1. This is a plaintiff's appeal against a decree and order of the Additional Subordinate Judge of Bulandshahr, modifying the decision of the trial Court. The suit was one brought by a zamindar for recovery of the price of kankar which had been dug up from the land in the occupancy holding of the defendants, second party. The occupancy tenants had the kankar removed by the first party of defendants who paid them, Rs. 100 for it. The zamindar claimed to own the kankar, and sued both the parties and obtained a decree against both from the trial Court, but the lower appellate Court has held apparently on the analogy of Section 41, T.P. Act, that as the purchasers of the kankar had acted in good faith they were under no liability to the plaintiffs-appellants. The liability that has been found by the trial Court is that the plaintiffs are the owners of the soil, and consequently of the kankar, in the sub-soil, and that the purchasers having taken away the kankar are bound to pay for it to the rightful owner, and it appears to me to be undoubtedly a correct decision on the assumption that the plaintiffs were the owners of the kankar. In second appeal it has not been argued for the respondents that the principle underlying Section 41, T.P. Act, will apply, whether it is the occupancy tenants and not zamindars who are the owners of the kankar and they have a right to remove it whether they make a profit by doing so or not. Both the Courts have found that the zamindars are the owners of the kankar, and the lower appellate Court has relied on the decision in the case of Bejoy Singh Dudhoria v. Surendra Narayan Singh 1928 P.C. 234. That was a case where a tenant was the permanent lessee of the entire zamindari with all rights, but it was held that the lease did not authorise such acts as extracting minerals or making excavations of the soil for brick-making which would cause substantial damage to the land.
2. The removal of the kankar in the present case did not cause substantial damage to the land, but it appears to be analogous to the extracting of minerals. In the case of Sashi Bhuahan v. Joti Prasad Singh Deo 1916 P.C. 191, their Lordships of the Privy Council remarked:
But it was laid down by this tribunal that it must be presumed that the mineral rights remained in the zamindar in the absence of proof that he had parted with them.
3. It has been argued by Mr. Pandey that the occupancy tenants in this case did not derive their rights from any lease but from the provisions of the Agra Tenancy Act, that they are with certain restrictions the owners of the soil, that it has not been proved that their rights ceased at any particular depth from the surface of the soil, and it cannot therefore be held that the zamindars can claim to be the owners of the kankar. The Agra Tenancy Act, however, does not provide tenants with any right in kankar, and it is an exaggeration to say that occupancy tenants are the owners of the land. They have a right of occupancy for the purpose of cultivating the land, but although Mr. Pandey has insisted on the fact that the removal of the kankar in the present case was undertaken for the purpose of improving the soil, the fact appears to be that the kankar was sold by the occupancy tenants for profit and it is a mere accident that the result has been an improvement of the land for agricultural purposes. It cannot be held under these circumstances that the removal of the kankar was an agricultural operation or that the tenants were justified in removing the kankar for their own profit merely because they were thereby improving the soil. From the decision of their Lordships of the Privy Council, which I have quoted, it may be gathered that the owner of the land is the owner of the minerals under the land, and in the absence of the evidence to show that property in kankar is essentially different from property in minerals, I must hold that the owner of the land is the owner of the kankar, and that the contesting respondents who have removed the kankar without paying the rightful owner are liable to the extent which the lower appellate Court has found, viz., Rs. 100. I therefore allow the appeal with costs, and modify the decree and order of the lower appellate Court by directing that the defendants first-party, viz., the purchasers of the kankar shall be made jointly liable with the occupancy tenants. Mr. Pandey has asked for leave to appeal under the Letters Patent, but I do not think that the question of law involved is sufficiently important to justify this. Leave is therefore refused.