1. The case for the plaintiff was that the village in suit was a mal village of his zemindari which was held by defendants 5 to 35 as ordinary tenants. They leased it to the defendants 2 to 4, who again leased it to the defendant 1, the Lachipur Coal Company. It was contended that the mineral rights did not belong to the tenants but remained in the plaintiff, and therefore this suit was brought, in which the relief claimed was, generally, that the plaintiff's rights to the minerals, etc., should be declared and that the defendants should be prevented from exercising any such rights. The defence is briefly that the village is a mogoli brahmottar village given to the predecessors of the defendants long before the permanent settlement and that the mineral rights belonged to the brahmottardars. The suit was dismissed by the learned Subordinate Judge and the plaintiff appeals.

2. The two principal points for decision are, first, whether the brahmottardars are at least permanent tenure-holders and, secondly, whether, if, so, the, mineral rights belong to them or to the Raja of Pachete, the plaintiff in the case.

3. The learned vakil for the, appellant lays great stress on the evidence, that the rent has varied, it cannot be disputed that the land was granted to the Brahmins before the permanent settlement, it seems to us to be of little importance whether there were originally three grants or one. I there was originally one grant, it was certainly divided into three before the memory of any of the witnesses. But this would not in any way affect the permanent character of the tenancies. The case of Udoy Chandra Karji v. Nripendra Narayan Bhup (1909) I.L.R. 36 Calc. 287, to which reference has been made, proceeded on the special wording of Section 50 of the Tenancy Act and can have no application to a tenancy which had been divided long before that enactment. Nor is this a case to which Section 50 can have any application. Nor do we think the fact that the Brahmins pleaded in certain rent suits that the rent had been split up, of any importance. The .vital point for decision is whether a permanent tenure was given to the Brahmins and it makes little or no difference whether the whole village was originally given by one grant or lease, or by three.

4. The first piece of evidence on which the respondent relies to prove variation of the rent is Ex. I, filed by the defence. This was a statement filed by the then Raja in 1197 (1790-91) showing the villages and their jamas in his chakla. This showed 27 mal, 12 talabi debattar, 45 talabi brahmottar and some other villages. Against Panchgachia the village in suit, the jama is shown as Rs. 25-2. It is argued that this is the rental due to the Raja from the villagers. This argument is grounded on the facts that the Raja has only been able to recover Rs. 14-12 as rent from Nowdiha, a village appearing in Ex. T a little below Panchgachia with a jama of Rs. 14-12; and secondly, on a statement by one of the Brahmins, Ramdhan Misser, to the effect that as the Raja had filed the paper himself it must represent the actual rents of the village. It seems to us, however, that there can be no doubt that the jama mentioned is the revenue payable to Government. The appellant has by consent filed three other papers, a goshwara of 1201 (1794-95), filed by the Raja, a revenue sale proclamation of 1797 and a Civil Court sale proclamation of 1807. The first two show the sadar jama, that is to say, the Government revenue of Panchgachia to be Rs. 26-3-15; and clearly this could not be so if the rent receivable from the tenants was only Rs. 25-2. The rent of Rs. 14-12 decreed with respect to Nowdiha must probably be due to some mistake, while as to the statement of Ramdhan Misser, it is clear that his opinion as to what these papers show is quite valueless.

5. The three papers above referred to show, however, that the rents received by the Raja from the villages amounted in the case of Panchgachia to Rs. 39-3-10, and it is urged that this at any rate shows that the rent, which is now Rs. 60-14, has been altered. But we are unable to accept this argument. The statements relate to nearly 100 villages in pargana Shergarh, but, throughout the sadar jama bears a steady proportion of two-thirds to the rental, with inconsiderable variations of a few annas. This shows beyond doubt that there is some definite relation between the figures of the two columns. And as the rental cannot possibly have been assessed according to the Government revenue it follows, either that the revenue was assessed on the rental, or that the column of the rental was filled up so as to correspond with the revenue without any regard for the actual facts. The first supposition is obviously the most probable and it follows that as the Government revenue, for which the Raja would be responsible, bore a direct proportion to the rental, the Raja had the strongest inducements to estimate the latter as low as possible. In these circumstances it seems to us impossible to hold that these statements by the Raja are conclusive evidence against the Brahmins, who had nothing to do with them, of the rent then payable by them. Another document on which reliance it placed is a thoka, said to be of 1218. This is a loose page of zemindari accounts, showing the rent due from the six-annas share which is said to be the share of Moniram Upadhya. This document does not appear to us convincing, It purports to be signed at the top right-hand corner by Moniram. But the whole body of the document seems to be in the same hand-writing, including an agreement by one Sobharam to pay of part of the rent due; though why the tenant should write his landlord's accounts is by no means apparent. There is no other evidence worthy of detailed consideration to show that the rent has varied.

6. It is, howerer, for the defendants to show that the rent has not varied, and their evidence on this point must be considered. Their case is that the tenure is divided into three parts, viz., the seven-annas with a rental of Rs. 24-6, the six-annas with one of Rs. 31-8 and the three-annas with one of Rs. 5. As regards the rental of the six-annas they rely on a receipt of 1817, and another of 1825 which show the rent to be Rs. 29-9, a sum which would in the present coinage amount to Rs. 31-8-6. The first receipt may not be of much value, but the second seems to us a trustworthy document. It purports to be granted by a Krok Sazawal, that is to say, a revenue officer, in the position probably of a nazir or bailiff, placed in charge of an estate when it was under attachment or sequestration for default in payment of revenue. There are three witnesses and the appearance of the document is in its favour. The learned Subordinate Judge has accepted this document as trustworthy and, we think, rightly.

7. As regards the seven-annas' share, the defendants rely principally on an old judgment of 1808. This is a copy produced by the defendants which bears undecipherable seals and is dropping to pieces. It is argued that it is not shown to be a certified copy and that no attempt has been made to produce the original. It appears from the judgment in Brojanath Bose v. Durga Prosad Singh (1907) I.L.R. 34 Calc. 753, 755, that no old records of the District of Manbhum are extant and we do not think that the absence of the original is fatal. The Subordinate Judge did not believe that this document was forged, and we think he was right. The document shows that the rent of the seven-annas was Rs. 22-8 sicca, or Rs. 24 in currency, that Rs. 20 had been paid and that the tenants of the seven-annas were entitled to a refund of Rs. 3-8. It is suggested that this document and Ex. K, above referred to, even if genuine, may be and probably were records of collusive transactions intended to create evidence. There is nothing, however, to show that the defendants were under any necessity to create evidence until more than half a century later.

7. As regards the three-annas share there is no old evidence oil either side except the thoka of 1218 to which we have referred. It can not be disputed that in 1879 the above rents of Rs. 24-6 and Rs. 31-8 and Rs. 5 were definitely raised in a suit between the parties and accepted by the Munsif, and that since then the same rents have been paid. That gives a period of 23 years before the cause of action in this suit during which the plaintiff has apparently been compelled to acquiesce in these rents. If he were now to bring a suit under the Tenancy Act for an enhancement of rent, Section 50 of the Act would render it almost impossible for him to succeed. That section does not, of course, apply to a suit like the present, which is not under the Act, but the conduct of the plaintiff is allowing his right of enhancement under the Tenancy Act to be extinguished for all the practical purposes of that Act, justifies the inference that he knew that that supposed right had no real existence or in other words that the rent was fixed in perpetuity.

7. Although much evidence has been given, that described above, appears to us to be all that has much probative force on the question whether the rent has varied and on it, we feel no doubt that the rent has always been the same.

8. It is not disputed that the interest of the Brahmins has been transferable. They have dealt with it as their own and their transferees have been recognised by the landlord. This fact too is a strong indication that the tenures are permanent. Taking these facts into consideration, namely, that the tenures are described as mogoli brahmottar, that they have existed since before the permanent settlement, that the rents have always been the same and that the tenures are freely transferable, we have no doubt that the Brahmins were at least permanent tenure-holders. This being so the next question that arises is whether they are entitled to the mineral rights. It appears to be well settled in England that a tenant for life or for years has no right to work unopened mines: Clegg v. Rowland (1866) 2 Eq. 160, Campbell v. Wardlaw (1883) 8 App. Cas. 641; and this, despite the case of Gordon, Stuart & Co. v. Tikaitnee Seobas Kowaree (1864) W.R. 370, has been accepted as good law in India in Prince Mahomed Buktyar Shah v. Rani Dhojamani (1905) 2 C.L.J. 20. See also Tituram Mukerjee v. Cohen (1905) I.L.R. 33 Calc. 203. The question remains whether the position of a tenant in perpetuity is any better in this respect than that of a tenant for life or for years. It was held in Rally Bass Ahiri v. Monmohini Dassee (1897) I.L.R. 24 Calc. 440, that the landlord continues to have a reversion in the property and this was cited with approval in Abhiram Goswami v. Shyama Clwran Nandi (1909) I.L.R. 36 Calc. 1003 : L.R. 36 I.A. 148. Nor does the fact that the tenure would escheat to the Crown in default of heirs Sonet Kooer v. Himmut Bahadoor (1876) I.L.R. 1 Calc. 391 : L.R. 3 I.A. 92, really negative the supposition that such a reversion subsists. If this is so, it is difficult to see why there should be any difference in principle between the lessee for years and the lessee in perpetuity, when nothing is known or can be inferred about the intentions of the parties at the time of the inception of the lease. If the opening and working of new mines in the case of a lessee for years is waste, it would seem to be the same ultimately in the case of a lease in perpetuity, though the injury is more distant. In either case the tenant might destroy the whole subject of the tenancy to that when the landlord came to sell it for arrears of rent, he might find that there was nothing to sell. It has been argued that the effect of Abhiram Goswami v. Shama Charan Nandi (1909) I.L.R. 36 Calc. 1003 : L.R. 36 I.A. 148 has been weakened by the decision in Ishwar Shyam Chand Jiu v. Ram Kanai Ghose (1911) I.L.R. 38 Calc. 526, but the former ease is still binding upon us. Reliance has been placed on the decisions in Shama Charan Nandi v. Abhiram Goswami (1906) I.L.R. 33 Calc. 511, Megh Lal Pandey v. Rajkumar Thakur (1906) I.L.R. 34 Calc. 358, and Mrojanath Bose v. Durga Prosad Singh (1907) I.L.R. 34 Calc. 753. The first case does not help the respondents much. It contains an observation, rather than a considered opinion, that a permanent lease, including "all rights of various kinds," would transfer minerals. There are no words of that kind here, and the decision was reversed on appeal though on other grounds. In the next case it was held that a permanent lease of land "mai haq-haquq" would transfer the minerals. This is much more in the respondents' favour, as the vague and general words "mai haq-haquq" add really but little to the effect of the lease. Still "there is nothing here but a permanent tenure without those words or any words, and therefore, the case is not really a decisive authority. In the third case it was held that certain digwars were permanent tenants, and therefore were entitled to the mineral rights in the absence of express reservation. This case, no doubt, goes the whole length of the respondents' contention, but we are informed that it is under appeal. Moreover, the learned Judges relied principally on the decision in Sriram Chakravarti v. Hari Narain Singh Deo Bahadur (1905) I.L.R. 33 Calc. 54, which has now been reversed on appeal to the Privy Council.

9. It has been urged that the Brahmins are more than tenure-holders, that they are absolute owners subject to a rent charge, that the transfer to them was not a lease but a gift burdened with a condition such as the Hindu law recognises. The distinction seems to us too fine to be appreciated. We know nothing as to what the intentions of the parties were at the inception of the tenancy. But in times within our knowledge they have been treated as tenants and sued for rent and cases, and have apparently made no objection.

10. A great deal of Evidence has been given to show that other persons in the position of the defendants have been dealing with the mineral rights as their own, without apparently any objection by the Raja. This evidence is open to the obvious objection that we do not know exactly what the position of the executants of these sales and leases was. It may conceivably be the case that they had sanads, which showed that all the rights in the land had been transferred to them. Still, no doubt, this mass of evidence cannot be put aside so easily. It is not likely that many holders of brahmottar villages are in a better position than the defendants in this suit with regard to the possession of title deeds, while it does seem clear that many of them have been dealing freely with the underground rights, and some of the leases go back to 1860 and one to 1858. This undoubtedly gives the impression that the brahmottardars generally have been dealing with the underground rights. But it is impossible to base a definite conclusion on an impression of this nature. Even in Panchgachia, where the evidence of such transactions goes back in 1880, the Subordinate Judge finds that although the defendants from time to time gave leases to speculators in coal, the enforcement of the leases was too casual and intermittent to justify an inference of adverse possession with sufficient continuity and publicity. We do not know in how many other cases the state of affairs might be found to be the same, and it may be that in most of the villages covered by the leases, etc., it may still be open to the Raja to claim the underground rights. Accepting therefore the fact that the brahmottardars of the villages of the zemindari have been dealing with the mineral rights as their own for some time we do not think that in reality that fact greatly affects the question of law that we have to decide, namely, whether the holder of a permanent tenure, in the absence of all evidence of the terms of the lease, should be presumed to own the underground rights.

11. It appears from the evidence of Haradhan Sarkar that in 1877, the then Raja of Pachete bought the sub-soil rights in the village of Kuttarha from certain makararidars under the holders of the village. The witness says that a quarter of the village was mal and three-quarters bhattottars. It is urged that bhatottar land stands in exactly the same position as brahmottar land, a Bhat being a species of Brahmin. It is argued therefore that this purchase amounts to an admission that the mineral rights belong to the Brahmin tenants. But here too we do not know if the Bhats had any sanad showing what had been leased to them. The village Kultarha does not appear in the goshwara papers and the argument rests on the unproved assumption that every tenancy of a Brahmin in the Pachete Raj is necessarily of the same nature and extent. Moreover, the question whether permanent tenants without written leases are entitled to the minerals is a point of law quite doubtful enough to take all value out of the admission. Even if it be held that the minerals belonged to the Raja, he might very prudently have fortified himself by a purchase of whatever rights the tenants might have.

12. On the other hand it appears from Ex. I, that in 1858 the Bengal Coal Co., executed an agreement in favour of the Assistant Commissioner at Purulia agreeing to pay rent for their coal lands. Apparently the Pachete Estate had then come under the management of Government. This is evidence so far as it goes, that the landlord was also recognised as having the right to dispose of the minerals; and probably the fact is that the Coal Company thought it prudent to take settlement from both sides.

13. It has been faintly argued that the Pachete Raj is impartible and that at the time that these tenures were granted it was generally understood that an owner of an impartible estate could not alienate. But it is not proved that the estate is impartible Anund Lal Singh Deo v. Maharaja Dheraj Gurrood Narayun Deo Bahadur (1850) 5 Moo. I.A. 82, 103 and it is impossible to contest the alienations on that ground when it is clear that more than 50 villages in a single pargana were alienated in this way in the 18th Century, and the validity of the alienations has never been questioned.

14. It appears to us that the mineral rights must be regarded as the property, of the Raja. The appeal will accordingly be allowed. The plaintiff will get a decree declaring his title to the mineral rights and for an injunction restraining the defendants from working mines in Panchgachia. He will be entitled to his costs of both Courts.