Das, J.:— The plaintiff-appellant company has a permanent lease of the underground rights of Mauza Lodna, subject to a lease of 3 annas 5 gandas share of the Mauza measured at 190 bighas 7 cottas 7 chattaks in favour of the defendant, and the real dispute between the parties is whether the real line delineated on a map, which has been marked as Ex. 18 in the case, is the boundary-line between the defendant's tenancy and the remaining 12 annas 15 gandas of the Manzi in the possession of the plaintiff company. The plaintiff company asks for a declaration that the red line is the correct boundary between the defendant's tenancy and the remaining 12 annas 15 gandas of Mouza Lodna and claims damages for breach of covenants on the part of the defendant, and the value of the coal wrongfully extracted and carried away by the defendant.

2. It appears that in 1894, Messrs Laik and Banerji secured from the Rajah of Jherriah a permanent lease of the entire underground rights in respect of Mauza Lodna. The plaintiff company is the assignee of Messrs Laik and Banerji, and as such claims to be in possession of the leasehold interest of Messrs Laik and Banerji. In 1894, however various persons, of whom Jotindra Sarkar was one, claimed to have under ground rights in Mauza Lodna by virtue of a, lease from the Kumars who had certain jagir rights over the village. Considerable litigation ensued between Messrs Laik and Banerji on the one hand and Sarkar and others on the other a litigation which was ultimately settled by Messrs Laik and Banerji agreeing to give a lease of 3 annas 5 gandas of the Mouza to Golap Chander Sarkar, the nominee of Jotindra Sarkar and others. This lease was executed on 14th April, 1896 and by virtue of the lease Golap Chunder Sarkar became entitled to 190 bighas 7 cottas 7 chattaks in his 3 annas 5 gandas share, the bigha area having been calculated on the basis of the revenue survey map. On 30th September, 1899 Golap Chander Sarkar assigned his interest under the lease to Ram Lal jinha, who in his turn conveyed his interest under the transaction of 30th September, 1899 to the defendant. This last mentioned transaction took place on 4th February, 1909.

3. The critical question in this case is, what is the southern boundary of the land demised to Golap Chander Sarkar in 1896, now in the defendant's possession. That question, in my judgment, can only be decided on a construction of the lease of 1896. That lease is in two parts the patta executed by Messrs Laik and Banerji in favour of Golap Chander Sarkar (Ex. 1) and the kabuliyat executed by Golap Chander Sarkar in favour of Messrs Laik and Banerji. (Ex. A). The material passage in the patta on which the decision of this case must rest runs as follows:

“We execute this patta in your favour and promise that we give you a mukararir maurasi settlement of 3 annas 3 pies share”

(same as 8 annas 5 gandas share)

“after demarcating and fixing the same towards the northern part of Mauza Lodna. According to the revenue survey map, the total area of the 16 annas of the said Mouza Lodna is 937 bighas 6 cottas 11 chattaks. According to that as the said 3 annas 3 pies share, covering an area of 190 bighas 7 cottas 7 chattaks of lands, which is included in the patta and which is settled with you cannot on account of the situation be possibly described correctly by boundaries, we shall get a map of the land prepared by a competent surveyor, on the basis of the boundaries given in the schedule at the foot of this deed, and we shall make over the same including the field book to you, after putting therein the signatures of all of us, and if that be not convenient then of these parties who may conveniently do so and the said map shall be treated as a part of this patta for proving the identity of the land and we will have the land surrounded by boundary pillars, in accordance with the same at our own cost.”

4. The schedule at the foot of the document giving details of boundaries has not been very correctly translated and printed at p. 157 of the paper-book. It has however been translated for us by Mr. Manuk, counsel for the respondent, a translation which has been accepted as correct by Mr. Pugh on behalf of the appellant company. The schedule runs as follows:

“Details of boundaries. The land in Mauza Lodna appertaining to Pergana Jharia to the east of Jharia Khas Chak Saratour and Chak Benehir, to the south of Jharia Khas, Chak Saratour and Niluri Patra, to the west of the limits of Kujama and to the north of the land of our remaining share of is annas 9 pies in Mauza Lodna and lying to the north of the boundary line that will be fixed by the surveyor as running south of the land settled with you, that is to say, to the north of the line that has been fired by the arbitrators at a distance of 325 feet to the north of our No. 1 incline pit made in Lodna and in which work is being carried on. If the said line does not cover an area of 190 bighas 7 cottas 7 chattaks of land, then we will make up the said area of 190 bighas 7 cottas 7 chattaks of land by giving you land from the north-west of the said incline No. 1 according to your liking, leaving a share of 325 feet therefrom, 3 annas 3 pies share in Mauza Lodna, covering an area of 190 bighas 7 cottas 7 ohattaks and lying within these boundaries.”

5. The material passage in the kabuliyat, which otherwise is identical with the patta, runs as follows:

“I shall get a map of the land prepared by a competent surveyor on the basis of the boundaries given in the schedule at the foot of this deed, and after putting my signature thereon, I shall make over to you the said map including the field book, and the said map shall be treated as a part of this deed for proving the identity of the land, and you will have the land surrounded by boundary pillars, in accordance therewith, at your own cost.”

6. I entertain no doubt whatever that the intention of the parties was to have a map prepared by surveyors nominated by both the parties on the basis of the boundaries set out in the schedule to the lease and to treat that map as part of the description of the lease itself for the purpose of identifying the land demised. Before examining the rival constructions that have been put on the lease, it will be convenient to deal with the events that preceded the suit. The lease, it will be remembered, is dated 14th April, 1896. Nothing seems to have been done by the lessors regarding the demarcation of the land demised and the preparation of the map until July 1897. Meanwhile, on 5th June, 1897, Messrs Laik and Banerji assigned and transferred their interest in Mauza Lodna to Messrs Turner Morrison & Co., acting on behalf of and as agent of the plaintiff company. It was Messrs Turner Morrison & Co., who took up the question of the preparation of the map, and on 14th July, 1897 wrote a letter to Babu Golap Chander Sarkar asking him to arrange to have a surveyor from his side to meet Messrs Laik and Banerji's surveyor on a particular day mentioned in that letter. This was clearly an invitation to Babu Golap Chander Sarkar to nominate his surveyor for the purpose of the demarcation and the preparation of the map in terms of the lease of 1896. Babu Golap Chander Sarkar's reply is not in the record, but in his evidence in this case he has fully stated what his reply was. His evidence is as follows:

“In answer to that letter I wrote to Messrs Turner Morrison & Co., that I reposed full confidence in them and need not send any surveyor and asked them to measure the land by their surveyor, and I sent my son, J.N Sarkar, at their request as my agent and representative to represent me at the locality.”

7. The meeting for the purpose of demarcation took place a few days later at the locality, at which were present Norendra Nath Mnkerji on behalf of Messrs Laik and Banerji, Mr. Thomson on behalf of Messrs Turner Morrison & Co., and Jotindra Nath Sarkar on behalf of Babu Golap Chander Sarkar. Norendra had brought with him a tracing from a revenue survey map of Mauza Lodna, and on this map Mr. Thomson drew a red line rather more than 325 feet from the mouth of incline No. 1 east and west so as to give Babu Golap Chandra Sarkar north of this line a compact block of 190 bighas 7 cottas and 7 chattaks. This line was then laid on the ground by Norendra Nath Mukerji and was checked by Mr. Thomson and found by him to be correct. Boundary pillars were afterwards put along the line as laid by Norendra on the ground. There was thus a complete demarcation of the land demised, not only on the map but on the ground itself, and the plaintiff company asserts that map, which is Ex. 18, in the case, must be taken as part of the lease itself for the purpose of description and identification of the land demised to the defendant with the red line as the southern boundary thereof.

8. The endorsements on Ex. 18 are of importance. The endorsement by Norendra Nath Mukerji is as follows:

“I, Norendra Nath Mnkerji, have put down boundary as per above red line in Mauzi Lodna.”

9. The endorsement of Jotindra Nath Sarkar is as follows:

“Boundary coloured red laid down in my presence and accepted by me as correct.”

10. Mr. Thomson himself certified the land demised to have been correctly shown in the map.

11. This demarcation took place on 20th July, 1897, and from that date up to 13th October, 1910, that is to say, for a period over 30 years, the red line on the map and the pillar line on the ground have stood as the southern boundary of the land demised without protest from any person whatever. It occurred to nobody to suggest that the map was inaccurate in any particular or that the block shown in the map as the land demised comprised an area less than 290 bighas 7 cottas 7 chattaks or that the red line as represented by the line of pillars was not correctly laid on the ground. When Golap Chander Sarkar assigned his interest under his lease to Ram Lal Sinha, he did so expressly by Rs. 18. When Ram Lal Sinha, assigned his interest to the defendant, he did so impliedly by Ex. 18. Ex. 18 held the field from 20th July, 1897 to 13th October, 1910, but on 13th October, 1910, Rim Lal Sinha wrote a letter to his assignor Golap Chander Sarkar complaining that the land demised contained an area of 175 bighas only and that the southern boundary, instead of being at a distance of 325 feet from incline No. 1, was at a distance of 500 feet therefrom and asking that the pillars on the south should be readjusted and correctly laid down. Before 13th October, 1910 however an important event had occurred. The plaintiff company had discovered the encroachment by the defendant, and the defendant had admitted the encroachment to the plaintiff company. The first protest from the defendant therefore come not only more than 13 years after the demarcation, but after his mining operations beyond the pillar line were actually discovered by the plaints company.

12. It will be remembered that the lease executed by Messrs Laik and Banerji in favour of Golap Chander Sarkar was the result of a compromise between Messrs Laik and Banerji on the one hand and J.N Sarkar and the others on the other hand, and the position taken up by the defendant is that the compromise was brought about by certain arbitrators who definitely fixed the southern boundary of the land to be demised to Golap Chander Sarkar at a distance of 325 feet from the mouth of incline No. 1, and marked the same on a map which has been produced in the case and has been marked as Ex. B. His case is, a case that has found favour with the learned Subordinate Judge, that all that “the competent surveyor” was required to do under the lease was to relay the arbitrators' line and to show it on the ground, and that, as the red line does not correspond with the arbitrators' line, that line cannot be taken as the southern boundary of the land demised and that the plaintiff company is not entitled to the declaration sought in this action nor to damages for breach of covenant or for the carrying away of the coal, there being no evidence to show that he has conducted his mining operations beyond the arbitrators' line. He says that the map was signed not by parties who ought to have signed it under the lease, but by certain persons connected with those parties under the mistaken belief produced by the representation of the plaintiff company's manager and surveyor that the map had been correctly drawn on the basis of the boundaries set out in the schedule to the lease and that the red line corresponded to the line laid down by the arbitrators.

13. He complains that the map is erroneous in essential particulars in that the portion shown as demised does not comprise the full area of land demised, in that the red line lies at a distance of more than 325 feet from the mouth of incline No. 1 and as such does not correspond with the arbitrators' line and in that the northern boundary is not correctly delineated and does not correspond with the northern boundary of the mauza according to possession of the parties. His position therefore is that Ex. 18 is not binding on him at all and that the plaintiff company's action must fail.

14. It is necessary to have a clear idea of the issues raised in this case and to distinguish those which are relevant from those which are irrelevant. In my view, no question of misrepresentation properly arises in this action. The only questions which we have to determine are, what is the southern boundary of the land demised to Golap Chander Sarkar and has the defendant overstepped that boundary in the course of his mining operations. If, on a construction of the lease, we are forced to the conclusion that the arbitrators' line is the southern boundary of the land demised, then the defendant is entitled to succeed, misrepresentation or no misrepresentation. If, on the other hand, we come to the conclusion that the lease was on the map, Ex. 18, and that there is no discrepancy between Ex. 18 and the clear description by boundaries in the lease itself, or that such discrepancy as there may be is only apparent and can be reconcile that map with the red line as the southern boundary must prevail, misrepresentation or no misrepresentation. Nor does the question of the area shown as demised in Ex. 18 properly arise in this action. If the red line be found to be the southern boundary of the land demised, then the rest of the plaintiff's action is purely an action for damages for breach of covenant and for unauthorized extraction and carrying away of the plaintiff company's coal. In such an action, it is no defence to say that:

“I was entitled to 190 bighas 7 cottas 7 chat-tabs, whereas you have actually given me only 175 bighas.”

15. If indeed there was a misrepresentation regarding the area shown as demised in Ex. 18, the defendant might perhaps have renounced the contract on the ground of misrepresentation. As he did not renounce the contract, he cannot now found a defence in an action such as this upon the discrepancy between the area shown as demised in Rs. 18 and the area found on measurement to have been actually demised. The defendant may perhaps be entitled to an abatement of rant in an action properly framed for that purpose, but, in my judgment, a question of deficiency of area cannot be raised as a defence to an action such as this. Nor in my view, is the question of errors in the map founded on an elaborate argument of angles and perpendiculars relevant for the purpose of this trial. The defendant can undoubtedly show that there is a discrepancy between the map and the clear description by boundaries in the lease, and that such discrepancy cannot be reconciled. If there be such discrepancy, the map must give way to the boundaries, and the defendant will be entitled to set up his southern boundary as a defence to this action. An issue as to whether the map Rs. 18 is “erroneous” on the ground that it contradicts the clear description by boundaries given in the lease itself is a relevant issue, and must be tried. An issue as to whether the map Rs. 18 is “erroneous” on any other ground ‘whatever is, in my opinion, irrelevant, and ought not to be tried.

16. The critical question for our determination then is, what, on the true construction of the lease, is the southern boundary of the land demised? Arbitrators' line versus the red line—that is the contest between the parties.

17. There can, in my opinion, be no possible room for doubt that the lease was on the map Rs. 18. The lease itself is conclusive on this point. The parties say definitely that it is impossible to describe the property demised correctly by boundaries. They agree that a map should be prepared by a competent surveyor on the basis of the boundaries given in the schedule and that map should be treated as part of the lease for proving the identity of the land. Such a map was actually prepared by a competent surveyor, and that map is Ex. 18. It was objected that Golap Babu's surveyor did not assist in the preparation of the map and that the map was not signed by Messrs Laik and Banerji and by Golap Babu, and that the field boob was not made over to Golap Babu. These objections proceed from a fundamental misconception as to the scope of the suit. They would arise and, properly arise, in a suit for cancellation of the lease. But the question before us is, not whether there is a demise or not, but what is the southern boundary of the land demised. Once the defendant accepts the position that there is a demise in his favour, it is useless to urge as defence to an action for damages that the field book was not made over to him, of that the map was not signed by the parties, or that his surveyor did not assist in the preparation of the map. As a matter of fact, there id no substance in any of these objections. Messrs Turner Morrison & Co., did invite Golap Babu to send his surveyor for demarcation of the land demised. Golap Babu declined to nominate a surveyor and left the whole matter to Messrs Turner Morrison & Co. In my view Mr. Thomson must be deemed to have acted on behalf of both the parties. In any view of the case, it is too late to raise that objection now. The map, it is true, was not signed by the lessors or by Golap Babu, but it was signed by their agents. It is also true that the field book was not made over to Golap Babu. But no objection to the map was raised on these grounds, and in my view, it cannot be raised now, especially as both Golap Babu and Ram Lal Singh have undoubtedly acted on that map.

18. Where the lease is on a map, and the map exhibits the boundaries of the land demised, the general rule is that the map is decisive on the question of boundaries. If the general rule be taken as applicable to this case, then the red line must be taken to be the southern boundary of the land demised. But the general rule is subject to an important exception and it is this. Where the map contradicts the unambiguous text of the title, it must give way to the text: Horne v. Struben(1), though every endeavour must be made to reconcile any apparent discrepancy: Brain v. Harris(2). This rule only applies where the map is referred to for further elucidation of the text, the text being in no way Subordinate to the map which may elucidate, but which may not contradict the text.

19. Mr. Manuk strongly relies upon the rule laid down in Horne v. Struben. His argument is that there is in the lease itself an unambiguous definition of the southern boundary as the arbitrators' line at a distance of 325 feat from the mouth of incline No. 1 and that the louse, read in conjunction with the arbitration map, Ex. B, defines completely and with sufficient accuracy the land demised. He points out that the red line is 372 feet from the mouth of incline No. 1 and cannot therefore be identical with the arbitrators' line. He argues on the authority of Horne v. Struben that the red line must give way to the arbitrators' line and invites us to hold that the arbitrators' line is the southern boundary of the land demised.

20. On a careful consideration of the lease, I am unable to accede to this argument. The arbitrators' line, it will be noticed, is not a complete line from east to west. It is a line joining points A and B, the point A being on the eastern boundary and the point B being stated to be 325 feet from the mouth of the incline No. 1, which is marked on the map as point C. It is necessary to remember that point B is not on the western boundary of the Mauza. Mr. Manuk's argument is that all that the surveyor was required to do under the lease was to join points A and B and produce it straight to the western boundary. This argument has found favour with the learned Subordinate Judge. If this argument is to be accepted as correct, it is difficult to understand why the arbitrators did not complete the line themselves and why the southern boundary is not described in the lease itself as the arbitrators' line at a distance of 325 feet from the mouth of incline No. 1.

21. It is even more difficult to understand why the land demised “could not possibly be described by boundaries” as the parties themselves say in the document. The northern, the eastern, the western boundaries are described with precision. The argument on behalf of the plaintiff company is that the land could not possibly be described by boundaries, because the southern boundary was not fixed. The definite case made in the written statement is that the southern boundary was fixed as the arbitrators' line in Ex. B. It is this case which has been accepted by the learned Subordinate Judge. If this is so, the southern boundary in the document could have been described as the arbitrators' line at a distance of 325 feet from the mouth of incline No. 1 and the demise would have been on Ex. B, and not on a future map to be prepared by a competent surveyor. The argument is that the southern boundary was laid by the arbitrators on Ex. B. This argument, in my view, is inadmissible in view of the admitted facts, namely, that the parties undoubtedly thought that the land demised could not possibly be described by boundaries and that the demise was not on Rs. B but on a map to be subsequently prepared by a competent surveyor.

22. Faced with this difficulty Mr. Manuk relied on the covenant on the part of the lessors to the effect that they would be bound to make up any deficiency of area from the north-west of incline No. 1 at a distance of 325 feet from the mouth of that incline. Mr. Manuk's argument was that until it was determined, whether there was or was not a deficiency of bigha area north of the arbitrators' line, there remained a difficulty about the southern boundary. My question to Mr. Manuk was: Was the arbitrators' line, as shown in Ex. B, the southern boundary of the land demised according to the lease? “It was,” replied Mr. Manuk,

“if I got my 190 bighas north of that line; it was not if I did not get my 190 bighas north of that line.”

23. In my view this argument contradicts not only his own argument and written statement, but also the finding of the learned Subordinate Judge. It seems to me to be clear on this document that, whether it is the red line or the arbitrators' line, that line is the southern boundary of the land demised. If there was a deficiency of the bigha area north of the line, whether it is the red line or the arbitrators' line, the lessors would be bound to make good the deficiency from another block of land, but that would be in another block of land with its own boundaries north, south, east and west. In my view, if Mr. Manuk's argument is correct, the demise would have been on Ex. B, and there would have been no difficulty at all in describing the boundaries of the land demised.

24. There is another serious objection to this argument. It will be remembered that the northern, eastern and western boundaries are described with sufficient precision and clearness. If the southern boundary were equally well defined, then a block of coal land was demised to Golap Babu without any measurement at all, and it may well be that black comprised an area much in excess of 190 bighas 8 cottas 7 chattaks. Mr. Manuk's answer to this argument is that it is a matter of complete irrelevancy whether he gets more than 190 bighas 7 cottas 7 chattaks, since the land demised is ascertained with certainty by description by boundaries. There is, in my opinion, much misconception as to the meaning of “false demonstration.” A property may be described by various terms some of which may be sufficient to define the property with certainty, whereas the rest may add a description which is untrue. In such a case, the additional terms cannot be treated as words restricting the previous description. They are simply rejected as a false demonstration. But this rule is subject to an important qualification, namely, that every endeavour must be made to give full effect to all the terms of description. It is also subject to another rule, namely, that the additional words are not rejected as importing a false description, if they can be read as words of restriction.

25. Can it to suggested in this case that the description by area is a false description? The demise is a demise of 190 bighas 7 cottas 7 chattaks. The defendant's case is that it is a demise of all the coal lands within fixed boundaries. But even the defendant has to admit that the lease provided for what was to happen if the area within the fixed boundaries fell short of 190 bighas 7 cottas 7 chattaks. The lease provided as follows:

“if the Baid line does not cover the area of 190 bighas 7 cottas 7 chattaks of land, then we will make up the said area of 190 bighas 7 cottas 7 chattaks of land by giving you land from the north-west of the said incline No. 1 according to your liking, leaving a space of 325 feet therefrom.”

26. Faced with this clause in the lease Mr. Manuk argued that he was entitled to at least 190 bighas 7 cottas 7 ohattaks of coal land, but he might get more. 1 cannot accede to this argument at all. Either the description by area is a false description or it is not. It cannot be a true description for one purpose and a false description for another. In my judgment, the description by area is so specific, so precise, so certain that it is absurd to call it a false description.

27. But, in truth, there is no conflict between the two descriptions at all. It will be noticed that one contingency is provided for, namely, deficiency of bigha area within the boundaries. But the other contingency, namely, excess of area, is not provided for at all. On Mr. Manuk's construction of the lease there might well be an excess of area within the boundaries fixed. In my view, on a proper construction of the lease, that contingency could never arise.

28. It seems tu me that the lessors were anxious to protect their incline No. 1 and were interested in preventing any mining operations being carried on by the lessee within 325 feet of their incline No. 1. The arbitrators indicated a line 325 feet from the month of incline No. 1. That line indicated the further limit to which the land demised might extend on the south, but not necessarily the southern boundary, where the southern boundary would lie would depend upon the area north of the arbitrators' line. If the area were found on measurement to exceed 190 bighas 7 cottas 7 chattaks to which the lessee was entitled, the southern boundary would obviously be laid both of the arbitrators' line. If the area were found deficient, the arbitrators' line would be the southern boundary, and the lessor would be bound to make good the deficiency from his land north-west of incline No. 1 at a distance of 325 feet therefrom. This seems to me to be the obvious construction of the lease. It is because the land had not been previously measured, that the laying of the southern boundary was left to a surveyor who had three data to work upon, namely, first, the northern, the western and the eastern boundaries were fixed, secondly, the lessee was entitled to 190 bighas 7 cottas 7 chattaks and, thirdly, the southern boundary could not lie anywhere south of the arbitrators' line. With these data to work upon a competent surveyor would have no difficulty in laying the southern line, which was still undetermined at the time of the lease. It is impossible to ignore the precise manner in which the southern boundary has been described in the lease. The words are these:

“To the north of the land of our remaining share of 12 annas nine pies in Mauza Lodna and lying to the north of the boundary line that will be fixed by the surveyor as running south of the land settled with you, that is to say, to the north of the line that has been fixed by the arbitrators at a distance of 325 feet of our No. 1 incline made in Lodna and in which work is being carried on.”

29. The surveyor's line is described as the boundary line, whereas the arbitrators' line is described as the line. In this view there could be no conflict between the area and the boundaries, and it must surely be our first endeavour to reconcile every provision in the lease.

30. Mr. Manuk argues that the sentence

“to the north of the line that has been fixed by the arbitrators,”

connected as it is with the sentence

“to the north of the land of our remaining share of 12 annas nine pies and lying to the north of the boundary line that will be fixed by the surveyor as running south of the land settled with you”

by the words “that is to say” cannot be read as an addition to something which has already been described, but must be read as part and parcel of the description itself and is sufficient to make the description adequate and clear. I confess that I am unable to appreciate this argument, an argument founded on Mellor v. Walmsley(3). In that case there was a conveyance by two descriptions, description by boundary and description by dimensions. In the events that happened there was a clear conflict between the two descriptions, and Swinfen Eady, J., gave effect to the well-known rule that when you have in the words of description sufficiently certain definition of what is conveyed, inaccuracy of dimensions or of plan as delineated will not vitiate or affect that which is there sufficiently described. The Court of appeal, on a construction of the conveyance, came to the conclusion that well-known rule did not apply, because the dimensions were not an addition to something which had already been sufficiently described but were part and parcel of the description itself. Vaughan Williams, L.J, in the course of his judgment said as follows:

“The words are not an inaccurate statement of a quality of that which had already been certainly described or defined, but are part and parcel of that description or definition. The dimensions in this case, to be the words appearing on p. 247 of Sheppard's Touchstone, are an essential part of the description and not a cumulative description in a case in which there is in the first place a sufficient certainty and demonstration.”

31. There is, in my view, no room for the application either of the general rule or of the exception so far as this argument is concerned. I do not read the passage as containing two descriptions in conflict with each other. There is one description of the southern boundary, and one only, and it is a matter of pure construction what that description means. In my view it is impossible to misunderstand the description of the land demised. It lies north of the boundary line that will be fixed by the surveyor, and it must lie to the north of the line that has been fixed by the arbitrators. One is a future line which would be the boundary line. The other is an existing line indicating the farthest limit to which the land demised might extend on the south. If Mr. Manuk's contentions ware correct, there was no difficulty in describing the land demised as

“land to the north of our remaining share of 12 annas 9 pies in mauza Lodna and lying to the north of the boundary line that has been fixed by the arbitrators at a distance of 325 feet to the north of our incline No. 1.”

32. On a careful consideration of the whole document I am of opinion, that the southern boundary was not fixed at the time of the lease, and that the parties left the matter of the southern boundary to the surveyor. In my view, there is no conflict between the map and the text of the lease, and the map Ex. 18 must accordingly be decisive on the question of boundaries.

33. Mr. Manuk's next argument is that the map is inaccurate and must be rejected. Now, what are the grounds put forward in the written statement for inviting the Court to hold that the map is inaccurate? They are: (1) the land demarcated as demised does not comprise 190 bighas 7 cottas 7 ohattaeks; (2) the southern boundary does not correspond with the arbitrators' line; and (3) the northern boundary is not correctly delineated and

“does not tally with the position of the mauza as was admittedly adopted and possessed and owned by the parties.”

34. The meaning of the third objection is that there is a line of pillars to the north of the mauza which was treated by the parties as the northern boundary of the mauza, and as the northern boundary as shown in Ex. 18 does not correspond with the line of pillars, the map must be held to be inaccurate in an essential particular. The answer to this argument is that there is no mention of the line of pillars in the lease itself. To accede to the argument of Mr. Manuk would be to take upon ourselves the responsibility of making a new lease for the parties.

35. The question is: Is there a discrepancy between the description of the northern boundary in the map Ex. 18 and that contained in the lease? The northern boundary is described in the lease as Jharia Khas, Chak Saratcur and Niluri Patra. It is not suggested that in the map itself the northern boundary is not Jharia Khas, Chak Saratour and Niluri Patra. The suggestion is that the surveyor should have proceeded by the line of pillars on the north and not by the revenue survey map. The question, in my opinion, is one of pure construction, and as in my view there is no conflict between the map and the written text, no challenge can be thrown on the northern boundary as depicted in Ex. 18.

36. So far as the second ground of com-plaint is concerned I have dealt exhaustively with the same. In my view there was no obligation on the surveyor to lay the southern boundary exactly 325 feet to the north of incline No. 1 and as identical with the arbitrators' line.

37. I now come to the question of area. In my view, it is too late for the defendant to raise the question of area. The lease amply safeguarded the interest of the lessee. It contemplated a survey by surveyors appointed by both the parties. Between two business firms it is not to be expected that there should be periodical surveys, whenever one party or the other chooses to raise some objection to the survey. It was exactly to prevent future disputes of this kind that the parties agreed to have the survey, once for all, by a surveyor or surveyors appointed by both the parties. Messrs Turner Morrison & Co., in whom the interest of the lessors had then vested, invited the lessee to nominate his surveyor. The lessee declined, saying that he had ample confidence in Messrs Turner Morrison & Co., but promised to, and did in fact, send his son to represent him at the survey. The son was actually present at the survey and accepted the measurement. That took place on 20th July, 1897. On 18th October, 1910, the question of deficiency of area was raised for the first time in a letter from Earn Lal Singh to Golap Chandar Sarkar. In my view, by refusing to nominate a surveyor on his side, Golap Babu and consequently the defendant have waived every objection that they might have to the survey conducted by Mr. Thomson. Mr. Manuk's argument on the attitude taken up by Golap Babu is a remarkable one. “Golap Babu was not out to condone inaccuracies,” said Mr. Manuk, “he trusted them, that is all.” To allow him to advance an argument of this nature is to allow him to impute an amount of bad faith to Golap Babu which I, for one, will not permit. Supposing Golap Babu had told Messrs Turner Morrison & Co.:

“I will not be responsible for the survey at all, and I reserve to myself the right to challenge the survey at any time I choose,”

would Messrs Turner Morrison & Co have consented to the course proposed by Golap Babu? The bad faith consists in giving Messrs Turner Morrison & Co the idea that he would be bound by the survey, while be mentally reserved to himself the right to challenge it, if it suited him. In my view, the defendant is bound by the survey and cannot reopen the question of area now. He may have a perfectly good cause of action against Ram Lal Sinha or against Golap Babu, but, in my view, he has none against the plaintiff company.

38. In the next place, I do not see how the question of deficiency can be raised as a defence to an action for damages for breach of covenant, and for carrying away the coal belonging to the plaintiff company. The question is: Has the defendant overstepped the boundary line? The answer is “Yes, I have” (for this argument assumes that the red line is the boundary line of the land demised). “But I was entitled to more land from you.” Mr. Manuk's argument is that he was induced to accept the red line as the boundary line on the false representation made by Mr. Thomson to him. According to him he is entitled to set up misrepresentation as a defence to this action. In my opinion, there is neither principle nor authority in support of this proposition. Mr. Manuk however cited the well-known case of Walsh v. Lonsdale(4) in support of his proposition and he also relied on Lowther v. Heaver(5) and Davis v. Shepherd(6). Walsh v. Lonsdale is an authority for the proposition that a tenant holding under an agreement to lease stands exactly in the same position, as if the lease had been executed in his favour. The test of course is, as Jessel, M.R, pointed out, would specific performance of the agreement be decreed? If it would be, then the parties are in the same position as if the lease had been executed. In this case, the defendant is in possession, not by virtue of an agreement for lease but by virtue of a lease, which defines the boundaries of the land demised with precision, and he is not in possession of the disputed area.

39. If it could be established that there was an agreement to demise the disputed area, then something might be said for the argument Mr. Manuk asserts that there was such an agreement, since this was an agreement to give him 190 bighas 7 cottas 7 chattaks, and since he has got only 174 bighas. He may have a claim for the deficiency, but that is not the same thing as having a claim for the disputed area, assuming that it lies outside his boundary. Let us apply the same test as Jessel, M.R, applied in Walsh v. Lonsdale. Could the defendant maintain a suit for specific performance in respect of the disputed area? The answer must be a decisive No. In my view, Walsh v. Lonsdale has no application to the facts of this case. Lowther v. Heaver is an example of the application of Walsh v. Lonsdale to the particular facts of that case. It established that where a person is entitled in equity to a lease, his rights ought to be dealt with in the same way as if a lease had been granted to him. I fail to see where the equity is in this case unless equity is confused with natural justice or higher justice, with which I have nothing whatever to do.

40. The defendant, in my opinion, does not establish an equity in his favour by alleging and proving that the lessors have not demised to him the full quantity of land which they agreed to demise. He would undoubtedly have established an equity in his favour by alleging and proving that though the area actually demised is less than the area agreed to be demised, the lessors had nevertheless agreed to demise the identical land from which coal has been extracted and had put the defendant in possession thereof. Davis v. Shepherd was cited in support of his argument that the defendant must be deemed to be in possession of the disputed area. In that case the owners agreed to demise to the defendant the minerals to the west of a certain fault supposed to run through the land in the direction of a line drawn on a certain plan, the quantity of the land being described as supposed to be 83 acres or there abouts. The owners made a similar agreement with the plaintiff as to the minerals to the east of the fault supposed to contain 98 acres or thereabouts. The fault was afterwards found to run so as to leave on the east the bulk of the land and on the west 8 acres only. The defendant however prosecuted his working through the fault and proceeded to get the coal beyond it. The plaintiff thereupon filed his bill, alleging that he was entitled to a lease of all the coal to the east of the fault and praying that the defendant might be restrained from working coal to the east of the fault and for an account. The Court of appeal came to the conclusion that the plaintiff could not be considered as being constructively in possession of any minerals, not coming within the description of 98 acres or thereabouts and not separated from the western border of the estate by a line running in the direction, or nearly in the direction of the line marked on the plan. Plaintiff's action accordingly failed.

41. With every desire to understand the defendant's case, I have failed to sea how Davis v. Shepherd assists the defendant at all. Lord Cranworth, L.C, said in the course of his judgment:

“In the case of a demise of uncorked minerals, there can hardly be said to be actual possession of any part of them, except of what the intended lessee is actually working; but I think that when the lessor allows his intended lessee to take possession, and the lessee does not take possession and commences working accordingly, he must be considered as constructively in possession of all which the lessor has bound himself to demise.”

42. If we apply the same test here, the defendant cannot be considered as being constructively in possession of any coal not coming within the description of 190 bighas 7 cottas 7 chattaks and not separated from the plaintiff company's portion of Mauza Lodna by the red line marked on the map. The argument advanced before me was that he has undoubtedly extracted coal from the disputed area. Therefore he must be deemed to be in possession of the disputed area. The case itself is no authority for this proposition because the essential conditions to make the rule applicable are here wanting, namely, that the lessor has bound himself to demise the disputed area to the defendant and has allowed the defendant to take possession of the disputed area. There is however direct authority for the view that a trespasser wrongfully working a vein of coal from an adjoining mine acquires possession only of the coal worked, but cannot be said to be in possession of the mine itself: Ashton v. Stock(7) and Thompson v. Hickman(8).

43. In my view, misrepresentation as to the area demised cannot be raised as a defence to an action for wrongful extraction and carrying away of coal. If indeed there was misrepresentation the lessee might perhaps have renounced the lease on the ground of misrepresentation or he may obtain an abatement of rent. But so long as the lease stands, the lessee is bound to respect the boundary.

44. As this case is likely to travel in its adventurous career across the seas, it is just as well to record my finding on the question whether there is in fact, a deficiency of bigha area in the land demised. The respondent relies upon the Commissioner's report and on Mr. Thomson's evidence. It will be seen from the instructions given to the Commissioner that he was asked to take the boundary pillars on the north as the northern boundry of the land demised. The Commissioner reported that:

“as bounded by pillars and which is in possession of the defendant the area of the plots is 177 bighas 17 cottahs 7 chattaks.”

45. He afterwards admitted an error in his map and reported that the area in possession of the defendant was 174 bighas 1 cottah 18 chattaks. In my view there was no justification for asking the Commissioner to take the pillars the northern boundary. There is no mention of the pillars in the lease itself and Rs. 18 which in my opinion must be conclusive on the question of boundaries shows that the northern boundary is the northern boundary of the Mouza as in the revenue survey map. My conclusion on this point as to which there has been much discussion at the Bar is based on the finding of the Court below that Ex. 18 is a tracing from a revenue survey map. If that be so, and if Ex. 18 controls the situation the northern boundary of the Mouza as in the revenue survey map must be taken to be the northern boundary of the land demised. The Commissioner does say in his evidence that the boundary line in his map agrees for all practical purposes with that in the revenue survey map, but where the difference is only 16 bighas distributed over a large area, the phrase “practical purposes” has no meaning whatever. We have however direct evidence on the point. Mr. Richardson drew a map of the land demised lying to the north of the red line and bounded by the revenue survey boundaries on the other three sides and found the area of the land demised to be 1906 bighas. In his map Ex. 18, he showed the revenue survey boundary in black and then he delineated on his map the Commissioner's map in orange. The result can be seen at a glance, the Commissioner's northern boundary does not agree with the revenue survey northern boundary. The difference in area between the black line and the orange line on the north has been extracted and is found to be 14 bighas odd. In my view therefore it is impossible to rely on the Commissioner's map.

46. There is another serious error in the Commissioner's map due to a mistake on the part of Mr. Thomson. Mr. Thomson pointed out a sunken rail as the site of the trijunction pillar of Lodna Pandeberra and Kujama. The Commissioner, relying on Rs. 46, says that there is only one trijunction point for four villages, namely, Jharia Khas, Lodna, Pandeberra and Kujama. I will examine this contention at once but whether the trijunction point for the four villages is the same or not even the Commissioner admits that the trijunction point in Ex. 46 is on the west bank of the river and not away from the river and 130 feet from the east bank, A critical examination of all the copies of the revenue survey map (Exs. 23, 26, 46 and 47) and particularly of Ex. 47, which as the enlarged copy of the revenue survey map is the most authentic of all has satisfied me that the trijunction point of Jharia Khas, Lodna and Pandeberra is on the west bank of the river and not 52 feat to the west of the river and that the trijunction point of Lodna, Pandeberra and Kujama is on the east bank of the river and not 130 feet to the west. The mistake of the Commissioner lies is confusing between a trijunction pillar and a trijunction point. In a small scale map it is impossible to show two trijunction pillars when they are so near each other but even in Ex. 47, the lines of intersection are shown indicating that the trijunction point of Jharia, Lodna and Pandeberra is on the west bank of the river and that the trijunction point of Lodna, Pandeberra and Kujama is on the east bank of the river. The Commissioner admits that according to Ex. 23, the trijunction point of Pandeberra, Kujama and Lodna is on the east bank of the river. Ex. 47 however is conclusive on this point.

47. Now what is the trijunction point of Lodna, Pandeberra and Kujama in his map? He himself says that he has shown it at a distance of 52 feet from the west bank. Even according to Ex. 46, as the Commissioner understands it, it is incorrect. It is far more incorrect according to Exs. 47 and 23, which in my view do not contradict Ex. 46. He says that he found the trijunction pillar by actual survey on the ground. He afterwards said that Mr. Thomson pointed out the sunken rail as the site of the trijunction pillar which had disappeared. He had both Exs. 23 and 46 with him and there was no excuse for taking a point as trijunction point which according to Ex. 46 as he understood it was 52 feet away from the real trijunction point but which according to Ex. 23 and also according to Ex. 46 if he had examined it critically was 130 feet away from the real trijunction point. He shows the trijunction point at station 10 of his map and admits that it does not tally with Ex. 23 but claims that it tallies with Ex. 46. This claim is disproved by his own evidence that even according to Ex. 46 the trijunction point is on the west bank of the river although be has shown it at a distance of 52 feet from the west bank.

48. Now this error in locating the trijunction point will undoubtedly result in throwing his northern boundary absolutely out of gear. He himself admits that if his trijunotion point does not agree with its position in the revenue survey map the northern boundary of the disputed land as surveyed by him will not tally with the northern boundary as in the revenue survey map. In my view, on the Commissioner's own evidence, it is impossible to rely on his map and report.

49. The Commissioner also reported that the area of the plot as shown in Ex. 18 is 182-B. He arrived at this conclusion purely as a result of desk work and not as a result of actual survey after relaying Ex. 18 on the ground. I cannot attach any importance to this report as he himself admits that there may be a difference due to the contraction of the tracing cloth. It is true that he did not make this admission with reference to Ex. 18, but he does say that tracing cloths have a tendency to contract rendering a correct calculation impossible.

50. I now come to the evidence of Mr. Thomson. His lengthy cross-examination is a good example of that which the Judicial Committee in the case of Rajkumar Roy v. Gobind, Chunder Roy(9) severely condemned. “In boundary cases of this kind,” said the Judicial Committee:

“nothing is easier than to propound riddles which cannot be answered by merely looking at the maps, or reading the statements which appear in the record.”

51. His cross-examination is a cross-examination on perpendiculars and angles as a result of comparison between his map, Rs. 18, and to other maps, namely, Murray's map Ex. 9, and a revenue survey map Ex. 23. He was driven to admit that his map was in conflict both with Rs. 9 and Rs. 23 and was therefore inaccurate. His evidence on this point is as follows:

“Prom the data you asked me to take the partition line as drawn on Ex. 18 does not tally with the original from which Ex. 18 was made. I mean the data you gave are the angle from the eastern extremity between the partition line and the line drawn through the trijunction pillar of Jharia Khas, Lodna and Pandeberra which is but imperfectly shown in Ex. 18, secondly, the point on the western extremity of the partition line where I put on the point C 3, thirdly, the angle in Ex. 23 between the partition line from the eastern end of it passing through these above trijunction points. That angle in Ex. 18 does not agree with Ex. 23. Every one of these data shows that Ex. 18 is a wrong copy.”

52. It is on this passage that the learned Subordinate Judge has relied for rejecting Rs. 18.

53. In my view this cross-examination has proceeded from a complete misconception of the issues that properly arose in this case. Rs. 18 may be wrong as compared to Rs. 9 or it may be wrong as compared to Rs. 23, but the question in this action is: Does it contain a sufficiently clear definition of the southern boundary of the land demised? The defendant has a definite case on the southern boundary of the land demised. He says that the southern boundary is not the red line of Ex. 18, but the arbitrators' line of Ex. B. That case I understand and appreciate. But if that case fails, as in my opinion it has failed, of what use is it to pick holes in the map on which the demise was made, and propound riddles for Mr. Thomson? Mr. Thomson says that the angle formed by the red line and the line from the eastern extremity of the red line to the trijunction point of Lodna, Jharia Khas and Pandeberra is 52.10 degrees. He says that the corresponding angle in Murray's map is 49.20 degrees. The riddle put by the learned vakil to Mr. Thomson was, why don't the angles agree? Mr. Thomson answered, because my map is wrong. The true answer should have been, as Mr. Pugh has satisfied me, that a wrong trijunction point was taken by Murray.

54. It is worth while examining this point a little more in detail, if only to remove a grievance of the defendant. A confusion has undoubtedly been created in his case by reason of the fact that the trijunction pillar of Pandeberra, Jharia Khas and Lodna has disappeared, and is now buried in a tramway bank. This, I find, established in the case. The revenue survey mape Exs. 23, 26, 46 and 47, and particularly Ex. 47, show the trijunction point to be on the west bank of the river. This I find also established on a critical examination of the maps and on the Commissioner's evidence to which I have already referred. When the encroachment by the defendant was discovered. Mr. Thmson supervised the preparation of a map of the land demised by Mr. Murray. At that time he pointed out a sunken rail 52 feet to the west of the river bank as the trijunction pillar of Jharia Khas, Lodna and Pandeberra. The trijunction point therefore in Murray's map as in the Commissioner's map is 52 feet to the west of the trijunction point as in the revenue survey maps. The result is that the angle formed by the partition line and the line from the eastern extremity of the partition line to the trijunction point in Murray's map differs from the corresponding angle in Ex. 18, which is a tracing from the revenue survey map. This is the explanation of the difference in angle between Murray's map and Rs. 18. So far as Ex. 23 is concerned, it must be remembered that the angle could only be calculated if the partition line were correctly laid thereon. Mr. Thomson estimated in the witness box by means of a protractor. The estimate of an angle on a small scale map after laying a line thereon, all in the witness box in the course of a severe cross-examination, is a matter of no small difficulty and I attach no importance whatever to his admission that the angle in Ex. 23 varies from the angle in Rs. 18. It is well worth remembering that some of the defendant's maps show an angle of 52 degrees, Rs. 24 for instance, and Ex. 16-A, which the defendant sent to the plaintiff company in October 1910. In my view, Mr. Thomson's admissions were based on data which were incorrect and misleading. I do not think that Mr. Thomson's admission can be taken as an admission that the land demised to the defendant comprises an area less than 190 bighas 7 cottahs 7 chattaks. I hold that the defendant has not shawm that there is any deficiency in the area demised to the defendant.

55. My conclusions on this part of the case are first, that the lease was expressly on a map and that map must be decisive on the question of boundaries unless there is a conflict between it and the boundaries set out in the schedule to the lease, secondly, that Ex. 18, and not Ex. B, is the map referred to in the lease, thirdly, that there is no conflict but wean Rs. 18 and the boundaries set out in the schedule to the lease and that consequently Ex. 18 must prevail, fourthly, that it is not open to the defendant to rely upon any deficiency of are demised as a defence to this action and fifthly, that the defendant has not shown that there is any deficiency in the area demised.

56. I hold that the red line in Ex. 18 is the southern boundary of the land demised, and that the plaintiff company is entitled to a declaration to that affect.

57. I now proceed to the next point, namely, whether the defendant has actually extracted coal from plaintiff company's portion of Mouza Lodna. On this point, there are numerous admissions of the defendant himself. It appears that the plaintiff company discovered the encroachment on 25th July, 1910. Mr. Morrison, the General Manager, at once wrote to Messrs Turner Morrison and Co., complaining that the encroachment was a serious one. There is a letter of 26th July, 1910 from Mr. Lindsay to Mr. Morrison which definitely states that the defendant had called to see Mr. Lindsay and told that he first found about the encroachment in the month of May last. The defendant, in that interview, complained that the encroachment was due to the malice of his old surveyor who misled him as regards the workings. This interview and admission were admitted in the cross-examination of Mr. Thomson. Mr. Thomson in his evidence has stated that the defendant came to his office and admitted the encroachment, and asked for easy terms in the matter of payment of damages. This also was admitted in his cross-examination, the only point made being that the talk of compromise ought to have been held sacred and should not have been divulged. In the Calcutta High Court where the plaintiff company first instituted the suit, a suit which was dismissed on the question of jurisdiction, the defendant's counsel and attorneys definitely stated that Ex. 24, the working plan of the defendant's colliery, correctly showed the extent of defendant's mining operations. These admissions were made for the purpose of resisting an application by the plaintiff company for inspection of the defendant's colliery to ascertain the extent of the defendant's trespass. Ex. 24 undoubtedly shows mining operations by the defendant beyond the line of pillars on the south, so that if the red line and the line of pillars are identical the encroachment is admitted.

58. It was argued however that all these admissions ware made on the assumption that the red line and the line of pillars ware identical and that as Mr. Thomson has admitted that they are not identical, there is no evidence before the Court to establish encroachment by the defendant. It is difficult to examine a contention of this nature, since the point was not raised in the written statement, either expressly or by implication. It will be necessary to examine Mr. Thomson's admission, but before doing so, it is as well to point out that the line of pillars as the practical line of demarcation between the two estates has stood for over thirteen years without any challenge or contest. It is obvious that a theoretical boundary line on the map could serve no useful purpose if it were not represented on the ground by a practical line of demarcation. It was in order that such a line might be laid on the ground by consent of parties that Messrs Turner and Co. invited Golap Babu to nominate a surveyor. Golap Babu left the matter entirely to Messrs Turner Morrison and Co., but Sent his son as his agent to represent him at the survey. Mr. Thomson's evidence has satisfied me that great care was taken to produce correctly the theoretical line on the ground. Golap Babu's agent accepted the demarcation, and Golap Babu himself has acted on that demarcation, as will appear from the lease which he executed in favour of Ram Lal Sinha. To hold in favour of the respondent would be to say that parties has withdraw from solemn engagements of this nature whenever any inaccuracy is afterwards discovered. In my view, once the parties have agreed to represent a theoretical boundary line on the map by practical line of demarcation on the ground, it is not open to them or to any of them in an action for wrongful extraction of coal, to show that they are not identical.

59. It will be well however to examine the admissions of Mr. Thomson, He does indeed say that the red line and the line of pillars are not identical. But this admission logically follows from his first admission, namely, that the red line is inaccurate. Mr. Thomson relied on the accuracy of Murray's map for which he was responsible. He had to admit that Murray's map showed an angle of 49 degrees 20 minutes between the partition line and the line from the eastern extremity of the partition line to the trijunction point of Jharia Khas, Lodna and Pandeberra. He had to admit that the corresponding angle in his map was 52 degrees 10 minutes. He was driven to the conclusion, in his frame of mind the logical conclusion, that his red line was not correct and was fixed too much to the north. In its right position therefore it would give more land to the defendant, in other words, the deflected partition line would come to the south of and enclose a larger area than the pillar line. Hance it followed that the red line and the pillar line were not identical.

60. The vice of the whole cross-examination is, as I have shown, in assuming the trijunction point of Jharia Khas, Lodna and Pandeberra in Murray's map to be correct. If the revenue survey maps are to be accepted as correct, that trijunction point in Murray's map is 52 feet to the west of the true trijunction point. This is admitted by the Commissioner himself. The riddle put by the vakil for the defendant to Mr. Thomson was this: “Why don't the angles agree?” Mr. Thomson's answer was: “Because the red line and the pillar line don't agree.” His answer should have been: “Because Murray started from a wrong trijunction point.”

61. In my view therefore Mr. Thomson's admission is based on wrong data supplied to him and cannot prejudice the case of the plaintiff company.

62. The respondent also relies on the evidence of the Commissioner. In one portion of his evidence, he did say that the partition line, as represented by pillars on the ground, does not agree with the red line as drawn in Ex. 18. But it is worthy of note that he treated the red line and the pillar line as identical. One of his instructions was

“to find out the distance of the red line laid down in the plan filed with the plant,…. from the mouth of incline No. 1.”

63. His report on this point is:

“The distance of the red line laid down in the plan filed with the plaint from the mouth of incline No. 1 is 372 feet.”

64. In his evidence in Court he stated as follows:

“By the red line in my report I meant the line of pillars.”

65. What reason is there, then, for his assertion that the two lines do not agree?

66. The only justification that I can see for his evidence is that he shows the partition line in two lines meeting at station 1, station 21 to station 1 being one straight line and station 1 to station 2 being another short straight line, whereas the red line in Ex. 18 is one straight line. This conflict may be due to a variety of reasons, due for instance to the fact that the western-most pillar, as is admitted by the Commissioner, is not now in existence, due, it may be, to the fact that it is difficult, if not impossible, to represent a short straight line in a small scale revenue map such as Ex. 18 is, or due to some error of the Commissioner himself. But since the Commissioner did not lay the rad line on the ground as he should have done under the instructions issued to him, I decline to hold, merely on this evidence, that the two lines are not identical, My conclusion is that the defendant has not established that the pillar line is not identical with the red line.

67. But the learned Subordinate Judge his recorded a finding that Ex. 24 is not reliable. In order to appreciate this finding, it is necessary to remember that Ex. 24 is the defendant's own map, prepared by his own surveyor, Sudhamoy, made over by the defendant himself to the plaintiff company, and admitted by him to be correct in the Calcutta High Court. A tracing from Ex. 24 is part of the plaint itself and the plaintiff company relies upon it for showing the extent of the encroachment. There is no suggestion in the written statement that Ex. 24 is inaccurate. It was assumed all through that Rs. 24 correctly represented the underground working of the defendant. In my view the defendant ought not to be encouraged to take up the position that Ex. 24 is inaccurate.

68. The learned Subordinate Judge first relies on the evidence of Mr. Thomson. He said that Rs. 24 was not correct because the westernmost boundary pillar was not shown in it. That is no ground for rejecting Ex. 24 entirely. He also said in a general way that Ex. 24 was incorrect in some particular without mentioning what that particular was. His evidence on this point is as follows:

“I have reason to believe that Ex. 19, Exs. 9, 16-A and 7-A are incorrect on some point or other…. I have got reason to believe that the blue map, Ex. 17-A, Ex. 21, are incorrect in some particulars.”

69. Exhibits 7-A and 17-A are tracings from Ex. 24. He does not give any reasons, but reading the whole of his evidence, it seems to me that he was driven to this conclusion from his admission that there was a conflict between the red line and the pillar line. With that point I have dealt. In my judgment Mr. Thomson's evidence did not justify the conclusion at which the Subordinate Judge arrived.

70. But the learned Subordinate Judge relies upon certain other circumstances.

“Ex. 41, plan made by R.C De” says the learned Subordinate Judge, “shows defendant's workings and it shows only one gallery up to the boundary line. The others were in 1906 at a distance from it.”

71. But Sudhamoy's map Ex. 24 shows the defendant's workings beyond the boundary line. Ex. 41 shows defendant's nine galleries worked and still no encroachment. Ex. 24 made in 1909 shows only defendant's six galleries worked and encroachment. The defendant did not drive galleries farther to the south after 1906. Ex. 21 also does not show any encroachment. Sudhamoy's map is therefore not reliable.

72. In view of the admissions repeatedly made by the defendant that Ex. 24 correctly represented his underground workings, the argument employed by the learned Subordinate Judge is certainly a remarkable one. Such an argument, in my judgment, begs the very question which the Court has to determine. The question is: Has the defendant broken his bounds and extracted coal from the plaintiff company's mine? Ex. 24 shows that he has. The plaintiff company relies on Ex. 24 for showing the extent of the mining operations carried on by the defendant. The plaintiff company does not allege that the defendant committed any act of conversion prior to 1906; the defendant does not admit that he did. Therefore, it is nobody's case that Ex. 41, the working plan of 1906, would show any trespass by the defendant. In fact, on another question, on the question of limitation, the plaintiff company relies on Ex. 41 for showing that the act of conversion must have been committed after 1909. With that argument I shall have to deal very fully hereafter. But the learned Subordinate Judge assumes that which has to be established, that the defendant stopped all mining operations in 1906, and comes to the conclusion that Ex. 24 must accordingly be inaccurate.

73. As I have said, such an argument begs the very question which has to be determined. The appellant company says:

“We show that the defendant has extracted coal from our colliery since Ex. 41 ceased to be the working plan of the defendant and Ex. 24 became his working plan, and we rely on a comparison of Ex. 41 and Ex. 24.”

74. The learned Subordinate Judge says:

“Exhibit 41 shows that there was no encroachment at all, and, as the defendant stopped all mining operations in 1908, Ex. 24 must be inaccurate.”

75. The reasoning, in my opinion, is fallacious. He had first to determine the question whether the defendant did in fact stop all mining operations in 1906.

76. Exhibit 41 does not show any encroachment. Ex. 24 does. This is the common case. The defendant now says that Ex. 24 must be erroneous because he stopped all mining operations in 1906. According to his evidence Ex. 24 was ready sometime in September or October 1909, and that he actually saw it in March or April 1910. I do not believe this portion of his evidence, but I will assume that he saw it in March or April 1910. In March or April 1910 therefore he knew that the plan was erroneous if his case is true that he did not conduct any mining operation since 1906. Yet he admitted the encroachment to the plaintiff company and solemnly discussed the question of damages. There after he put forward every defence that he could think of to the plaintiff's suit, but it never occurred to him to say that Ex. 24 which was the only evidence of encroachment against him was erroneous. This part of the argument depends notion any expert knowledge of surveying but on a simple question of fact, namely, whether he conducted any mining operations since 1906. That was within his own personal knowledge. In my view, his repeated admissions that Ex. 24 correctly represented his mining operations are inconsistent with his evidence in Court, unsupported by any documentary evidence, that he did not conduct any mining operations since 1906. I hold that the defendant has not proved that Ex. 24 is inaccurate.

77. If that be so, then Ex. 24 is conclusive on the point. That admittedly shows underground trespass by the defendant. It was admitted in the High Court that this map or a copy of it which was filed in the High Court correctly represented the underground workings of the defendant. I hold therefore that the defendant has extracted and carried away coal from the plaintiff company's portion of Mauza Lodna.

78. That being so, the question at once arises whether the plaintiff company's claim for value of the coal taken away is barred by the law relating to limitation of suits and whether the liability to perfcrin the covenant under the lease executed by Golap Babu in favour of the plaintiff company runs with the land so as to enable the plaintiff company to sue upon it for damages. I will consider the question of the covenant first. It runs as follows:

“It is settled that for the convenience of carrying the business of both parties as well as to obviate chances of future dispute, a 30 feet broad barrier or a bundh of coal will be kept on the southern boundary of the land settled with me, that is, on the northern boundary of the land of 12 annas 9 pies share that is left, after the settlement with me, in Mauza Lodna. Out of the same (30 feet) I shall work after leaving out 15 feet towards my own boundary and you will also similarly work after leaving out 15 feet towards your own boundary. If any of the two parties encroach upon the said bundh and loss is thereby caused to the other party, then the party at fault will be liable for the loss to the other party and vice versa.”

79. It being as curtained that the red line is identical with the pillar line, it has been established on Ex. 24 that the defendant has cut through the barrier and has extracted coal therefrom. The defendant denies his liability on the covenant on two grounds, first, on the ground that the covenant cannot be said to be a covenant running with the land and secondly, on the ground that he is an under-lessee and not an assignee of the term. He urges further that, in any event, he is not liable on the covenant for cutting through the plaintiff company's portion of the barrier inasmuch as the plaintiff company, and not be, is the covenantor in respect thereto.

80. The principle is well established that covenants that touch and concern the thing demised, as distinguished from those which are collateral thereto, are said to run with the land and bind the assignees. The principle was established in the leading case known as Spencer's case(10) and has been exhaustively discussed in various cases which need not be enumerated here. It is sufficient to say that the cases establish that to run of with the land, a covenant must necessarily affect the nature, quality or value of the thing demised, independently of collateral circumstances, or affect the mode of enjoyment. The covenant in question is found in most mining leases and is very necessary for the protection, not only of the property dismissed, but of the neighbouring colliery. It is intended to prevent spread of lire and influx of water. Can it be suggested that the covenant does not necessarily affect the nature, quality or value of the thing demised or affect the mode of enjoyment. In my view, only one answer is possible, and that is, that no such suggestion can be made.

81. I confess that I had some doubts as regards the plaintiff company's portion of the barrier, not due to the argument advanced before us on behalf of the respondent, but due to the fact that portion of the barrier is not part of the thing demised. So far as the argument before us is concerned, it is met by the form of the covenant itself. The covenant is not only not to work the covenantor's portion of the barrier, but not to “encroach upon the said bundh”. The “said bundh” is a barrier 30 feet broad, 15 feet on the defendant's portion of the property and 15 feet on the plaintiff company's portion. Therefore the argument advanced before us on behalf of the respondent does not press me at all. The covenant is wide enough to cover the entire barrier. What pressed me is this. Is the defendant liable on the covenant for doing something not on the land demised, but on the neighbouring land? Having considered the matter very carefully, I have come to the conclusion that he is.

82. It seems to me that Ricketts v. Enfield Churchwardens(11) is directly in point. By deed made between the Church Wardens of the ope part and one Battley of the other part, the Church wardens demised to Battley a parcel of land, subject be the covenant on the part of Battley that he would not erect or set up any section, building or projection between the front boundary line of the land demised and a line demarcated on the plan as building line, such line being drawn at a distance of 30 feet from the said front boundary line. This thirty feat was therefore the lessee's portion of the barrier. The Church Wardens on their part covenanted that they or their assigns will not erect or permit to be erected on the adjoining land of the Church wardens lying between the western boundary of the land demised and a point of 110 feat each of a road any erection, building or projection between the front boundary line of the adjoining lane and a building drawn at a distance of 30 feat from the said boundary line. This thirty feet was the lessor's portion of the barrier. Thereafter the Church Wardens entered into a building agreement with one Thomas with respect to the plot of land adjoining the west side of Battley's premises. Thomas erected a building, a portion of which consisting of a square bay projected some 4 feet beyond the building line. The plaintiff, as the assignee of Battley, brought an action on the covenant against the Church Wardens. It was argued that the covenant did not directly touch or concern the thing demised inasmuch as the plaintiff complained of something done, not on the land demised but on the neighbouring land. That is precisely the point here. That argument was negatived by Neville, J. That learned Judge, following the dictum of Lord Collins in Dewar v. Goodman(12) held that, as between landlord and tenant, a covenant may touch and concern the land demised, although nothing has to be done on the land demised. The question is, does it affect the nature, quality or value of the thing demised. In my opinion it does, because the invasion of the barrier involves a corresponding risk to the thing demised. In my opinion, the covenant in question is a covenant that runs with the land and would bind the defendant, provided he is an assignee of the term.

83. This brings me to the argument that the defendant is an under-lessee and not an assignee and it therefore not liable on the covenant. The proper test to be applied, when a question of this nature is raised, is to see whether the lessee under the head lease has parted with his whole interest or with a greater interest than he himself possessed. If be has, then the instrument of transfer by whatever name it may be called, is in reality an assignment: Beardman v. Wilson(13). The documents in the case show that Golap Chander Sarkar parted in favour of Ram Lal Sinha with every interest that he had in the land demised and that Ram Lal Sinha likewise parted in favour of the defendant with his whole interest on the land demised. But it was urged in behalf of the defendant that the defendant reserved to himself the right to surrender the land whenever he thought it necessary to wind up his business. In my view the right to surrender does not make the lease any the less a permanent lease. There is in every lease—and permanent leases do not form an exception—a right inherent in the lessor to re-enter in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter. Such an express condition will not make the lease any the less a permanent lease. The lease, in my view, is a permanent lease, subject to an express condition that the lessee would be at liberty to surrender if it became necessary for him to wind up his business. There is authority for the view that a lease for the whole term but subject to a power to re-enter on non-payment of rent operates as an assignment and not as an under-lease: see Palmer v. Edwards(14). In my view a lease of the entire interest of the lessee subject to a power to surrender, stands exactly on the same footing. Such a lease would therefore operate as an assignment and not as an under-lease. It follows therefore that the defendant is liable on the covenant, and liable for the invasion of the plaintiff company's portion of the barrier as well as for that of his own portion.

84. It seems to me however that whether the covenant runs or does not run with the land, and whether the interest of the defendant is that of an under-lessee or that of an assignee, the defendant is liable on the covenant on the principle laid down in Tulle v. Moxhay(15). The covenant, though affirmative in form, is negative in substance. It is a restrictive covenant; it restricts the right of the lessee to conduct his mining operations in any portion of the barrier. By reason of the equitable doctrine of notice, the assignee—and it has been held an under lessee: see John Brothers Abergarw Brewery Company v. Holmes(16)—may stand on the same footing with regard to collateral covenants, provided they are negative in substance, as with regard to those which actually concern the thing demised. The doctrine is founded on the principle that if an equity is attached to property by the owner, no one purchasing or taking an under-lease with notice of that equity can stand in a different situation from the party from whom he purchased or took an under-lease. As Lord Chancellor Cottenham pointed out in Tulle v. Moxhay: “If that,” namely, the argument that the purchaser was not bound by any covenant that did not run with the land:

“if that were so, it would be impossible for an owner of land to sell part of it without incurring the risk of rendering what he retains worth-less.”

85. On this principle it has been held that an under-lessee will incur liability on covenants of a restrictive character of which notice, either actual or constructive, can be imputed to him:

“the burden of the restrictive covenant being an equitable interest in the land inhering in and annexed to the land.”

86. That being so, the question arises whether the defendant has notice, either actual or constructive, of the covenant contained in the lease of Golap Chander Sarkar. In my view every person who acquires a leasehold interest is bound to investigate the title of his lessor and is affected with constructive notice of any covenant contained in any document forming part of the chain of title of his lessor. Now what are the documents forming chain of title of his lessor? Clearly the lease executed by Golap Chander Sarkar in favour of his lessor Ram Lal Sinha and the lease executed by Messrs Laik and Banerji in favour of Golap Chander Sarkar. There is in the defendant's own lease, a clear reference to the lease executed in favour of hi lessor. The defendant binds himself to pay to Golap Chander Sarkar directly the-rent, royalty and commission payable by his lessor to Golap Chander Sarkar. Surely there was an obligation on him to examine the lease by virtue of which-his lessor was in possession. That lease would at once give him notice of the covenant which is fully set out in para. 7. There is authority for the proposition that an under-lessee has constructive notice of the covenants of the head lease where the under-lessor, on the face of the under-lease, appears himself to be holding under a lease: Tritton v. Bankart(17). Even if it were held that the defendant is not even an under-lessee but a mere courier under a lease, he would still be bound by the covenant, on the principle that if a person by the leave of another who is bound by a covenant as to the use of land enters into possession with notice of the obligation, he will be restrained from violating that covenant: Mander v. Falcke(18).

87. I hold that the defendant is bound by the covenant respecting the barrier, that he has broken that covenant and that the plaintiff company is entitled to damages for breach of the covenant.

88. I now come to the question of limitation. It was not contended before us that the claim for damages for breach of covenant is barred by limitation. Obviously it is not; for the six years' rule applies under Article 116. But it was argued and argued with great force and determination, that the plaintiff company's claim for damages for underground trespass is barred by limitation.

89. In order to see which article of the Limitation Act applies to the plaintiff company's suit, it is necessary to understand its case. The suit is a suit for I value of the coal wrongfully out and appropriated by the defendant. It is therefore an action in trover and, in my view, either Article 48 or Article 49 would apply. It was argued that the action is one really for compensation for trespass upon immovable property but in my view, although the plaintiff company was entitled to maintain such an action, it is not one which it has actually brought; it is not suing for injury to the immovable property, but for value of the coal removed by the defendant and converted to his use. Identically the same view was taken by Jenkins, C.J, in the case of Jadu Nath v. Hari Kar(19).

90. It is now important to consider whether Article 48 or Article 49 applies, for the starting points are different. It seems to me that Article 48 is a special section, whereas Article 49 is a general section and the well-established rule is that where the special provision applies, the general provision does not apply even though the words employed are wide enough to cover the case. Now Article 48 deals only with specific moveable property which falls under one of two classes: namely, (1) such property as has been lost; or (2) as has been acquired by (a) theft, (b) dishonest misappropriation or (o) conversion. No other kind of moveable property is affected by this article. If the case is not covered by Article 48 then undoubtedly Article 49 will apply, but in my view Article 48 applies. What is the plaintiff company's complaint? That the defendant has broken the barrier, severed the coal from the property in possession of the plaintiff company, and has carried it away. That is theft, pure and simple, or conversion. The defendant knew that he had overstepped the boundary, his oven working plans, Exs. 41 and 24, are conclusive on the point. It may be urged however that as the plaintiff company was not actually working that identical portion of the colliery, it could not be said to be in possession. There is no substance in the argument. It will be remembered that there was actual demarcation by boundary pillars between the land demised and the remaining portion of Mauza Lodna. There is ample evidence, and that from the side of the defendant himself, that the parties took possession by the boundary pillars. 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: Law Moor & Co. v. Stanley Coal Co.(20), Law Moor & Co. v. Stanley Coal Co.(21), Davis v. Shepherd. Therefore the plaintiff company was in possession of the coal as severed and removed by the defendant. The defendant, on his own working plan, was aware of his on authorized intrusion upon the possession of the plaintiff company. In my opinion his act is theft, pure and simple.

91. If that is objected to by the defendant, the plaintiff's action is undoubtedly an action which at common Law would be called an action in trover, a remedy available to the aggrieved party to recover the value of personal chattels converted by another to his own use. As will be found in a well-known work on Torts:

“An act of conversion may be committed: (1) when property is wrongfully taken; (2) when it is wrongfully parted with; (3) when it is wrongfully sold in market overt although not delivered; (4) when it is wrongfully retained, and (5) when it is wrongfully destroyed or changed in nature. Any one who without authority takes possession of another man's goods with the intention of asserting some right or dominion over them is prima facie guilty of conversion: Clerk and Lindsell on Torts, Edn. 6, p. 252.”

92. That is exactly the complaint which the plaintiff company makes against the defendant. Its complaint is that the defendant has without authority taken possession of the coal belonging to the plaintiff company with the intention of asserting some right or dominion over them. The plaintiff company is therefore charging the defendant with conversion. Does Article 48 or Article 49 apply?

93. It will be noticed that the Word “conversion” is used by the legislature in Article 48; it finds no place in Article 49. It must be presumed that when the legislature has deliberately used a term which has a known legal significance in law, it has attached to that term that known legal significance. In my opinion therefore the plaintiff company's suit falls under Article 48 of the Limitation Act, and time began to run when the plaintiff company first learnt in whose possession the coal removed was. If that be so, it is conceded that the plaintiff company's suit is within time.

94. Even if Article 49 applies, the plaintiff company's suit is still within time. For this purpose it will be necessary to consider the evidence somewhat in detail, especially the working plans of the defendant. The plaintiff company is unable to give the date of actual encroachment, but it says that the coal must have been removed after 4th February, 1909, that is to say, after the commencement of the defendant's lease. It ought to be mentioned here that although the defendant's lease is dated 4th February, 1909, he was in possession of the demised land certainly in 1906, perhaps earlier, under a license from Ram Lall Sinha. The action was brought in the Calcutta High Court on 19th January, 1911. That suit was dismissed on 20th February, 1912, the Court being of opinion that it had no jurisdiction to try the suit. The suit was re-filed in Purulia on 10th June, 1912. Provided the plaintiff company makes good its point that the plaintiff company actually extracted coal after 4th February, 1909, the suit is well within time, as the plaintiff company would be entitled to have the time from. 19th January, 1911 to 20th February, 1912 excluded from calculation.

95. Mr. Morrison, the general manager of the plaintiff company, discovered the encroachment on 25th July, 1910. Mr. Morrison's letter to Messrs Turner Morrison & Co., dated 25th July, 1910, is of importance. It runs as follows:

“Dear Sits,

This morning Mr. Argyle and I inspected Babu B.B Bose's Lodna Colliery.

The manager could or would not produce the working plan, but he produced what he called a working tracing which was so neatly cut off by the barrier that it aroused my suspicions of encroachment.

On inspecting the workings we found that they extend well over the barrier in places into our property.

The encroachment appears to me to be quite a serious one and I will be glad if we will get Babu B.B Bose to produce the plan from which the above mentioned tracing was made, also his written permission for our surveyors to survey his workings.

The matter is most-urgent as the dip workings are rapidly filling with water.

Should he hesitate to give necessary permission we must take legal proceedings at once.”

96. On receipt of this Messrs Turner Morrison & Co. had an interview with the defendant. The result of the interview is set out in Mr. Lindsay's latter to Mr. Thomson, dated 26th July, 1910, which runs as follows:

“My dear Thomson,

Further to our official letters of date. B.B Bose has been in and says that he is writing this evening instructing his manager to hand you over the working plans of the colliery. He tells me that he first found out about the encroachment in the month of May after he had engaged a new surveyor and that he was having a fresh plan made which is not yet completed. He says that the encroachment was due to the malice of his old surveyor who misled him as regards the workings. He states that three galleries only have been driven about 7-8-10 feet through the barrier. Whether he hoped that the water would hide his misdeeds goodness knows. Anyhow he will probably try and delay things until his surveyor returns from work he is doing at Sitarampcre. This, should not interfere with you, as he says he is also instructing his manager to give you every assistance you may require.”

97. The defendant himself on 27th July wrote the following letter to Messrs Turner Morrison & Co.:

“Dear Sirs,

With reference to your letter and my interview of yesterday, I beg to infrom you that as desired by you I have instructed my colliery manager to submit the working plans to your manager and further instructed him to allow your manager to inspect my mines whenever required.”

98. Two points are established in the correspondence: first, that the defendant admitted the encroachment to the plaintiff company and slid that he found it out only in the month of May, and, secondly, that he promised to hand over his working plans to the plaintiff company.

99. The defendant's case is that the encroachment, if any, took place before 1906; that a plan prepared by R.L Dey (Ex. 41) was his only working plan and that Ex. 24, known as Sudhamoy's plan, upon which the plaintiff company strongly relies, was not his working plan.

100. The plaintiff company's case is that Sudhamoy's plan, Ex. 24, came into operation as the working plan from October 1909; that till it came into operation, R.L Dey's plan, Ex. 41, was the working plan of the defendant; that anything which does not appear in Ex. 41 but does appear in Ex. 24 must have been after April 1909 inasmuch as under the rules framed under a statute the working plan must show workings within six months and that therefore coal has been extracted from the disputed area after April 1909. A comparison of the two maps makes the plaintiff company's point perfectly clear. Ex. 41 does not show any encroachment whereas Ex. 24 does.

101. It is relevant to ask, when did the encroachment take place? The defendant says, if it took place at all, it must have taken place before 1906. Ex. 41, which was his working plan in 1906 and continued to be the working plan up to October 1909, contradicts that case at once. A working plan, if it is to be of any value, must show the workings. Even the defendant admits that a working plan must show workings as they proceed. It follows therefore that the encroachment did not take place in 1906, and could not have taken place within six months of the time when Ex. 41 ceased to be operative.

102. The defendant's case of course is that Ex. 41 is still his working plan. Ex. 41 contradicts that case, because even now the encroachments are not shown in Ex. 41. Obviously some other plan came into operation as a working plan. Plaintiff company says that Ex. 24 is that plan. If Ex. 24 is the working plan of the defendant, that concludes the matter.

103. It is necessary then to inquire what view the defendant himself takes of this plan. He admits that Sudhamoy prepared the plan Ex. 24 for him. He says that he commissioned Sudhamoy to prepare this plan after his lease on 4th February, 1909, and that Sudhamoy took seven or eight months to prepare the plan. The plan was therefore ready some time in September or October 1909. Under the rules framed under a statute working plans have to be produced for the inspection of the Mining Engineer from time to time. The defendant admits that he produced Ex. 24 for the inspection of Mr. Adam, the Chief Inspector of Mines, in 1911 or 1912. From the evidence of Mr. Simpson, Inspector of Mines, and a mining specialist to the Government of India, I am satisfied that Ex. 24 was produced before him for his inspection. It is difficult to understand why Ex. 24 should have been produced before them it were not the working plan of the defendant. Reference has already been made to Ex. 15, the letter of the defendant to Messrs Turner Morrison & Co., in which he undertook to send his working plans (not plan) to Messrs Turner Morrison & Co. He did in fact send not only Ex. 41 but also Ex. 24 to them. On the date of that letter, that is to say, 27th July, 1910, he undoubtedly thought that Ex. 24 was his working plan. In my view it is established that Ex. 41 was the working plan of the defendant until Ex. 24 was ready and that from that time, that is to say, September or October 1909, Ex. 24 was the working plan of the defendant.

104. If that be so, then any encroachment which is not shown in Ex. 41 but which is shown in Ex. 24 must have been committed since April 1909, since Ex. 41 ceased to be operative in September or October 1909, and since, under the rules, Ex. 41 was bound to show the workings correctly within six months. Ex. 41 does not show any encroachment by the defendants; Ex. 24 shows the whole of the encroachment. It follows therefore that the encroachment by the defendant has taken place since April 1909, and that the plaintiff company's suit is within time.

105. Great reliance was placed on the evidence of Sudhamoy that Ex. 41 was the only working plan of the defendant's colliery when he prepared the plan of seam No. 12. In order to appreciate this evidence it is necessary to understand that we have in this suit nothing to do with seam No. 12. We are concerned only with seam No. 14. His evidence is that he first prepared Ex. 24 which is the map of seam No. 14. This is not disputed by the defendant. After preparing Ex. 24 he prepared another plan of seam No. 12. As I understand his evidence, it comes to this: that Ex. 41 was the only working plan of seam No. 12 while he was per-paring the plan of seam No. 12.

106. This point is made good on a comparison of Ex. 21 and Ex. 41. Ex. 21 is a copy of Ex. 41 which the defendant supplied to the plaintiff company in 1906. It does not show any wording of sea to No. 12. Ex. 41 which was supplied to the plaintiff company in 1910 shows working of seam No. 12. Ex. 24 does not show any working of seam No. 12. It follows therefore that though from September or October Ex. 41 ceased to be the working plan of seam No. 14 with which we are concerned in this suit, it continued to be the working plan of seam No. 12 and was the only working plan of seam No. 12 while Sudhamoy was making the plan of seam No. 12, This evidence, in my opinion, does not discredit the case of the plaintiff company.

107. I come to the conclusion that the plaintiff company's suit is within time and that it is entitled to recover damages from the defendant for the unauthorized extraction and removal of the plaintiff company coal.

108. It is necessary now to consider the form of the decree to which the plaintiff company is entitled. It is entitled to a declaration that the red line in Ex. 18 is the boundary line between the lands demised and the remaining 12 annas 15 gandas of Mauza Lodrta in the possession of the plaintiff company. It is also entitled to recover damages from the defendant for breach of covenant and for the removal of the plaintiff company's coal. The issue as to damages has not been determined by the learned Subordinate Judge, and it will therefore be necessary to remand the case to the lower Court for the trial of that issue. So far as the question of damages for breach of covenant is concerned, the Court below in fixing the amount will be guided by Section 73 of the Contract Act. So far as the question of damages for the conversion is concerned, the matter is of some difficulty. The plaintiff company is in any event entitled to the market value at the pit's mouth of the coal worked and gotten by the defendant from the plaintiff company's mine. The question is, is the defendant entitled to all just allowances for the costs and expenses incurred by him in bringing such coal to the pit's mouth, including the cost of getting or severing the coal. The Courts in England have adopted two rules, known as the harsher and the milder rule, according as the defendant's act has been mala fide and bona fide. If he has acted “fairly and honestly,” or “inadvertently,” or under “a mere mistake” or under a “bona fide belief of title,” he has usually been allowed the expense both of getting and severing and also of bringing to bank. If, on the other hand, the defendant has acted “without any colour of title,” or “in a manner wholly unauthorized and unlawful” or if his conduct was “negligent” or “wilful,” he has been held not entitled to an allowance for getting and severing, though in many cases he has been allowed the expense of getting to bank. In my view it cannot be said that the defendant acted fairly and honestly or under a ‘bona fide belief of title.” The belief of title followed the conversion; it did not precede it. No question as to the area demised was raised by the defendant until the conversion was discovered. He cannot be said to have acted “fairly and honestly” when Ex. 41 gave him clear notice that he had reached the barrier. Nor do I see how he may be held to have acted “inadvertently” or “under a mere mistake.” It may be that he was misled by his surveyor who had a malice against him. That was his first line of defence which he put forward to the plaintiff company. If that were his defence in Court, I would undoubtedly have adopted the milder rule in assessing damages. That defence not having been put forward, I am bound to hold on Ex. 41 that the defendant has acted deliberately and that the act was a wilful one. Having considered the matter very carefully, I am of opinion that the plaintiff company is entitled to the value at the pit's mouth of the coal worked and gotten by the defendant from the plaintiff company's mine, making to the defendant all just allowance for the cost and expenses incurred by him in bringing such coal to the pit's mouth but not including the cost of getting or severing the coal.

109. We set aside the judgment and decree of the Court below and allow this appeal.

110. The plaintiff company is entitled to a declaration as aforesaid and to a finding by the Court below: (1) as to the damages sustained by the plaintiff company by reason of the breach of covenant on the part of the defendant, and (2) as to the market value at the pit's mouth of the coal worked and gotten by the defendant from the plaintiff company's mine making to the defendant all just allowances for the costs and expenses incurred by him in bringing such coal to the pit's mouth, but not including the cost of getting or severing the coal. The Court below will try this issue with all convenient speed on the materials in the record without giving parties opportunity to adduce further evidence on the subject and return its finding to this Court with in two months from the time it receives the record from this Court.

111. The plaintiff company is entitled to costs here and in the Court below from the defendant.

112. Foster, J.:— The suit out of which this appeal arises was between two neighbouring colliery owners within Mauza Lodna in the district of Manbhum, the plaintiff being the successor-in-interest of the lessor of defendant 2, Golap Chander Sarkar (who is since dead, his son being substituted). In 1894 Raja Jay Mangal Singh as proprietor of the whole Parganna of Jharia made a mukarrari settlement of the underground coal of Mauza Lodna with Jadab Lall Banerji and his partner Ambika Charan Laik by two leases, each covering an eight-anna share dated 30th July and 1st August. In 1896, on 14th April, the said firm Laik and Banerji granted a dar-mukarrari of 3 annas 3 pies share of Lodna subsoil to Golap Chander Sarkar whom the plaintiffs style pro forma defendant. This dar-mukarrari settlement was the outcome of the mediation of arbitrators in a dispute as to title. In 1899, on 30th September, Golap Chander Sarkar executed a sub-lease of his interest in favour of Earn Lall Sinha, who is also styled pro forma defendant. In 1909, on 4th February, Ram Lall Singh made a settlement of his interest in Lodna with Bepin Behari Bose, who is described in the plaint as the principal defendant. The mukarrari interest which Laik and Banerji obtained from the Raja in 1894 has also passed by sub-infeudation to the plaintiff company, Messrs Turner Morrison & Co. having in February 1898 executed an indenture admitting that they had acquired a darmukarrari of Lodna and other villages on behalf of the plaintiff company from Laik and Banerji. Thus, for all practical purposes, the plaintiff company may be admitted to be entitled to 16 annas of the subsoil of Mauza Lodna subject to the lease of 3 annas 3 pies which has now passed to the principal defendant Bepin Behari Bose. The plaintiff alleges trespass by the principal defendant beyond the defendant's boundary, and breach of covenant in respect of a barrier stipulated for in the lease of 1896 to Golap Chander Sarkar; and the company seeks damages therefor after a declaration that a red line drawn on a plan marked ‘A’ (Ex. 18 in the suit) is the correct boundary between 3 annas 3 pies share of the defendants and 12 annas 9 pies share of the plaintiffs. The alleged encroachments are depicted in a plan marked B attached to the plaint Ex. 17-A of the suit.

113. Before considering the issues which arise in the suit I propose to set out the principal facts which have brought the present dispute into this Court. In this judgment the pages quoted are the pages of the paper book.

114. On 26th July, 1910, Mr. Thomson, the general manager of the Lodna Colliery, wrote to Messrs Turner Morrison & Co., the managing agents of the company that he and another had on the date of the letter inspected Babu Bepin Behari Bose's colliery in Lodna and had asked for the working plan. When only a tracing was produced which showed the galleries cut off by the line of barrier, his apprehension was aroused that in fact the workings had transgressed the barrier. He then inspected the workings and found that they extended well over the barrier and in places right into the plaintiff's property (Ex. 4, p. 25). Interviews followed between Turner Morrison & Co and Babu Bepin Behari in Calcutta, In October Babu Bepin Behari Bose moved his lessor Ram Lal Sinha to appeal to Babu Golap Chander Sarkar to address Messrs Turner Morrison & Co. on the question of the correctness of the south “boundary of the 3 annas 3 pies share (p. 148), and thereupon Babu Golap Chander Sarkar wrote a letter to Messrs Turner Morrison & Co. requesting them to have the area tested (p. 44). In the following December Messrs Turner Morrison & Co. wrote an important letter, Ex. 85, to Babu Golap Chander Sarkar definitely refusing to consider the demarcation of the 3 annas 3 pies share and setting out their case in the same manner as it is set out in the plaint, A little more than a month later, on 19th January, 1911 the Lodna Colliery Co., Ld., filed a plaint in the Calcutta High Court making Bepin Behari Bose sole defendant (p. 31). In the subsequent proceedings two questions were considered by the Judges sitting on the original side, firstly, whether inspection should be granted to the plaintiff (p. 82), and secondly, whether the Court had jurisdiction (p. 80). Inspection was refused, the defendant Bepin Behari Bose having admitted the correctness of the plan annexed to the plaint in respect of the underground working. The plaint was returned to the plaintiff in the second proceeding on the ground that the Court had no jurisdiction; the date of this is 27th February, 1912. On 10th June, 1912 the suit out of which this appeal arises was instituted in the Subordinate Judge's Court at Purulia and damages were sought against the principal defendant Bepin Behari Bose, the other defendants being expressly added only pro forma.

115. The principal defendant Bepin Behari Bose filed a written statement, in which it was contended that the plaintiff bad no cause of action and had not clearly stated the time when the alleged cause of action accrued; that the suit was barred by limitation; that the plaintiff had incorrectly described the boundaries of the defendant's demise, the south boundary being in fact a line fixed by arbitrators in 1895 and the north and west boundary being a line of pillars showing the limits of possession given by his lessor to Golap Chander Sarkar in 1896; that the plan on which the red line is drawn is no part of the lease to Golap Chander Sarkar, is incorrect in itself, was signed by the person connected with Golap Chander Sarkar, the demises only because of misrepresentation, and in any case is not binding upon the defendant Bepin Behari Bose. The defendant denied the alleged trespass and contended that in any case the land coloured red in the plan B (Ex. 17-A of the suit) was part of the defendant's area and so there had been no trespass; that the defendant's acts were always under the inspection and within the knowledge of the plaintiff company: that the suit based on the covenant for a barrier cannot stand against the defendant, and in any case the arbitrators' line being the proper demarcation there has been no trespass in respect of the barrier alleged in the plaint; that the two plans are incorrect, and the damages are incorrectly estimated. Golap Chander Sarkar also filed a written statement to approximately the same effect, and he filed with his written statement a plan marked A, when is now Ex. B of the suit and which purports to show the line fixed by the arbitrators in December 1895. He also pleads non-liability and urges that the plaintiff's A (Ex. 18) is invalid for want of registration. The written statement of Ram Lall Sinha is in similar terms.

116. On these pleadings the issues in which questions of fact are involved are Nos. 3, 8 and 16, 13 and 19 as framed in the lower Court. Issue 3 refers to the question of limitation, Issues 5 and 16 to the question of trespass, Issue 13 to the question of breach of covenant and Issue 19 to the relief to which plaintiff is entitled.

117. The learned Subordinate Judge dismissed the suit with costs to each of the defendants on 30th March, 1916. He found that the plaintiff's documents filed: with the plaint were incorrect, and he relied upon certain admissions made in the deposition of Mr. Thomson, the company's local agent. He did not find that the rest of the evidence was sufficiently reliable to prove the plaintiff's alleged boundary. He also relied upon the report and the plans of the pleader commissioner in the suit and found positively that the defendants had proved that the area demised was bounded in the manner described in the written statements. He also held that the suit was barred by limitation. Against this decision the plaintiff company has appealed.

118. Before discussing the pertinent issues, it is necessary to deal as concisely as possible with the facts disclosed in the oral evidence adduced by the parties reserving however for its proper place the question whether the plaintiff's maps, boundary stated and area are correct.

119. The first witness for the plaintiff is Mr. Thomson. He says that a month after be came to Lodna, that is, in July 1897, he employed one Narendra Nath Mukerjee to demarcate the defendant's block. On behalf of Golap Chandra Sarkar, Glap's son, Jatindra Nath Sarkar, was present as agent and representative, and Mr. Thomson himself represented Messrs Turner Morrison & Co. Mr. Thomson first took the position of incline No. 1 within the 12 annas 9 pies share and after measuring 325 feet perpendicular distance therefrom he drew a line on a trace of the revenue survey east and west and found that the area enclosed slightly exceeded 190 bighas 7 cottas 7 chattaks and thereupon he drew another line slightly to the north so as to include the proper area. The reason which impelled him to do this is to be found in this lease of 1896 (Ex. 1) (p. 153) to Golap Chander Sarkar, where it is stated that the arbitrators had drawn a line at a distance of 325 feet to the north of the company's incline No. 1 and that the 3 annas 3 pies share represented an area of 190 bighas 7 cottahs 7 chattaks on the revenue, survey map. After this was done, Narendra Nath Mukerjee planted posts along the line on the ground itself and Mr. Thomson checked the line and found it correct. Thereupon copies of the revenue survey map were prepared showing the position of the demarcation, and one copy, which is Ex. 18 in the suit was signed by all concerned after Mr. Thomson had written out the certificate thereon. Mr. Thomson describes his discovery of the encroachment in July 1910, and shows how the plaintiffs managed to get from the defendant Bepin Behari Bose what he calls the working plans of the defendants (Exs. 41 and 24). Ex. 24 was made in 1909, and shows extensive encroachment. Ex. 41 was originally prepared in 1906 and shows almost no encroachment, there being numerous entries along the edge of the barrier of the words “stop galleries.” Mr. Thomson says, owing to the rapid inflow of water into the workings on the south he could not test the whole of Ex. 24, but he took it to be correct; and it is the basis upon which the claim in the plaint is filed and the source from which Exs. 7-A and 17-A were taken. This plan, Ex. 24, was made for Bepin Behari Bose by a local surveyor Sudhamoy Dutt who is plaintiff's witness. Mr. Thomsons says that when the negotiations for a compromise fell through in August 1910, the defendants began to dispute the correctness of the area of the defendants' alleged portion. Thereupon Mr. Thomson employed an assistant Mr. Murray in October 1910 to make a plan (Ex. 9). Mr. Thomson alleges that the barrier being necessary for safety of the plaintiff colliery, the plaintiff has had to leave a new barrier adjacent south of the richest seam in Lodna, No. 14, which lies in the western half of the mauza. In cross-examination Mr. Thomson fared badly. I shall refer to this later in this judgment. I may say that his cross-examination took seven days and was conducted by a pleader expert in survey.

120. The next witness to be considered is Sudhamoy Dutt, who commenced his survey of the defendant's colliery in April 1909 at the request of the defendant's manager. Ex. 28 is the plan so made, and it shows the trijusctional point on the river bank as in the enlarged revenue survey map, Ex. 47. It also showed extensive transgression in the working of the defendant's colliery beyond the pillar line. Possibly rumours of this discovery by Sudhamoy Dutt may have come to the ears of the plaintiff company's local employees, and this may be what led to Mr. Thomson's action in July 1910. Sudhamoy states that the extreme southern galleries were so full of water that he had to have them pumped out and even then he had to work in places where the mud was knee deep. The learned Subordinate Judge has discredited this witness's evidence on what appear to me to be insufficient reasons. Another map made by this witness is Ex. 42. He made this in 1915, on behalf of one P.C Roy, who bad a dispute with the defendant concerning the north-west boundary.

121. The next witness of importance is Babu Lachmi Narain Sarkar, the pleader commissioner. I shall discuss his evidence later.

122. The next witness is Mr. Richardson, the discussion of whose evidence, which is purely technical, I must also defer.

123. I now come to the defendant's evidence. Golap Chander Sarkar, who was a distinguished vakil of the Calcutta High Court, was examined on commission. He describes the negotiations which led to his obtaining a leasehold interest in Lodna. It appears that before the Raja leased to Laik and Banerjee, one Mukta Ram Singh Roy had taken wbat purported to be a lease of eight annas of Mauza Lodna sub-soil from certain potteis (Kumhars), who claimed to have permanent heritable interest on the surface and underneath in eight annas of Mauza Lodna, scattered over various parts of the village. It will be remembered that at that time there was much uncertainty in Bengal in respect of title to the subsoil. Mukta Ram Singh Roy's claims as lessee ultimately brought him in 1895 into conflict with Laik and Banerji who claimed as lessees of the Raja the Zamindar of Perganna Jharia. There followed a batch of suits under S. 9, Specific Relief Act, and Ex. B of this case seems to have been originally a map filed in those suits to indicate the disputed properties. Two pleaders, Babus Indra Nath Banerjee and Khiti Bhushan Mukherjee, intervened and in December 1895, a meeting was held at Jharia, at which Babu Golap Chander Sarkar passed a cheque for Rs. 5,200 to Babu Jadab Lal Banerjee, on the understanding that Golap Chander Sarkar, as owner of a share in Mukta Ram Singh Roy's lease, would be given a lease of a block defined by metes and bounds corresponding to a share of three annas three pies. The cheque book was shown in Court subsequently (p. 309). It appears from Golap Babu's evidence and the evidence may be accepted in the absence of any serious contest, that the arbitrators then proceeded to Lodna and on Ex. B above mentioned, after measurement of the ground, drew a line 325 feet perpendicularly from the mouth of incline No. 1 to the north of Jadab Babu's Colliery, Jadab Babu having insisted that this distance should be kept between the incline and the south boundary of the three annas three pies share.

124. On the line are the initials of Babu Khiti Bhushan Mukherjee and the date. This is the arbitrators' line which the defendants assert was the finally fixed boundary on the south of the defendants' allotted area and the defendants assert that whether that boundary was correctly or incorrectly laid it was definitely fixed in the lease Ex. 1, as the south boundary, the only proviso being that if the line was found when produced to enclose a less area these 190 bighas 7 cottas 7 ohattaks, the area proportionate to three annas three pies share, the deficit would be made up to the north-west of the incline, at least 325 feet from the incline on the selection of the lessee Golap Chander Sarkar. The witness states that after the lease to Golap was executed in the following April, Jadab Babu transferred his whole interest to Messrs Turner Morrison & Co., and Messrs Turner Morrison & Co., wrote inviting him to send a surveyor for measurement according to the terms of their lease, in collaboration with their surveyor. That invitation is Ex. D (p. 150) and it fixes the date of the joint survey as Saturday the 17th July. In answer to this letter Golap Babu wrote to Messrs Turner Morrison & Co., that he reposed full confidence in them and did not propose to send any surveyor, and he asked the company to measure the land by means of their surveyor, and he sent his son Jatindra Nath Sarkar to be his agent and representative at the locality. His son came back bringing a copy of the survey plan of the Mauza with a line drawn to show the partition and the witness adds later that his son, coming back with the plan, stated that possession had been delivered.

125. The next witness is Jatindra Nath Sarkar. He describes the arbitration in 1895, and says that in July 1897, he went as his father's representative, understanding that the provision in the lease for a survey was about to be fulfilled, that Mr. Thomson drew the line on Ex. 18, asserting that it contained the stipulated area: on that assertion he signed Ex. 18. He deposes that all the time he was under the impression, induced by Mr. Thomson's representations, that the arbitrators' line had been followed as the south boundary. He was then aged only 22 years and he had failed in the Entrance Examination twice. He did not see the pillars till November or December 1897, and he did not see the boundary first indicated by the posts fixed by Narendra Nath Mukherjee, having left for Calcutta immediately after signing the plan.

126. The last witness on the defendants' side whose evidence we have to consider is Bepin Behari Bose, the principal defendant. He admits that he had been in possession of the colliery before taking lease from Ram Lall Sinha in 1899 and his deposition and his lease show that he was sharing profits with Ram Lall Sinha during that period (pp. 220 and 162). He had in fact made pits, inolines, co-olyshed, offices and installed engines, boilers pumps, and other permanent stook, before he took the lease. He admits that Sudhamoy Dutt was employed by him to survey the colliery because he wished to develop his property, but he denies that Sudhamoy did the work correctly. Looking at Ex. 41 he admits that it shows the workings of the collieries as they proceeded, an admission which supports the plaintiff's case that Ex. 41 shows, besides the condition of affairs in 1906 when it was first prepared by R.C De, the subsequent workings since the original date of preparation. He explains the entries on this plan Ex. 41 of the words “stop galleries” by saying that he had stopped further workings in 1906, so that the boundary lines should not be transgressed. This statement is irreconcilable with the evidence of Sudhamoy Dutt that in 1909, when Sudhamoy had prepared Rs. 24, Ex. 41 was the working plan in use in the colliery. It seems to me very probable that a tracing of Ex. 41 was what was shown to Mr. Thomson in the inspection described in Rs. 4 (p. 25). In Rs. 4 Mr. Thomson announced to Messrs Turner Morrison & Co., that he had discovered an extensive encroachment and his suspicions had at first been aroused by the appearance of the tracing shown to him. In any case the defendants have not shown any other working plan in the teahnical sense of the term. The technical sense is that given in the Government of India rules under the Mines Act. Bepin Behari Bose denies that Ex. 24 has ever been used as a working plan. The working plan prescribed by the Government rules must show all the workings up to six months ago. So if Ex. 41 was not the working plan at the time of Mr. Thomson's visit and discovery of the enclcachment, some other working plan has been kept back behind by the defendants; if it is the working plan, Sudhamoy Dutt's survey of 1909 (Ex. 24) shows that it was a false document, inasmuch as it showed an incorrect description of southern galleries.

127. I now come to discuss the issues the decision of which involves the ascertainment of the boundary over which the plaintiff company alleges trespass. These are issues 8 and 16. The first question to consider is whether the arbitrator's line on Ex. B represents the southern boundary as finally settled by the arbitrators and adopted in the lease. Ex. 1. The defendants' case is that Khiti Bhushaa Mukherjee as arbitrator drew perpendicularly a line on Ex. B at a distance of 325 feet from the mouth of the incline up to a certain point leaving the rest of the line undrawn, so as to allow for a possible deflection southward of the produced line, if the produced line was found to contain less than 190 bighas 7 cottas 7 chattaks. This, the defendants say, is the only possible construction of the lease Ex. 1 and the schedule containing details of boundaries; and it is contended that the survey was prescribed in the lease as the future completion of the lease, and the surveyor was to be bound by this description of the boundary. It seems to me to be inconsistent with the terms of the lease, Ex. 1 to hold that the southern boundary was to be necessarily the arbitrators' line as drawn in part on Ex. B. The defendant argues that Ex. 18 is a document outside the lease and quite irrelevant when Ex. 1 taken with Ex. B shows the completed contract.

128. The mention of a future survey was, he would urge, a provision for a purely ministerial work, and the surveyor could not travel outside the line and the instructions fixed by the parties. As I read the lease, Ex. 1, with its schedule “Details of boundaries,” I am of opinion that the necessary boundaries, are fixed in the first, part of the schedule, ending with the south boundary “remaining 12 annas 9 pies share of Mauza Lodna.” My reason for this opinion is that in the lease of 1899 executed by Golap Chander Sarkar in favour of Ram Lall Sinha (p. 74) the demised land is described as delineated in the plan attached to the deed which was a copy of Ex. 18, and the boundaries scheduled in that document correspond to the boundaries in the first part of the schedule in Ex. 1. A perusal of Ex. 83, the lease to Ram Lall Sinha, must indicate to anyone that the parties to that lease had before them Ex. 1, for the text of the lease is in many respects a repetition of the text of Ex. 1. As to the rest of the scheduled description of boundaries of Ex. 1, it seems to me that read with the body of the lease, its purport is that a competent surveyor had yet to define the boundary on a copy of the revenue survey reap and put the boundary pillars on the ground according to that boundary line so fixed, I say, on a copy of the revenue survey map, because the text of the lease shows that the parties had fixed the area according to the revenue survey area and had allotted the amount proportionate to the 3 annas 3 pies share (p. 155, 11, 11-20). I also take the schedule to indicate to the future surveyor that the south boundary must not come within 325 feet of the arbitrator's line. If his calculation of the area comes so far south as to be identical with the arbitrators' line and encloses less than 190 bighas 7 cottas 7 chattaks, then the lessee's area will be made up by land which the lessee may select to the north-west of the incline. On this consideration I disagree with the principal respondent's two contentions, that the arbitrators' line is final, and that any plan such as Rs. 18 showing another line for the south boundary would be outside the lease and null and void for want of registration. So I hold that the lease, Ex. 1, was not intended by the parties to be self-contained, and the arbitrators' line was not necessarily the south boundary.

129. I come now to the question whether as the plaintiff maintains Ex. 18, the plan made on 21st September 1897, and the pillar line on the ground are in fact the complement of the lease, and represent the fulfilment of the contract contained in Ex. 1 for future survey and demarcation. We have the lease before us (p. 153), and it seems a useless and in fact incorrect method to make deductions from passages here and there. The whole document must be read and each passage taken in relation with the rest of the lease. One thing however is clear and outstanding in the lease, Rs. 1, namely that the parties regarded the south boundary as still undetermined, and agreed that delineation upon a map and erection of the pillar? were necessary to make complete and certain the quantity and position of the land demised, and that this was required in the words of the lease to prove the identity of the land demised. Evidently the parties wanted something concrete and definite which they could check and correct if necessary. The details as to the field book and so forth were ancillary to the main intention.

130. In his deposition, Babu Golap Chander Sarkar expressly states that he left the whole matter to Messrs Turner Morrison and Co., and I taka this to mean that he had at the time no intention of making an independent survey to check the demarcation on the ground; if this is correct, we can understand why Messrs Turner Morrison & Co., were not asked submit a field book. Ex. D shows that the survey was fixed to take place on Saturday, 17th July, 1897 (p. 150). Apparently, in the absence of any statement to the contrary, wo must take it that this date was adhered to. Now, Rs. 18 is dated 20th July and that data stands below the signature of Jatindra Nath Sarkar as well as the other signatories. It seems therefore, there is some corroboration for Mr. Thomson's account of what took place, and that Jatindra's attempt in his deposition to reduce the period of his visit to the village is not acceptable. Mr. Thomson took a tracing of the revenue survey map and first drew a line at a distance of 325 feet from incline No. 1. On extracting the area he found it exceeded 190 bighas 7 cottas 7 chattaks by something less than 10 bighas, so he moved the line north-west till it stood at 363 feet north of the incline.

131. This trace was then given to the surveyor employed by Mr. Thomson, Narendra Nath Mukherjee, who surveyed the line upon the ground and planted wooden posts. When this was completed, Ex. 18 was prepared and signed by the parties. The subscription on Ex. 18 is of the utmost importance. Jatindra Nath Sarkar accepts the boundary coloured red laid down in his presence as correctly enclosing 190 bighas 7 cottas 7 chattaks. Mr. Thomson, who was responsible for the map, certified that the area was correctly shown. Narendra Nath Mukherjee, the surveyor, certified that he had put down the boundary according to the red line. This certificate of Narendra Nath Mukherjee indicates the truth of the plaintiff's assertion that Jatindra Nath Sarkar was present at the laying of the posts and did not leave the village till this part of the work was completed. Mr. Thomson says that when the line of posts was laid he himself checked it. After the preparation of Rs. 18 Narendra Nath Mukherjes proceeded to substitute stons pillars for the posts and completed the task in two days. There is no suggestion that the stone pillars were placed otherwise than on the site of the wooden posts. The defendants' objection that Narendra Nath Mukherjee should have been called as a witness by the plaintiff is met by the appellant's uncontradicted statement that Narendra was subpoenaed but did not appear. Obviously the whole of this transaction could not have been completed without survey on the ground, and I fail to understand how the defendants can assert that everything was done on the office table and not on the field. The suggestion rests merely on the statement of Jatindra Nath Sarkar.

132. It is also quite clear from the evidence that this transaction of the 17th to the 20th July, 1897 included the delivery of possession according to the pillars on the ground. On pp. 177 and 191 Golap Chander Sarkar is seen to have made admissions, already quoted, to this effect when examined on commission. Read with all this Ex. 55, (p. 67) dated 23rd July, 1910 must be Golap Babu's receipt for the plan corresponding to Ex. 18 sent by Messrs Turner Morrison & Co. On the following 17th October, 1910 Babu Golap Chander Sarkar forwarded to Messrs Turner Morrison & Co., a letter from Ram Lall Sinha stating that Bepin Behari Base had recently surveyed the leasehold property and found that the area within the pillars amounted to only 175 bighas; and he asked for a re-adjustment of the pillar boundary on the south. Golap Chander Sarkar added in this letter:

“I may be permitted to add that although my lease relating to 3 annaa 5 gandas share of the Lodna coal land had been executed by Babu Jadab Lall and others before they sold their right to yen, yet 1 obtained actual possession of my share of the land after you had been put into possession. In fact it was your surveyor who measured the land allotted to me and as I had and still have full confidence in the officers of respectable English merchants like your honourable selves, I did not think it necessary to have a surveyor on my behalf to be there to test the correctness of the measurement.” Ex. C. and Ex. 32, pp. 148 and 44.

133. It seems likely that in a transaction so described the parties relied rather upon the pillar line than upon the meagre small scale tracing Ex. 18. The parties were in effect making a partition of a valuable seam of coal, and every-foot more or less involved far more than a partition of the surface. There is ample expert evidence on the record to show that the thickness of a line of the scale of Ex. 18 that is, the revenue survey scale of 1,320 feet to the not corresponds to a width on the ground of 30 feet. Thus as the learned counsel for the respondents puts it, we can visualize a line on the revenue survey map as something like a road 30 feet wide. There is also expert evidence to the effect that sealing out and extraction of area from the small scale revenue survey maps are matters of great delicacy which require experience and the use of a magnifying glass. In the circumstances it seems to me that the parties, whilst making Ex. 18 part of the paper document of the lease, were far more interested in the pillar line upon the ground. The defendants raised the contention, in the course of the trial in the original Court, that the pillar line must on the evidence be taken to be something different from the red line in Ex. 18; and the learned Subordinate Judge refused to allow the plaintiffs to amend the plaint by substituting the words “pillar line” for “red line.” Whatever the merits of this order may be, the reasons given are in my opinion unsatisfactory. In my opinion the plaintiff need not have troubled to amend the plaint, if he could show that the “red line” and the “pillar line” were identical.

134. The respondents' contention is discredited by the facts that they relied upon the Commissioner's report as correct, and that the Commissioner in his small scale map put the line of pillars upon the “red line.” (In this connexion the original map and not the copies should be seen, and the survey lines should be distinguished from the boundary line.) No doubt the Commissioner asserts that the “pillar line” on the ground is deflected between the last but one and last westernmost pillars. But the plaintiff-appellant points out that the extreme westernmost pillar has disappeared and admits that the “pillar line” runs perfectly straight. So here the commissioner made a mistake, somewhat similar to the mistake which he corrected on the eastern extremity of the said line. Two years after the pillars were put down by Narendra Nath Mukherjee, Golap Chander Sarkar leased the share to Ram Lill Sinha and attached a plan, a copy of Rs. 18, to that lease as part of it, stating that it correctly showed the area of 190 bighas 7 cottas 7 chattaks of which he had taken settlement and was in possession and enjoyment: I have already quoted Ex. C and Ex. 32 as showing admissions by Golap Babu and Ram Lall Sinha that the pillar line was the south boundary. We also find that in 1902 Golap Chander Farkar, in order to assure his title, took from the sons of Mukta Ram Singh Roy a deed of release in respect of 3 annas 3 pies, and in that document, the south boundary is described as the boundary pillars of the remaining 12 annas 9 pies share of Mauza Lodna. This is Ex. 25 (p. 37), and the whole document contains a summary of the history of what had happened up to the completion of the lease by Jadab Babu to Golap Chander Sarkar. So much for the admissions of and evidence against the defendants Golap Chander Sarkar and Ram Lal Sinha on this point. Golap Babu's son, who is now a defendant, states in his evidence (p. 213):

“By the ‘red line’ in plan Ex. 18 I understand ‘pillar line’ on the ground…. I all along knew that the pillar line was the southern boundary line until in 1910 I came to know that the area was short.”

135. The evidence against the defendant Bepin Behari Bose on this point is still stronger. In the Calcutta High Court the plaintiff filed Exs. 18 and 7-A, the latter showing the actual encroachment underground. Ex. 18 shovrs the “red line” and Ex. 7-A shows the “pillar line;” from this it is clear that the plaintiff regarded the red line and the pillar line as identical, and nowhere in the pleadings in the Calcutta High Court or in the Purulia Subordinate Judge's Court do we find any assertion that the plaintiff was wrong in assuming the identity of the two lines. In Ex. 87 (p. 82) we find that Bepin Bahari Bose admits in a proceeding in the High Court that the plan Ex. 7-A correctly shows the workings, and that the defendant has overstepped the boundaries set up by the plaintiff, but not the defendants' proper boundary. Here we find no assertion that the “pillar line” is any different from the red line. In his evidence in Court Bepin Behari Bose states:

“I took lease of 190 bighas of land covered by the pillar line on three sides, the river being on the east: p. 222.”

136. The defendants assert that the plaintiffs have introduced a new case, but a reference to Ex. 85, dated 9th December, 1910 (p. 79) and to para, 3 of the petition of objection to appointment of the Commissioner, dated 31st March 1914, Bhows that the case of the plaintiff is not a new one (pp. 79 and 276). After this it seems unnecessary to labour the question whether the parties have always regarded the pillar line and the red line, the line on the ground and the line on the map, as identical. Mr. Thomson no doubt made some damaging admissions on this point, but I do not think this sufficient to prove that the Commissioner was wrong when he marked the two lines as identical on his small scale map. The small difference on the westernmost end of the line in that map is after all away from the part of the boundary over which the plaintiffs assert a trespass.

137. If the parties contemplated the reservation of 30 feet of barrier to which each was to contribute 15 feet, it is difficult to see how they could have carried out the agreement without something on the surface of the earth to guide them. The expert evidence shows that a barrier between coal mines is regarded as a very important matter, and it would be absurd to think that the parties working underneath would have each to take-in hand his copy of Ex. 18 with its small scale and meagre figures, and survey underground in order to fix the limits of the barrier. The pillar line on the-surface would give practical and intelligible guidance to the two colliery owners, which would be a common basis between the parties and which would afford a clear and easy means of comp arisen between the distance from the pillar line to the mouth of any incline and from the mouth of that incline to the furthest gallery. Thus it seems tome that the red line and the pillar line being identical, taken with the lease Rs. 1, furnish a complete and satisfactory means of identifying the demised property. This fact must have been recognized by the lessees in the two subsequent sub-leases, and those lessees had their own interest to consider. It is significant that the first specific assertion that the area included was different from the area mentioned in Ex. 1 was made in October 1910, two months after Mr. Thomson had charged the defendant with trespass (Ex. C, p. 148). No doubt on Ex. 24, Sudhamoy Dutt's map prepared in 1909, we see the south line described as ‘boundary line (disputed),” but that is insufficient to prove that the question of area was pressed before October 1910.

138. The defendant may have had this entry on Ex. 24 made when he found that the result of his surveyor's survey was such as was likely to get him into trouble with the plaintiffs. But the dispute as to boundaries and area evidently first took a definite shape in October 1910. Under the circumstances it seems to me that the onus has shifted upon the defendants to show that their block as described in Ex. 18 and by the pillar line contains less than the stipulated area, 190 bighas 7 cottas 7 chattaks. To establish this the defendants rely upon the Commissioner's report and Mr. Thomson's admission, as well as certain other evidence which, they assert, proves that the plaintiffs are relying upon a boundary line on the north of the block which does not in fact exist. Taking the first pleader commissioner's evidence, we see that gentleman was of opinion that he was not directed by the Court to inquire and report whether the trijunctional pillars shown in his map tallied with those depicted in the revenue survey map. So he apparently took the visible pillars as they were pointed out by the parties and took the sites of those pillars which had disappeared according as the parties, one or other or both, indicated them. As to the important-north east trijunctional point between Khas Jharia, Lodna and Pandeberra (his station 10) he states—and the statement appears to be a true one—that Mr. Thomson himself indicated the site, pointing to a sunken rail on a tramway bank and asserting that the trijunetional pillar lay 20 feet below the surface. Quite incorrectly he asserts that there is only one trijunctional point on the northeast, namely, that at station 10; but here he is contradicted by defendants' witness Mahanando Uppadhaya and by the Mouza boundary lines in the revenue survey maps, which however are on so small scale and cover so small space at these two points that they require study with the magnifying glass or with the aid of a certified professional enlargement, such as Ex. 47.

139. I attach great weight to this last-named map. Both in arguments in Court and in the evidence the same error has been committed by taking the picture of a pillar on the revenue survey map to be the sole indication of the trijunctional point. Here the two pillars being only about 130 feet apart, it was natural for the surveyors to put one pillar to serve as the picture of both, the real trijunctional points being indicated by the lines of boundaries of adjacent villages. It was this mistake which led the Commissioner to exclude, as he admits he excluded, the portion north of the line 10—R from the village area. As regards the point 10 he trusted to Mr. Thomson's conjecture. Now a reference to his instructions will show that he was directed to ascertain the northern and western boundaries of Mauza Lodna (p. 280) and he was given a revenue survey map Ex. 23 by the Court (p. 143, L 28).

140. So it seems that he was under a misapprehension of the instructions when he did not find out the northern boundary by survey. The only trustworthy source that he had of information as to the trijunctional points was Ex. 23, and he subsequently, when preparing his report, was given another revenue survey map, Ex. 46. Mr. Richardson, who is undoubtedly an expert of considerable experience, has prepared and put in a map Ex. 28, which shows that the trijunctional point of Khas Jharia, Lodna and Pandeberra does not lie at point 10 as indicated by the Commissioner but at some distance away north-east, and that this mistake has resulted in a dislocation of the entire northern boundary. The Commissioner himself estimated the difference in area to be 14 bighas 13 cottas 5 chattaks. Mr. Richardson's evidence is uncontradicted. All that the Commissioner states is that the north line which he has drawn and the north line according to the revenue survey map are “practically” the same. It is difficult to see how he can maintain such a position, especially when in his small scale map he appears to have followed the revenue survey; and the result is that the trijunctional point when put upon the Commissioner's large scale map from his small scale map will be in a different position from point 10. In this connexion his cross-examination at p. 141 is important.

141. He says that the two points, i.e, the point on the small scale map and the point on the large scale map are only 38 ft. apart and a distance of 38 ft. cannot be shown on the small scale map;, but be does not meet Mr. Richardson's finding that the error has caused the entire north boundary, as shown by the Commissioner in his large scale map, to fall considerably south of the real revenue survey boundary line. Another mistake has resulted from his error which is of great importance in the case. This is that the angle formed by a line from the trijunctional point to the eastern extremity of the partition line, also called the red line, and the partition line itself, must vary. So if the Commissioner's trijunotional point be taken, the partition line is dislocated and must be drawn in such a way as to pass south of the red line and the pillar line, which as I have found above must be taken to be identical.

142. Now a study of Exs. 45, 4-4, L, I, A, 83, 54 and 25 will show that almost invariably the northern boundary was described as the limits of the adjacent mauza, and there is no means shewn on the record of finding those limits except by the use of the revenue survey and the Thakbust map. The revenue survey map, Ex. 23, contains a certificate that it has been compared with the Thakbust map (Ex. 49). The defendants suggest that there are boundary pillars of Mauza Lodna on the north erected by Babu Jadab Lal Bannerjee, but the evidence consists in some vague statements of the witness Mahananda Upadhya and a passage in Ex. L.

143. This evidence leaves us uncertain where these pillars were put, and how many are still in existence. Moreover, in Ex. I, there is no mention of any north boundary other than the boundary of Lodna Mauza itself, and Ex. I mentions the revenue survey map as the basis for calculating the area of the three annas three pies share. Moreover, in Ex. B, which the defendants would call a part of their title-deeds, the northern boundary would be north of the Commissioner's north boundary (p. 138, 11-1-7). Again, it is to be remembered that the defendants' rights as sub lessees are derived from the original lease by the zamindar to Babu Jadab Lal Bannerjee and Ambika Charan Laik, and that the whole series of transactions, leases and subleases, refer to underground rights and not surface rights. Thus it is only reasonable to suppose that the leases and subleases had regard to the zamindari property in the subsoil, and not to the rights on the surface, such as those of cultivators and tenure-holders. If the revenue survey map is correct; it is a good indication of the zamindars possession in the years 1861–1862, and to that extent good evidence of the title of tithe zamindar. Certainly the lessees and sub lessees of the zamindar would be entitled to use this evidence against any persons overstepping the boundary of the revenue mauza. For all these reasons I hold that no importance can be attached to the Commissioner's map and report.

144. The mistake as to the trijunctional point on the north-east was shared by Mr. Thomson, and there was also this additional complication that there was another important pillar lost, namely, the westernmost pillar of the partition line. The partition line should have been drawn approximately straight, and not with a deflection at the last but one pillar on the west. Mr. Thomson's cross-examination was largely founded upon the position of these two points, namely, the trijunctional pillar at the north-east and the last partition pillar on the west; and he was driven to admissions that his map Ex. 18 was incorrect on comparing it with other maps. The maps which show approximately the correct angle are Exs. 18, 24, 16-A and 42 (Point D). The error as to the position of this trijunctional point seems to have arisen in 1910. On the revenue survey maps the angle can only be calculated if the partition line be laid thereon, and Mr. Thomson certainly made a damaging admission in Court when he so found the angle on Ex. 23 and estimated it by means of a protractor at 49 degrees 50 minutes. I take this to be what is meant on p. 101, line 13. The estimate of an angle on a small scale map in Court by a witness under examination in the witness-box is no easy matter; and in any circumstances it is a task of great delicacy and requiring some experience. Mr. Pugh for the appellants contends that the angle so stated by Mr. Thompson is incorrect; but, on the other hand, it is pertinent to ask why the mistake was not cleared up.

145. On the other hand Mr. Richardson's evidence and his map Ex. 28 must be given very great importance. Mr. Thomson was driven into finding certain errors in distances and angles, and then he was asked whether he still considered the map to be correct. Quite logically he answered “No.” This answer obtained for the defendants the great advantage of having upon the record what appeared to be repudiation of the whole map. So it is very necessary to consider what were Mr. Thomson's reservations. These are to be found on p. 101, where he states that his answers are given on the basis of data put before him by the cross examining pleader. In his re-examination he states that he considers these data to be certainly not satisfactory or certain. I now proceed to trace those data. The first part of the cross-examination of Mr. Thomson at p. 95 results in an admission that Rs. 16-A does not agree with the revenue survey map. Rs. 16-A is a map which Mr. Thomson had tested by his subordinate, Mr. Murray, in 1910, when the defendants had raised the question of inadequacy of area and had sent the plaintiffs this map, Ex. 16-A. Mr. Murray's map is Ex. 9. Bead in its context, the evidence seems to be that Ex. 16-A is different from the revenue survey in two respects namely, that it shows no trijunctional pillars and that it was tested by Mr. Murray in Ex. 9 and found correct. Mr. Thomson also says that Ex. 16-A agrees with the Commissioner's map. Both these statements are somewhat incorrect, for the angles at the eastern extremity of the partition line in Ex. 16-A differs from the angle in Ex. 9 of Mr. Murray's map. Evidently Mr. Murry was in the same error as Mr. Thomson in thinking that the sunken rail on the tram line corresponded with the trijunctional point. The Commissioner also made the same mistake. So the two admissions of Mr. Thomson are of little value, if we are to search for the real truth. Then the cross-examining pleader took Mr. Thomson to Ex. 9, and by working around the north-east trijunctiosal point he obtained an admission that Mr. Murrray's map disagreed with the revenue survey map and with Ex. 18. It is significant that the cross-examining pleader kept Mr. Thomson's attention concentrated on points where the disappearance of pillars has caused some doubt as to the position of the points. On Ex. 18 there are shown three trijunctional points on the east side of Lodna, one the disputed and doubtful one, and the other two undisputed.

146. If the test was to be convincing, the cross-examining pleader should surely have proceeded from the undisputed points where the pillars are now in existence. Mr. Thomson had been responsible for Ex. 9, as it was part of his report to his employers, and so be is ready to repudiate any map that does not agree with it. So on p. 97 he rejects Ex. 17-A, the ferro-print filed with the plaint showing the encroachment, which was drawn from Ex. 24. The slight difference between these two maps is indicated by the vanished pillar on the western extremity of the boundary line. After, this, further admissions were extracted from the witness that Mr. Murray's Ex. 9 does not agree with the revenue survey map, Ex. 23; here again the source of the difference is to be found at the point D, that is, the trijunctional point, and also in the fact that Ex. 9 shows an error in that part of the boundary line on the west which is outside the disputed area of this case, (that is, the part between the last existing pillar and the pillar which has disappeared from the extremity). Mr. Thomson fixed a point C-3 on Ex. 9 as the correct west extremity of the partition line, taking distances from various points and comparing them with the distances derived from the revenue survey map, Ex. 23, which he had in his hands; all this time, it is clear his mind did not advert to or realize the misapprehension that he and Mr. Murray had laboured under in regard to the position of the north-east trijunctional point. He could not pase his finger on the source of the error. This point C-3 must under the circumstances be taken to be an entirely imaginary point having no connexion with facts. It is derived from absolutely incorrect data, namely the position of points on the north boundary line of Mr. Murray's map. Mr. Murray's whole north boundary line is just as much open to exception as the commissioner's line. These discussions show how little weight can be attached to the data which led Mr. Thomson to say that Ex. 18 cannot agree with the original which he prepared in July 1897 in the presence of Jatindra Nath Sarkar.

147. It will be remembered that there was an original and two copies of Ex. 18. The data are: (1) the angle at the eastern extremity of the partition line in Ex. 18; (2) the corresponding angle on the revenue survey map, and (3) the position of the western extremity indicated on Mr. Murray's map by the figures C-3. In the face of Mr. Richardson's evidence, and after a study of the maps, I am of opinion that the defendants cannot reasonably claim that Mr. Thomson's admissions amount to conclusive evidence that a less area than 190 bighas 7 acttahs 7 chattaks is included between the south boundary line as delineated in Rs. 18 and the north and west boundaries as shown by the revenue survey maps and the east boundary, the eastern bank of the Chatkori river. At p. 102 he admits that if he takes Ex. 18 by itself he cannot assert that the defendants have been guilty of any encroachment.

148. I have already shown that taking Ex. 18 with other maps such as Ex. 24 and Exs. 7-A and 17-A, the defendants must be held to be guilty of encroachment.

149. It is convenient here to sum up my findings of fact.

150. I find that at the conference in December 1895, the arbitrators decided that Golap Chandra Sarkar should on payment of a premium be entitled to a sub-lease of a block of land on the north of Lodna, mauza equivalent to 3 annas 3 pies share. The only stipulation made by Babu Jadab Lal Banerji on his own side was that the south boundary of the new parcel to be allotted to Golap Babu should not pass within 325 feet of Jadab Babu's incline No. 1. This agreement resulted in the lease and counterpart Rs. 1 and A. executed in April and July 1897. The document of the lease was completed in July 1897 by Ex. 18, signed by the parties, and possession was given at the same time after demarcation on the ground. I find that the arbitrators' line was not necessarily the south boundary, and that in fact the lease Rs. 1 and the map Ex. 18 leave no doubt as to the situation and boundaries of the land demised, and I hold that the said land can be easily identified. I find that the defendants are bound by the document so completed, and that the south limits of their parcel are clearly indicated on the ground by the line of pillars which is identical with the red line on the map. The boundaries so fixed have been always recognized as such by the parties in their dealings with each other and with others. I find that the defendants' attempt to show that they have less than the stipulated area 190 bighas 7 cottihs 7 chattaks must fail, as their arguments depend on data, which to ray the least are extremely uncertain for instance the position of the missing trijunetional pillar of Khas Jharia, Lodna and Pandeberra, and the missing pillar on the west extremity of the partition line. Exs. 17-A, 7-A and 24 correctly show the defendants' workings.

151. It follows from the above conclusions that the defendants have trespassed and abstracted the coal and have also contravened the covenant for a barrier contained in Rs. 1, the principal lease. The plaintiffs' case on this point rests on the evidence and the survey (1909) of Sudhamoy Dutt, the defendants' surveyor. The plaintiffs after discovery of the encroachment on 25th July, 1910 (p. 25) called for the working plans (p. 26), and received from Bepin Behari Bose Rs. 41, which is undoubtedly a working plan, and Ex. 24, which Bepin Behari Bose says is not his working plan (p. 222, line 11). Mr. Thomson attempted to check by survey on his own part the defendants' “new plan” (Ex. 6, p. 26), but Ex. 7 shows that the rise of water in the galleries hindered the work (p. 27). But the partial survey showed that Sudhamoy's plan Rs. 24 was correct so far, and the plaintiffs accepted it, and prepared Rs. 7-A and 17-A therefrom. These were filed with the plaints in the High Court and in Purulia. In the High Court proceedings (p. 82) we see that the plaintiffs asked for inspection and Bepin Behari Bose resisted on the ground that he wished to keep the water where it was (p. 170), and he entered an admission that the plan annexed to the plaint correctly showed the underground workings by which he had raised coal (p. 82). All this is corroborated by oral and documentary evidence; and the defendant, although he now denies the correctness of the plans (Exs. 7-A and 17-A), does not produce any good evidence to meet the evidence of Mr. Thomson and Sudhamoy Dutt. I hold that the defendant has in fact trespassed and abstracted the coal and has broken the barrier. In my opinion the dates of these acts of the defendant cannot be ascertained from the evidence, except that they must fall between April 1909 and July 1910; but the defendants are the persons who have special knowledge of the dates and are keeping it back, and who moreover are proved, without any evidence to the contrary to have shown Mr. Thomson a working plan (probably a tracing of Ex. 41), which was incomplete and fraudulently misleading.

152. I am not discussing the issues on purely legal points. I agree fully with the judgment of my learned brother and with the order proposed.

V.S/R.K

153. Appeal allowed.