1. The plaintiff, a zamindarini, sues the defendants, who are occupancy raiyats, for a declaration that only she is entitled, as landowner, to the stones and rocks on the defendants' holding, that they cannot remove them without her leave, also for a permanent injunction and damages for Rs. 150. The lower Courts have decreed that plaintiff is entitled to rocks, stones and minerals on the plaint land, that the defendants cannot remove the same without the plaintiff's consent, and have also decreed Rs. 24 by way of damages and costs. The defendant's appeal. There is no force in the plea that the lower Courts had no jurisdiction by virtue of the Estates Land Act. It is not a suit under Section 151 of that Act, or any other section. A Commissioner has reported in Ex. C-1, that the plaint land is a sandy tract covered with palmyras. A certain amount of rock had been roughly sized into slabs 3 x 1 x feet, and there were 25 cart loads of rough building stones. The Commissioner is not a witness, and it is not easy to say in what degree this amounts to clearing the land of stone or to regular quarrying.
2. The manager, P.W. 1, says, without explaining why, that the removal of rock is detrimental to agriculture; ordinarily one would expect the removal to be beneficial. Under Section 11, Estates Land Act, a raiyat may use the land in his holding in any manner which does not impair its value. Land is not defined, and must be taken in its ordinary sense of the solid part of the earth's surface, as opposed to water. Rock in this sense is just as much land as sand or earth are. No one would think of interfering with a raiyat if he cleared the stones and boulders away from his land, and the question only assumes a new aspect if he proceeds to quarry a stone of recognized commercial value, such as coal. Under the Act the landlord can reserve his mining rights on admitting any person to the possession of raiyati land (Section 7), and a landlord claiming mining rights would presumably be careful to reserve them in the patta of old tenants; but it is a stretch, of language to describe the out crop of granite in these sandy tracts far remote from towns as a valuable mineral deposit. This seems to have been recognized by the estate. The manager, P.W. 1, says that there is a mamul for tenants to get permission if they want to take stones from the land, and the permission is ordinarily granted on payment of a complimentary present or 'nazar' to the zamin, for which no formal receipt was given. Judging from Ex. A-2 and A, the fee ranges from Re. 1 to Rs. 2. Evidently the fee bears no proportion to the amount of stones extracted. It is not a royalty.
3. Therefore all that the plaintiff can legitimately demand is her customary fee, and compensation for such damage as has accrued by these stones being taken with her permission. It is not apparent that any damage has been caused. The Commissioner reports that the trees are not faded, as was alleged in the plaint. So long as the pits are not filled up the holdings' agricultural value will be unaffected, for a palmyra can neither grow on a rock nor in a pit; but in this sandy tract the holes will be filled up in the course of time, even if the raiyat does not accelerate the process for his own benefit. The lower Courts have gone entirely wrong on this question of damage by reading the Commissioner's 'not faded' as 'faded' (District Munsif's judgment para. 12, confirmed by Subordinate Judge in para. 6). In this view of the facts it is unnecessary to discuss what would be the law in the matter if the raiyat was claiming valuable minerals instead of clearing practically valueless stones (for it must be remembered that the value of these stones is almost entirely the labour put into them-they are worth about as much in their natural state as potter's common clay.) Probably these stones belong to the raiyat no more than the rest of the land belongs to the raiyat (nothing can be inferred from Section 153 in favour of occupancy raiyats); but it would be absurd to insist that he must never diminish the quality of earth on his holding in the course of his operations, and it is almost as absurd to bother about the stones.
4. The plaintiff's predecessors seem to Have shown a very wise and just appreciation of the matter by confining their right to that of granting permission on the receipt of a nazar, and there is no reason why they should obtain more in this suit. It does not appear from the evidence that the zamindar's license expired at the end of the fasli, or any other period. Apparently a raiyat would announce that he was going to take stones and then obtain permission on payment of the nazar. Therefore I should confirm the finding of the lower appellate Court at the end of para. 5, and confirm the decree except that for Rs. 24 damages, I should say Rs. 2 for nazar. The appellants and respondents can have proportionate costs in this appeal.