1. The subject of this litigation is the nimak-sayar mehal of sarkar Champaran, to which the plaintiff, the present owner of the Bettiah Raj. claims to be entitled. The defendant is the zemindar of the village Manpura, within the limits of which the plaintiff claims to exercise the rights that, in her view, appertain to and substantially constitute her mehal. The plaintiff's claim has been embarrassed by the unhappy language in which her plaint was originally framed, for, as expressed, it claims the affirmation of a monopoly. But notwithstanding this the substantial meaning of the document is fairly evident, though it might possibly be misunderstood. We have accordingly allowed an amendment, so that the plaintiff's claim might be formulated in happier and more precise language. It is a mistake to suppose that the plaintiff seeks a monopoly; all she really asks is the affirmation and protection of an exclusive right in accordance with the mode in which it has been exercised by her and her predecessors for generations. The plaintiff asserts, and it is the fact, that this mehal was settled with a predecessor-in-title at the time of the Permanent Settlement. The defendant alleges, and it is also the fact, that the zemindari in the village Manpura, over which the plaintiff claims these rights was also settled at the Permanent Settlement.
2. The rights claimed by the plaintiff are to collect either herself, or by those claiming under her, nitrous earth throughout an extensive area, which includes village Manpura, in order to extract therefrom the saltpetre that it yields. The mode of operation is described in Harington's Analysis Vol. III and Sir William Hunter's Statistical Account of Bengal, Vol. XIII. No separate or further right to this earth is claimed. The defendant maintains that this would be inconsistent with his zemindari rights and cannot be upheld. All that the plaintiff can claim, according to him, is the right to collect revenue, if saltpetre happens to be manufactured, a possibility of which he claims to be the sole arbiter, and nothing more. As authority for this view, The Government of Bengal v. Nawab Jafur Hossein Khan (1854) 5 Moo. I.A. 467 has been cited to us, and no doubt it was said of the nimak-sayar mehal there in question that it was revenue. If by that is meant that every nimak-sayar mehal is a right to collect revenue, if any chanced to be earned, and nothing more, then we should of course follow the decision without question. But that is not how we read the decision and we think this case must be determined on its own circumstances.
3. When considering the effect of a Permanent Settlement, the first matter to be determined is what were the assets of the estate, then settled, and here we have to consider what were the assets of the two estates, the zemindari and the nimak-sayar mehal. It is very necessary not to be influenced by the doctrines of English real property law with its maxim cuius est solum ejus est usque ad coelum et ad inferos. On the settlement of estates in Behar, interests could be moulded in disregard of this maxim. Thus in the well known case of the aurungs of Birbhum, Gooroopershad Bose v. Bishnoochurn Heyra (1811) 1 Mac. Sel. Rep. 337 there was a separation of the aurungs and the surface of the soil, and there were two separate estates, the zemindari and loha mehal. So again in Byjnauth Mujoomdar v. Deen Dyal Gooput (1814) 2 Mac. Sel. Rep. 133; I.D. 6 (O.S.) 460 there was a similar separation of the zemindari and the bankar, of the soil and the trees. We start here with the fact that there was a settlement of the zemindari and a separate settlement of the nimak-sayar mehal, and further that the assessment on it shows that the mehal was of considerable value. What passed under this settlement cannot have been of the precarious character suggested on behalf of the defendant, for it was argued that the plaintiff had no right to come on to the land except by the leave and license of the defendant, or to authorise others to utilize the nitrous soil for the collection of saltpetre. The plaintiff in that case would be in a sorry plight. She is under an obligation to pay a considerable revenue to the Government in respect of the mehal, but would have no right, except on sufferance, to make the mehal a source of profit for the discharge of that revenue. This appears to me to be an untenable position that is taken up by the defendant, a recent purchaser of the zemindari. It is an innovation which has originated with him and offends the principle that a grant carries with it the means reasonably necessary for its enjoyment: cuicunque aliquis quid concedit concedere videtur et id sine quo res ipsa esse non potuit. Both the Litigants claim under the same grantor and date from the permanent settlement; both grants must have been intended to be effective; and yet, if the defendants view be right the grant of the mehal would have been deceptive and futile. The answer to his contention is that the nimak-sayar mehal was no part of the assets of the zemindari. It is interesting to note that even in England a separate right in respect of saltpetre has been recognised. It was held in the case of King's Prerogative in Saltpetre (1607) 12 Coke 12 that the King had a prerogative entitling him to enter into any man's land and dig saltpetre for making gunpowder. In Bacon's Abridgement, Vol. VI, p. 416 the result of the case is summarised as follows: 'My Lord Coke observed, (i) That it must be done with as much conveniency and as little to the prejudice of the owner of the ground as possible; and consequently that the digging in a man's house, barn, out-house, etc., or weakening the walls of any such house, etc., was unlawful: (ii) That the soil or ground must be made and left as commodious to the owner as it was before: (iii) That it was in the nature of a purveyance and an incident inseparable to the Crown and could not be granted or demised over to another: (iv) That the owner of the land could not be restrained from digging and making saltpetre; the King not having an interest in it as he had in gold and silver in the land of the subject.'
4. The third and fourth of these observations afford no guide in this case, for the right to dig saltpetre has been made a separate estate, and is not an asset of the zemindari estate. The first and second observations are instructive as illustrating what appeared to eminent Judges to be a reasonable mode of exercising the right.
5. But it is still more instructive to turn to the judgment itself where matters are discussed in more detail, and the points there indicated were resolved by them all una voce. Thus it was resolved that the King 'may dig for saltpetre for this that the ministers of the King who dig for saltpetre are bound to leave the inheritance of the subject in so good a plight as they found it.'
6. Further it was resolved, 'The ministers of the King cannot undermine, weaken or impair any of the walls or foundation of any houses, be they mansion-houses or out-houses or barns, stables, dove-houses, mills or any other buildings; and they can not dig in the floor of any mansion-house which serves for the habitation of man; for this that any house is the safest place for any refuge, safety and comfort and of all my family as well in sickness as in health, and it is my defence in the night and in the day against felons, misdoers, and harmful animals, and it is very necessary for the weak public, that the habitation of subjects to be preserved and maintained.' Later it is said, 'Also the ministers of the King cannot dig the floor of any barn employed for the safe custody of any corn, hay, etc., of the owner for that the floor of a barn cannot be made dry and serviceable again in a long time: but they may dig in the floors of stables and ox houses so that there be sufficient room left for the horses and other cattle of the owner: and so that they repair it in convenient time in so good plight as it was before; also they may dig in the floors and cellars of vaults so that there be sufficient room for the necessaries of the owner; and so that the wine, beer and other necessary provisions of the owner be not removed or in any sort impaired. And they may dig any mud walls which are not the walls of any mansion-house so that order be taken that the mansion-house be well defended as it was before; and so they may dig it in the ruins and decays of any house or buildings which are not preserved for the necessary habitation of men. They ought to make the places in which they dig so well and commodious to the owner as they were before.... They ought to work in the possession of the subject but betwixt sun rising and setting so that the owner may make fast the door of his house and put it in defence against misdoers.... They ought not to place or fix any furnace, vessels, or other necessaries in any house or building of the subject without his consent, or so near any mansion-house, as by it may receive prejudice or disquiet. They ought not to continue in one place over a convenient time, nor to return again to the same place before convenient time (which is long time) be passed.'
7. I have cited at length from this interesting judgment, not because it is in any sense conclusive of this case, but because it presents a fair picture of what would be a reasonable user under the right to dig and take saltpetre in the ground of another, though it is obvious in some respects it speaks of matters which are foreign to the conditions of this country. It is also interesting to note that after this case had been decided in 1607, to facilitate operations by saltpetre, King Charles I forbade paving or bricking of dove-houses or stables, ordering that floor should be of good mellow earth and that saltpetre men should not be hindered (Selden Society, Select Charters Vol. 28, Introduction, p. LXXX). Where private ownership was thus invaded machinery for compensation was set up, and it was directed that differences of compensation were to be settled before two neighbouring Justices (p. LIX). Subsequently, in the Charter granted to the Saltpetre Company in 1693, during the reign of William and Mary, it was expressly provided that the grantees were not to be deemed to have power to enter into or dig or break up any messuages, houses, out-houses, pigeon-houses, ox-houses, stables, stalls, or the lands or grounds of any subject of Their Majesties without the consent of the owners or possessors thereof, first freely had and obtained (Selden Society, Vol. 28, Select Charters of Trading Companies, p. 234, at page 237).
8. In the case before us, the two estates were separately and independently created, as we have seen at the time of the Permanent Settlement; consequently the proprietor of the nimak-sayar mehal is entitled to enter on the land, comprised in the estate of the defendant and exercise thereon in a reasonable manner the rights vested in her under the grant.
9. I, therefore, hold that the plaintiff is entitled to a declaration that she is the owner of the nimak-sayar mehal of sarkar Champaran and that by virtue thereof, she, her agents, servants and workmen, lessees and licensees are entitled to enter on the land of village Manpura described in the plaint, and to exercise an exclusive right to dig for saltpetre but so that this be done with as little inconvenience and prejudice as possible to the defendant as the owner of the village, and that the ground be made and left as commodious to the defendant as it was before And there should be an injunction restraining the defendant from interference with the reasonable exercise of this right.
10. As the plaint in its original form occasioned the prolongation of this litigation, the plaintiff must pay the costs throughout.
11. The same decree will be passed in the other appeal.