RAJA BHUPENDRA NARAYAN SINHA Vs. RAJESWAR PROSAD BHAKAT

JUDGEMENT

(1.) The question for determination in these consolidated appeals is as to the sub- soil rights in a hill in Mauza Nalhati, in the Birbhum District. There, beneath a stratum of stones and gravel, a valuable deposit of yellow ochre has been found, which is claimed by both parties--by the appellant as the zemindar and by the respondents as dar-putnidars holding by virtue of two putni grants dating from 1861. The respondents have worked the deposit on a considerable scale and have sold the ochre, for which there seems to be a ready market.

(2.) The suit was instituted by the appellant on December 12,1919, for a declaration of his ownership and possession of the sub soil, and an injunction restraining the respondents from digging and removing the stones, earth or minerals, including the ochre, and claiming a large sum as damages. The respondents pleaded that the sub-soil rights had passed to them under the putnis and dar-putnis, and alternatively that they had acquired a prescrip tive right to them by adverse possession. A further question was also raised as to the title of the appellant. He was the eldest of four brothers, representing a zemindari known as the Nashi-pur Raj, which he alleged to be an impartible estate vested in him alone. He joined his brothers as pro-forma defendants to the suit and they supported his claim.

(3.) The Subordinate Judge of Birbhum, by whom the suit was tried, held that the respondents were entitled to remove the superficial stratum of stones and gravel, but not the underlying ochre, and that they had acquired no title to this by adverse possession. He gave the appellant the declaration and injunction asked, in respect of the minerals, but, holding that his sole title to the zemindari was not established, gave him only a quarter of the damages proved in respect of the removal of ochre, which he estimated at a total sum of Rs.46,800.