1. This suit relates to village Petana, which is situated within the ancestral zemindari of the plaintiff Kumar Jyoti Prasad Singh Deo. It is held by the third group of defendants, who are called the Groswamis, as a permanent debutter tenure subject to a rent of about Rs. 23 paid to the zemindar. It is held as a makarrari maurusi tenure under them by a large number of persons, who composed the second group of defendants known as the Chakravartis and Namtirthas, and these mukarrnndars gave a lease of the village to the first group of defendants, known as Messrs. Mylne & Co., from May 1894 to June 1899, in order that these defendants might work the coal mines discovered in the village.

2. In 1898 the plaintiff learnt of these mining operations, and instituted this suit against Messrs. Mylne & Co. in July 1900 to have his underground rights in the village declared, to get khas possession of the same, to obtain an injunction against the Company and to recover compensation for the coal taken. In September 1900 and February 1901 the plaintiff added the Gos-wamis and the mukarraridars as co-defendants. The Subordinate Judge decreed the suit and awarded the plaintiff Rs. 2,000 damages against all the defendants except the Goswamis. Against his decision this appeal has been preferred by most of the mukarraridars.

3. The objections taken before us to the Subordinate Judge's decision are, that the appellants have held this village as a mukarruri for about eighty years; that they own all the underground rights in it, and have exercised those rights for upwards of twenty-six years; and that the plaintiff never claimed those rights before ho gave notice in this case. Now it is true that the plaintiff had not claimed the underground rights, until ho learned that Mylne & Co. were digging out the coal in 1898, and it is also true that the Chakravartia and Namtirthas have held this village in. mukarrari for many years; though it is not clear how long they have held it, because the two deeds of the year 1822, which they have produced, are spurious in our opinion.

4. The real questions here are two, (1) whether the underground rights are included within the mukarari tenure, which the Chakravartis and Namtirthas possess in this village, and (2) whether they have acquired such rights by openly exercising them for about twenty-six years.

5. With regard to the latter question we are of opinion that the mukarraridars have not proved any title by prescription to the underground rights. They have adduced evidence to show that they have been granting quarrying rights for over twenty years, but the statements are general. No papers, accounts or trustworthy particulars have been put in; and there is nothing definite to show anything more than that the mukarraridars have at times allowed mere surface quarrying for ironstone and geri stone (which appear to be different things) for the purposes of the old country methods of smelting, etc., until the railway opened up that part of the country. There is no evidence regarding the extent, publicity or continuity of such operations, to establish the mukarraridars' acquisition by prescription of the underground rights claimed.

6. The first of the two questions, which we have stated, remains then as the chief question, and it really comes to this, viz., to which party do the underground rights belong, to the zemindars or to the permanent tenure-holders. There is no claim explicitly asserted by the superior tenure-holders, the Goswamis; hence, if the underground rights are not reserved to the zemindars, but are included within the permanent tenure, the same reasons, which would assign those rights to the Goswamis the superior tenure-holders as against the zemindar, would equally assign those rights to the mukarraridars if their alleged mukarrari under the Goswamis is valid.

7. Now the validity of the mukarrari was not raised by the issues framed in this suit, nor was any decision pronounced regarding it. The Subordinate Judge, however, in discussing the first issue, has expressed himself as doubtful as to its validity on the grounds, that the title-deeds and rent receipts are spurious, and that the sale-certificate and kobala by which the Chakravartis acquired their share in it have been withheld. Before us nothing has been said against the validity of the mukarrari, and it has been treated as being a valid permanent tenure; but it is unnecessary to consider whether it is valid or not, because, if the Goswamis' tenure is valid and if it includes the underground rights, the plaintiff's claim must fail. A contest in that event might lie between the Goswamis and the mukarraridars, though the Goswamis have not questioned the validity of the mukarrari in this suit, but the conflicting claims (if any) between thorn are irrelevant in this suit. The plaintiff's claim is contested by the mukarraridars, who rely necessarily on the validity of the Goswamis' tenure as the foundation of the validity of their own mukarrari.

8. The essential point then is, whether the Goswamis' tenure is valid, for, if it stands as a valid tenure between the plaintiff and the contesting defendants, and if the underground rights appertain to it as against the zemindari, the 'plaintiff's claim must fail, whatever may be the conflicting claims of the several defendants among themselves.

9. Now no issue was raised in the lower Court regarding the validity of the Goswamis' tenure, and in fact it was never questioned. They, or rather the mukarraridars, went further however and asserted that the Goswamis' property in the village was a mughali debutter estate, which existed before the Permanent Settlement, and had been treated as a dependent taluk, which paid its Government revenue (about Rs. 23) through the zemindar, the plaintiff's predecessor. The Subordinate Judge decided that it was not a mughali estate, but was part of the plaintiff's semindari, and that the annual sum paid was truly rent. He however held, in deciding the fourth issue, that it was a valid permanent tenure at a fixed rental, for he says that the Raja (that is, the plaintiff's predecessor) allowed the Goswamis to hold the village at a quit-rent of Rs. 22-15-6 pies. We entirely concur in these findings, which have not been controverted before us. The Goswamis' tenure without dispute is a permanent one created by the plaintiff's predecessor a long time ago; it is a debutter property held in the name of the idol Gopinath Jiu; and its rental is fixed at Rs. 22-15-6 pies in perpetuity.

10. The question for decision, therefore, resolves itself into this--Did the ground rights pass with the tenure when it was created, or were they reserved to the zemindari? Admittedly there was no express reservation; but it is contended by the plaintiff that such rights would not appertain to the tenure, and by the mukarraridars that there was no thought of reservation and every right in the land was included in the tenure.

11. Both parties have cited the case of Prince Mahomed Buktyar Shah v. Rani Dhojamani (1905) 2 C.L.J. 20, and the learned Counsel who has appeared for the mukarraridars appellants has relied on the case In re Punnanandas Jeewandas (1882) I.L.R. 7 Bom. 109, especially on the observations at page 117. In truth those cases have no application to the present case, for they deal solely with the rights of persons who possess temporary interests in the land, and the rights of lessees for years, and it is well established that such persons have no right to the minerals underlying their land, and can only work mines, quarries or pits, which are open when they come into possession of the land. In this case we are dealing solely with the rights of tenants, who possess heritable-and transferable interests in the land in perpetuity; for without dispute the Goswamis' tenure is of that kind, although as debutter it is subject to some restrictions on the exercise of those rights. No decision has been cited which is in point.

12. Reference has also been made to Section 108, Clause (o) of the Transfer of Property Act, which, when read with the definition of "lease" in Section 105, declares that a lessee in perpetuity cannot work mines or quarries not open when the lease was granted; but those sections do not apply to tenures of the kind concerned in this case as explained in Section 117. The provisions of Clause (o) of Section 108 cannot even by analogy be safely applied to those tenures, for that clause prohibits a lessee from pulling down buildings or felling timber, and yet it is well known that a permanent tenure-holder is not ordinarily restrieted in those ways (see Section 10 of the Bengal Tenancy Act). Moreover, Clause (p) of Section 108 prohibits a lessee from erecting any permanent structure without the landlord's consent; and yet it is a common-place in the land law of this country that permanent tenure-holders can ordinarily build such structures on their lands without the zemindar's consent. It is only when there is an express stipulation depriving a permanent tenure-holder of such rights, that he is debarred from exercising them. It is obvious therefore that permanent tenure-holders have rights which go very far beyond what the Transfer of Property Act allows to ordinary lessees. The inference would rather be that such tenure-holders possess, in addition to those rights, which have been noticed, the right of working mines and quarries also.

13. The Transfer of Property Act therefore does not help us in this matter. We have been referred to "Bainbridge on Mines and Minerals," especially to p. 40 of the fifth edition, regarding the rights of landlords and tenants and the reservations of minerals; but no benefit can be drawn therefrom, nor does the law of England furnish a safe guide in this case, for the laud-laws here are so widely different from the land-laws there, that no useful comparison can be made between them.

14. The question then must be decided solely upon a consideration of the nature of such permanent tenures as settled by the land-law of this country. Now, when such tenures are created, the zemindar invests the tenure-holder with every right that can appertain to him short of the quit rent due to the proprietorship; the tenure is permanent, heritable and transferable, its rental is as fixed as the Government revenue that the zemindar pays; and the tenant can do what he likes with it, short of altogether destroying it; in short it has all the rights of proprietorship except the name; and the zemindar (in the absence of express conditions) has really divested himself of everything except the nominal proprietorship, and has turned his right practically into a perpetual annuity of the amount of the rental. He has no right of reversion. In such a state of their respective rights there is no basis for holding that the underground rights have not passed as part of the tenure. To hold otherwise would be to hold that a tenant in perpetuity can never work mines, because they do not belong to his tenure, and that the landlord can never work them, because he has no reversion and no right to enter on the land for that purpose. In the absence of any express warrant for such a view, I cannot assent to such an unreasonable proposition. In my opinion the underground rights belong to permanent tenures. When the landlord created the tenure, he made over the land with all its capabilities to the tenant, and merely imposed on the tenure the rental that he thought best in the circumstances. When neither of them knew of undiscovered materials of value within the land and the idea of reserving anything never entered their minds, it certainly cannot be held that there was any such reservation in the grant, nor that a distinction can be afterwards drawn between various rights that may exist in the land for the purpose of qualifying the original grant and of importing into it what neither party could then imagine.

15. The fact that the land was agricultural when the tenure was created, and that the tenure is classed as an agricultural one, does not derogate from the rights conveyed in the tenure, because no restriction was put on the use of the land and the tenure-holder's use of it is not limited to agriculture; he can build on it and apply it to other non-agricultural purposes. There is no distinction in law or in common usage in this country between the surface of land and the underlying strata, except when it has been created of recent years, either by the law as in the Land Acquisition (Mines) Act, XVIII of 1885, or by contract. When a man obtains permanent possession of land with heritable and transferable rights, then, in the absence of any reservation, he obtains it with all rights attaching to it from the centre of the earth to the sky. If a permanent tenure-holder can use the surface, which is agricultural land, for non-agricultural purposes, there is no reason why his rights in the subjacent strata should be less or different. It is impossible to import into contracts stipulations that the law did not attach to them, that are not naturally inherent in them, and that the parties themselves had no conception of at the time of contracting. I am decidedly of opinion therefore that, whore a tenure is permanent, the tenure-holder possesses all the underground rights, unless there is something express to the contrary.

16. The position of the permanent tenure-holder as against the zemindar is very similar to that of the zemindar as against the State. By Hindu law the sovereign is entitled to a share of all the minerals. If when the British Government converted the zemindars into proprietors, and made no reservation of mines or minerals, the zemindars acquired all rights thereto, then by parity of reasoning it would follow that, when zemindars created permanent tenures with all the substantial rights of proprietorship, it must be held that the right to mines and minerals passed to the tenures.

17. This view of the rights to mines and minerals has been well expressed in Mitra's "Land Law of Bengal," where it is said at p. 393, "that I think a person, holding under a permanent lease in which there is no reversion to the landlord, has the right to open mines, and if he does so, his act, unless there is an express covenant to the contrary, does not amount to legal waste. When the lease is granted by a proprietor not for any specified purpose and he reserves only the right to receive the quit-rent in perpetuity, such a use of the land cannot affect him. Permanent leases are practically conveyances of land, and it seems to me that the lessees have full right to use the lands demised as they please, provided there is ample security for the proprietor's dues. Primd facie the owner of the surface is entitled ex jure naturae to everything beneath or within it. The working of mines does not, as a rule, permanently injure the land or destroy it to the detriment of the landlord's interest. The same thing may be said as to the working of quarries." And again at page 395, "According to the law as laid down by the great law-giver of ancient India, the king is entitled to a half share of hidden treasures underneath the earth and of minerals as his share for the protection afforded by him to his subjects.... The Anglo-Indian Government has, by the permanent settlement, accepted fixed sums as revenue in lieu of all the rights it had either as proprietor of the soil or as the proprietor of its subjects. It reserved no right whatsoever, except as to treasures under the Treasure Trove Act. Minerals must necessarily pass with the right to the surface. The present theory of the proprietary right of the Government is not consistent with the Hindu theory of the king's right to a share of the produce or of hidden treasures and minerals, and the Anglo-Indian Government, having accepted and acted upon the theory of the proprietorship of the soil, cannot now claim a share of the minerals on the latter theory. The transfer to permanent tenure-holders of the right which the zemindars derived from the Government necessarily conveys the right to the minerals underneath."

18. In this case however the tenure-holders' position is still clearer, for it is in evidence that iron-smelting and other mineral operations have been carried on for a long time past according to country methods; that surface pits and quarries have been worked for those purposes; and that the tenure-holders have exorcised all the quarrying rights without objection from the zemindar. As such quarrying rights are not modern nor unknown, the exercise of them might interfere with the purely agricultural use of the land and certainly furnished an additional source of income, yet it is not contended on the plaintiff's behalf that he made any reservation of them or ever objected to the tenure-holders' granting quarrying rights. If then the landlord made no reservation of known rights other than agricultural, it is impossible to suppose that he reserved underground rights, of which no one had any conception.

19. I hold, therefore, that the underground rights in this village appertain to the Goswamis' permanent tenure, and not to the plaintiff, and the plaintiff's claim therefore must fail. It is unnecessary to pursue the inquiry into the further question whether those rights have passed with the mukarrari to the appellants. For these reasons the appeal is allowed and the plaintiff's suit is dismissed with costs in both Courts.

Pratt J.

20. I concur in the judgment which has been delivered by my learned brother. At first I was inclined to doubt whether the grant of a permanent tenure should be held to include mines, when not expressly reserved. But in this Province the grantors of such tenures consider that they have parted with all their interests in the soil and are entitled only to the quit-rent reserved. Section 103 of the Transfer of Property Act does not apply to agricultural holdings, and the common law of England regarding the mining rights of lessees for a term cannot, I think, be made applicable to permanent tenures in the rural parts of Bengal.

21. The result is that the decree of the Lower Court will be set aside and the suit be dismissed with costs in both Courts.