Sri Sri Raja Kalyani Prosad Singh Deo v. Borrea Coal Company Limited

The Judgment of the Court was as follows:—

1. The following facts are not in dispute in these two appeals.

2. Mouzas Salanpur, Sibdaspur and Chak Sibdaspur within Asansol Sub-Division of the Burdwan District appertain to the impartible zemindary estate known as Chakley Panchkote or Pachet. This zemindary belonged to Raja Nilmoni Singh Deo Bahadur. He died in 1898. After his death, his eldest son, Raja Hari Narayan Singh succeeded to the estate under the customary law of lineal primogeniture. He died in 1902. After his death, Raja Jyoti Prosad Singh succeeded to the estate. He died on the 29th September, 1938. After his death the Plaintiff, his eldest son, has succeeded to the estate.

3. In 1869 Raja Nilmoni Singh granted a patni of surface and underground rights in Mouza Salanpur to his son Kumar Ram Narayan Singh. In 1886 Kumar Ram Narayan Singh granted a lease of surface and underground rights in Mouza Salanpur to one Karali Prosanna Mukherjee. In the same year Karali Prosanna Mukherjee assigned his lease-hold interest to Shergarh Coal Co., Ltd. In 1891, Shergarh Coal Co., Ltd., assigned their rights to the Defendant Company. The Defendant Company ‘surrendered their rights in Mouzah Salanpur in 1932.

4. The zemindars of the Chakley Panchkote estate are the owners of the underground rights in Mouza Sibdaspur and Chak Sibdaspur. Certain persons had niskar brahmottar right to the surface of these two mouzas. Some of these brahmottardars granted a patta of the underground rights in these two mouzas in the year 1886 to one Karali Prosanna Mukherjee. Another set of brahmottardas granted a patta of the surface and underground rights in these two mousas in the year 1887 to Shergarh Coal Co., Ltd. Karali assigned his coal mining right in these two mouzas to the Shergarh Coal Co., Ltd. On the 16th February, 1891, the Shergarh Coal Co., Ltd., assigned their surface and underground rights in these two mousas to “the Defendant Company.” The Defendant Company surrendered their surface and underground rights in these two mouzas on the 28th January, 1914. The underground rights in these two mouzas did not belong to the brahmottardars of the said two mousas. The Shergarh Coal Co., Ltd., or the Defendant Company did not acquire any right to the minerals in these two mouzas on the basis of the pattas granted by the brahmottardars. Between 1891 and 1913 the Defendant Company extracted coal from the mines in these two mouzas and appropriated the same to their own use in the bona fide belief that the Company was entitled to work the mines in the two mouzas. On the 3rd November, 1938, the Plaintiff raised two suits in the Court of the Subordinate Judge at Asansol, vis., Suits Nos. 44 and 45 of 1938 for damages for the conversion by the Defendant Company of the coal taken from the mines in mouza Shibdaspur and Chak Sibdaspur respectively.

5. The defence of the Defendant Company, so far as it is relevant for the purpose of these appeals, is this:—

(1) that the Plaintiff alone is not entitled to maintain Suit No. 44 of 1938;

(2) that the Plaintiff is not entitled to maintain Suit No. 45 of 1938, as Chak Sibdaspur is, debuttar property and the Plaintiff had not brought the said suit as shebait of the said debut-tar estate;

(3) that the Plaintiff's title to the coal fields in mouza Sibdaspur and mouza Chak Sibdaspur was extinguished by the adverse possession of the Defendant Company for more than 12 years, and

(4) that the suits are barred by limitation. The trial Judge has accepted the defence of the Defendant Company and has dismissed the suits. Hence these two appeals—F. A. No. 122 and F.A No. 123 of 1941 by the Plaintiff against the decrees in Suits Nos. 44 and 45 respectively.

6. The first point for determination is whether the Plaintiff alone is entitled to maintain Suit No. 44 of 1938. This suit is for damages for conversion of coal taken from mouza Sibdaspur.

7. The zemindary right in mouza Sibdaspur appertaining to the impartible estate Chakley Panchkote has devolved upon the Plaintiff after the death of his father Raja Jyoti Prosad Singh in the year 1938 under the customary law of lineal primogeniture. Movable properties do not form an accretion to an ancestral impartible estate. It devolves on all the heirs of the deceased zemindars under the ordinary law of inheritance. [Shiba Prosad Singh v. Rani Prayag Kumari Dasi . L.R 59 I.A 331].

8. Immovable property includes land, benefits arising out of land and things attached to the earth of permanently fastened to anything attached to the earth. (Sec. 1, clause 25 of the General Clauses Act, Act I of 1897). Movable property means “property of every description except immovable property” (sec. 1, cl. 34 of the General Clauses Act, Act X of 1897).

9. Under the English law a right of action arising out of tort is a chose in action (Halsbury's Laws of England, Hailsham Edition, Vol. 4, p. 424). A chose in action is personal property (Ibid, p. 418), choses in action are subject to transfer by operation of law upon death, bankruptcy, etc. (ibid, p. 426).

10. Sec. 6 of the Transfer of Property Act by implication shows that a right of action is property. A suit for damages for conversion of coal is a suit for recovery of movable property. L.P.E Pugh v. Ashutosh Sen . L.R 56 I.A 93 and Adjai Coal Company, Ltd. v. Panna Lal Ghosh . L.R 57 I.A 144. A right to sue for damages for conversion existing in favour of a person at the time of his death survives to his legal representatives. Adjai Coal Company, Ltd. v. Panna Lal Ghosh and Bhupendra Narayan Sinha v. Chandra-moni Gupta . L.R I.L.R 53 Cal. 987 1926. and sec. 306 of the Indian Succession Act.

11. The right of the Plaintiff's father to sue for damages for conversion of coal taken from Mouza Sibdaspur, therefore, devolved after his death upon his heirs under the ordinary law of inheritance. Plaintiff's father Raja Jyoti Prosad Singh died leaving three sons. Plaintiff, therefore, is not alone entitled to maintain Suit No. 44 of 1938.

12. The contention of the Plaintiff is that in any view of the case Plaintiff is entitled to sue for the recovery of 1|3rd of the damages. The conversion took place from the year 1891 to the year 1913. This period covers the tenure of three lives; (a) Raja Nilmoni Singh from 1891 to 1898; (b) Raja Hari Narayan Singh from 1898 to 1902 and (c) Raja Jyoti Prosad Singh from 1902 to 1913. But Nilmoni had 13 sons, Raja Hari Narayan had 3 sons and Raja Jyoti Prosad had 3 sons. We are therefore, unable to accept the contention of the Plaintiff that Plaintiff alone is entitled to sue for recovery of 1|3rd of the damages in Suit No. 44 of 1938.

13. The second point for determination is whether Plaintiff is entitled to maintain Suit No. 45 of 1938. This suit is for recovery of damages for the conversion of coal taken from Chak Sibdaspur.

14. Raja Jyoti Prosad Singh executed a deed [Ex. 1 (10)] on the 11th September, 1933. From this document it appears that a mousa called Chak Sibdaspur was dedicated by him for the worship of certain idols. The receipts for the payment of minimum royalty [Exs. 9 to 9 (1) 9 (i)] show that Mouza Chak Sibdaspur is debutter property. The case of the Plaintiff is that this debutter Mouza Chak Sibdaspur is to the west of Mouza Salanpur and that the Mouza Chak Sibdaspur from which the Defendant Company extracted coal is to the east of Mouza Salanpur and is not debuttar. The plaint of Suit No. 45 of 1938 shows that the Mouza Chak Sibdaspur which is involved in that suit bears the revenue survey No. 1584 and Thana No. 27. This description of Mousa Chak Sibdaspur in the plaint exactly tallies with the description of Mousa Chak Sibdaspur as given in Item No. 24 of Schedule A of Ex. 1 (10). Mouza Chak Sibdaspur which is to the west of Salanpur has no separate revenue survey number. It is a part of Mouza Dighari which is revenue Survey No. 1587 and Thana No. 7. We, therefore, hold that Mouza Chak Sibdaspur from which coal was extracted by the Defendant Company is debutter property.

15. By Ex. 1 (10) the estate right, title, interest, property, claim and demand whatsoever both at law and in equity of Raja Jyoti Prosad of, into, out of or upon the Mousa Chak Sibdaspur or any part thereof was made debutter. The right to recover damages for conversion of coal from Chak Sibdaspur; therefore, vested in the trustee or shebait of the debutter estate.

16. According to the terms of Ex. 1 (10) Raja Jyoti Prosad was the first trustee or shebait for his life. After his death Plaintiff became the trustee or shebait. It is laid down in Ex. 1 (10) that such trustee or shebait upon becoming a trustee or shebait is to execute a declaration that he shall conform to and carry out the directions and provisions in the document and that if the trustee or shebait refuses or neglects to execute such a declaration, the next person entitled to become a trustee under the document and willing to execute such declaration shall become the trustee or shebait on executing such declaration. Plaintiff has not brought Suit No. 45 of 1938 as a trustee or shebait of the debutter estate. He has instituted the suit in his personal capacity. Plaintiff is, therefore, not entitled to maintain Suit No. 45 of 1938 in the present form.

17. In the course of the hearing of this appeal Plaintiff filed an application for amendment of the plaint in Suit No. 45 of 1938 and prayed that he might be allowed to sue as trustee. In the written statement of the Defendant Company in the trial Court it was definitely stated that Mouza Chak Sibdaspur was debutter property, that Plaintiff was appointed shebait subject to certain conditions laid down in the deed of dedication and that Plaintiff was not entitled to sue in his personal capacity. After the written statement was filed three applications for amendment of the plaint were made in the trial Court but in none of these applications Plaintiff prayed for being allowed to sue as trustee. On the other hand, he adduced evidence to show that Mouza Chak Sibdaspur from which coal was extracted by the Defendant Company was not debutter property. In the lower Court Plaintiff throughout asserted a hostile title in defiance of the trust or endowment. The amendment prayed for by the Plaintiff in this Court would introduce a totally different, new and inconsistent case. Again, it appears from the evidence of the Plaintiff that he has not yet made any declaration according to the terms of Ex. 1 (10). From the evidence on record it is not possible to say that that was not due to neglect. Plaintiff's application for amendment of the plaint is, therefore, disallowed.

18. The third point for determination is whether the Plaintiff's title to the coal fields in Mouza Sibdaspur had been extinguished by adverse possession of the Defendant Company for more: than 12 years.

19. Cases as to adverse possession of mineral rights fall to be decided under Article 144 of the Limitation Act. Once title is found or admitted to be in the zemindar he would be presumed to continue in possession until adverse possession by the trespassers is established and that whether the trespasser is the grantee of the surface or a stranger [Bhupendra Narayan Sinha v. Rajeswar Prosad Bhakat . L.R 58 I.A 228]. To constitute title by adverse possession the possession required to be proved must be adequate in continuity, in publicity and in extent. In order that possession of mineral rights be adequate in publicity the Defendant must prove that there was that to be seen on the surface which the Plain-; tiff or his predecessor being reasonably vigilant ought to have seen and so seeing would have been put on their guard although they did not have any title to the surface. [Maharaja Srischandra Nandy v. Baijnath Jugal Kishore . L.R 62 I.A 40]. As a general rule where title is founded on adverse possession the title will be limited to the area of which actual possession has been enjoyed. In the case of mines there is no presumption in law that possession of a part of a seam infers possession of the whole seam much less of all the seams in the mineral field in which part of a seam has been worked. Possession is a question of fact and the extent of possession is an inference of fact. [Nageshwar Bux Roy v. Bengal Coal Co., Ltd. . L.R 58 I.A 29].

20. It is not disputed in these two appeals that the Defendant Company worked the mines in Mouzas Sibdaspur and Chak Sibdaspur in the bona fide belief that they had acquired the underground rights in these two mouzas on the basis of the pattas granted by the brahmottardars of the two villages. Mouza Sibdaspur is partly to the north and partly to the east of Salanpur. Mouza Chak Sibdaspur is partly to the south and partly to the east of Mouza Salanpur. Mouza Bonbiri is to the east of Chak Sibdaspur and Sibdaspur.

21. From 1891 to 1913 Mouzas Salanpur, Chak Sibdaspur, Sibdaspur and Bonbiri were worked together as a big colliery and as one unit called Salanpur Colliery, (see the evidence of D.W 1 and D.W 2).

22. D.W 2 Bhupati Nath Mazumdar was the Medical Officer of the Defendant Company, the Salanpur Colliery from 1891 to 1916.

23. D.W 1 D.O’Reilly was the general assistant to the Manager of the Salanpur Colliery from 1908 to March, 1911.

24. From the evidence of D.W 2 it appears that the work in Salanpur Colliery went on continuously, day and night, publicly and never in secret from 1891 to 1913 and that no obstruction was put to the Defendant's work, during this period.

25. There was one boring in Chak Sibdaspur and two or three borings in Mouza Sibdaspur between 1891 and 1913 (see the evidence of D.W 2).

26. Four pits, namely, Pits Nos. 1 to 4 were sunk in 1891 by the Defendant Company in Mouza Salanpur (see the evidence of D, W. 2). Pit No. 1 is about the middle of Salanpur. Pit No. 2 is near the boundary between Salanpur and Chak Sibdaspur. Pit No. 3 is in the eastern side of Salanpur. Pit No. 4 is also on the eastern side of Salanpur; it is to the southwest of Pit No. 3 (see Ex. G, the working plan of Salanpur Colliery). In the Bonbiri mouza two pits, namely, Pits Nos. 5 and 6, were sunk by the Defendant Company. One pit was sunk by the Defendant Company in 1891 in Mouza Sibdaspur. (See the evidence of D.W 2),

27. In Mouza Salanpur three inclines Nos. 2, 3 and 4 were dug by the Defendant Company in the north of Mouza Salanpur. One incline, namely, No. 5 was dug in Bonbiri mouza. Incline No. 1 was previously worked as a quarry. The mouth of this incline was just on the edge of Mouza Sibdaspur (see the evidence of D.W 2 and D.W 1).

28. Between 1891 and 1913 two quarries were worked by the Defendant Company at Sibdaspur; one of these quarries was very large. (See the evidence of D.W 2).

29. There was one ventilating air-shaft in Mouza Salanpur. Another ventilating air-shaft for, ventilation of underground mines was sunk in Mouza Sibdaspur by the Defendant Company between 1891 and 1913 (see the evidence of D.W 2).

30. Dynamo house, magazine house, boilers, head-gears, tram line, tubs, workshop, offices, bungalow, Babu's quarters, coolie lines, contractor's office and quarters and electric fittings were in Mouza Salanpur. (See the evidence of P.W 2). Some coolie lines, some office-staff quarters and quarters of the Medical Officer of the colliery were in Mouza Chak Sibdaspur. . (See; the evidence of D.W 2 and D.W 1). There were alarm bells at the surface and underground with communication cords in Mousa Sibdaspur (see the evidence of D.W 2).

31. Pit No. 2 in Mouza Salanpur was well raised above the ground level. There was a head-gear, a chimney, boilers, a winding engine and a travelling tippler stage serving this pit. Pit No. 4 had its winding engine, engine house and boilers and a tall chimney. Pits Nos. 5 and 6 in Bonbiri mouza were well raised above the ground level, with their head-gear, winding engines and boilers. Incline No. 1 the mouth of which was just on the edge of Mousa Sibdas-pur was fitted with boilers and haulage engine and a tramway which ran into and through Sibdaspur. On the surface of this incline there was a tramway leading from the mouth of this incline to No. 3 pit in Salanpur. This tramway passed over Sibdaspur and Salanpur. Coal was drawn from incline No. 1 over the surface by a main and tail haulage to the unloading wharf at No. 3 pit at Salanpur (see the evidence of D.W 1).

32. There was an assisted Railway siding that passed over Sibdaspur and Chak Sibdaspur and went on to the two pits of Mousa Bonbiri where it terminated.

33. Due to depillaring operations underground, there were goaves and subsidences in Mouza Chak Sibdaspur.

34. From the evidence it is clear that from 1891 to 1913 Mousas Salanpur, Bonbiri, Chak Sibdaspur and Sibdaspur were worked together as a single colliery known as Salanpur Colliery. The minerals underlying these four mousas have been treated by the Defendant Company as constituting a defined unit as much as the surface overlying them. Workings in this defined unit have been continuously carried on by the Defendant Company for more than 12 years. The acting of the Defendant Company throughout this period was consistent with the assertion of a right to the minerals in these four villages to which they thought that they had the right. The way in which the Defendant Company carried on mining operations in the different parts of the whole area proves that the Defendant Company was in possession of the whole) mine field including the mining field in Mousa Sibdaspur and Chak Sibdaspur. There was no concealment on the part of the Defendant Company. They acted openly as persons in possession not only of the pits in Salanpur and Bonbiri but of the mineral field underlying the four villages as a whole and as entitled to sink pits anywhere in the four villages they chose. Their workings were not challenged by the predecessor of the Plaintiff. They worked in the bond fide belief that they were entitled to work the minerals anywhere in the four villages on the basis of the assignment from the Shergarh Coal Company, Ltd.

35. Having regard to the evidence and the whole circumstances we are of opinion that the possession of the Defendant Company from 1891 to 1913 was effective possession of the mineral field underlying Mouzas Sibdaspur and Chak Sibdaspur. We, therefore, hold that the Defendant Company acquired title by adverse possession to the whole mineral field underlying Mousas Sibdaspur and Chak Sibdaspur before they surrendered their rights in these mousas in 1914.

36. The last point for determination in these two appeals is whether the Plaintiff's suits are barred by limitation.

37. These two suits are suits for damages for the conversion by the Defendant Company of specific movable property, vis., coal wrongfully extracted from the Plaintiff's mine and sold or otherwise disposed of by the Defendant Company to their own use. It has been held in the case of L.P.E Pugh v. Ashutosh Sen, that Article 48 of the Indian Limitation Act applies to all conversions whether dishonest or not. Under that Article the limitation of three years begins to run when the person having the right to possession of the property first learns in whose possession it is.

38. The Plaintiff's case is that his father came to know of the conversions for the first time in June, 1938. The present suits were filed on the 3rd November, 1938. If the Plaintiff's case is true then the suits are within time.

39. In the case of Srish Chandra Nandy v. Ramji Bochai Das . A.I.R [1936] Pat. 179. and in the case of Sundarji Shivji v. Secretary Of State For India* . I.L.R 13 Pat. 752 1934., the Patna High Court has held that the onus is upon the Defendant to prove that the knowledge of the Plaintiff was beyond three years. The Bombay High Court, however, in the case of the Bank of Bombay v. Fazul Bhoy Ebrahim . 24 Bom. L.R 513 1922. has held that when the Defendant pleads limitation it is for the Plaintiff to prove the facts which would bring the claim within the time prescribed by Article 48 of the Indian Limitation Act. The general rule is that where-ever the plea of limitation is raised by the Defendant, it is for the Plaintiff to show prima, facie that the cause of action is not barred by limitation, Mahomed Ibrahim v. M.B Morrison . I.L.R 5 Cal. 36 1878.. In the case of [Sri Krishan Pandey v. Ghana Nand Joshi . A.I.R [1929] All. 729.], the Allahabad High Court has held that the burden is on the Plaintiff to lead evidence prima facie at any rate establishing the date of his knowledge.

40. The burden of proof rests upon the party who substantially asserts the affirmative of the issue. (Halsbury's Laws of England, Hail sham Edition, Volume XIII, p. 542). The burden of proof in a suit lies on that person who would fail if no evidence at all were given on either side (see sec. 102 of the Indian Evidence Act). The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. (See sec. 103 of the Indian Evidence Act). When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. (See sec. 106 of the Indian Evidence Act).

41. We are of opinion that the onus is upon the Plaintiff in these suits to prove that the knowledge of his father was within three years of the suit. In support of his case, the Plaintiff has examined Karali (P.W 4) and another witness Rajendra Lal Mitra (P.W 1).

42. P.W 1 is the Head Law Clerk of the Panchkote Estate in its colliery department. He in his examination-in-chief said:

“The Plaintiff's father came to know in June, 1938, that the Defendant Company cut and took away coal tram the collieries in these two mouzas through the colliery at Salanpur. The Plaintiff's father was told this in any presence by one Karali Prosad Chakra-verty who was and still is a surveyor to the estate.”

43. In his cross-examination he said:

“About the end of May, 1938, when the Raja directed Karali to make enquiries, the Raja was at Cossipore and the direction was issued at Cossipore. Karali said nothing at that time. Karali made no written report about the result of his enquiry. He only made a verbal report. That was about the middle of June, 1938. Karali told the Raja that Borrea Coal Co. had, through Salanpur, cut coal from Sibdaspur, Chak Sibdaspur and Chowka and were still doing so. Karali told the Baja he had personally seen the Company still to cut coal from these three areas through Salanpur Baja as he heard the report, at once ordered me to arrange suing the Defendant Company. No other enquiry was made besides that was done by Karali.”

44. Karali (P.W 4) is the surveyor of the Panchkote Estate. He in his evidence said:

“I visited all those mouzas towards the end of June, 1938. I did so under the Raja's orders to see if the Defendant Company had cut coals of the mouzas Sibdaspur, Chak Sibdaspur and Chowka through the underground working of Mouza Salanpur. I proceeded to the work 2 or 3 days after I had the Raja's orders. I first went to Salanpur and noticed on the surface some old inclines and old pits as also some old structures that looked like office houses and coolie Dhowras but there were no inhabitants there. I then proceeded to Sibdaspur and noticed in the surface, one or two old quarries as also a new quarry which seemed to me to having been worked. I then went to Chak Sibdaspur. There I could find no pits, inclines or quarries. Then I went to Chowka. There I found 2 or 3 ditches filled with water but could understand nothing what they indicated.

From the surface, thus, I could gather nothing that any work was going on in any of the collieries there. I then left for home.

The next morning I saw one Badhanath Puitandi of my village, Ethora. I did go there as I heard he was lying ill. He was formerly the raising contractor of Salanpur under the Defendant Company. I spoke to him of the Raja's orders to me in connection with the reported acts of the Defendant Company and I enquired of him if he knew anything of the matter. The reply I had from him, I reported to the Raja, I made no other enquiries.

I reported to the Baja that I had heard from Radhanath Puitandi that the Defendant Company had cut coals from Sibdaspur, Chak Sibdaspur and Chowka and were still in the act of doing so.

What I reported to the Baja was what I had heard from Radhanath.”

45. Ex. X, a kobala executed by the son of Radhanath after his death shows that Radhanath died before 18th April, 1938. D.W 4 in his evidence said that Radhanath died in Asar, Sravan, 1344 (June, 1937). Ex. W, the death certificate of Radhanath shows that Radhanath died on the 23rd of June, 1937. The evidence of Karali that he came to know from Radhanath towards the end of June, 1938, that the Defendant Company had cut coals from Mouzas, Sibdaspur and Chak Sibdaspur is, therefore, false. The trial Judge has disbelieved the evidence of P.W 1 and P.W 4 and we see no reason to believe them. Plaintiff, therefore, has failed to prove by any reliable evidence that his father came to know for the first time in June, 1938, that the Defendant Company had cut coal from Mouzas Sibdaspur and Chak Sibdaspur.

46. We will now proceed to deal with the question of limitation on the footing that the onus is not on the Plaintiff and that the burden of proving that the knowledge of the Plaintiff's father; was beyond three years is entirely upon the Defendant Company.

47. While dealing with the question of adverse possession we have mentioned the manifestations on the surface of Mouzas Sibdaspur and Chak Sibdaspur which indicate that the coal underneath those two mouzas was cut by the Defendant Company in the course of the working of the Salanpur Colliery from 1891 to 1913.

48. From the evidence of D.W 2 it appears that in the year 1892 there was a joint survey in the Mouzas Salanpur, Sibdaspur, Chak Sibdaspur, Khudka, Rampur and Bonbiri and that Madhusudan Dutt, Surveyor of the Panchkote Raj, was one of the surveyors. His evidence further shows that two or three boundary pillars demarcating Sibdaspur and Chak Sibdaspur were put in 1892.

49. Tarini Prosad Roy was the contractor for raising coal from quarry No. 1 in Sibdaspur from 1891–1893. He was also the Manager of the Panchkote Estate during this period. He used to pay visits to the colliery twice a year (see the evidence of D.W 2), There cannot be any doubt, therefore, that he knew that Sibdaspur was being worked.

50. The evidence of D.W 2 is that Raja Hari Narayan Singh, father of Raja Jyoti Prosad Singh and Raja Jyoti Prosad Singh passed through Salanpur in 1900 and in 1905 respectively.

51. In 1915 Abinash Chandra Roy, Manager of the Panchkote Estate visited Salanpur Colliery (see the evidence of D.W 2).

52. Mouza Rampur is to the south and south-west of Salanpur. Mouza Gopalpur is contiguous to Salanpur and Sibdaspur. Chowka is immediately to the south of Chak Sibdaspur. Between 1919 and 1921 Raja Jyoti Prosad Singh granted mining leases in respect of Mouzas Rampur, Chowka and Gopalpur. (See Exs. H|11, H|10 and H|12). The royalty to be paid by the lessees of these mouzas must have been fixed after underground measurement by the surveyor of the Panchkote Raj (see the evidence of P.W 6). It is reasonable to assume that the officers of the Raja were inspecting the account books and plans of the lessees of the adjoining mouzas while they were being worked on the basis of these leases.

53. Bepin Behari Ghose, one of the witnesses for the Defendant Company worked the mines in Sibdaspur and Chak Sibdaspur from 1917 to 1927 on the basis of an amalnama and a patta (Ex. H| 12) granted by the brahmottardars of the said two villages. In Ex. H|12 it is stated that the Defendant Company sank pits, raised; coal and carried on colliery business in the two mouzas for more than 12 years. Bepin obtained the amalnama in the year 1916 and tried to clear up the pits in Mouza Sibdaspur. He worked two quarries and one incline in Sibdaspur and Chak Sibdaspur in the year 1918.

54. C.S operations in this area took place from 1919–1921.

55. The settlement map of Mouza Salanpur is Ex. P. It comprises Gopalpur, Salanpur, Sib daspur, Chak Sibdaspur and Chowka. This map shows in Mouza Sibdaspur c. s. 1235 as an en trance to a mine, c, s. 1246, 1258, 1261 as coal pits and c. s. 1267, 1304 and 1305 as abandoned pits. The finally published record—of-rights of Mouza Sibdaspur (Exs. 0-85 and 0-86) shows that c. s. 1245 is a well used by the public, c. s. 1256, 1258 and 1261 are coal pits and c. s. 1267 and 1305 are abandoned coal pits.

56. During the c. s. operations the sherista of the Panchkote estate had a settlement department. P.W 1 was the only supervisor-in-charge of the settlement operation in respect of all the properties of the Raja within the Asansol Sub-Division. Bepin's evidence is that during the c. s. operations P.W 1 and Raja's Manager Dakhina Babu visited the Sibdaspur colliery, that P.W 1 enquired of him as to from whom he had taken settlement of Sibdaspur colliery and that he had informed him that he had taken settlement from the brahmottardars of village Sibdaspur and Chak Sibdaspur. Raja Jyoti Prosad filed objections before the Revenue Officer during the settlement operations under sec. 103A of the Bengal Tenancy Act for correction of certain enquiries in the draft record-of-rights in Mouza Sibdaspur and Chak Sibdaspur (Exs. S and S-l). These objections were dismissed. The Raja could not have filed the objections under sec. 103A of the Bengal Tenancy Act unless he had in his possession the draft record-of-rights. P.W 1 in his evidence says:—

“The settlement plan was in our office. We had it shortly before the final publication of the record-of-rights in 1921, 192.2 or 1923.”

57. There cannot be any doubt, therefore, that Raja Jyoti Prosad Singh and his officers during the settlement operations knew that Mouza Sibdaspur had been worked as a colliery before Bepin's time.

58. On the 18th July, 1934, Raja Jyoti Prosad settled’ the underground coal rights in Mouza Sibdaspur with one Jagabandhu Tewari by Exs. 1-5. In the Schedule of this document, the property demised was described as coal land and coal pit. In Exs. 1-5 it is stated:

“Be it known that after careful consideration of the area of this coal land under settlement and the seam and bed of coal and the distance of the Railway siding and after taking it into consideration that it is not possible that more than 1,200 tons of coal will be raised annually from the lands under settlement the maximum royalty for the said 1,200 tons is fixed at Rs. 300 at the rate of four annas per ton.”

59. The statement in Exs. 1-5 that it is not possible to raise more than 1200 tons of coal annually could not have been made unless previous to the settlement the Raja had made a survey of the minerals underneath the mouza. P.W 6 in his evidence said:—

“There is a single surveyor in the colliery depart ment, Karali Charan Chakravarty (P.W 1). His duty is to make underground measurement to find out what royalty has to be fixed.”

60. From the recitals in Exs. 1-5 mentioned above it is clear that before the settlement with Jagabandhu Tewari, Raja Jyoti Prosad knew that the mouza had been previously worked. On the 25th August, 1936, Prafulla Kumar Ghose, Pleader pf the Panchkote Raj Estate, wrote a letter (Ex. V-5) to Jagabandhu Tewari drawing the attention of Tewari to the breaches of clauses XI, XIV XV, XX, XXI, XXII and XXIV of the lease (Exs. 1-5). Raja Jyoti Prosad could not have made the complaint about the breaches of clauses XIV, XV and XXIV unless there had been a previous inspection of the colliery by such officers. From the above facts and circumstances and the absence of any reliable evidence to show that the Plaintiff's father came to know of the conversion of the coal by the Defendant Company in June, 1938, that reasonable inference is that the knowledge of the Plaintiff's father about the conversion of the coal by the Defendant Company from Mouzas Sibdaspur and Chak Sibdaspur was beyond three years of the suits. The Plaintiff's suits, therefore, are barred by limitation.

61. The result, therefore, is that the appeals are dismissed with costs to the Defendant Company. There will be, however, only one hearing-fee in the two appeals.

S.C.S