which we were referred was Art. 48 but that also has no application as “conversion” therein referred to in my opinion should be held to mean dishonest conversion, ejusdem generis with the words that precede it and the article, in view of the words in the third column, presupposes the existence of the property in the possession of some person. The claim for damages for trespass includes not merely damages for the unlawful entry but also damages for the mischief which the trespasser commits after entry on the land. The claim in the present case is very much like a claim for damages for crops cut and carried away from the Plaintiffs' land and to such a claim it has been held by a Full Bench of this Court that Art. 39 or Art. 49 is applicable [Mangun Jha v. Dolhin Golab Koer (9)]. Three years having already expired from the last act of trespass the claim for damages for the trespass including the price of the claim for the coal taken is barred under the law. As regards the costs for the barrier, if the claim in respect of it is regarded as a claim for damages for the trespass it is equally barred by the three years' rule but it is possible to take the view that the claim might be put forward in the shape of a prayer for a mandatory injunction calling upon the Defendants to erect a barrier and in the alternative to the cost thereof. It is therefore necessary to consider the merits of that claim and I propose to do so hereafter.

The next contention of the Appellants turns upon the provisions of Act XII of 1855, and the application of the rule actio personale moritur cum persona. As far as I have been able to appreciate this contention it is this—that Radharaman Ghose and his partners who are now dead are the persons who committed the trespass and as more than a year has elapsed from the date thereof and as they are dead the claim is barred, and the cause of action has not survived as against their heirs and legal representatives. Act XII of 1855 relates to those wrongs which did not survive to or against the executors, administrators or representatives of a deceased person. Sec. 89 of the Probate and Administration Act and sec. 268 of the Succession Act have been referred to on behalf of the Respondents as suggesting that the cause of action in a case like this survives. As regards the question whether the Plaintiffs' claim is affected by the rule actio personale moritur cum persona, the following remarks of Bowen, L.J, may be quoted from Phillips v. Homfray (10): “The only cases in which apart from questions of breach of contract, express or implied, a remedy for a wrongful act can be pursued against the estate of a deceased person who has done the act, appear to us to be these in which property or the proceeds or value of property, belonging to another, have been appropriated by the deceased person and added to his own estate or moneys. In such cases, whatever the original form of action, it is in substance brought to recover property or its proceeds or value and by amendment could be made such in form as well as in substance. In such cases the action, though arising out of a wrongful act, does not the with the person. The property or the proceeds or value which in the lifetime of the wrong-doer could have been recovered from him, can be traced after his death to his assets and recaptured by the rightful owner there. But it is not every wrongful act by which a wrong-doer indirectly benefits that falls under this head, if the benefit does not consist in the acquisition of property or its proceeds or value. Where there is nothing among the assets of the deceased that in law or in equity belongs to the Plaintiff and the damages which have been done to him are unliquidated and uncertain, the executors of a wrong-doer cannot be sued merely because it was worth the wrong-doer's while to commit the act which is complained of, and an indirect benefit may have been reaped thereby.

As long as the maxim actio personale moritur cum persona is preserved by the law of this country the line drawn is neither inconvenient nor unreasonable. If every wrongful act which was attended consequently and indirectly with advantage to the wrong-doer or his pocket were to warrant an action against executors, it would be impossible to know when executors were liable or not and the maxim would, in fact, become a mere source of litigation. We have not now to consider the policy of the maxim. It is part of the law and while it is so ought not to be frittered away.”

So far as the claim for damages for trespass is concerned the estate of the deceased partners must be presumed to have increased the assets of the firm of Nandi Coal Association and benefited the estate of the deceased, partners, and the Defendants as their heirs and legal representatives are liable to the extent of the assets including the assets of the firm received by them. As regards the claim for the cost of the barrier, if it is regarded as a claim for damages for the negligent manner in which the underground was worked by the deceased partners such indirect benefit as may have accrued by the tortuous act of the deceased partners cannot, on the principle laid down in Phillips v. Homfray , be taken to have increased the assets and if this principle has not been abrogated by the provisions of the Probate and Administration Act and the Succession Act to which reference has been made, it is doubtful if the claim under this head may be enforced against the Defendants, such as they are at present. It is not necessary, however, to pursue the matter further because as I have already stated the claim with regard to the barrier may not unreasonably be regarded as one relating to a mandatory injunction and in the alternative for recovery of costs and may be enforced against the Defendants if there is a proper foundation for the claim on the facts.

The next contention of the Appellants is to the effect that the learned Judge was wrong in the principle on which he proceeded in regard to the assessment of damages. In connexion with this contention the cross-objection of the Plaintiff Company that the damages have been assessed too low may also be considered some argument was advanced to show that the Commissioner's figure as to the quantity of coal extracted should not have been accepted by the learned Judge but I do not see any sufficient ground for holding that argument should be allowed to prevail. The learned Judge has accepted the Commissioner's findings that the total quantity of coal extracted by the Defendants was 18,544 tons. Upon the evidence of the Defendants' witness Kamakshya the learned Judge held that of this quantity 2/3rd was steam coal and 1/3rd rubble coal and dust. Kamakshya stated that rubble coal and dust were not sold but used to be consumed in the boilers in the colliery itself, and he stated the price of rubble coal was half that of steam coal and the price of dust was much less. The learned Judge has allowed the Plaintiffs the price of the steam coal, nibble coal and dust, taking the prices of the last two items as half of the price of the first one. He has given the Plaintiffs a decree on the aforesaid basis, and on the footing of the price of coal as it was in 1919. This price he assessed at Rs. 6-4 annas per ton from which he allowed a deduction of Rs. 2-10 annas per ton for working costs. The Appellants contend that the price should have been taken as in 1915 and not 1919, that as the Plaintiffs have not given any evidence of the price as it stood in 1915 they were not entitled to any damages at all. The Respondents on the other hand have urged that the price should be taken as of 1919, but it should be much more than what it was assessed at, that in assessing the damages not the milder but the severer rule should have been followed, that no working costs should have been deducted, that no allowances should have been made in rubble coal and dust but damages should have been awarded on the footing that all the coal was of the best description that was available on the colliery and that interest should have been allowed on the amount of damages awarded from the date of the trespass. I may say at once that upon the materials to which our attention has been drawn in the course of the arguments I should not have been prepared to interfere with the calculations made by the learned Judge if I could hold that he had adopted the right principle. The rule, however, as to assessment of damages in cases of this description is well settled. In the case of Livingstone v. The Rawyards Coal Co. (11), it was laid down that the value of the coal taken must be the value of the coal to the person from whom it is taken and at the time it is taken. Lord Hatherley in his judgment in that case said that “if a man furtively and in bad faith robs his neighbour of property and because it is underground, is not for sometime detected the Court of equity will punish fraud by fixing the person with the value of the whole of the property which he has furtively taken, and making him no allowance in respect of what he has so done as would have been justly made to him if the parties had been working by agreement or if they had been the one working and the other permitting the working through a mistake.” Further on his Lordship observed thus: “Each case must stand upon its own particular foundation in that respect; but regard being had to the rule vigilantibus non dormientibus it requires to be carefully considered in each particular case how far the principle is just which deals with property under such circumstances as property which has been acquired by one person from another without payment and by inadvertence. But when we once arrive at the fact that an inadvertence has been the cause of the misfortune, the simple course is to make every just allowance for outlay on the part of the person who has so acquired the property, and to give back to the owner so far as is possible under the circumstances of the case, the full value of that which cannot be restored to him in specie.” The case of Livingstone v. The Rawyards Coal Company was a very peculiar case and one singularly free from difficulty, for both the parties there were under a mistake and there was no wilful trespass or wilful taking of the coal and the Defendant did not know that what he was taking did not belong to him. For the purpose of allowances to be made fraudulent, negligent and wilful trespass have often been treated on the same footing and only the cost of bringing to bank is allowed [Wood v. Morewood (12)], Trotter v. Maclean and Ecclesiastical Commissioners of England v. North Eastern Railway Company . In the first of these cases Parke, B. directed the jury that if there was fraud or negligence on the part of the Defendants they might give as damages under the count of trover the value of the coals at the time when they first became chattels on the principle laid down in Martin v. Porter (13), and in the last of the aforesaid cases the same measure of damages was applied though it was a case of inadvertent working. In the present case upon the findings at which I have arrived I am disposed to take the view that there was negligence on the part of the Defendants, though they acted honestly. I am therefore of opinion that the severer rule for damages should be applied, namely, that the Plaintiffs should be awarded, if their claim is not barred, the market-value of the coal at the pits' mouth less only the cost of bringing the coal to bank and not the cost of hewing, such value to be calculated at the time when the coal was cut and reduced to possession. As the actual dates of such cutting are not ascertainable the Plaintiffs in my opinion are entitled to the most advantageous rates between the middle of 1904 and the end of 1915 during which the coal must have been taken by the Defendants. The burden being on the Defendants to prove what coal was taken at any particular point of time [Dean v. Thwaite ], and all that they have succeeded in proving being that the coal was taken during the above period, this is the proper order to be passed in the circumstances. I am also of opinion that in a case like this the Plaintiffs are entitled to interest on the amount of damages which may be awarded on this footing from the beginning of 1916 and calculated at the rate of 6 per cent, per annum. That damages may in the shape of interest be awarded in an action for trespass cannot be disputed and the case, in my opinion, is one in which it should be awarded if the Plaintiffs succeed in recovering any decree for damages at all.

The only other question that remains for consideration is that relating to the cost of the barrier. The claim in this respect may, as I have said, be treated as within time if the prayer be taken as one for a mandatory injunction and in the alternative for recovery of costs. The allegation of the Plaintiff Company in their plaint upon which this claim is based runs in these words: “To prevent further and future trespass and to prevent the water and foul gases, if any, coming from the Defendants' mines to the Plaintiffs' mines it is absolutely necessary to erect barriers at the boundary or at some other convenient place.” The Commissioner in his report observed that water was seen to have accumulated here and there in the galleries at certain places and water was also seen leaking out in small quantities at certain other places. Judging from the distance of these places on the Commissioner's underground plan from the working faces of the Defendants' working, it is unreasonable to hold the Defendants responsible for this leakage. The learned Subordinate Judge has observed thus in his judgment:—“The evidence in this case does not show that there is any present risk of fire, water or foul gas coming to the Plaintiffs' colliery from the Defendants' colliery even if the Plaintiffs by working up to the encroached portion happen to establish connexion between the two mines. I mean that there is no present risk, on the assumption that the Defendants will work their colliery properly.” It is not necessary for our present purposes to go so far and enquire what might or might not happen if the Plaintiff Company establish a connexion between the two mines, but it is in my opinion, enough that it has been found by the learned Judge—and this is finding with which I entirely agree as being the only reasonable finding on the evidence such as it is on the record—that at present there is no risk of fire, water or foul gas coming to the Plaintiffs' colliery from the Defendants' colliery. This finding, in my opinion, is enough to put the Plaintiff Company out of Court in so far as their claim for the cost of the barrier is concerned. It is urged on behalf of the Respondents that the arrangement between the Defendants and the patnidars was that a margin was to be left of 10 bighas of land between, the Plaintiffs lands and the Defendants' lands, but I am of opinion that the Plaintiffs are not entitled to take advantage of that arrangement in the absence of any stipulation on the part of the patnidars in the leases granted to the syndicate, that such a margin would be left. It is true that in the absence of any regulation making the keeping of a barrier as between two neighbouring mines compulsory, the Plaintiffs are entitled to work right up to the limits of their lands. It is also true that rent was not to be paid for the 10 bighas of margin by the Defendants and if the Defendants worked in that region they might incur liability to the patnidar for use and occupation or perhaps for damages. But it was to the patnidars alone and not to the Plaintiff that the Defendants were answerable for the use of the margin. In my opinion the Plaintiffs, if they want to ensure the safety of their own mine, are bound to look to themselves for leaving a barrier of reasonable magnitude at the extremities. That means that they lose the quantity of coal which they cannot take if a barrier is to be left. They may still keep such a barrier if they like out of the coal that is left between the two mines. The quantity of coal they lose, if they keep such a barrier, is evidently much less than what they would have to lose if they had to keep a barrier on the east and south of their boundary at the encroached portion, the difference being that between the lengths of two sides and the hypotenuse of a right-angled triangle. I entirely dissent from the view of the learned Subordinate Judge that the Defendants are liable to pay the costs of a barrier because, as the learned Judge put it in his judgment, he cannot ask the Plaintiff to rely on the good sense and competency of the Defendants, in the farther working of their mines. I may state here also that if the Plaintiffs are entitled to have a barrier the cost awarded by the learned Judge on that head appears to be reasonable; only the form of the decree should be altered by granting a mandatory injunction on the Defendants, and providing further that if they fail to carry it out then the Plaintiffs would be entitled to recover the costs aforesaid on erecting the barrier in question.

The result then is that in my judgment if I could hold that the Plaintiffs' claim for damages was not barred by limitation I would have set aside the decree of the learned Subordinate Judge and ordered a decree to be entered in favour of the Plaintiffs granting a permanent injunction restraining the Defendants Nos. 1 to 6 from committing any further trespass underground into the Plaintiff Company's land to the west of and beyond the black line of the Amin's map in suit No. 339 of 1892 as relaid in the surface and underground plans prepared by the Commissioner in the present suit and declaring that the said plans and field book, part I, do form a part of the decree, and would have directed a further investigation with liberty to the parties to adduce such evidence as they may desire, in order to ascertain the most advantageous market-value of coal at the pits' mouth between the years 1903 and 1915 and the cost of carriage of the said coal to the bank at the most advantageous rate to the Plaintiff and then to award a decree on the lines indicated above. I would have dismissed the Plaintiffs' claim for the costs of a barrier and decreed the appeal and the Plaintiffs' cross-appeal with costs proportionate to the respective successes of the parties in this Court and also in the Court below.

In view, however, of the opinion I have formed on the question of limitation, I do not see my way to do anything else than set aside the decree of the learned Subordinate Judge except as to the permanent injunction that he has granted and dismiss the rest of the Plaintiffs' suit. Having regard to the fact that the Defendants are wrong-doers whom the law, as it stands, is unable to reach, I would not allow them any costs in this Court and would allow the decree as to costs passed by the Court below to stand as the Plaintiffs have succeeded in their main contention, namely, that as regards the position of the eastern boundary of their land both in that Court and here. The Plaintiffs' cross-appeal should also be dismissed but without any order as to costs; and the cross-appeal of the Defendant No. 7 which relates to costs not awarded to him by the Court below is similarly dismissed.

Greaves, J.:— I agree.

S.C.M