Decided on May 30,1951

Pramatha Nath Sarma Appellant
Tarini Charan Das Respondents


Ram Labhaya, J. - (1.)THIS is a second appeal by the plaintiffs. Their suit for the recovery of a sum of Rs. 2000 was decreed by the trial Court. The defendant appealed from the decree. On appeal, the decree was modified, and the decretal amount was reduced to Rs. 600. Plaintiffs have appealed to this Court. The defendant has put in cross -objections. This order will dispose of both the appeal and the cross -objections.
(2.)THE case for the plaintiffs in brief was that they were the Dolois of the Kamakhya Temple and were in charge of the management of the Temple Estate. In 1942, the military authorities were in need of stone metal for roads in the vicinity of Gauhati. They approached the plaintiffs to permit their contractor to remove stone metal and boulders from the Kamakhya North Quarry on such terms as may be agreed upon between the plaintiffs and the contractor. The plaintiffs agreed. In consequence the arrangement made between the plaintiffs and the contractor was that he would take out stone metal and boulders from the quarry for his military contracts and on the completion of his extraction of boulders and stone metal, he would pay to the plaintiffs royalty at the rate of Rs. 2 per 100 cft. of the total quantity of stone metal and boulders removed. According to this arrangement, plaintiffs claimed that 78,000 cft. of stone metal and 9500 cft. of boulders were extracted up to 9 -2 -1945, which is stated as the date of the cause of action. The amount of royalty claimed comes to Rs. 1750. The plaintiffs admitted having received Rs. 306. The balance claimed on account of royalty is Rs. 1450. A sum of Rs. 550 is claimed as compensation for delay in making the payment for which repeated demands were alleged to have been made.
The defendant came forward with a total denial of the oral contract with the plaintiffs which forms the basis of the suit. He further alleged that he never extracted any stone metal or boulders from the Kamakhya North quarry. He admitted that he had the lease of the south quarry for about 6 years and paid Rs. 300 as lease money. Of the other defences, we are concerned with only two at this stage. One of these was that the suit was barred by limitation and the other was that the Government was a necessary party to the suit.

(3.)THE learned Subordinate Judge found that there was an oral contract between the plaintiffs and the defendant according to which defendant was permitted to extract stone metal and boulders from the North quarry. The royalty payable was fixed at Rs. 2 per 100 cft. He further found that the quantity alleged to have been removed had been proved. He further found that the Government was not a necessary party to the suit. No issue was framed on the question of limitation and therefore there was no finding given on it. It appears that this point, though raised in the written statement, was not pressed and no issue was asked for on it,

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