Mitra and Carnduff, JJ.
1. We have no doubt on the facts proved in the case that the plaintiff as the present proprietress of the Betia Raj is entitled to a declaration of her right as the Permanent Settlement-holder under Government of the saltpetre mahal of Sarkar Champaran, which includes the village Manpura owned by the defendant appellant. The settlement papers of 1791 and 1793 conclusively prove that the nimaksayar mahal of Sarkar Champaran along with the villages Sangrampore and others was settled with the Mukerjees, and that the revenue for the nimaksayar mahal was separately assessed at Rs. 2,293 and odd. The revenue was regularly paid to the Government in later years. The mahal passed to the Betia Raj by purchase in 1804, and the predecessors of the plaintiff were in possession and paid regularly the Government dues according to the assessment made by the Government.
2. It is also clear from the documents and the findings of fact arrived at by the lower appellate Court that the right to the nimaksayar dues was exclusive, and that what passed by the settlement with the Mukerjees and the purchase of their right by the Betia Raj was the right which was exercised by the East India Company by virtue of the grants made by the Nawabs Mir Zafer and Kassim Ali and the Dewani of the 12th August 1765. The plaintiff, it appears to us, is entitled to exercise the same right.
3. Regulations VIII of 1812 and IV of 1814 were not intended either to extend or to limit the right which the Betia Raj had to the nimaksayar mahal in Sarkar Champaran. The abolition of the monopoly of the East India Company by the latter Regulation was not intended to affect the right of the Raj to realise its dues either in the shape of royalty from the manufacturers or itself to manufacture saltpetre to the exclusion of all other persons or proprietors of land in Sarkar Champaran. The right to grant licenses and realise royalty would not be inconsistent with the abolition of monopoly.
4. There is, however, no distinct finding in the judgment of the lower appellate Court as to the way in which the East India Company exercised the right it had under the grants from the Nawabs before settlement with the Mukerjees, and there is also no finding as to how, at or about the settlements in the last decade of the eighteenth century, the right was exercised by the settlement-holders. We do not think that the reliefs claimed in the plaint or any of them should be granted without a distinct finding as to the mode of user.
5. It is conceded by Dr. Rash Behari Ghose that the plaintiff is not entitled to a declaration as to her right to a monopoly in the manufacture of saltpetre. It is also conceded that the second prayer in the plaint, i.e. the prayer for injunction, cannot be founded on the ground of the existence of a right to a monopoly. She may have an injunction on the ground of her exclusive right, if any, as conferred by the settlement under which she holds the nimaksayar mahal. She cannot also be allowed the third relief claimed in the plaint, i.e., the demolition or possession of the Dihi at Manpura. Her prayer for damages must follow the finding as to the mode of the user. We do not, however, see how she may get a decree for mesne profits as allowed by the lower Courts.
6. We, therefore, direct a remand to the lower appellate Court for ascertaining from the evidence on the record and such other evidence as the parties may produce, the precise way in which the exclusive right claimed by the plaintiff was exercised in the past. The decree should be in accordance with the finding that may be arrived at and the observations made above.
7. The costs of this appeal as well as those of the lower Courts will abide the result.