Kuppuswami Ayyar, J.
1. The appellant is the plaintiff and he had obtained a license from the Government to prospect for red oxide of iron in some lands in Janikunta village, Bellary taluk. His case was that the defendant also had obtained a license for prospecting the same ore in the vicinity and had carried away ore taken from the area for which he held a license. He sought to recover 65 tons of mineral ore alleged to have been so removed by the defendant from his field, and he prayed for an injunction restraining the defendant from entering the plaintiff's land or removing any material therefrom. The defendant pleaded that the suit was not maintainable, that the plaintiff had no title to the land and that he was not entitled to the injunction sought. The learned District Munsiff dealt with two issues, namely, whether the suit as framed was not maintainable and whether the plaintiff had title to the suit plot and if so, was not entitled to the injunction claimed for (issues 1 and 8). But he gave a finding on the first issue and without any specific findings on the eighth issue dismissed the suit. On appeal the learned District Judge also dismissed the suit agreeing with the District Munsif that the suit was not maintainable as the license granted in favour of the plaintiff was not registered and also on the ground that there was no prayer for possession. Hence this second appeal.
2. The original license was granted to the appellant on 28th May, 1941. A renewal of the same was applied for and it is clear from Ex. P-3 that it was granted on 29th May, 1942 for another year. The contention was that it is not valid as it was not registered. The lower appellate Court observed that no authority had been shown for the view that it need not be registered. The contention of the appellant was that under the Crown Grants Act, this need not be registered and registration was not compulsory. Reliance was placed upon Section 107 of the Transfer of Property Act, which exempted these from registration. One authority of this Court and another of the Patna High Court have been cited for the appellant and they are to the effect that such licenses need not be registered as they are in the nature of a Crown grant (Vide Kallingal Moosa Kutti v. Secretary of State : (1919)37MLJ332 , and The Secretary of State for India in Council v. Nistarini Annie Mitter (1926-27) I.L.R. 6 Pat. 446. Both the Courts are therefore wrong in finding that the license shold be registered, and not being registered is not valid.
3. The next point urged was that the learned Judge was wrong in having found against the appellant with regard to his prayer for injunction. Both the Courts have proceeded on the basis that the plaintiff had admitted that he was not in possession of the suit land. No evidence was taken and there is nothing in the plaint to indicate that the plaintiff denied that he was in possession. All that was stated was that he did not commence the mining operations on account of some domestic difficulties. But nowhere was it stated that he was not in possession or that he did not get into the land which he was put in possession of. Further it is also significant that no plea was raised in the written statement that the plaintiff was not in possession, nor was any issue framed on that point. Therefore both the Courts were not justified, in the absence of definite issues, in having gone into that question without calling upon the parties to let in the necessary evidence.
4. The lower Court has dealt with two other points. One of them was that the plaintiff had no title because a license in respect of the very same property had been subsequently given to the defendant. No evidence was let in except the two licenses and the license granted to the defendant does not include any land in the village in which the plaintiff has obtained his license. Consequently that finding of the learned District Munsiff cannot be allowed to stand and the dismissal of the suit on that ground has to be set aside. The decree of the lower appellate Court is set aside and the suit is remanded to the first Court for trial and disposal in the light of the findings and observations made above. The respondent will pay the costs of his appeal.
5. There will be a refund of the Court fee paid on the memorandum of second appeal. (No leave).