KUMAR KRISHNA PROSAD LAL SINGH DEO Vs. BARABONI COAL CONCERN, LTD

JUDGEMENT

(1.) The plaint in this case was filed on 18 November 1927, and the claim of the plaintiff is for royalties due on coal raised during that year (up to the end of Aswin, 17 October ) from a colliery known as Monohar bahal under the terms of a lease dated 25 January 1912. The grantor of the lease is the Raja of Panchkote (defendant 3); the plaintiff, who is his son, claims the royalties due thereunder by virtue of a maintenance (korposh) deed dated 29th September 1926, which vests the landlord's reversion in him : no dispute arises upon this assignment. The original lessee, one Radha Ballav Mukherjee, has not been impleaded, the defendants being the Baraboni Coal Concern Limited, defendant 1 (" the defendant company ") and two others [defendants 2 and 2 (a)]. The defendant company are sued as assignees of the term, their assignment being by deed dated 14 February 1914 : the other defendants as persons claiming to have purchased the right, title and interest of the defendant company at a sale held under the Public Demands Recovery Act (Bengal Act 3 of 1913) on 17 August 1927. These defendants [2 and 2 (a)] say that they did not obtain possession under their purchase until 20 March 1928. The lease contained a clause (Cl. 14) giving the lessor a charge for royalties upon the colliery and its plant, and the plaint seeks to enforce this charge by sale.

(2.) The defence of the defendant company was that the Raja had no title to the underground rights in Mousa Monoharbahal which was the lakheraj debutter property of a certain deity. This allegation was in the written statement embroidered with or encumbered by allegations of fraud and misrepresentation on the part of the Raja and mistake on the part of the defendant company. The Subordinate Judge at Asansol dismissed the suit (23 December 1929), holding not only that the Raja had no title but also that the defendant company had been evicted by title paramount. On appeal to the High Court at Calcutta four questions were raised and the learned Judges (Mitter and Patterson, JJ.) held (1) that Mousa Monoharbahal was not part of the Raja's permanently settled estate; (2) that the underground rights therein are vested in the lakherajdar, i. e., the deity above mentioned; (3) that under S.116, Evidence Act, the defendant company was precluded from disputing the Raja's title; (4) that the defendant company's plea of eviction by title paramount failed. As against the other defendants the learned Judges held that the covenant for rent was enforceable against transferees of the lease. They gave decree (20 July 1934) against all the defendants for the sums claimed and directed a sale of the colliery and plant in default of payment by 20th January 1935.

(3.) The ownership of mining rights in a mousa which though within the ambit of a permanently settled estate is rent free debutter property not paying revenue to Government on its own account, raises questions of considerable difficulty, and practical persons interested in coal mining have to take account of the uncertainty involved. The defendant company, on their own case, took title to the colliery Monobarbahal in two ways and from two different sets of persons at or about the same time, (a) By-deed dated 14 February 1914, they took an assignment from Radha Ballav Mukherjee of his lease (25 January 1912) from the Raja. (b) By deed dated 22 June, 1917, they took from the Official Assignee and others an assignment of certain leases granted in 1901 and 1908 by shebaits of the deity: the deed of assignment reciting that an agreement to that effect had been arrived at in November 1913, and that possession had been given to the defendant company on or about 1 April 1914. As they were taking inconsistent titles it may perhaps be presumed that the insecurity of each was reflected, in the amounts of the royalties which had been covenanted for. In any event each lessor was in due course asked to reduce the royalties payable to him in view of the claims of the others. The shebaits do not seem to have agreed to any abatement but by a deed called a kabulyat, dated 1 November 1918, and made between the defendant company and the Raja, it was recited that the defendant company had acquired title under the shebaits of the deity, and it was agreed that if the Raja should establish up to the highest Court that the deity had no rights he should be entitled to get from the defendant company a royalty of seven annas per ton of coal instead of the three annas reserved by the lease of 25 January 1912, but that otherwise and in the meantime the royalty should be reduced to two annas per ton. Part of a new term which was to be treated as included in the lease of 1912 was as follows :