Shambhu Prasad Singh, J. - (1.)This appeal by the plaintiff arises out of a suit under Order 1, Rule 8 of the Code of Civil Procedure seeking a representative decree against the defendants and other permit holders from defendant No. 3, that the plaintiff is exclusively entitled to all the materials, namely boulders, ballast, gravels, morrums, lime-stones and other building stones, open and unopen, lying in or upon any land in 68 villages mentioned in Schedule 'A' to the plaint and that those materials are the exclusive properties of the plaintiff. He further sought a permanent injunction restraining the defendants, their agents, servants and workmen, from digging, quarrying, collecting and removing gravels or any other building stones from any part of 68 villages and also restraining defendant No. 3 from issuing permits or granting permission to other defendants or any one else for working, digging or getting any gravels etc., from those villages. Reliefs for a direction to the defendants to make discovery of the loss caused by them to the plaintiff by their wrongful acts and make payment for that loss and, if necessary, for an enquiry as to what should be the amount of such reasonable compensation and for damages to the tune of Rs. 1,20,780/- or for additional amount which may be found due from the defendants on taking of account on receiving further court-fee for such excess amount, were claimed.
(2.)Originally, there were three defendants to the suit. Subsequently, defendant No. 4, a brother of defendant No. 1, was added as a party on 16th January, 1959. The property from which- the defendants 1. 2 and 4 allegedly removed boulders, ballast, etc., was described in Schedule B to the plaint. Originally, only three villages Betjharia, Patnaiksole and Swargachhira with their respective plot numbers were mentioned in that Schedule. A petition for further amendment of the plaint was filed on 5th July, 1962 and it was allowed by order dated 26th July, 1962. By this amendment village Kokapara Narsingarh was added to Schedule 'B'. The amount of damages claimed was also raised to Rs. 1.20.780 by this amendment. Formerly, the claim was only for Rs. 57.60. The suit was instituted on 11th December, 1957.
(3.)In order to appreciate the respective cases of the parties, it is necessary to state some facts starting from the year 1900. On 10th January, 1900, the then proprietor of Dhalbhum Raj granted a lease of properties including villages mentioned in Schedule A to the plaint of this suit to the estate of Prince Bakhtiyar Shah. By this lease, the lessee was given right to work certain minerals including gems. There was a reservation in favour of the lessor in respect of building stones. On 1st of September, 1919, the Manager of Dhalbhum (Encumbered) Estate granted a supplementary lease to defendant No. 3 Prince Kamgarh Shah. He was a Receiver appointed by the Calcutta High Court of the estate of his father Prince Bakhtiyar Shah (dead) in respect of his interest as well as the interest of other heirs of his father. By this supplementary lease, the lessee was given rights in respect of all minerals. After Jagdish Chandra Dhabal Deb succeeded to Dhalbhum estate, he granted a lease to the plaintiff on 3rd October, 1937 for 10 years in respect of all building stones and other building materials in or upon 68 villages mentioned in Schedule A to the plaint. In 1943, the Proprietor of Dhalbhum estate brought a money suit against defendant No. 3. A question arose for decision in that suit whether the reservation in respect of building stones by one of the clauses of the lease of the year 1900 remained intact or was modified by supplementary lease of the year 1919. The suit was decreed by the trial court and the appeal against the said decree, which was numbered as F. A. 2 of 1947, was dismissed by this Court on 24th September, 1952 (Vide Ext. 11 (a)). In 1943, defendant No. 3 also filed Title Suit No. 9 of that year in the court of Subordinate Judge, Chai-bassa against the plaintiff. This suit also involved similar question as to interpretation of the leases of the year 1900 and 1919 as in the other suit filed by the Proprietor of Dhalbhum Estate. The suit was decreed by the Subordinate Judge and the plaintiff (of the present suit) filed an appeal before the District Judge of Purulia. which was numbered as Title Appeal No. 174 of 1949. After the decision of the High Court in the other suit, that is, the money suit filed by the Proprietor of Dhalbhum Estate, the appellants and respondents to the aforesaid title appeal filed a petition of compromise (Ext. 12). The main term of the compromise was in paragraph 4 of that petition which read as follows:
"That the parties agree to abide by the decision of the High Court in the matter of the interpretation of the aforesaid two leases, but if leave to appeal to the Supreme Court is obtained by respondent No. 1 from the High Court or the Supreme Court and the Supreme Court decides the appeal in favour of respondent No. 1, he will have the right to apply before the Subordinate Judge in T S. No. 9 of 1943 for proceeding for ascertainment of the amount due to him against the appellants and thereafter to execute the decree after the amount is ascertained in the said proceeding and the present appeal will be deemed to be dismissed. That if no leave is obtained by respondent No. 1 either from the High Court or the Supreme Court or if the Supreme Court decided the appeal in favour of the appellants, this appeal will be deemed to be allowed and the original suit (T. S. No. 9 of 1943) shall be deemed to be dismissed."
The Court below accepted the compromise and passed the following order on 2nd June, 1953 (Vide Ext. 13):
"The plaintiff-respondent files a petition and prays that the question of this court to hear the appeal may be heard as a preliminary point. Subsequently, defendant-appellant and plaintiff-respondent file a joint petition of compromise and pray that the appeal may be disposed of on the terms of the petition. Let the compromise be record- ed and the appeal disposed of in terms thereof."