Harries, C.J:— These are two applications for revision of orders relating to certain minerals made under Section 145 of the Cr PC by the learned Sub-divisional Officer of Ranchi and the learned Judicial Commissioner of Chota Nagpur. The applications arise out of a dispute concerning the possession of bauxite ore under a hill situate in plot No. 215 in the village of Bhusar, P.S Lohardagga, in Chota Nagpur. The first party was the Maharaja of Chota Nagpur and his employees, whilst the second party was the Ranchi Zamindari Co. Ltd. and their employees. The Maharaja of Chota Nagpur claimed to be in possession of the whole of this bauxite ore and alleged that the second party was interfering with his possession. On the other hand, the second party claimed to be in possession of these minerals and complained of wrongful interference by the Maharaja. The Courts below have held that the minerals are partly in the possession of the first party and partly in possession of the second party. Each still claims possession over the whole, hence the present applications.

2. The case for the Maharaja is that the entire village of Bhusar together with the hills surrounding it is comprised in Tauzi No. 1 in the Chota Nagpur Raj of which the Maharaja is the proprietor. He claimed that all the minerals and underground deposits within the Chota Nagpur Raj belonged to him and that he was in possession of the same. According to the case of the first party a grant of surface rights in the village of Bhusar was made in the year 1824 to Thakur Udai Nath Bahai Deo and by the terms of this grant the land was resumable by the then Maharaja or his successors on extinction of the male heirs of the grantee. It is contended by the Maharaja that no rights to minerals or other deposits were granted to the said grantee. In the year 1918, the entire jagir including village Bhusar, which is described in these proceedings as the Kairo lot, was sold in execution of a rent decree and purchased by the predecessors of the second party. Later, the Maharaja granted a fresh patta to the auction-purchasers in order to end disputes and define the rights of the parties. The second party are the assignees of the auction-purchasers of this property and are now in possession of the jagir. According to the Maharaja, the second party are in possession of the surface rights only in the village of Bhusar and they have no right whatsoever to work the minerals under the said village. It appears that bauxite ore has been discovered recently in the hills and near the village and in hills near a neighbouring village called Bagru. The Maharaja has granted mining leases of property in the village of Bagru and other villages in the vicinity; but it is to be observed that he has granted no lease of, neither has he attempted to work the minerals in or adjacent to the village of Bhusar. According to the Maharaja's case, information was received in January last that the employees of the Ranchi Zamindari Co. Ltd. had wrongfully commenced to quarry bauxite in a hill adjacent to the village of Bhusar. The Maharaja protested, bub the employees of the second party continued quarrying.

3. The case for the second party is that they are the successors in title of an independent talukdar. According to them, at some time long before the permanent settlement the then Maharaja of Chota Nagpur who exercised sovereign rights over what is now the Chota Nagpur Baj, made an absolute gift of the Kairo lot to one Dandu Bai. It is contended that the said Dandu Bai was the absolute owner of the property and that the second party now have similar rights and accordingly it is argued that they are the owners of the minerals and are therefore entitled to work the same. There can be no doubt however that the second party's apparent title is-that of tenure-holders under a patta dated 11th December 1936 granted by the Maharaja of Chota Nagpur to Raja Baldeo Das Birla, the immediate predecessor-in-title of the second party. According to the terms-of this grant, Kairo lot is a jagir resumable by the Maharaja on extinction of the male heirs of Raja Baldeo Das Birla. It appears that there had been some dispute as to the nature of the respective interests of the two parties in this property and Raja Baldeo Das Birla challenged the rights of Maharaja. The suit was compromised, and: the patta to which I have referred was; granted by the Maharaja to Raja Baldeo Das Birla in order presumably to put an end to all disputes. This patta while granting to the second party a putrapautradik jagir contained a clause reserving to both parties all their antecedent rights, but the claim of the second party to be regarded as the successors in title of an independent talukdar was not found by the Magistrate to be supported by any reliable evidence and for the purpose of these proceedings must be taken as negatived. The second party, however, have persisted in their claim that they are the proprietors of this-property including the minerals and have for some time been working the same. There is evidence that they had some years previously employed geologists to survey the minerals, though it is impossible to say whether this was a really comprehensive survey. They had also for some years extracted small quantities of bauxite from the land, but it is clear that intensive mining had only been going on for about a month or two before these proceedings were launched. The learned Magistrate to whom application was made by the Maharaja came to the conclusion that a breach of the peace was likely, and eventually proceedings were drawn up under Section 145 of the Cr PC. The learned Magistrate heard the evidence adduced by both the parties and came to the conclusion that the Maharaja was in possession of all the unworked minerals under the land in dispute but that the Ranchi Zamindari Company were in possession of the minerals in the area which had been actually worked by them. As the area actually worked by the company was not clearly defined in the map which had been put in evidence, the learned Magistrate ordered that a kanungo should be deputed to demarcate the actual areas in possession of the respective parties. He therefore forbade all disturbance of such possession of the Maharaja and the company until they are evicted therefrom in due course of law. Both parties applied to the learned Judicial Commissioner for revision of this order: but the latter declined to make a report to this Court under Section 438 of the Cr PC and dismissed both applications. Both parties being dissatisfied with the orders passed, have made the applications to this Court which are now under consideration.

4. It has not been contended by either party that proceedings under Section 145 of the Cr PC are not applicable to possession of minerals and indeed it would be difficult for either party so to contend. It has been held by this Court and by the Calcutta High Court that proceedings under Section 145 of the Cr PC can be instituted in cases where disputes have arisen relating to the possession of minerals. In 2 PLJ 6371 a Bench of this Court upheld an order passed by a Magistrate under this Section regarding the possession of certain mica deposits. In 4 PLJ 1542 Roe J. held that proceedings under Section 145 of the Cr PC could be taken in cases of disputes concerning the possession of coal mines or seams of coal. In 35 CLJ 4563 a Bench of the Calcutta High Court held that proceedings under Section 145 of the Cr PC could be taken in a case where a dispute existed as to mining rights. Having regard to these authorities, I am bound to hold that proceedings under Section 145 of the Cr PC are appropriate in cases of disputes as to the possession of minerals. It must be observed that in the present applications no question arises as to the possession of the surface. The second party are clearly entitled to possession of the surface and the only dispute relates to the seam or deposit of bauxite which lies underneath the surface. The application by the second party was the first to be presented to this Court and it will be convenient to deal firstly with this application. Mr. Manuk who has appeared on behalf of the second party has strenuously contended that the order, in so far as it declares the Maharaja to be in possession of the unworked minerals, should be set aside. He has argued that the Maharaja is not in possession of these minerals but that the second party are in actual possession of the same. He has contended that the learned Magistrate has in this case decided questions of title which he could not do. According to Mr. Manuk, the learned Magistrate has held that the Maharaja is in possession of the unworked minerals solely on the ground that he is the owner of these minerals and that possession follows title. In any event, it is contended that the Maharaja is not in possession though he may be the owner of these minerals. There can be no doubt that the learned Magistrate has considered the question as to who is the owner of these minerals and has held that the Maharaja is the owner of them, but he has only considered this aspect of the case in order to determine who is in actual possession of the same. In my view the Court, in proceedings under Section 145 of the Cr PC can properly consider questions relating to title where such is necessary in order to ascertain who is in possession. This is clearly laid down in 1 PLT 387.4 At page 388 Sultan Ahmad J. observed:

The learned Magistrate has gone very elaborately into the question of title of the parties, much more, in my opinion, than a proceeding under S. 145 would justify. A Magistrate in proceedings under S. 145 is entitled to look into the question of title only to arrive at a satisfactory conclusion on the question of possession. He has got no power to decide the question of title or look into it apart from the question of possession. If he wanted to go into the question of title in order to effectively decide the question of possession, he would be perfectly justified in doing so. On the other hand, if the question of possession could be effectively decided without a decision on the question of title, he would not be entitled to go into the title of the parties.

5. The case in 34 Mad 1385 is to the same effect. There it was held that evidence of title is admissible in an inquiry under Section 145 of the Cr PC to enable the Court to decide the question of actual possession though proof of title was not proof of actual possession. In the present case the learned Magistrate had to decide who was in possession of certain unworked minerals. Unworked minerals are not capable of such possession as is the surface of land or a house. Land can be cultivated; a house can be occupied; but unworked minerals cannot even be occupied. Minerals can be possessed by actual working; but in this case a large portion of the mineral area had admittedly not been worked. In such a case it was in my view necessary that the learned Magistrate should consider who was the owner of these minerals in order to assist him in coming to the conclusion as to who was in possession of the same. Admittedly, the first party had not worked any minerals in the village of Bhusar, though he had granted mineral leases of bauxite under adjacent villages. Before a Court could come to the conclusion as to who was in possession of the unworked bauxite ore in the village of Bhusar the question of ownership had to be considered. In my view there is evidence in this case to support the Magistrate's finding that the Maharaja of Chota Nagpur is the owner of the minerals underlying the Chota Nagpur Raj. It has been held on numerous occasions by their Lordships of the Privy Council that the Maharaja holds a permanently settled estate. If the second party hold under the patta dated 11th December 1936, an interest in the land resumable by the Maharaja on extinction of the male heirs of Raja Baldeo Das Birla, and if the patta makes no grant of minerals, it follows that the second party are not the owners of these minerals. It has been held by their Lordships of the Privy Council in a series of cases of which the case in 59 Cal 806 is an example that holders of an interest, such as that held by the second party, are not the owners of the minerals underlying the land. In that case it was held that patni tenures, generally, are on the same footing as to subsoil rights as other permanent, heritable and transfer, able tenures created by a zamindar, that is to say, the subsoil rights pass to the patnidar only when granted in express terms; general vernacular words signifying “with all rights” are insufficient for that purpose. In the present case the second party hold an interest which can be described as permanent, heritable and transferable. They cannot found a title to subsoil rights on the patta when the patta does not in express terms grant them such rights. On the evidence the Magistrate rightly held the Maharaja of Chota Nagpur to be the owner of the minerals underlying Bhusar village. However that is not sufficient to conclude the case beoause in proceedings under Section 145 of the Cr PC it is possession that matters and not ownership. In the case of unworked minerals possession follows title and the owner of unworked minerals is in possession of them though he is not actually engaged in working them. He is in a position to work them when he so desires, and he can lease them to others who may work them.

6. Mr. Manuk, however, has contended that such possession of unworked minerals as follows title is not sufficient to sustain an order under Section 145 of the Cr PC. He has strenuously urged that the possession which is contemplated under this Section is actual physical possession and not constructive possession which is the nature of possession which follows title to unworked minerals. Great reliance has been placed upon the case in 56 Cal 2907 which is a Full Bench case decided by five Judges of the Calcutta High Court. In that case the Court held that the words ‘actual possession’ in sub-s. (1) of Section 145 of the Cr PC mean actual physical possession even though wrongful, e.g that of a recent trespasser in actual possession at the time of the proceedings under S. 145. The same view was taken in this Court by Rowland J. in 13 PLT 178.8 Mr. P.E Das on behalf of the first party does not question the law as laid down in these two cases, but he has contended that actual physical possession must of necessity vary with the subject-matter. The owner of land can live on or cultivate the land; he may build on it or he may use it for some other specific purpose. Such, in the case of land is actual possession; but such user of unworked minerals is impossible. According to Mr. Das, the owner of unworked minerals is in actual possession of the same if he is in a position, at any moment, to work them or to permit others to do so. That the nature of actual physical possession varies with the subject-matter has been recognized by a Bench of the Calcutta High Court in 35 CLJ 456. That was a case of a dispute as to mining rights. At p. 458 Suhrawardy J., discussing an earlier case in 32 CLJ 549 observed:

The definition of land as given in the Code of Criminal Procedure of 1908 is wide enough to cover mining rights and even prospecting or boring licenses which can only be utilized by going upon the land and exercising some rights relating to it. Nor do I assent to the proposition which seems to have been stated in that case that Section 145 of the Cr PC, is limited in its scope to disputes relating to actual possession only if by that expression is meant possession by squatting on the land. It is conceivable that actual possession in that restricted sense may be with some one else and the real dissension between the parties may be regarding the exercise of some right over it or even under, without interfering to any appreciable extent with the actual or manual possession of anyone. To this category falls the dispute relating to collection of rents or profits which is expressly included in the definition of ‘land’ and ‘water’ as given in the Section.

7. Here, Suhrawardy J. recognizes that there may be actual possession of minerals or mining rights though the person in such possession is not exercising such rights as a squatter or a cultivator of land. It is to be observed that Suhrawardy J. was a party to the Full Bench case in 56 Cal 290, to which I have previously referred, which laid down that in the case of land ‘actual possession’ meant actual physical possession. The earlier case in 35 CLJ 456 is not questioned in this later Full Bench case. The possession of these unworked minerals does not depend entirely upon the evidence as to ownership. There was also evidence that the Maharaja had granted leases of or rights to work bauxite underlying the surface of adjoining lands or villages. Mr. Manuk on behalf of the second party has argued that such evidence is worthless; but, in my view, it is valuable evidence of possession of the unworked minerals. In my view, if the owner of unworked minerals under a defined area sinks a shaft and begins to work the minerals in that area, he can properly be said to be in actual physical possession of the whole of the minerals in that area. In the same way, if the owner of minerals under a defined area grants to third parties mining leases of the minerals under portions of such area, he exercises acts of ownership over those minerals and he can truly be said to be in possession of the whole of the minerals under that defined area. In 1 PLT 8410 at page 100 Das J. observed:

It has been held that if a person having title to all the seams of the coal under a defined surface enters upon one seam he will be taken to be in possession of all the seams over which he has title: (1866) 34 LT 18611 and (1866) 1 Ch 410.12

8. As I have stated the Maharaja is the owner of all the minerals underlying a defined area, namely the Kairo lot. He has granted leases of the minerals in portions of this area. This evidence together with the evidence as to title does provide mate, rial upon which the learned Magistrate could come to the conclusion that the Maharaja was in actual physical possession of the unworked minerals.

9. Mr. Manuk has further contended that even if the Maharaja had been in actual physical possession of the unworked minerals, he has been ousted from such possession by reason of the mining operations of the second party. The learned Magistrate has found that the second party have been quarrying or mining bauxite at three points and have stacked quantities of the ore obtained at or near these sites. The second party have further built a road of about four miles in length to the nearest railway station, presumably for the purpose of carting bauxite for transit by rail. Lastly, the learned Magistrate has found that the second party had built a bhandar for the use of coolies working on the site. These acts together with the geological survey mentioned previously constitute, according to Mr. Manuk, an ouster of the Maharaja from possession of the whole of the minerals under the land in dispute. A map was produced which showed the workings of the second party. The learned Magistrate has pointed out that this map does not accurately set out the limits of these workings; but from a perusal of it is clear that the second party has only worked on one side of plot 215 in which the disputed hill is situate. The precise size of the hill is not clear; but it is obvious from the map that the second party have not worked over the whole of the area. The evidence showed that intensive working had only taken place for a very short period of time before these proceedings, and it is clear that up to the time of these proceedings, work had only taken place on the extreme western edge of the hill in dispute. As I have pointed out already, it is not clear whether the whole of this area was surveyed by geologists, but in any event the Magistrate has found that the second party have not mined bauxite at any place other than the three sites marked on the plan. Mr. Manuk has urged that this case falls within the principle enunciated by their Lordships of the Privy Council in 10 Pat 407.13 In that case their Lordships of the Privy Council held that the Bengal Coal Company were in adverse possession of the minerals underlying a defined area though they were not in fact working all such minerals. It is argued that the second party by working the minerals in these three places have like the Bengal Coal Company taken possession of the whole of the minerals underlying the disputed hill. The facts of the case in 10 Pat 407 are very different from the facts of the present case. In that case the company held a mukarrari lease of the area concerned and honestly believed that they were entitled to mine the minerals under the land. They had openly carried on mining operations for 12 years in various parts of the village by sinking and working coal pits and making bore holes. In short they had for more than 12 years conducted themselves as if they were entitled to work the minerals underlying the whole area. Lord MacMillan, who delivered the judgment of the Board, at page 414 observed:

In considering the character and effect of acts of possession in the case of a mineral field, it is necessary to bear in mind the nature of the subject and the possession of which it is susceptible. Owing to the inaccessibility of minerals in the earth, it is not possible to take actual physical possession at once of a whole mineral field: it can be occupied only by extracting the minerals and until the whole minerals are exhausted the physical occupation must necessarily be partial. The real question is what in fact has been possessed…

10. The workings have been commonly described as a colliery, a comprehensive term which includes both the worked and the as yet unworked minerals within a defined area. It was of the colliery in this sense that the company claim to have been in possession. 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. They openly sank at least three pits at different points, two of them being half a mile distant from the third. They selected the places at their own discretion, brought the requisite plant on to the ground and erected bungalows for their mining employees. Mr. Evans who was resident Assistant Manager of the colliery at Bajhara from 1907–1908 to 1913 himself made bores in the mineral field during his time. It is nothing to the purpose that the company may not have worked any one pit for 12 years continuously, if for 12 years they have carried on operations in various parts of the mineral field. The fact that one pit in a mineral field is discontinued and another opened in a different part of the field and that bores are sunk in likely places is excellent proof of possession of the whole area. There was no concealment on the part of the company; they behaved openly as persons in possession not of one pit but of the mineral field underlying the village as a whole, and as entitled to sink pits anywhere in the village they chose. All this they did without any challenge from the plaintiff or his predecessors, and in the bona fide belief that their lease entitled them to work the minerals anywhere in the area let.

11. In the present case intensive working only began a month or so before these proceedings though it is clear that some work had been done for a considerable time previously. There is nothing in the present case to show that the second party had any bona fide belief that they were entitled to work the minerals underlying the whole of this area and in any event they did not do so. In my view it cannot possibly be contended that merely by working at the three points on the western end of the disputed hill possession has been taken of the whole of the minerals underlying the hill. It is true that a bhandar was erected and a road made, but even so the operations, in my view, fall far short of what is necessary in order to take possession of the whole of the minerals underlying this hill. The present case is more like the case in (1909) 1 Ch 66614 where it was held that mining by a trespasser in an area of two acres only did not amount to possession of the whole of the mineral field. The second party also relies upon the case in 59 Cal 80. In that case a person who had no right to the minerals quarried stones and gravel over the whole of a certain area of land. Underneath the stone and gravel was discovered a deposit of yellow ochre. Their Lordships of the Privy Council held that the operation of quarrying the stones and gravel amounted to possession of the whole of the stone and gravel in the area concerned but did not amount to possession of the yellow ochre which formed a distinct strata. In that case it is clear that stone and gravel had been quarried over the whole of the area in question, and therefore it could truly be said that possession had been taken of the whole of the subsoil containing such stone or gravel. Mr. Manuk has contended that such is the case here; but in my view the operations of the second party in the present case fall far short of taking possession of the whole of the bauxite underlying the hill. In my view the learned Magistrate was perfectly entitled to hold that the Maharaja's possession of the unworked minerals had not been ousted by the operations of the second party. The learned Magistrate has held however that the second party are in possession of the minerals at the places which are actually being worked by them.

12. The application of the first party relates to that portion of the order which maintains the possession of the second party of the minerals at the actual scene of their quarrying or mining operations. It has been contended by Mr. P.E Das that this portion of the order is clearly wrong and that the second party cannot be held to be in possession of even the minerals at the actual sites of their quarrying or mining. It has been frequently laid down that a person wrongfully working minerals is only in possession of such of the minerals as he has actually mined and that he is not in possession of any of the unworked minerals. In 1 PLT 84 it was held by a Bench of this Court that a trespasser wrongfully working a seam of coal from an adjacent mine acquires possession only of the coal worked, and cannot be said to be in possession of the mine itself. This case was expressly approved of in the case in 1 PLT 36015 where it was held that a trespasser, wrongfully working a seam of coal from an adjacent mine, acquired possession only of the coal worked but not of the mine or the seam itself and that a mere surface working could not give any claim by adverse possession to the whole of a coal seam or any portion of it beyond that which has already been taken. A similar decision is (1877) 6 Ch D 719.16 In that case Hall V.C was of opinion that a trespasser might in certain cases acquire possession over a seam of coal in a defined area, but on the facts of the case he came to the conclusion that the trespasser had acquired possession over nothing more than he had actually worked. At page 726 the learned Judge observed:

I can well understand that there might he some cases in which, from the manner of working coal, a person who began to work it, and was a mere wrongdoer and trespasser, might have acquired a title to a certain seam or area of coal, and that by the mode of driving the levels and opening a certain area of coal, there might have been possession acquired to the whole thing as a mine or as a seam of coal, and not merely to the particular quantity of coal that was actually hewn and gotten. That is not however this case; and it is not necessary for me to say more than that such a case may exist.

13. The learned Magistrate might have come to the conclusion that the second party in this case obtained possession of nothing more than the bauxite which they had actually mined or quarried. On the other hand, it was open to the learned Magistrate to find that the methods employed did amount to possession over the minerals at the actual scene of operations. He has declined to find that the second party obtained possession over the whole of the unworked bauxite; but he has found that they have acquired possession over the bauxite at the three points where work had actually taken place. In my view he was entitled so to find and it is impossible upon the state of the authorities for me to say that such a decision is clearly erroneous. In my judgment there was abundant material before the learned Magistrate upon which he could base his findings that the first party was in actual possession of the unworked minerals and that the second party was in possession of the minerals at the points where such minerals were being worked. For the reasons which I have given, I hold that no ground has been made out for interfering with the orders made by the Courts below and accordingly I would dismiss both these applications.

Rowland, J.:— I entirely agree.

N.S/R.K

14. Applications dismissed.