Chatterji, J.:— These four appeals arise out of a partition suit instituted on the 22nd December, 1937, in the Court of the Additional Subordinate Judge at Hazaribagh. The three First Appeals are from the preliminary decree, appeal no. 112 being by defendant no. 4, no. 119 by defendants nos. 7, 13, 14 and 16 and no. 132 by defendant no. 1. The Miscellaneous Appeal is by the plaintiff and is directed against an order passed after the preliminary decree allowing the application of a subsequent lessee from the plaintiff to be added as a co-plaintiff.

The properties sought to be partitioned are 33 villages, which are described in Schedule A attached to the plaint. The plaintiff claims partition of his 3 annas 3 pies share in the first 32 villages and 4 annas share in the thirty-third village named Ramdih. To trace the title of the plaintiff to these shares, it will be necessary to refer to the following genealogy:—

Admittedly 13 annas share in the first 32 villages and the entire village Ramdih belonged to Musammat Lalo Kuar and, after her death, devolved on her four grandsons in equal shares, her son Todal Narain having predeceased her. Thus each of the sons of Todal Narain had 3 annas 3 pies share in the first 32 villages and 4 annas in village Ramdih. All these 33 villages of which the first is Musnodih are comprised in Mahal Gadi Musnodih bearing tauzi no. 32. Gadi Musnodih also consists of another village Bansberia, but admittedly Musammat. Lalo Kuer or her son or grandsons had no interest in this village. In 1908 Baijnath mortgaged, among other properties, 3 annas 3 pies out of 16 annas milkiat interest in village Gadi Musnodih together with the tolas of the said gadi, original with dependencies; 4 annas milkiat interest in village Ramdih appertaining to gadi Musnodih, original with dependencies “to one Bodh Narain for Rs. 4,000. After Bodh Narain's death his sons, Harballabh Narain and two others, and his grandsons obtained a mortgage decree in 1932 on the basis of that mortgage, and in execution of that decree they purchased the mortgaged properties on the 14th August, 1935. By a sale deed dated the 17th February, 1937, they conveyed to the plaintiff “3 annas 3 pies proprietary interest out of 16 annas in Gadi Musnodih including the tolas appertaining to the same, original with dependencies”, and “4 annas proprietary interest in mauza Ramdih appertaining to Gadi Musnodih, original with dependencies”, together with another property, for a consideration of Rs. 18,000. It is by virtue of this sale deed that the plaintiff claims 3 annas 3 pies in the first 32 villages and 4 annas in village Ramdih, described in the Schedule to the plaint. The plaintiff's case is that 3 annas 3 pies share in the first 32 villages is comprised in 3 annas 3 pies share in Mahal Gadi Musnodih.

Admittedly there are mica mines in some, if not all of the said villages. The dispute between the parties mainly relates to the mining areas.

There are several sets of defendants. Defendant no. 1 is the biggest co-sharer said to have 5 annas share. He filed a written statement asserting that there should be a partition of the disputed villages. The suit was contested mainly by defendant no. 4, defendant no. 7, defendants nos. 13 to 15 and defendant no. 16.

Defendant no. 4 is the Traders and Miners, Ltd., having their principal place of business at Musnodih. Their defence, so far as it is material to this appeal, may be briefly stated as follows: The plaintiff by his purchase acquired 3 annas 3 pies share in village Musnodih only and not in Mahal Gadi Musnodih, because the mortgage by Baijnath in favour of Bodh Narain was in respect of 3 annas 3 pies in village Musnodih only, and not in Mahal Gadi Musnodih. Tufani Singh defendant no. 5 had 6 pies ancestral share in Gadi Musnodih. Besides, he acquired under a hukumnama dated the 11th Asarah 1294 Fasli (16th June, 1887) granted by Musammat Lalo Kuer, a right to dig and take mica throughout the Gadi with 105 kudalis (spades) and 105 rejas (male labourers) and 105 rejis (female labourers). Since then Tufani Singh was all along exercising this right which may be called kudali right, and in exercise of this right he opened several mines in some of the villages in dispute. In 1909 Kali Prasad, Gopinath and Baijnath, the three younger sons of Toplal Narain, brought a suit (Title Suit no. 178 of 1909) in the Court of the Additional Subordinate Judge at Hazaribagh against Tufani Singh and others, praying for a declaration that the said hukumnama dated the 11th Asarah 1294 granted by Musammat Lalo Kuer did not confer any right on Tufani Singh, and for khas possession of certain mines. The suit was dismissed on the 15th March, 1912, on the finding that Tufani Singh had acquired a permanent right to work mica with 105 kudalis by adverse claim and possession on the strength of the hukumnama. This decision operates as res judicata against the plaintiff. Tufani Singh continued to exercise his kudali right openly and to the knowledge of the plaintiff's predecessors-in-interest and their co-sharers. By a sale deed, dated the 16th May, 1934, Tufani Singh sold to defendant no. 4 his 6 pies ancestral share in Gadi Musnodih together with the kudali right and also the mines specified in. Schedule A attached to their written statement. Defendant no. 4 also purchased, subsequent to the institution of this suit, 4 annas share in village Ramdih and 3 annas 9 pies share in Gadi Musnodih from the original defendant no. 2, F.E Chrestien, who had purchased Inder Narain's 3 annas 3 pies share in Gadi Musnodih and 4 annas share in village Ramdih in execution of a mortgage decree and also 6 pies share of another co-sharer of Gadi Musnodih. Thus the defendant no. 4 acquired 4 annas 3 pies share in Gadi Musnodih and 4 annas share in, village Ramdih and also the kudali right that belonged to Tufani Singh together with the mines mentioned in Schedule A of the written statement. Since their purchase, they have been exercising the kudali right and have been in possession of the mines mentioned in Schedule A of the written statement openly and adversely to the other co-sharers. They acquired exclusive right to these mines.

Defendant no. 7 is the wife of Ganga Singh defendant no. 6, who is the brother of Tufani Singh defendant no. 5. The written statement of defendant no. 7 contains, in particular, the following allegations: In 1914 Baijnath sold his interest in the disputed villages to Tufani Singh and Ganga Singh. On the 18th March, 1934, Ganga Singh executed a registered deed of gift in favour of defendant no. 7 in respect of 6 pies share in the entire Gadi Musnodih. Since then she has been in possession and working mica mines appertaining to her share which are mentioned in Schedule A attached to her written statement. There is an usage in the disputed Gadi that the particular co-sharer who opens and develops a mine is entitled to retain it for ever, while the other co-sharers are at liberty to prospect for new mines but are not entitled to a share of the mine already opened and developed by that co-sharer.

Defendants 13, 14 and 16 adopted the written statement filed by defendant no. 7. Defendant no. 16 in his written statement alleged that he has got 2 pies share in the disputed properties. Defendants 13 and 14, who jointly with defendant no. 15 filed a separate written statement, did not mention their share.

The learned Subordinate Judge who tried the suit held that the plaintiff by his purchase acquired title to 4 annas share in village Ramdih and 3 annas 3 pies share in the remaining 32 villages in dispute, that the decision in Title Suit no. 178 of 1909 does not operate as res judicata against the plaintiff, that the hukumnama dated the 11th Asarah 1294, though it is a genuine document, cannot operate as a valid lease or grant because it is unregistered, that Tufani Singh, however, acquired the kudali right in question under section 26 of the Limitation Act by peaceable and open enjoyment without interruption for more than twenty years as of right and as an easement, that the kudali right is transferable but by virtue of such right, defendant no. 4 would not be entitled to retain permanently exclusive possession over the mines worked in exercise of such right, that there is no usage in the Gadi, nor was there any implied agreement or arrangement among the proprietors by which a mine opened by one co-sharer would become his exclusive property, and that the plaintiff is entitled to get a decree for partition of the shares claimed by him. The learned Subordinate Judge overruled the other defences raised. Accordingly he decreed the suit on the 27th May, 1939, with the following directions:—

“In effecting the partition, as far as practicable, present possession over mines should be maintained, but not at the cost of compactness of takhtas or pattis. The partition should be effected after a thorough prospecting of the whole area for mica and other minerals, and after valuation of the mica fields and other mines, if there be any as far as possible. So far as practicable each party should have its proportionate share of the mines according to valuation. If any mine which has been developed within a year or two by a party at considerable cost has to be allotted to another party, the latter party should be made liable to compensate the former party adequately. So far as practicable the plaintiff should be awarded his proportionate share of the mines out of those at Puto, Ekbanwa, Jorasimar and Tilaiya Tanr which are lying idle because they have been kept attached under section 146, Criminal Procedure Code. Those parties of defendants whose shares will not be disputed, or will be satisfactorily proved may be given separate patties if they so desire.”

From this decree defendant no. 1, defendant no. 4 and defendants nos. 7, 13, 14 and 16 have preferred three appeals, as already stated. In appeal no. 119, that is, the appeal preferred by defendants 7, 13, 14 and 16 the plaintiff has filed a cross-objection.

Shortly after this decree, that is, on the 13th June, 1939, the plaintiff executed a registered lease in respect of his shares in favour of one Samal Ram Surekha. A pleader commissioner was appointed to effect partition as directed in the decree. While the partition proceedings were going on, Samal Ram Surekha filed an application on the 18th January, 1941, apparently under Order XXII, rule 10, Code of Civil Procedure, praying that he might be added as a co-plaintiff in the suit. This application was opposed by the plaintiff mainly on the ground that the applicant Samal Ram did not comply with the terms of the lease granted to him. The learned Subordinate Judge, however, by his order dated the 11th August, 1941, granted the application and directed that Samal Ram be added as a co-plaintiff. From this order the plaintiff has preferred the Miscellaneous Appeal.

I shall first dispose of this Miscellaneous Appeal. The order complained of was apparently passed under Order XXII rule 10 of the Code of Civil Procedure, and therefore it is appealable. It has been argued by Mr. P.R Das for the appellant that there being a dispute as to whether the terms of the lease granted to Samal Ram have been complied with, the dispute cannot be decided in this partition suit, and therefore Samal Ram cannot be added as a co-plaintiff. There is much force in this contention. But, on the other hand, there is a registered lease in favour of Samal Ram, and the learned Subordinate Judge has pointed out that

“in view of the recent developments the applicant's interest as a lessee does not seem to be safe in the hands of the plaintiff”.

In the circumstances, I think the best course will be to add Samal Ram as a co-plaintiff on the distinct understanding that this will not prejudice the rights of the plaintiff in any way whatsoever Subject to this reservation, I would maintain the order of the learned Subordinate Judge and dismiss the Miscellaneous Appeal. There will be no order as to costs.

I shall now deal with the First Appeals.

F.A 112 of 1939.

This appeal, as I have already stated, is by defendant no. 4. The first point raised by Mr. B.C De for the appellant is that the plaintiff by his purchase of 3 annas 3 pies share in Gadi Musnodih acquired title to 3 annas 3 pies in village Musnodih only and not in the remaining 31 villages in dispute appertaining to 3 annas 3 pies share in Mahal Gadi Musnodih. Much stress has been laid on the description given in the mortgage bond Exhibit 15 in which the word “village” appears before “Gadi Musnodih”, and particularly on the schedule at the foot of the document in which the names of the various villages including “village Gadi Musnodih” are mentioned below the heading “Name of village and pargana”. But the description clearly shows that “tolas of the said gadi, original with dependencies” were included. It is significant that the village Ramdih is mentioned separately and is described as “appertaining to Gadi Musnodih”. This shows that “Gadi Musnodih” is not the same as village Musnodih. The expression “Gadi” signifies that it is a Mahal. Much importance, therefore, cannot be attached to the word “village” used before “Gadi Musnodih”. The words “together with the tolas of the said Gadi, original with dependencies “are sufficiently wide to include the villages comprised in Mahal Gadi Musnodih. It has been suggested that if this were so, there was no need of mentioning the village Ramdih separately. But the mortgagor had 4 annas share in village Ramdih as against 3 annas 3 pies in the other villages in Gadi Musnodih, and therefore for the sake of convenience and clearness village Ramdih was mentioned separately.” It is important to observe that in the final mortgage decree Exhibit 17 the word “village” is not to be found before “Gadi Musnodih” in item no. 10 of the schedule of the mortgaged properties which refers to 3 annas 3 pies share in Gadi Musnodih. In paragraph 3 of the written statement of defendant no. 4 there is the following significant statement:—

“This defendant is informed and believes that only the share in village Musnodih and not the entire Gadi was mortgaged but the plaintiff in that suit fraudulently included other villages in the Gadi”.

There is a similar statement in paragraph 8 of the written statement of defendant no. 7:

“The defendant is informed and she believes that only the share in village Musnodih (and not in Gadi Musnodih) was mortgaged with the plaintiff's predeces-sor-in-interest, but the plaintiffs of Mortgage Suit no. 61 of 1923 fraudulently included all the other villages of Gadi Musnodih in the suit and obtained a decree accordingly.”

It is, therefore, obvious that all the parties concerned knew that the plaintiffs in the mortgage suit obtained a decree not merely in respect of 3 annas 3 pies in village Musnodih but also in respect of 3 annas 3 pies share in the other villages. The sale certificate Exhibit 13 also gives the same description as the mortgage decree (see inventory no. 10). The sale certificate is a document of title and is the best evidence to prove what was actually sold. In Ramabhadra Naidu v. Kadiriyasami Naicker their Lordships of the Privy Council held “Where upon a sale under a mortgage decree the purchaser has been given a sale certificate which plainly includes certain property and has been put into possession, it is not open to the Court in a subsequent suit by the mortgagor's representative to hold by reference back to the mortgage deed that the property in question was not sold under, the decree”. It is worth noticing that 3 annas 3 pies share in Gadi Musnodih (inventory no. 10 of the sale certificate) was sold for Rs. 25,000 subject to an encumbrance of Rs. 36,519. It has not been suggested that 3 annas 3 pies of village Musnodih only could have been sold for such a large amount. If the sale certificate covered 3 annas 3 pies share merely in village Musnodih and not in Gadi Musnodih, the title to the 3 annas 3 pies share in the remaining 31 of the first 32 villages in dispute would be with Tufani Singh defendant no. 5 and his brother Ganga Singh defendant no. 6, because in 1914 they had purchased the mortgagor Baijnath's 3 annas 3 pies share in Gadi Musnodih and 4 annas share in village Ramdih. They did not convey these shares to defendant no. 4 by the sale deed dated the 16th May, 1934. They would, therefore, be most vitally interested in challenging the plaintiff's title to 3 annas 3 pies share in the remaining 31 villages in question. But it is significant that they did not file any written statement or contest the suit. I therefore agree with the learned Subordinate Judge that the plaintiff by his purchase acquired title to 3 annas 3 pies share in all the first 32 villages mentioned in the schedule to the plaint.

The next point argued by Mr. B.C De is that Tufani Singh acquired a valid title under the hukumnama Exhibit D-III dated the 16th June, 1887. The learned Subordinate Judge's finding that this document is genuine has not been disputed by Mr. P.R Das for the plaintiff-respondent. The reason why the learned Subordinate Judge has held that this document is not valid is that it is unregistered. This view has not been controverted by Mr. B.C De. His contention, however, is that the hukumnama is operative as against that plaintiff and other co-sharers claiming through Musammat Laip Kuer by virtue of the provision of section 531 of the Transfer of Property Act which, though enacted in 1929, has been held by tills Court to have retrospective effect [see Madan Mohan Das Babaji v. Srinivas Prasad Pandey]. But in order that this section may apply, the first condition to be satisfied is that any person contracts to transfer for consideration any immoveable property”. Unquestionably the hukumnama was for consideration, because it shows that Rs. 500 was paid as salami. The question that arises is whether by the hukumnama Musammat Lalo Kuer contracted to transfer any immoveable property. What was granted by the hukumnama was the right to dig mica mines with 105 kudalis and to appropriate the mica. In the General Clauses Act “immoveable property” is defined as follows:

“immoveable property shall include land, benefits to arise out of land, and things attached to the earth”

It is said that the right to dig and take minerals comes within “benefits to arise out of land”, and is therefore immoveable property according to this definition. Assuming that this is so, still the question remains whether the hukumnama amounts to “transfer” within the meaning of section 534. In section 5 of the Transfer of Property Act “Transfer of Property” is defined. According to that definition “Transfer of Property” means an act by which a living person conveys property. The word “convey” suggests that the transferor parts with his right in the property in favour of the transferee. This view is in no way inconsistent with a lease, because in the case of a lease the lessor parts with his right to enjoy the property in favour of the lessee. If the lessor retains a right to enjoy the property, there is no lease, as defined in section 105 of the Transfer of Property Act. The hukumnama was no doubt a grant, but the grant was of a partial and limited interest. Musammat Lalo Kuer still retained the right to use and enjoy the mines. The hukumnama, therefore, cannot be regarded as a lease. Some stress has been laid on the words “the permanent settlement of the lakhraj” in the hukumnama, and it has been suggested that these words indicate that a permanent rent-free lease was intended to be given. Reading the document as a whole, it seems to me that it was a permanent grant of a right of the nature of an easement. Such grant does not, in my opinion, constitute a transfer within the meaning of the Transfer of Property Act. In S.N Banerji v. The Kuchwar Lime and Stone Co. Ltd., decided by, the Privy Council, Lord Atkin, who delivered the opinion of the Board, observed: “Now whether section 534 applies at all to an agreement to transfer a partial interest in property such as a right to win minerals or cut timber or the like is a question which on this occasion it is not necessary to determine. It is at least possible that it only applies to an agreement to sell or otherwise dispose of the entirety of a piece of real property”. These observations would indicate that their Lordships doubted if section 534 would apply, unless there was a contract to “dispose of the entirety of a piece of real property”. In my view, it is difficult to hold that the hukumnama may be brought within the purview of section 53A.

The next point argued by Mr. B.C De is that Tufani Singh and, therefore, defendant no. 4, being transferee from him, acquired a title by adverse possession to the mines opened and worked by Tufani in exercise of the kudali right, that is to say, the mines mentioned in Schedule A in the written statement of defendant no. 4. The learned Subordinate Judge has held that though Tufani acquired the kudali right as an easement under section 26 of the Limitation Act, lie did not acquire exclusive right by adverse possession to any mine worked in such right. He has also held that though defendant no. 4 acquired the kudali right by transfer from Tufani, defendant no. 4 would not be entitled to retain exclusive possession of the mines worked in exercise of such right. Whether Tufani could acquire this right as an easement and whether such right was transferable have been disputed by Mr. P.R Das, but I shall assume for the moment that the Subordinate Judge's decision on these points is correct.

An easement, as defined in section 2(5) of the Indian Limitation Act, includes rights known as profits á prendre. But such rights do not exclude the owner of the land from using it, though his user will be subject to such rights. An easement, from its very nature, does not confer any right to the land. Easement and ownership are two quite distinct and mutually inconsistent rights. It is inconceivable that a person who exercises a right as an easement over the land of another may acquire title to the land by adverse possession. Adverse possession necessarily implies that the rightful owner is excluded. Tufani Singh may have opened and worked some mines in exercise of his kudali right, but that right was very limited. He was entitled to the minerals actually worked in exercise of his kudali right, but the right to the yet anworked minerals always remained with the owner. His possession was certainly not exclusive and could not therefore be adverse to the owner of the soil.

It has been argued that when Tufani opened any new mine and extracted mica from a portion of it, his acts amounted to an open assertion of his exclusive right to the entire mine. In support of this argument reliance has been placed on the Privy Council decision in Nageswar Bux Roy v. Bengal Coal Company, Ltd.. In that case the plaintiff's ancestor as zemindar had granted a village on jamabrit tenure to certain persons in 178.9 The successors of the grantees in turn granted in 1855 a mokarrari lease of the village to the Bengal Coal Company Ltd. with an express right to work the coal lying under the village. The Company openly carried on mining operations in various parts of the village for a very long period in the belief that they were entitled to the subjacent minerals. In 1919 the plaintiff sued the Company claiming the minerals under the village. The defence of the Company was that they had title to the minerals by virtue of the lease of 1855—and also by adverse possession. Their Lordships of the Privy Council negatived their claim, so far as it was based on the lease, because their lessors themselves had no title to the minerals, there being no express words in the grant of 1789 by the zemindar to convey the mineral rights. With regard to State by adverse possession, it was contented before their Lordships on behalf of the plaintiff that the defendant Company acquired by adverse possession title only to that particular area of coal of which they were in actual physical possession for the requisite period, and no more. Their Lordships rejected this contention, being of opinion that the circumstances of the case justified the conclusion that “the possession had by the Company for a period of at least twelve years during their occupation was effective possession not only of the surface of the village but of the whole mineral field underlying it, and that for such period the plaintiff has been dispossessed of the whole mineral field”. Their Lordships referred to the mining operations carried on by the defendant Company and said “The actings of the Coal Company have throughout, indeed, been consistent only with the assertion of a right to the minerals under the whole village to which they thought they had right”. The facts of this case have no resemblance to those of the present. Here Tufani opened and worked mines in exercise of his limited kudali right—a right which did not exclude the proprietors from working the mines. The proprietors had no reason to suppose that the working of mines by Tufani was in denial of their right. It cannot, therefore, be said that Tufani acquired title by adverse possession to the mines opened and worked by him.

Much reliance has been placed on the plaint Exhibit E-III and the judgment Exhibit G-III in Title Suit no. 178 of 1909 which was brought by the three younger sons of Todal Narayan together with another person, said to be their lessee, against Tufani Singh and 12 others for a declaration that the defendants nos. 1 to 4 had no right to dig and work mica mines in Gadi Musnodih and that the hukumnama dated 11th Asarh 1294 was fraudulent, invalid and inoperative, and for recovery of possession of the mines after evicting defendants 1 to 4. There was also a prayer for permanent injunction to restrain defendants 1 to 4 from interfering with the plaintiff's possession. Tufani Singh was defendant no. 1. Todal. Narayan's eldest son Inder Narayan was impleaded as defendant no. 4 and his (Inder Narayan's) two wives as defendants 2 and 3 on the allegation that Inder Narayan, who had leased out his 3 annas 3 pies share in Gadi Musnodih to the defendant no. 5 F.E Chrestien, entered into a collusive agreement of partnership dated the 31st January, 1907, with Tufani with respect to the kudali right said to have been acquired by the latter under the hukumnama dated 11th Asarh 1294. In the partnership deed, however, Inder Narayan caused the names of his two wives, defendants nos. 2 and 3, to be entered instead of his own name. The remaining co-sharers of Gadi Musnodih, having 3 annas share, were impleaded as defendants 6 to 13. But their share as well as the, 3 annas 3 pies share of Inder Narayan were in the possession of F.E Chrestien, defendant no. 5, as lessee. The judgment Exhibit G-III shows that the suit was dismissed on the finding that

“the defendants have acquired by adverse possession the underground right to dig mines and take mica to the extent stated by them”.

The learned Subordinate Judge has held—and his finding has not disputed, that this judgment does not operate as res judicata against the plaintiff, because the mortgage by Baijnath to Bodh Narain which forms the basis of the plaintiff's title was prior to that suit of 1909. The judgment, however, is evidence under section 13 of the Evidence Act of the fact that the right asserted by the defendants in that suit was recognised. The main contesting defendant in that suit was Tufani whose written statement Exhibit D-I shows that he asserted that assuming that the hukumnama was invalid, he

“acquired a legal right to work mines in Gadi Musnodih excluding Bansberia to the extent limited by 105 kudalis and a good title to the mines in suit by his possession for a period of over 22 years “adverse to Musammat Lalo Kuar and her successors” (paragraph 14).

Then in paragraph 15 he made it clear that

“this defendant has never exceeded this limit (that is, 105 kudalis) and thereby invaded or interfered with the right or possession of the plaintiffs 1-3 who like the other co-sharers have been freely working mica mines in the aforesaid Gadi excluding Bansberia”.

It is, therefore, clear that the right that was asserted by Tufani was nothing but the limited kudali right and that on his own admission he never interfered with the right or possession of the co-sharers of the Gadi. The adverse possession referred to in paragraph 14 obviously related to the kudali right. Some stress has been laid on the words “a good title to the mines in suit” in that paragraph, but it does not appear from the plaint Exhibit E-III that any specific mines were claimed. The judgment Exhibit G-III shows that the plaintiffs did not claim khas possession of specific mines and that

“the right claimed by the defendant is a general right to dig and take mica in the whole Gadi and not a right claimed in respect of any specific mine or mines in that Gadi”.

But assuming for argument's sake that the abovequoted allegations in paragraph 14 of the written statement Exhibit D-I really amounted to an assertion of title by adverse possession to any specific mines, such assertion is of no avail against the present plaintiff, because it was made during the subsistence of the simple mortgage which is the foundation of the plaintiff's title. It is well-settled that possession cannot be adverse to a simple mortgagee until he is entitled to possession when the mortgaged property is sold. Here the mortgaged property was sold in 1935, and this suit was brought in 1937. No doubt Tufani's possession by virtue of kudali right commenced long before the mortgage, but his previous possession is immaterial for the purpose of considering the effect of his allegations, made subsequent to the mortgage, in paragraph 14 of the written statement Exhibit D-I. Apart from those allegations, there is nothing to show that previously he ever asserted exclusive right by adverse possession to any specific mines. The judgment Exhibit G-III itself negatives the assertion of any such exclusive right, because it says that the right claimed by Tufani was

“a general right to dig and take mine in the whole gadi and not a right claimed in respect of any specific mine or mines in that gadi”.

I am, therefore, of opinion that Tufani did not acquire exclusive right by adverse possession to the mines opened and worked by him by virtue of the kudali right. Necessarily the defendant no. 4, as transferee from him, can have no exclusive right to such mines.

At this stage it will be better to deal with Mr. P.R Das's contention with regard to the Subordinate Judge's finding that Tufani acquired

“105 kudali right under section 26 of the Indian Limitation Act by peaceable and open enjoyment without interruption for more than twenty years as of right and as an easement”.

It may be mentioned that this finding does not form part of the decree; and it is, therefore, open to the plaintiff-respondent to attack his finding without filing any cross-objection (Order XLI rule 22 of the Code of Civil Procedure). The plaintiff, however, has filed a cross-objection which, strictly speaking is not a cross-objection within the meaning of Order XLI rule 22, but is merely an objection against a finding.

Mr. P.R Das's main attack against this finding is that Tufani being himself a co-sharer, no easement could be acquired by him. If in fact he was a co-sharer, there can be no doubt that he could not claim an easement, because it is a well-recognized rule that no person can have an easement in land which he, himself owns. On the question of fact, Mr. Das relies on the following statements in paragraph 12 of the written statement of defendant no. 4:

“Tufani Singh had 6 pies ancestral share in the entire Gadi Tviusnodih. Besides this he had acquired by means of a hukumnama, dated the 11th Asarh 1294 Fasli………………… a right to dig and take out mica throughout the Gadi.”

These statements, it is said, amount to an admission that at the date of the hukumnama Tufani had 6 pies ancestral share. But upon a grammatical construction of the sentences, it seems that Tufani obtained the hukumnama before he came to have 6 pies ancestral share. It appears that Tufani's father Dharam Narayan Singh was alive at the time of the suit of 1909, because he was impleaded as defendant no. 6 in that suit (see plaint Exhibit E-III). It also appears from that plaint as well as the judgment Exhibit G-III in that suit that defendants nos. 6 to 13 were the co-sharers in respect of the 3 annas share including the 6 pies which is said to be the ancestral share of Tufani. The plaintiffs in that suit had 9 armas 9 pies and defendant no. 4, 3 annas 3 pies, the latter's share being, as I have already stated, in the possession of defendant no. 5 as lessee. It is, therefore, clear that Tufani Singh was not treated as a co-sharer, and in fact the suit was brought against him as a trespasser. Of course, it was to the interest of the plaintiffs to treat him as a trespasser, but he in his written statement did not set up his right as a co-sharer, though he took various pleas to defeat the suit. He has been examined in the present suit as witness no. 5 for defendant no. 4; there is nothing in his evidence to show that the 6 pies share in question was his father's ancestral share. From his evidence it appears that his father died about 1919. On his father's death, the share left by him would certainly be his ancestral share. Much importance, therefore, cannot be attached to the statement in paragraph 12 of the written statement of defendant no. 4 that

“Tufani Singh had 6 pies ancestral share”.

On the materials on the record, I am not prepared to hold that Tufani was a co-sharer at the date of the hukumnama or even at the time of the suit of 1909.

But in 1914, as I have already stated, Tufani and his brother Ganga purchased from Baijnath his 3 annas 3 pies share in Gadi Musnodih and 4 annas share in village Ramdih. Tufani, therefore, became a co-sharer of Gadi Musnodih at least in 1914. After he became a co-sharer, he could not have any right of easement.

It has, however, been argued by Mr. B.C De that as a result of the decision in Title Suit no. 178 of 1909, the right to the easement claimed by Tufani became “absolute and indefeasible” within the meaning of section 26 of the Limitation Act. According to that section, where any easement has been peaceably and openly enjoyed as of right, without interruption, and for twenty years, the right to such easement shall be absolute and indefeasible”. But the section also lays down

“Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested”.

The effect of this provision is that a right to an easement is not perfected until it is brought in question in some suit, but when it is established in a suit, it becomes absolute and indefeasible. Though in Title Suit no. 178 of 1909 Tufani Singh in his written statement did not specifically set up his right as an easement but claimed the kudali right by adverse possession, and the Court also upheld his claim on the basis of adverse possession, the effect of the decision is that the kudali right was established. From the judgment Exhibit G-III it appears that the Court referred to the evidence of possession for over twenty years. If we look to the substance rather than to the form, there can be no doubt that Tufani's claim to the kudali right as an easement was established in the suit of 1909. That being so, the right became absolute and indefeasible.

But the matter does not rest there. The mortgage by Baijnath on which the plaintiff's title is founded was prior to the suit of 1909. The purchaser in execution of the mortgage decree acquired the mortgaged property in the state in which it stood at the date of the mortgage. Consequently the purchaser's title could not be affected by the kudali right which became absolute and indefeasible only when the suit of 1909 was decided in March 1912. That being so, the kudali right, merely by reason of the decision in the suit of 1909, is not enforceable against the present plaintiff. For the purpose of the present suit it must be established that the kudali right has been exercised as an easement for twenty years ending within two years before the institution of this suit. But Tufani became a co-sharer in 1914 and the shares then purchased by him remained with him until they were sold in execution of the mortgage decree on the 14th August, 1935. He was also a co-sharer in respect of his 6 pies ancestral share at least from his father's death in about 1919 till the 16th May, 1934, when he conveyed the share to defendant no. 4. Tufani, being a co-sharer all this time, could not acquire the right of easement.

I am leaving out of account the fact that Tufani ceased to exercise the kudali right more than two years before the institution of the suit, because he conveyed that right to defendant no. 4 in May 1934.

Again, assuming that the kudali right, which became absolute and indefeasible by force of the decision in the suit of 1909, was operative and enforceable against the mortgagee, the position was changed when Tufani became a co-sharer in 1914. After he became a co-sharer, he could no longer claim the right of easement. The right of easement might have become indefeasible, but it could no longer exist when he became a co-sharer, because easement and ownership cannot co-exist.

In any event, Tufani had no valid subsisting kudali right as an easement when he conveyed the right to defendant no. 4 by the sale deed dated the 16th May, 1934. In this view it is unnecessary to consider whether the kudali right was transferable.

The next contention of Mr. B.C De is that it, is absolutely necessary that the shares of the different sets of defendants should be determined in the preliminary decree, and that the suit should be remanded to determine their shares. On this point what the learned Subordinate Judge has said is this:

“I think for the present the question as to the shares owned by each set of defendants, may be left open as the evidence regarding their shares is not complete. They may be given an opportunity to prove their shares after the passing of the preliminary decree, if they so like. There will be no difficulty in passing the preliminary decree for partition as the shares of the plaintiff in fill the villages in suit has been satisfactorily proved, and it seems that the remaining shares in these villages are fully represented by the defendants on the records”.

There are several sets of defendants and some of them did not at all enter appearance. Those that appeared, except defendant no. 1 and defendant no. 16, did not definitely ask for partition of their shares. Nor did the appearing defendants except defendant no. 7 ask the Court to frame an issue regarding their shares. The only issue regarding shares is no. 9

“What are the shares of defendant no. 7?”.

At the trial the defendants did not produce the necessary evidence to prove their respective shares. Before us the learned Advocates made statements regarding the shares of the different defendants, but when added, they do not make up 16 annas. It appears from the written statements of defendant no. 1 and defendant no. 4 that the share of the former is 5 annas and that of the latter is 4 annas 3 pies. But no materials have been placed before us to show that these shares are correct. As regards the other defendants who have appealed, that is, defendants 7, 13, 14 and 16, they are strongly opposed to partition, and they want that there should be no partition. No attempt has been made on their behalf to show what their shares are. In the circumstances, it cannot be said that the order passed by the learned Subordinate Judge is wrong. If any of the defendants wants his share to be partitioned, he may apply to the Court, as directed by the learned Subordinate Judge.

Lastly, it has been argued by Mr. B.C De that the mines mentioned in the Schedules A and B in the written statement of defendant no. 4 should be allotted to them. This is a matter which will be decided at the stage of the final decree. The Subordinate Judge has given the direction that as far as practicable, present possession over the mines should be maintained, but not at the cost of compactness of takhtas or pattis. Objection is taken to this condition regarding compactness. The effect of this condition is that compactness should be the dominating factor. In effecting partition, compactness is no doubt a very important element, but in the case of ruining areas where mines have been opened and developed by different co-sharers at considerable cost and labour, it is fair and just that more importance should be attached to present possession than to compactness. But it must be made clear that this will not prevent the commissioner from exercising his discretion in making the allotments as fair and equitable as possible. I would, therefore, modify the above direction given by the learned Subordinate Judge to this extent.

Subject to this modification, I would dismiss the appeal with costs to the plaintiff-respondent; hearing fee Rs. 300.

F.A 119 of 1939.

In this appeal which is by defendants nos. 7, 13, 14 and 16, the first point taken is that the suit for partition is not maintainable inasmuch as the plaintiff is not in possession. The plaintiff's case is that before the execution of the sale deed Exhibit 8, which is dated the 17th February, 1937, in his favour his vendors had taken out the writ of delivery of possession Exhibit 4, dated the 5th February, 1937, and in execution of this writ he obtained delivery of possession on behalf of his vendors. The writ shows that it was issued by the Court of the Subordinate Judge at Gaya on the 6th February, 1937, and was served through the Court of the Subordinate Judge at Hazaribagh on the 7th and 8th March, 1937. The peon's report on it which has been duly proved shows that possession was actually delivered to a servant of the plaintiff. The peon and that servant and also some of the witnesses to the service report have been examined, and their evidence has been believed by the Subordinate Judge. The evidence also shows that after the delivery of possession the plaintiff got notices (Exhibits 7 series) under section 51 of the Chota Nagpur Tenancy Act served in the villages. Some raiyats have been examined to prove collection of rent by the plaintiff. Exhibits 12 to 12(c) are rent receipts and Exhibits 9 to 9(d) are counterfoils. All this evidence has been believed by the Subordinate Judge. No sufficient reason has been shown why we should take a different view of the evidence. The plaintiff is a co-sharer, and it is enough for the purpose of the partition suit if he is in possession of any portion of the disputed villages. The real dispute between the parties is about the mining areas which form only a portion of the villages. It is not likely that though “the plaintiff got delivery of possession and caused notices under section 51 of the Chota Nagpur Tenancy Act, he will not be in possession of any portion of the disputed properties.

The next point argued in this appeal is that the learned Subordinate Judge should have held that there is a custom or usage in the Gadi or implied agreement or arrangement among its proprietors by which a mine opened by a co-sharer becomes his exclusive property. This is the subject of issue no. 15. It is to be observed that these appellants in their written statements did not plead any implied agreement or arrangement between the co-sharers. The plea was, however, taken by defendants nos. 9 to 23(a) in their written statement. There is practically no evidence of any such agreement or arrangement. It has, however, been argued that having regard to the nature of the property, heavy costs would have to be incurred for prospecting and other operations and no co-sharer would like to incur such costs unless there was a mutual arrangement among the co-sharers that a mine opened and developed by a particular co-sharer would be retained by him. This is a merely speculative argument without any materials to substantiate it.

As regards custom or usage, all that the evidence of the witnesses who have deposed on the point shows is that different co-sharers have opened different mines and have been working them separately and no co-sharer interferes with the possession of another. This is the position of co-sharers according to law and it therefore affords no proof of custom. Reliance has been placed on certain observations in some judgments and orders of the Criminal and Revenue Courts. Exhibit G(1)-III is a judgment, dated the 1st July, 1935, in a criminal case under sections 148 and 324 of the Penal Code in which there is the following observation:

“There is a large number of good mica mines in this Gadi. With regard to these mines, there is a, peculiar custom prevailing in the Gadi that any co-sharer ran open and develop a mine anywhere and this will be his exclusive property. So the mines possessed by each co-sharer, are not in proportion to their shares.”

Previous to the institution of this suit, a partition case (no. 1 of 1934-35) regarding Gadi Musnodih was started in the Revenue Court on the application of defendant no. 1. The Deputy Commissioner of Hazaribagh by his order Exhibit J-TI, dated the 18th June, 1937, submitted the proceedings to the Commissioner with the recommendation that the partition should not be proceeded with, because, in his opinion, the advantages of partition to the applicant would not counteract the inconvenience and expense that would be Caused to the objectors. In his order, while dealing with the customary rights set up by the objectors, he referred to the above-quoted observation in the Criminal Court's judgment Exhibit G(1)-III and also to a similar observation made in a proceeding under section 144 of the Code of Criminal Procedure decided on the 7th April, 1937. The Commissioner by his order Exhibit G(2)-III, dated the 13th November, 1937, directed that the partition case be struck off. In his order he said:

“There is a practice in the estate according to which any co-sharer can open or lease out a mine which will become his exclusive property.”

Apparently he relied on the observations in the judgments of the Criminal Court to which reference was made in the order of the Deputy Commissioner. Such observations made in criminal case, particularly in recent years can hardly be regarded as evidence of custom. The Criminal Court proceeds mainly on possession. The fact that different co-sharers have opened different mines and are in separate possession of them is quite consistent with their position as co-sharers. Such separate possession by no means proves any custom of the kind suggested. Upon the materials on the record, I have no hesitation in affirming the Subordinate Judge's finding on issue no. 15.

The next point urged is that so far as the mica-bearing concerned, it is practically impossible to value them and therefore they cannot be partitioned. Reliance is placed on the evidence of Jnanendra Nath Chatterji who was examined on commission on behalf of defendants nos. 19 to 23(a) as an expert to prove that mica mines cannot be valued, and so they cannot be equitably partitioned. He says

“There is no scientific method by which either the life or quantity of mica can be ascertained. I do not know any method or data by which a mine area or mica mines can be equitably or proportionately partitioned by means of possible output or valuation, as there is no such method or data.”

But he also says

“The discovery and making of good mica mine usually require special expert knowledge and experience and expenditure of money and labour.”

From his cross-examination it appears that a mica mine belonging to Bird & Co. was sold. In his cross-examination he also gives the materials on which the value of a mica mine is assessed at the time of sale. Although his evidence shows that valuation of a mica mine is very difficult, it cannot be said that a mica mine cannot be the subject of sale. Most of the co-sharers in this suit itself have derived their interest by purchase. Defendant no. 4 acquired their interest under two sale deeds both of which include certain specific mines which are mentioned in Schedules A and B of the written statement. It also appears that during the pendency of these appeals the Government acquired under the Land Acquisition Act some mining areas in four of the villages in dispute. It cannot, therefore, be said that valuation of mica mines is practically impossible. Valuation may be a difficult and expensive task, but that is no ground for refusing partition. The learned Subordinate Judge has rightly observed

“No doubt a partition will entail heavy expenditure because a thorough prospecting will have to be done by an expert throughout the Gadi for ascertaining and assessing the mica fields and other mines within it, but that cannot be helped.”

Lastly it has been argued, particularly on behalf of defendant no. 7, that in case there is partition, the mines mentioned in the schedule to her written statement should be allotted to her. This is a matter which will be decided at the stage of the final decree. Objection is taken to the direction given by the Subordinate Judge regarding compactness of takhtas or pattis. I have dealt with the same objection in appeal no. 112. The direction will be modified in the manner I have indicated there.

Subject to this modification, I would dismiss the appeal with costs to the plaintiff-respondent; hearing fee Rs. 150.

As regards the cross-objection, the grounds taken are directed against the findings regarding the genuineness of the hukumnama Exhibit D-III in favour of Tufani Singh and the acquisition by him of the kudali right by prescription. These matters do not arise in this appeal, because the appellants do not claim the kudali right; on the contrary they challenge it. The cross-objection is misconceived and must be dismissed.

F.A 132 of 1939.

This appeal by the defendant no. 1 is mainly directed against the direction in the decree that

“so far as practicable, the plaintiff should be awarded his proportionate share of the mines out of those at Puto, Ekbanwa, Jorasimar and Tilaiya Tanr”.

Why this direction is given with regard to these particular villages is not clear. It is mentioned that the mines in these four villages are under attachment under section 146 of the Code of Criminal Procedure, but that is no reason why the commissioner's discretion in making the allotments should be fettered. I would, therefore, expunge this direction from the decree.

We are informed that during the pendency of these appeals in this Court the Government has acquired under the Land Acquisition Act some mining areas in the said four villages, and the compensation awarded is lying in the Collectorate. It is reasonable and proper that the money should be divided between all the co-sharers in proportion to their shares. The rest of the area of the said four villages should, for the purpose of partition, be dealt with in the same manner as the other villages in dispute.

I would accordingly allow this appeal and modify the decree of the Court below to the extent indicated above. There will be no order for costs in this appeal.

Fazl Ali, C.J:— I agree.

K.D

Order accordingly.