TRICOMDAS COOVERJI BHOJA Vs. SRI SRI GOPINATH JIU THAKUR

JUDGEMENT

(1.) In this case an idol, by his Paricharaks and Shebaits, sued to recover mining royalties under a lease of his colliery property in Burdwan. The Shebaits, who made the agreement in suit, were four brothers and the property was the ijmali debottar property of their family deity. Owing to some quarrel the collection of rents was not always joint and, at the time when the principal defendant was making default in paying the royalties, one of the brothers obtained from him payment of 4,000 rupees on account of his share, on. the terms that, if his co- sharers did not agree to give up their claim to interest and be content with like sums, he was to be paid by the principal defendant in the same proportion as the co-sharers might be paid. This brother was accordingly unwilling to join as a plaintiff in bringing the suit and so was joined as a second defendant. As such he appended to his defence a claim against the first defendant to recover pari passu with the plaintiffs, after giving credit for the 4,000 rupees already paid, in case they should make out their claim. This was, of course, quite irregular in point of pleading and gives-rise to a technical question of minor importance. The suit was begun more than three and less than six years after the cause of action accrued and the main question is whether or not the whole claim is Statute-barred.

(2.) The lease was effected by a mokurari kabuliyat and a pottah expressed in similar terms. The first defendant agreed that if the failed to cut any coal at all, he would pay a minimum royalty of 4,000 rupees per annum. It is certain that he cut no coal : whether or not he even entered or took possession is not so clear. The sum to be paid per maund of coal gotten is called " commission " and not " rent," but the right acquired by the principal defendant is described as a "settlement." kabuliyat runs- On a proposal being made to take a settlement of the rights of your family deity in this mouzah for the purpose of raising coal from below the surface of the said mouzah by making pits, you, for the benefit of your family god and with the object of increasing the income of the debottar property, are making a settlement with me of the right and interest in the said mouzah to the extent owned by your family deity.

(3.) Their Lordships accordingly take it, as seems to have been done by the Courts below, that the minimum royalty sued for would be "rent" within Article 110 of Act XV of 1877, which is the enactment applicable.