SHAH, J. : - (1.) THE following Judgment of the court was delivered by
(2.) SUBODH Gopal Bose - hereinafter called 'the plaintiff - commenced an action in the court of the Subordinate Judge, Sasaram, against four defendants the State of Bihar. the Collector of Shahabad. the Additional Sub-Divisional Officer, Sasaram, and Dalmia Jain, and Company Ltd. - for a decree declaring that he was en 283 titled to quarry limestone for trade purposes from the Murli Hills described in the Schedule annexed to the plaint, and for an injunction restraining the defendants from dispossessing the plaintiff or granting a lease of the land to any other person. In the Schedule, the two properties in respect of which relief was claimed were: (i) the Upper Murli Hill admeasuring 137 acres together with subsoil and mineral rights situate in pargana Rohtas bearing Touzi No. 4769 Tahsil Circle Sasaram; and (ii) the Lower Murli Hill comprising an area of 250 bighas within the Banskati Mahal together with the surface, subsoil and mineral rights situate in pargana Rohtas, Touzi No. 4771 Tahsil Circle Sasaram. The Trial court dismissed the suit. In appeal the High court of Patna modified the decree passed by the Trial court and declared that the plaintiff was entitled to quarry limestone for trade purposes from the Lower Murli Hill, "subject to the right which the owner of the Banskati Mahal had therein as set out in the judgment", and restrained the defendants by a permanent injunction from dispossessing the plaintiff from the Lower Murli Hill described in the Schedule annexed to the plaint. With certificate granted by the High court, the State of Bihar and the Dalmia Jain and Company Ltd., have separately appealed. The Murii Hill which forms a spur in the Kaimur range of Hills is shaped like a truncated cone with a plateau at the top. The plateau is called the Upper Murli Hill, and the slopes are called the Lower Murli Hill. After the battle of Buxar in 1764, Raja Shah Mal, Diwan of Rohtas Fort handed over to the East India Company the entire Rohtas pargana including the greater part of the Kaimur range in the Sasaram sub-division as well as the land lying below it in the Sone valley. The East India Company granted a major part of the pargana to Raja Shah Mal as a reward for services rendered by him. Rai Harbans Rai-successor of Raja Shah Mal-imposed 'sair'-duties called 'Banskati'-on all wood, bamboos and other forest produce taken out of any part of the pargana. About the year 1812 the representatives of Harbans Rai surrendered the grant to the East India Company with the exception of 12 mauzas which they retained for themselves. The territory so surrendered was shortly thereafter settled permanently in 116 estates containing 271 mauzas, but the government of the day retained the 'Banskati Mahal", or the right which Harbans Rai had exercised in the territory granted to Raja Shah Mal of collecting "spontaneous products" of the land and of levying duties thereon when collected by others. The right to levy the Banskati was later restricted in its exercise to an area of 200 sq. miles in 108 villages including Mahal Chandanpura bearing Touzi No. 4771. When the produce of the land was taken to carry on a trade an annual fee was levied from each person carrying on trade or for each kiln. Permit fees were levied from persons entering the forest to collect produce and when the produce was collected for exportation, a duty calculated on the quantity exported was levied at toll stations. Mahal Chandanpura which was permanently settled in favour of Rani Gulab Kunvar, included two villages-Baknaur and Samahuta-which formed part of the Lower Murii Hill. The village Baknaur consisted of six plots-one of which was plot No. 168, and the village Samahuta consisted of eight plots which included plots Nos. 42, 128, 130 and 44. Originally the Banskati right was framed out to contractors, but after 1885 it was administered directly through the officers of the government. It appears that between the years 1879 and 1907 enquiries were made by Revenue Officers of the government to determine the precise nature and territorial extent of the rights known as the 'Banskati Mahal'. At the Cadastral Survey in the first decade of this century a record of the rights, practices and privileges of the tenants or residents of the villages subject to the Banskati Mahal was prepared.
(3.) IT is common ground that the grant to Rani Gulab Kunvar did not include the Upper Murii Hill and it remained vested in the government of the day The secretary of State for India in council granted a lease, for a period of twenty years expiring on 31/03/1928, of the surface of and quarrying rights in the Upper Murii Hill to tile Managing Agent of the Kuchwar Lime and Stone Company Ltd.-hereinafter called 'the Kuchwar Company'. On 24/09/1910 the secretary of State for India in council granted a right to quarry limestone till 31/03/1928 only in Lower Murli Hill to the Kuchwar Company. The surface rights in Lower Murii Hill were not granted, because they were vested in the Zamindar. Between 10/12/1910 and 16/05/1917, 32.50 acres of land out of plot No. 44 of Samahuta were acquired under the Land Acquisition Act and possession of that area was handed over by the government to the Dehri-Rohtas Light Railway Company. One Sheikh Abdus Sattar Khan had obtained tenancy rights from the Zamindar in respect of some lands in village Baknaur. In 1925 Abdus Sattar Khan sold his tenancy rights in some plots including 284 plot No. 168 to the Kuchwar Company and the Zamindar accepted the Kuchwar Company as a tenant of the lands. In suit No. 46/59 of 22/26 between the Zamindar and the Kuchwar Company which was compromised in February 1928, the Zamindar recognised the Kuchwar Company as a tenant In respect of certain other plots of land In the two villages-Baknaur and Samahuta but excluding the area which was acquired for the Dehri-Rohtas Light Railway Company. On 1/04/1928, the secretary of State for India in council granted a fresh lease to the Kuchwar Company of the surface and quarrying rights In the Upper Murii Hill for twenty years expiring on 31/03/1948. By another deed also dated 1/04/1928, the secretary of State for India in council granted a lease to the Kuchwar Company of the right to quarry limestone in the Lower Murli Hill for twenty years. The Kuchwar Company also obtained a lease of 30.90 acres of land acquired for the Dehri-Rohtas Light Railway Company for the purpose of quarrying limestone. But this lease was an annual lease terminable on December 31 of any year by either party giving to the other notice of twelve calendar months. On 25/01/1933 It was resolved that the Kuchwar Company be voluntarily wound up. Liquidators were appointed to wind up the affairs of the Company. On 30/09/1933, the Liquidators of the Kuchwar Company sold to the plaintiff Subodh Gopal Bose whatever tenancy rights they had acquired in the Lower Murli Hill along with several other lands, tramways, buildings, plants machineries, kilns, tools, furniture, implements, utensils, stocks, livestock, stores etc. The Liquidators by another deed of the same date appointed the plaintiff as the local agent In respect of the leasehold rights over the Murli Hill obtained from the government with a stipulation that on sanction being granted by the Board of Revenue, the leasehold rights will be transferred to him. By notice dated 18/07/1934 the government of Bihar forfeited the leases dated 1/04/1928 In favour of the Kuchwar Company. The Kuchwar Company then commenced an action in the court of the Subordinate Judge, Shahabad, for a declaration that the forfeiture was unauthorised and for consequential reliefs. That case ultimately reached the Judicial Committee of the Privy council and it was held that the forfeiture by the government of Bihar and orissa of the rights of the Kuchwar Company was illegal and the government of Bihar, their servants and agents were restrained by an injunction from interfering with the Kuchwar Company's occupation of the land on the basis of the forfeiture claimed by the government, The plaintiff as the local agent of the Kuchwar Company got himself recognised as a tenant of the Zamindar in respect of plot No. 168 of Baknaur. In 1947 the liquidators of the Kuchwar Company made persisted representations to the government of Bihar for renewal of the leases, but the government declined to renew the same. On 31/03/1948 the Collector of Shahabad issued a notice to the plaintiff to vacate the Lower Murli Hill. On 18/03/1949, the plaintiff as local agent of the Kuchwar Company claimed that as tenant of the surface of the Lower Murli Hill he "had absolute and undisputed rights of quarrying limestone" by virtue of the custom in the Baknaur and Samahuta villages, recorded in the Record of Rights prepared under the Bihar Tenancy Act, 1885. On 10/08/1949 the government of Bihar executed leases in respect of the Upper Murli Hill and Lower Murli Hill for a period of one year each in favour of Dalmia Jain and Company Ltd. The plaintiff thereupon commenced this action in the court of the Subordinate Judge, Sasaram, for a declaration of his right to quarry limestone in the Upper and the Lower Murli Hill and for permanent injunction, restraining interference with his possession.;