KESHABJI LALJI Vs. PIRAMALL GAYENKA

JUDGEMENT

(1.) First Appeal No. 20 of 1935 is directed against the preliminary decree and First Appeal No. 143 of 1936 is directed against the final decree in a suit which was brought for khas possession, mesne profits, damages, royalties, etc., laid at Rs. 28,256-1-0 in respect of a colliery. By an indenture dated 20 March 1934, the appellants who are defendants in the suit obtained sub-lease of the coal underneath the property situated within Mouza Siduly on terms which are stated in: the document. The plaintiffs are in the position of landlords to the appellants by virtue of ?b purchase from previous lease-holders. The plaintiffs case is that the defendants did not carry out the provisions of the lease whereupon the plaintiffs cancelled the lease and gave notice to quit on 31 August 1932. On the defendants failing to comply, the present suit has been brought. In the suit various reliefs were originally asked for, but on 30th August 1934, the parties came to an amicable settlement with regard to the claim for ejectment and khas possession. On 19 September following there was another amicable settlement by which the plaintiffs withdrew their claim for cesses. The sole reliefs that remained for trial at the hearing were the plaintiffs claim for minimum royalty, fuel coal and interest. The material defence was that in 1929 the appellants for the first time came to know that the area of the leasehold was not 485 bighas stated in the indenture but only 452 bighas. Therefore the defendants claimed refund of a portion of the selami and minimum royalty already paid and further claimed that there ought to be a decrease of the amount of minimum royalty payable per annum. There were further defences that no interest was due according to the terms of the lease on the amount of fuel coal and that the plaintiffs were not entitled to all the costs claimed by them. The Subordinate Judge having decided the points against the defence the defendants filed First Appeal No. 20 of 1935. The first point pressed in Appeal No. 20 of 1935 is comprised in issues Nos. 13 and 14 which are stated thus: 13. Has there been any diminution of the leasehold and is the minimum royalty liable to be reduced in proportion? 14. Are the defendants entitled to a set-off for the amount alleged to be overpaid by them, and if so what would be its amount? Can the defendants raise this plea without payment of court-fee?

(2.) The sub-lease was granted in consideration of a selami of Rs. 72,750 in respect of all those pieces and parcels of land in Mouza Siduly mentioned and described in the schedule hereunder written and delineated on the map or plan hereto annexed and thereon coloured, etc.

(3.) The schedule referred to is: All that piece or parcel of land in Mouza Siduly in Parganna Shergarh, Thana Ondal, Sub-Registry Ranigunge, in District Burdwan Settlement No. 2346, containing an area of 485 bighas and bounded on the north, Lala Reghumall Siduli Colliery and Ondal Sainthia Bail way; on the east Revenue Boundary of Mouza Khandra, on the south, Revenue Boundary of Mouza Mukundapur; on the west, Revenue Boundary of Mouza Bowla.