Brett and Sharfuddin, JJ.
1.The plaintiff respondent is the proprietor of the permanently settled estate of pergannah Jheria within which mouzahs Tasra and Raharaband are situated. Defendant No. 1 was in December 1887 appointed Digwar of Ghat Tasra by order of the Deputy Commissioner of Birbhoom, on the dismissal for misconduct of Digambar Singh, the previous Digwar. Defendant No. 1 at the same time received possession of the two mouzahs Tasra and Raharaband as the Digwari jaigir attaching to his office, and since that date continued to pay to the zemindar a yearly sum of Rs. 64 in respect of those two mouzahs. On the 2nd January, 1892, defendant No. 1 with the consent of the Deputy Commissioner of Manbhoom executed in favour of defendant No. 2, Mr. Mathewson, mokarari pottah of all the surface an sub-soil rights in mouzahs Tasra and Raharaband on which his kachari bari etc., stood. In that lease a clause was inserted that the rights and interests of Government over the surface lands and under ground rights in the said two mouzahs shall not in 17th December 1897, defendant No. 2 executed a deed of assignment of his rights under that lease to the Tasra Coal Co. Ld., defendant No. 3, on whose behalf he had been acting in taking the lease. The Coal Company in accordance with the settlement subsequently dug out and raised coal from the sub-soil of the two mouzahs.
2. The plaintiff alleged that Digamber Singh had been in possession of the two mouzahs under and ordinary sankarari (yearly) ijara settlement on payment of a yearly rent of Rs. 64, and that he had no permanent rights in the two mouzahs, and he contended that defendant No. 1. on his appointment as Digwar by the Deputy Commissioner of Manbhoom, did not acquire any higher right in the mouzahs than the sankarari ijara right, and therefore that he acquired no right to the minerals. He alleged that the mineral rights belonged to him as landlord, and that the defendants, by granting and receiving a lease of the sub-soil rights and by digging up the coal, had wrongfully infringed his rights. He accordingly brought the suit, (i) to have it declared that all sub-soil rights to the minerals in the two mouzahs belonged to him, (ii) to recover the sum of Rs 16,000 on account of 8,250 tons of coal dug up within the 3 years prior to institution of suit, and (iii) to obtain a permanent injunction restraining the defendants from digging up coal in future in the two mouzahs.
3.The defendant No. 1 in his written statement first contended that Government was a necessary party to the suit and that the suit could not proceed unless Government was made a party. He further alleged that the assertion made by the plaintiff in his plaint that Digamber Singh had held the two mouzahs under a sankarari ijara settlement was false, that on the contrary, the mouzahs had all along been held from before the advent of the British Government as a Digwari jaigir by the person who held the appointment of Digwar of Tasra Ghat and as such rendered Police services to Government, that the jaigir was permanent and hereditary, and had been held by the Digwar all along on payment of a fixed quit rent or Digwari panchak to the zemindar that Digamber Singh having been dismissed from his appointment as Digwar by Government for misconduct the jaigir had passed to him, defendant No. 1, on his appointment as Digwar, that the sub-soil rights as well as the surface rights in the jaigir belonged to him, and that as he had granted the lease to defendant No. 2 with the consent of the Deputy Commissioner of Manbhoom the lease was valid. He denied the right of the plaintiff, as zemindar, to the minerals. The other defendants supported this line of defence.
4. The Subordinate Judge has decreed the suit in full in favour of the plaintiff, and the defendants have appealed to this Court.
5. Six issues were raised in the lower Court. The Subordinate Judge first dealt with the question raised by the defendants, viz., whether Government was a necessary party to the suit and whether the suit could proceed without making the Government a party. In support of the plea raised by the defendants the cases of Mahomed Israile v. Wise (1874) 13 B.L.R. 118, Krishna Lall Nag v. Bhyrub Chunder Deb (1874) 22 W.R. 52, and Cannon v, Bi&sonath; Adhicari (1879) 5 C.L.R. 164 were relied on. The Subordinate Judge held that these oases did not apply, as in the present case the plaintiff did not complain of any unlawful act on the part of Government, and therefore he had no cause of action against Government. Relying on a passage in Daniell's Chancery Practice vol. 1, page 264), and on the case of Kashi v. Sadashiv (1895) I.L.R. 21 Bom. 229 he found that though Government might have been a proper party it was not a necessary party. He accordingly decided the, issue in favour of the plaintiff.
6. The second issue raised was whether the suit was barred by limitation. The Subordinate Judge remarks in the judgment that this point was not pressed, but at the same time he has held that the plea cannot stand. Broja Nath Bose, defendant No. 1, claimed to have been digging out the coal from the sub-soil from 1888, but the Subordinate Judge held that there was no regular or systematic working of the coal till after the Company took possession under the lease granted to defendant No. 2 on the 2nd January 1892, and the suit was instituted on the 18th December 1903 i.e. within 12 years of that date.
7. Further, he held that if the defendants in digging out the coal were trespassers or wrong doers, such possession would give them no title by prescription, and in support of this view he relied on the cases of Mohini Mohan Roy v. Promoda Nath Roy (1896) I.L.R. 24 Calc. 256 and Secretary of Slate for India v. Krishnamoni Gupta (1902) I.L.R. 29 Calc. 518.
8. The 3rd and 4th issues involve the important questions in dispute in the case viz.: Has the plaintiff any right to the minerals in dispute; and is the defendant No. 1 an ijaradar under the plaintiff? Neither party was able to produce much documentary evidence in support of their respective cases. This seems to have been due to the fact, as the Subordinate Judge points out, that the part of the country in which the mouzahs are situated was previously in a frequent state of disturbance, and that the public offices and records were burnt both before and at the time of the Mutiny. The plaintiff, however, relied on a Lotbandi of pergannah Jheria for the year 1208 (1801), and on a Register of appointment of Ghatwals and Chaukidars from 1st February 1832 to 29th July 1839. This document, it is to be observed, is not quite correctly described by the Subordinate Judge in his judgment. In the former document mouzah Tasra is entered as yielding a yearly profit of Rs. 45. In the latter there is no mention of any Digwari jaigir of Tasra and Raharaband. The plaintiff also produced receipts from 1250 to 1282 (1844 to 1876) in which Palwan Singh, whom the defendant alleges to have been a Digwar, was described as an ijaradar or etmandar. He also relied on a Safabandi of 1857. The defendants, on the other hand, relied on two Isamnavisi papers of the years 1845 and 1861, in the first of which Bahal Singh is described as Digwar of Mouzahs Tasra and Raharaband, and in the other Palwan Singh is similarly described; also on an application made in 1285 (1879) by Digwar Palwan Singh of Tasra for the appointment of his son Matabbar as Digwar, and on the order passed thereon dated 8th May 1879; and on certain orders, one passed in 1884 appointing Digamber Sinha as Digwar in place of Matabbar, another on the 14th March 1885 dismissing Digambar Singh, another of December 1887 appointing Girish Chunder Ghose to act in place of defendant No. 1 Brojanath who was appointed Digwar: also on the Register of Ghatwali lands in Manbhum in 1880 to 1883, and the, survey maps of Ghatwali lands of Tasra and Raharaband prepared in 1881. They also produced copies of a judgment in a case instituted by Government in 1885 to set aside sales of some of the lands in the two mouzahs as being Digwari lands, of two Road cess returns filed in 1872 and 1898 on behalf of the landlord, describing Palwan as the Digwar of the 'Digwari lands Tasra and Raharaband at an annual rental of Rs. 64,' on statements made by Digamber in 1862 at the time of a survey of the mouzahs, and on receipts from 1890 to 1896 in which Brojanath is described as Digwar.
9. The Subordinate Judge after a careful consideration of this evidence came to the conolusion that it was impossible to accede to the contention of the plaintiff that the Digwars were ordinary ijaradars liable to be ejected at the pleasure of the zemindar, and held on the contrary, that the mouzahs in dispute are Digwari mouzahs.
10. In order, however, to determine the other important issue whether the plaintiff, or the defendant No. 1 as Digwar, is entitled to the mineral rights in the two mouzahs, the Subordinate Judge first devotes his attention to determining when the mouzahs were constituted Digwari-mouzahs. He points out that Perganah Jheria in which the two mouzahs are situated originally formed a part of the District of Birbhoom. By Regulation XVIII of 1805 it was transferred to the district of the Jungle Mehals, which was then constituted, and in 1814 Prithi Singh the zemindar was invested with the management of the police in his estate of Jheria. By Regulation XIII of 1833 the District of the Jungle Mehals with certain exceptions was formed into a new District of Manbhoom. The head-quarters of the Jungle Mehals was at Bankura, and he concludes that the fact that no mention is made of the Digwari jaigir of Tasra and Raharaband in the Register to appointments of Ghatwals and Chaukidars from the 1st February 1832 to 29th July 1839, obtained from Bankura, goes to support the conclusion that the Digwari tenure was not created before 1839.
11. Referring to Clauses 4 and 13 of Section 7 of Regulation XVIII of 1805 he comes to the conclusion that the Digwars of Jheria were as much servants of the landlord as of the Government, and he accepts the evidence of Matabbar Singh and Joy Lal Singh, son of the dismissed Digwar Digamber Singh, to support the view that the Digwars were servants of the landlords though liable to dismissal by the Magistrate. By Regulation XIII of 1853 the zemindar of Jheria was divested of his powers over the Police, and the Subordinate Judge considers that the fact that the earliest evidence of the existence of the Digwari jaigir of Tasra and Raharaband is the Isamnavisi of 1845, supports the view that the jaigir came into existence after the Permanent Settlement.
12. He next considers the question whether the Digwars can be regarded as independent taluqdars, and, finding that they do not fall into any of the classes described in Section 5 of Reg. 8 of 1793, he holds that they cannot claim to be actual proprietors of the soil, or to hold a higher position than mere lease-holders as described in Section 7 of the Regulation. He also holds that as the defendant had failed to produce strict evidence of his title, and as his predecessors had failed to establish their right to separation within one year from the passing of Regulation I of 1801, it was impossible to hold that they were independent taluqdars.
13. He next deals with the contentions of the defendants, viz., (i) that the tenure existed prior to the Permanent Settlement, and therefore the tenure-holders were not affected by it; (ii) that the tenures were hereditary and permanent, that they were appropriated by Government and set apart for police purposes, and as they were not included in the Permanent Settlement, the property in the soil was with the tenure-holders, and (iii) that the tenure in dispute was analogous to the Ghatwali tenures in Birbhoom and that the same incidents attached to it.
14. As to the 1st contention he finds that as there is no evidence of the existence of the tenure earlier than 1845, the most that can be presumed is that it was in existence at the time of the Permanent Settlement.
15. As to the second he holds on the authority of the oases of Forbes v. Meer Mahomed Tuquee (1870) 13 Moo. I.A. 488, and Jagadindra Nath Roy v. The Secretary of State (1902) I.L.R. 30 Calc. 291, that the onus is on the landlord to prove that the land in dispute was included in the assessment of the Permanent Settlement, and he relies on the Lotbandi of 1801 produced by the plaintiff as sufficient proof, in the absence of evidence to the contrary, that Tasra and Eaharaband were included in the lands assessed at the time of the Permanent Settlement. The entry in that document, he holds to be sufficient to prove that a quit rent was paid by the zemindar, and on the authority of the case of Gudadhur Banerjee v. The Government (1866) 6 W.R. 326, he holds this is sufficient to establish the fact that the mouzahs were included in the lands assessed at the Permanent Settlement.
16. He next holds that, as a service tenure, the lands in dispute either fall within the provisions of Section 41 of the Regulation YIII of 1793, and as such are the property of the landlord, or within the provisions of Section 8 of Regulation I of 1793. Conceding for the sake of argument that they fall into the latter class, he finds that all that Government could reserve would be the produce of the lands and not the lands themselves, and relying on a report of Mr. Millet, dated 26th March 1842, and a despatch of the Secretary of State, dated the 26th March 1880, he concludes that notwithstanding the reservation in respect of police services the proprietary interest in the soil in the villages included in the Permanent Settlement was vested in the zemindar. Also on the ground that prior to the Permanent Settlement, the zemindars had only rights to collect the rents and no right to the soil itself, he holds that the holders of small tenures of one or two villages for the discharge of police duties could not have had higher rights. He therefore concludes that the Digwars cannot be held to be proprietors of the soil, so as to be entitled to the mineral rights in it.
17. He next proceeds to deal with the cases relied on by the defendants. They were Raja Lela Nund Sing Bahadoor v. The Government of Bengal (1855) 6 Moo. I.A. 101, Joy Kishen Mookerjee v. The Collector of East Burdwan (1864) 10 Moo. I.A. 16, Koolodeep Narain Singh v. Mahadeo Singh Baboo (1866) 6 W.R.199, confirmed on appeal by the Privy Council (1871) 14 Moo. I.A. 247, and approved by the Privy Council in Forbes v. Meer Mahomed Tuquee (1870) 13 Moo. I.A. 438, Munrunjun Singh v. Rajah Lela Nund Singh (1865) 8 W.R. 84, confirmed in appeal (1873) 13 B.L.R. 124 in 1873, Rajah Nilmoney Singh Deo v. The Government and Beer Singh (1872) 18 W.R. (P.C.) 821, Bukronath Singh v. Nilmoni Singh (1879) I.L.R. 5 Calc. 389 confirmed on appeal (1882) I.L.R. 9 Calc. 187, Anundo Rai v. Kali Prosad Singh (1834) I.L.R. 10 Calc. 677 confirmed on appeal (1887) I.L.R. 15 Calc. 471. In these cases the question raised related to the right of the Government or of the landlord to resume Ghatwali tenure on discontinuance of services or the like, or the liability of the tenure to sale for the debts of a Ghatwal, and the Subordinate Judge held that they did not apply to the present case, or affect the conclusion at which he had arrived, on a consideration of the Regulations, that the proprietary right to the soil was vested in the landlord. Dealing with the last contention he holds that it cannot be concluded that, even if the Ghatwali tenures in Manbhum were analogous to those in Birbhum, all the incidents which attached under the Regulations to the latter could be held to attach to the former. He further holds that the enactments relating to the Birbhum Ghatwals were of the nature of Private Statutes and could not be extended to strangers, and he distinguished those tenures from the present by the fact that the rent was payable in respect of the former direct to Government.
18. He, therefore, comes to the conclusion that the three contentions Jailed.
19. Returning then to the questions whether the right in the minerals belonged to the zemindar or to the Ghatwal, he comes to the conclusion that a Ghatwali tenure is one of the class in which an office is granted, the performance of the duties attaching to which is to be remunerated by the use of certain lands, and relying on the case of Radha Pershad Singh v. Budhu Dashad (1895) I.L.R. 22 Calc. 938, he holds that the position of a Digwar was that of a servant. Further, referring to the case of Ram Chandra v. Venkatrao (1882) I.L.R. 6 Bom. 598, 606, he finds that the grant of a tenure such as that at present in dispute very rarely amounted to a grant of the soil and that the burden of proving that there was a grant of soil lay heavily on the party alleging it. He held the present defendant has failed to prove any such grant, and he points out that the policy of the Mahomedan Government was averse to grants in perpetuity of the soil. He further finds that the settlement of the tenure did not amount to a grant of a estate burdened with the performance of public duties.
20. Referring to the state of the law in England he points out that a tenant for life is not entitled to work mines: Ecclesiastical Commissioners v. Wodehouse  1 Ch. 552, 561-2. He also points out that the case of Messrs. Cordon, Stuart Co. v. Tikaitiiee Seobas Kowaree (1864) W.R. Gap. 370, in which the right of a maintenance holder to work mines was in question, did not support the view that the right to the minerals passed with the maintenance grant to the grantee, while the case of Tituram Mukherjee v. Elias E. Cohen (1901) 1 C.L.J. 517 supported the opposite view.
21. He, therefore, comes to the conclusion that the right to the coal and other minerals is in the zemindar.
22. On the remaining issues he held that the plaintiff was entitled to a permanent injunction and to recover Rs. 1,851-11 on account of the coal taken.
23. The findings of the Subordinate Judge and his reasons for the same have been set out at greater length than would otherwise have been desirable because the appellants traverse his findings on all the points except that on the fourth issue, which was that the mouzahs are Digwari mouzahs. Also in support of the appeal and in opposing it, we have been referred to all the authorities; dealt with by the Subordinate Judge as well as to others.
24. The question raised in the suit is one of first impression, and as it is of importance and by no means easy of solution, it has been necessary to set out the case of each party in some detail.
25. Before considering the rights which attach to the Digwari tenure it will be as well first to consider its character and the circumstances under which it was created and has passed from one holder to another. From the copy of the Register of Ghatwali lands as ascertained during the survey in 1880 to 1883, Ex. No. 1, filed by the defendants, it appears that M. Raharaband covers 6,025 bighas and M. Tasra 897, making a total of 6,922 bighas. The rent payable yearly to the landlord is Rs. 64. It is not clear, however, how much of this land is now under cultivation, but, even though the learned pleader for the respondent has ridiculed the idea that the possession of such a tenure entitles the holder to be regarded as a Warden of the Marches, it certainly seems to place him in a higher position than a Ghatwal or Chowkidar holding a few bighas of land or receiving a small salary for his support. In the report made on the 18th June 1799 (Ex. E), a distinction is drawn between Digwars and Jagirdars on the one hand and Ghatwals and village Chowkidars on the other. The two former, it is stated, get jaigirs or villages and have no fixed salary in cash. Ghatwals receive a salary in cash, and village Chowkidars get land in some places and in others cash. The entries in the General Register of the revenue-paying land in estates borne on the Revenue-roll of the District of Manbhum prepared under Act VII Of 1876 (Ex. 14 filed by the plaintiff) differ materially from the entries in the Register previously referred to, and no explanation of the difference has been given.
26. This tenure was admittedly held by Digamher Singh up to 1887, when he was dismissed by the Deputy Commissioner of Manbhum for misconduct, and defendant No. 1 was appointed Digwar in his stead and was placed in possession of the tenure. Digamber Singh was appointed Digwar in 1884 (29th February) in place of Matabbar Singh who resigned (Ex. Y). He appears to have been the brother of Matabbar. His predeoessor was appointed Digwar on the 8th Falgoon 1285 (the 25th April 1879) on an application made by his father Pahlan Singh, who retired on account of old age (Ex. X). In that application Pahlan Singh described the post as 'the hereditary post of Ghatwal.' In the Isamnavisi of 1861, filed by the defendants (Ex. V), Pahlan is entered as Digwar, and in the Isamnavisi of 1845 (Ex. V) Bahal Singh is entered as Digwar; the latter was a nephew of Akbar (see evidence of D.W. 3) who was the previous Digwar. In the evidence of Digambar Singh (Ex. 7), given on the 10th, February 1862, it is stated that the two villages were settled with Akbar some 50 years before that date, and there seems to be no reason to distrust the truth of that statement which was made long before the present dispute arose. This carries the tenure back to 1814 when Prithi Singh, the zemindar of Jheria was granted a Sanad, (see Ex-5, dated 23rd August 1814, and Ex. 6), investing him with the charge of the police in his estate, that is to say, up to nearly 100 years before the date of the present suit.
27. The tenure is, therefore, an ancient one. It has remained in the possession of members of the same family up to 1887, when Digamber Singh was dismissed for misconduct, having devolved successively on members of that family on the death or resignation of any incumbent of the office. Both office and tenure have therefore been hereditary, though there appears to have been a condition that, in the event of dismissal by Government of a member of that family for misconduct and in the event of there not being a member of the family suitable for appointment, the office and tenure would pass to the person appointed as Digwar by the Government. On the dismissal of Digamber and on the appointment of defendant No. 1 as Digwar, the tenure passed to defendant No. 1. All orders for the appointment and dismissal of the Digwars have been made by Government, the zemindar never having had any voice in the matter (see Ex. V, X, Y, Z, III, 22, 20, T1, W, and the evidence of Girish Chandra Ghose, D.W. 8); all that the zemindar has received in respect of the tenure for this long series of years has been the rent of Rs. 64, which from the receipts filed appears to have remained fixed and unchanged all along. The services rendered by the Digwar have been police or public services, and the Digwar for the time being has been held responsible for the due discharge of those services to Government and not to the zemindar. Reg. XIII of 1833 deprived the zemindar of Jheria of his Police functions and since then the Digwars have been directly under Government,
28. The learned pleader for the plaintiff respondent has set up in this Court a case with regard to the creation of the tenure which does not appear to have been advanced in the lower Court. The case is that, when Raja Prithi Singh was invested with the control of the Police in 1814, he appointed his ijardars to do the work for him under his orders and that the ijaradar of Tasra and Raharaband was in that position. The duty of the ijaradar is said to have been to collect the rents of the mouzahs and to pay them to the zemindar, and as remuneration for his services, partly as rent collector and partly as Digwar or Police officer, he was allowed to hold and receive the profits of the man lands in the mouzahs. This view, it is contended, is supported by the Lotbandi (Ex. 11) for 1208 B.S., by the copy of the Register of revenue-paying estates in Manbhum (Ex. 14), by the receipts in which the person holding the tenure is described indiscriminately as Digwar, taluqdar, ijaradar or etmamdar, by the Safabandi of the estate, dated 15th September 1857, (Ex. 15) when the estate was under the Court of Wards, by paragraph 25 of the report of Rai Charan Ghose, Deputy Collector, dated 17th September 1875, with covering letter of the Deputy Commissioner of Manbhoom of 3rd May 1875 (Ex. F), by the evidence of Ganesh Kuiri Chakladar (P.W. 6) and of Jailal Sinha (P.W. 9), by the deposition of Digamber Singh (Ex. 7) and by the report of the Police (Ex. 71) and the receipt given by defendant No. 1 when he was placed in possession of the lands of the tenure on appointment as Digwar (Ex. W). These documents do not however appear to us to support the view contended for. It is not alleged on behalf of the appellant that the Digwar did not hold a certain portion of the two mouzahs in his khas possession, but it is alleged that he received the profits of that land as well also as all the other profits and rents of the two mouzahs, subject only to a yearly payment of Rs. 64 as rent to the landlord. This view is supported by the petition of defendant No. 1, dated 22nd November 1891, (Ex. 1) asking the permission of the Deputy Commissioner to grant the lease to defendant No. 2. The payment of the uniform amount of Rs. 64 a year to the landlord for a long series of years is also hardly consistent with the view that the person in possession of the tenure was a rent Collector for the landlord. The evidence of the Chakladar, a servant of the zemindar, and of Joy Lal Singh, the son of the dismissed Digwar Digamber, is not entitled to complete reliance. The Safabandi in fact proves nothing as it contains no entry relating to the mouzahs, and the entries in the Register (Ex. 14) not being supported by any evidence, do not afford any assistance. The Lotbandi will be dealt with later on, but, as it appears to have been prepared for a special purpose, it cannot be accepted as of much value in determining the question.
29. On the other hand, the circumstances, that the Digwar has all along been responsible to Government for the due discharge of his duties, that the appointments to and dismissals from the office have been all along made by Government, and that the tenure has passed to the persons whom Government has appointed, are entirely inconsistent with the suggestion that the holder of the tenure was a servant under the landlord, responsible to him for the due collections of the rents of the estate. Government would not have been able to dismiss a servant of the zemindar without the consent of the zemindar.
30. We hold, therefore, that the view put forward by the learned pleader for the plaintiff respondent cannot be accepted, and that the holder of the two mouzahs Tasra and Raharaband did not hold them as a simple ijaradar under the landlord responsible to him for the rents of the tenure and receiving as his remuneration only the man lands. The tenure has all. along been a Digwari tenure, ancient and hereditary, held subject to the payment of a fixed rent to the landlord, and on condition of the performance of certain police or public services, for the due discharge of which the holder has been responsible to the Government which alone has exercised the power of appointment to or dismissal from the office.
31. This being in our opinion the character of the tenure, we have now to consider the different points which were urged before the Subordinate Judge and have been argued before us.
32. The first of these is whether Government is a necessary party and whether the suit should have been dismissed for the non-joinder of Government as a party-defendant. The learned Counsel for the appellant, in contending that Government is a necessary party, has dwelt on the fact that whether or not Government itself has an interest in the minerals, it has, as trustee for the public, a substantial interest in the tenure, and as such, is bound to oppose any attempt to reduce the profits of the tenure in value and so to render it less useful for the purpose for which it was created, that is to say, for the remuneration of the holders for the discharge of the public services. The two mouzahs having been set aside as an appendage to the public office of Digwar, it is contended that a tenure was thereby created and the person with whom the settlement was made acquired by it rights to the whole produce or profits of the land, whether derived from the surface or sub-soil. All that the landlord reserved was the right to the quit rent of Rs. 64. The Digwars in succession have all along been responsible to Government for the due discharge of their public duties, and there is a corresponding duty on the part of Government to them to protect their rights in the tenure from infringement. The Government has a further duty in the interests of the public to protect the rights of the Digwar from encroachment by the zemindar.
33. It appears that in an objection raised in certain proceedings before the Survey Officer in 1883 (see copy of Judgment dated the 16th March 1883, Ex. 27) the zemindar, the grandfather of the present plaintiff, did not dispute that the two mouzahs, Tasra and Raharaband, had been set apart as Digwari or public service lands. In the suit in 1885 (see copy of plaint Ex. 51) Government asserted a right to the mouzahs as Government Police Digwari land, and sued to have set aside a sale of a portion of the lands in the two mouzahs in the execution of a decree for debt against the Digwars and obtained a decree (see Ex. R. 1). In 1881 the two mouzahs were measured and demarcated as Ghatwali lands, and they were included in the Register of Ghatwali lands of 1880 to 1883. It has already been shown that the Government has all along exercised the right of appointing and dismissing the Digwars, and it has, therefore, an interest in maintaining intact the mouzahs set apart for their remuneration. The lease of the mineral rights to the defendants 2 and 3 was granted by defendant No. 1 only after he had taken the permission of the Deputy Commissioner of Manbhum and had explained that the profits from the two mouzahs were insufficient for the due discharge of his duties. The permission to grant the lease was given subject to the condition that he inserted in the deed a clause to the effect that the settlement was made without prejudice to the rights of Government, and a clause to that effect was inserted in the deed.
34. The Government, therefore, has all along asserted a right in the two mouzahs on the ground that they are public service lands and in granting permission to the defendant No. 1 to give the lease to the other defendants, the Deputy Commissioner, on behalf of Government, has maintained the same position. The plaintiff in the present suit claims exclusive rights to the minerals.
35. We think that the rule stated in Daniel's Chanoery Practice, vol. I, page 264, and the case of Kashi v. Sadashw (1895) I.L.R. 21 Bom. 229, on which the Subordinate Judge has relied, cannot be taken to apply to the facts of the present case. Nor, do we think, is the case of Van Gelder Apsimon Co. v. Sower by Bridge United District Flour Society (1890) 44 Ch. D. 374, on which the learned pleader for the plaintiffs has relied before us, on all fours with the present case. Here a right to the tenure as one set apart for public purposes has all along been advanced and acted on by Government for a long series of years without apparently any objection having been raised by the plaintiff, and though the right to the profits from the sub-soil has not been directly claimed either by Government on its own behalf, or on behalf of the holder of tenure, still now that the plaintiff advances an exclusive right to the sub-soil profits, it is a matter in which the Government has a substantial interest as affecting the profits derivable from the tenure. The Digwar's personal interest in the tenure terminates with his life, while the exclusive rights which the plaintiffs claim are such as affect the profits of the tenure permanently, and in the permanent interest of the tenure the Government is concerned for the reasons already stated. The three oases on which reliance was placed before the Subordinate Judge, and which have also been relied on before us, on behalf of the defendants respondents are not quite on all fours with the present. But the facts of this case are in our opinion, even stronger to support the view that the Government is a necessary party in the suit. Indirectly, the plaintiff in this suit seeks to defeat rights which the Government has all along assumed itself to possess on behalf of the public, and which, in other proceedings in other Courts it has claimed with success In sanctioning the grant of the lease by defendant No. 1 to defendant No. 2, the Government has asserted these rights. Under all these circumstances, we feel bound to differ from the view of the Subordinate Judge and to hold that Government was a necessary party in the suit.
36.The next question, whether the suit was barred by limitation, which was not pressed before the Subordinate Judge, has however been argued before us, and it is necessary for us to determine it. For the appellants, it has been argued that the evidence proves that the defendant No. 1 began to dig out coal in 1888, that the Road cess notices from 1889 to 1902 (Ex. VI/5 to VI/18) show that that cesses were realised during those years from him on the coal dug out at values varying from Rs. 65 to Rs. 2,400, that in 1891 the negotiations were first entered into with the Coal Company for the grant of the lease, that application for permission was then openly made to the Deputy Commissioner, and was granted on the 8th December, 1891, that the lease was executed on the 2nd January 1892 and finally transferred to the Coal Company on the 17th December, 1897. All these facts show that there was an open assertion of the right of the Digwar to the subsoil coal, adverse to the zemindars since 1888. The fact that the present suit was not instituted till the 18th December 1903, i.e. till 15 days before the expiry of 12 years from the date of the lease, though the zemindar must have been aware that the Digwar was asserting rights to the sub-soil coal so far back as 1888, indicates, it is urged, that the zemindar acknowledged that the sub-soil rights to the coal belonged to the Digwar. It has been contended that this is not a case of constructive possession by a wrong-doer but one of actual possession openly asserted, and it is argued that this is one of the special cases contemplated by Hall C. in the remarks made in his judgment in Ashton v. Stock (1877) 6 Ch. D. 719, 726.
37. For the respondents, however, it is contended that all that the Digwar did from 1888 to 1892 was to take the surface coal or coal washed out by the action of the Damudar river (see; the evidence of P.W. 4, P.W. 6 and P.W. 7) and that this did not amount to an assertion of a right to the sub-soil coal. The account filed by the defendant's witness, Girish Chandra Ghose, is characterized as worthless. It is further argued that even if the Digwar dug out the sub-soil coal during those years, he was acting as a wrong-doer and on the authority of the case of Mohin Mohan Roy v. Promoda Nath Roy (1896) I.L.R. 24 Calc. 256, it is argued that constructive possession applies only in favour of a rightful owner and need not (as a rule) be extended in favour of a wrong-doer, whose possession must be confined to land of which he is actually in possession, and on the authority of the case of Wali Ahmed Chowdhry v. Tota Meah Chowdhry (1903) I.L.R. 31 Calc. 397 that occupation by a wrong-doer of a portion of land only cannot be held to constitute constructive possession of the whole so as to enable him to obtain a title by prescription. All then that the defendants could hare acquired a right to by prescription was the coal actually taken out by them and not to all the subsoil coal. And as bearing on this point, reference has been made to the cases of Earl of Dartmouth v. Spittle (1871) 19 W.R. (Eng.) 444, Ashton v. Stock (1877) 6 Ch. D. 719 and Lord Courtown v. Ward (1802) 1 Sch. & Lef. 8.
38. We have seen the accounts which were produced by Girish Chandra Ghose, and we think they are of no value as evidence. We agree with the Subordinate Judge that the sub-soil coal was not regularly or systematically worked till the lease was granted to the Company in 1892, and we are unable to attach any value to the road-cess notices which were apparently issued on in formation furnished by defendant No. 1 himself. There is moreover no direct evidence to prove that the right to the subsoil coal was asserted by Brojo Nath Bose the Digwar, to the knowledge of the plaintiff before 1892, though there may have been no concealment that he was working the coal, and we hold, following the view adopted in the cases relied on by the plaintiff respondent, that the suit was not barred by limitation.
39. We have now to consider the important question in the case, Viz., whether the right to the sub-soil coal or minerals belongs, to the plaintiff as zemindar or to the defendant No. 1 as Digwar. We have already noticed the circumstances under which the tenure appears to have been created, the conditions under which it has been held, and the manner in which it has devolved on each Digwar in succession. It is not necessary for us to repeat in detail the description of the course of special legislation in Bengal, so far as it imposed on the zemindar the management of the Police in their estates and affected the, position of the persons appointed to discharge those duties. This has been set out in the judgment of the Subordinate Judge. Pergunnah Jherriah in which mouzah Tasra and Raharaband are situated was admittedly originally included in the district of Birbhum. In 1805 it was included with other pergunnahs in the district of the jungle mehals, the headquarters of which was at Bankura. In 1833, it, with other pergunnahs, was formed into the District of Manbhum. It is clear from the documentary evidence (see report of Mr. Money, Deputy Commissioner of Manbhum, dated 14th November 1864, Exht. L. 1, the report of Col. Morton, Deputy Commissioner of Manbhum dated 3rd May 1875 (Exht. F.) and Hunter's Statistical Reports vol. 17, p. 281) that in the first half of the last century, the whole of the country covered by the jungle mehals and the neighbouring districts, was in a very disturbed state, and that public offices and records were on several occasions destroyed by fire, that during the Mutiny the main portion of the records of the Manbhum district met with a similar fate, and that, in consequence, requests bad to be made to the Collectors of the neighbouring districts to send copies of quinquennial and decennial papers to afford the required information regarding the different estates in the different pergunnahs in the District (see Robocari dated 19th September 1857) (Exht. 2). Jherria was one of those pergunnahs. The reply received (see Exht. 1, dated 13th October 1857, and Exht. 13) was to the effect that the papers relating to the pergunnahs were not in existence, and that only the old lotbundies of certain pergunnahs and a copy of a book showing the lands and jamas of Chabla and Panchkoti for the year 1202 were to be found. It is not, therefore, surprising that the documentary evidence, which each party is able to produce to prove the origin of the tenure, is small and not of a very substantial character.
40. The ancient document on which the plaintiff mostly relies is the copy of the Lotbundi of 1208 B.S. '(Exhibit II). It bears the beading 'List of Lotbundi of Collector's Revenue for 1208 B.S. in respect of Pergunnah Jherriah, District Birbhum,' and it appears to be one of the papers which were sent to Manbhum on 13th October 1857. This document has been attacked by the learned Counsel for the appellant as being a copy of a copy and inadmissible in evidence, and also on the ground that its genuineness is open to suspicion. The first ground of attack is based on the endorsement on the face of the document which runs 'copy Sd. R.C.R. Extra-Assistant Commissioner.' There is, however, nothing to prove the meaning of this endorsement' and the objection does not appear to have been pressed in the lower Court. We see no reason to treat the document as inadmissible on the ground set forward. Its genuineness is attacked because there was some delay in its production by the plaintiff, because the officer who produced it had only been one year in office, and because the report of the Naib Mohafiz dated the 7th March 1859, Exh. D, would not have been made if the Lotbundi had been received in 1857. It is also suggested that it is manifestly incorrect, as it mentions Tasra with profits of Rs. 45 but makes no mention of Raharabund, and it is argued that the explanation advanced by the Subordinate Judge that Raharabund is an offshoot of Tasra cannot be accepted, because Raharabund is the larger of the two mouzahs. We do not think these objections are sound. The delay in the production of the document was not serious, and the accident, that the officer who produced it had been one year only in office, is not material. The report of the Naib Mohafiz related to Ghatwali and jaigir lands which find no place, in the Lotbundi, and the list of papers dated the 13th October 1857 (Exhibit 13) goes to support the view that the document is genuine. The omission to give in the Lotbundi the profits of Raharabund would not be of importance unless it were proved that at that time any profits were derivable from that mouzah. The survey map prepared in 1881 shows that even then a large portion of the mouzah was covered with jungle. The document is, therefore, in our opinion admissible in evidence and genuine. Its value as proving that in the year 1208 there was no Digwari tenure of Tasra and Raharabund has to be considered. The document appears to have been prepared under Clause 2, Section 29 of Regulation VII of 1799, in view of a possible sale of the whole or a part of the pergunnah for arrears of Government revenue, and its object was to show to intending purchasers the value of the produce of the different mouzahs in the pergannah in the past year, and also to enable the Collector after such a sale to re-assess the Government revenue on the two portions in accordance with the provision of Arts. X and XI of Regulation 1 of 1773 and Regulation 1 of 1801. The statement would ordinarily not specify Digwari tenures but would only mention the rent payable on them to the landlord. The omission of any mention of the Digwari tenure of Tasra and Raharaband can hardly be accepted as proof that no such tenure was then in existence.
41. The next document of ancient date relied on by the plaintiff is (Exhibit 4) the Register of' appointments of Ghatwals and Chowkidars from the 1st February 1832.to the 29th July 1839 This document contains no mention of the Digwari tenure of Tasra and Raharaband, and to this fact the Subordinate Judge has attached considerable importance as indicating that the tenure was not then in existence. This document, however, is not as the Subordinate Judge has described it, a Register of Ghatwali lands but of appointments of Ghatwals and Chowkidars. It is to be observed that in the report (Exhibit E) dated 18th June 1799, made by Ranji Tehsildar, a distinction is drawn between Digwars and Jagirdars who were remunerated by jaigirs of villages, and the Ghatwals and Chowkidars who were remunerated by fixed salaries in cash or plots of lands in their villages. In the Register there are only two instances of persons who held one village each, all the rest being remunerated by salaries or by a certain number of bighas of land in their respective villages. If the holder of Tasra and Raharaband was a Digwar, he would not be likely to be entered in the Register, and, even otherwise, if there had been no appointment to the office between January 1832 and July 1839, there would be no entry in the Register. We are unable to agree with the Subordinate Judge that this Register supports the View that the Digwari tenure was not in existence in those years.
42. From the provisions of Clauses 4 and 13 of Section 7 of Regulation XVIII of 1805, the Subordinate Judge conies to the conclusion that the Digwars were servants of the landlords as much as of Government, and he considers that this view is confirmed by the evidence of Motabbar Singh and Joy Lall Singh. These two witnesses are relations of Digamber Singh who was dismissed for misconduct, and their evidence does not appear to us to be entitled to reliance. The evidence, oral and documentary, on the other hand, goes conclusively to prove that the services rendered by the Digwars were police or public services, that for the due discharge of those services the Digwars were responsible to Government which alone had power to appoint or dismiss them. There is nothing to support the view, which the Subordinate Judge accepts based on the Regulation, alone, that the Digwar of Tasra and Raharaband was a servant of the landlord. The view we take is supported by Hunter's Statistical Reports vol. 17, p. 257, where it is pointed out that the services paid by 'the Ghatwals of Manbhum were from the first military or police services and never acquired a menial or personal character.' The Digwars appear to have held a position superior to the Ghatwals. See Hunter Vol. 17 p. 334. We are unable to agree with the conclusion of the Subordinate Judge on this point.
43. The oldest documents on which the defendants rely to prove their Digwari tenure are Exhibit U and Exhibit V, the copies of the Isamnavisi papers of 1845 and 1861, the former of which shows Bahali Sinha as Digwar of Tasra and Raharaband and the latter shows Pahlan Singh as Digwar.
44. The learned pleader for the plaintiff respondent contends that these documents are of lib value and in support of this contention relies on the remarks made by Mr. Olay, Deputy Commssioner of Manbhum, in his report of the 3rd June 1869 (Exhibit K 1) as to the worthlessness of such documents as evidence, and on the case of Mr. W. Fergusson v. The Government and Dwarka Nath Singh (1867) 8 W.R. 232 in which similar documents were rejected as evidence. The value of such documents as evidence in a particular case must however depend on the special circumstances under which they are offered for belief. Supposing them to stand alone without any evidence to support them, it is probable, having regard to the circumstances under which they are said to have been in the first instance prepared, that they would be of little value to prove the facts contained in them. But when, as in the present case, they are supported by other evidence they certainly are entitled to more credit. The documents, Exhibits X., Y., Z., III, 22, 20 and T, to which reference has already been made and which prove the retirement of Pahlan Singh and the appointments of Matabbar, Digamber and Brojanath Bose in succession as Digwars, certainly support the two Isamnavisi papers as proving that the Digwari tenure was in existence when the two documents were prepared. The defendants also rely on the depositions of Digamber Singh, dated the 8th and 10th February 1862 (Exhts. 7 and 8), which were given long before the present dispute arose. These carry the tenure back at least to 1814 when Prithi Singh was entrusted with the maintenance of the police in his estate of Jheria. There seems to be no good reason for discrediting these statements made so long ago and before the resent dispute arose. The receipts given by the zemindar for the rent, produced by the defendants, are also relied on as proving that the existence of the Digwari tenure was then openly asserted and admitted. The Register of the Ghatwali lands in Manbhum prepared in 1880 to 1883 and the maps prepared in 1881 are relied on as proving the existence of the tenure, and it is pointed out that its existence was also taken for granted in the proceedings before the survey officer in 1883, and was openly asserted by Government in 1885.
45. Under all these circumstances, we hold that the evidence for the defendant is sufficient to establish the existence of the Digwari tenure certainly as far back as 1814 and we are unable to agree with the Subordinate Judge that the evidence fails to prove that the tenure was in existence before 1845. We think that the evidence of the defendants makes out a probable and consistent story of the creation of the tenure and of its continuance down to the date of suit. We accept it as true.
46. There is, it is true, no direct evidence to prove the existence of the tenure prior to 1814, and we have to determine whether when the tenure was created the zemindar intended to reserve anything except the quit rent of Rs. 64. The fact that the same rent has been accepted all along would seem to support the view that; the right to the rent was all that it was then intended to reserve. The rights to the sub-soil coal do not appear to have been thought of then. Nor can those rights be held to have been covered by the provisions of the Mahomedan Law taken from the Hedaya to which attention is drawn in Mr. Millett's report of the 26th March 1842, as they related only to mines of precious metals.
47. In order to prove the respective titles of the zemindar and Digwar to the mineral rights, we have been referred by the learned representatives of both parties to a long series of rulings' in which in neighbouring districts and in the estate of Pachete in the district of Manbhum the rights of Digwars have been considered and dealt with. We are aware of the danger of attempting to generalise from one class of persons to another possibly different class, and we propose to deal with those cases only so far as they may appear to throw some light on the relations of the zemindars and Digwars in the present case. The learned Counsel for the appellant has indeed gone so far as to suggest that as pergannah Jherria originally formed a part of the district of Birbhum and as the rights of the Ghatwals in Birbhum have been recognised by Government by special legislation in Regulation 29 of 1814 and Act V of 1859, we should hold that the Digwar in the present case has the same rights as those conferred by Statute on the Ghatwals of Birbhum. All however that we think we should be justified in doing is to ascertain whether there is a sufficient analogy between the legal position of the Digwar of Tasra and Raharaband and that of the Ghatwals in Birbhum to justify the inference that the incidents attaching to the tenures of the former should be regarded as similar to those attaching to the latter. At the same time, we are not prepared to agree with the Subordinate Judge that the enactments dealing with the Ghatwals of Birbhum are of the nature of Private Statutes.
48. Now we find, that in the case of Ghatwali tenures in Kharuckpur in Bhagalpore district, it was held in the case of Raja Lelanund Sing v. The Government of Bengal (1855) 6 Moo. I.A. 101 that such tenures did not fall within Clause 4, Section 8 of Reg. I of 1793, and that, as they were included in the permanent settlement they could not be resumed by Government, and in the case of Munrunjun Singh v. Rajah Lelanund Singh (1865) 3 W.R. 84, that in respect of the same class of Ghatwals it was found that they held a perpetual hereditary tenure at a fixed rent in money and service, and that except for misconduct on their part they could not be evicted by the zemindar. This was confirmed on appeal by the Privy Council (1873) 13 B.L.R. 124. The same view was taken in the case of Tekait Manoraj Sing v. Raja Lilanand Sing (1865) 2 B.L.R. (A.C.) 125 (note). A similar view was taken by this Court in the case of Jogendra Nath Singh v. Kali Char an Roy (1905) 9 C.W.N. 663 with regard to a Ghatwali tenure in Bankura. In the case of Anundo Rai v. Kali Prosed Singh (1884) I.L.R. 10 Calc. 677 confirmed by the Privy Council (1887) I.L.R. 15 Calc. 471, it was held that a Kharuckpur Ghatwalitenure is transferable if the zemindar assents and accepts the transfer.
49. In the case of Kooldeep Narain Singh v. Mahadeo Singh (1866) 6 W.R. 199 with regard to a Ghatwali tenure created by a Sanad, dated 1743, in a pergannah adjoining Kharuckpur, a Full Bench of this Court held that the tenure was permanent and hereditary, that it was held at a fixed quit rent, and therefore that the landlord was not entitled to resume it on the ground that the Ghatwal had ceased to perform the services, if Government; refused to renounce the claim to the services. This was confirmed by the Privy Council on appeal, Kooldeep Narain Singh v. The Government (1871) 14 Moo. I.A. 247; a similar view was taken by the Privy Council in the case of Forbes v. Meer Mahomed Tuquee (1870) 18 Moo. I.A. 438. This related to a tenure in pergannah Sultanpore in the district of Bhagalpore.
50. In the case of Bukronath Singh v. Nilmoni Singh (1879) I.L.R. 5 Calc. 389 confirmed by the Privy Council (1882) I.L.R. 9 Calc. 187, it was held with regard to a Ghatwali tenure in pergannah Pachete, District Manbhum, that though the mouzahs which made up the jaigir were included in the area of the zemindari at the time of the permanent settlement, yet as the share of the profits which were retained by the jaigirdar formed no part of the assets on which the Government revenue was fixed, that as the succession to the jaigir was subject to the sanction of Government and as the jaigirdar was liable to render public services, the tenure being in Pachete which formerly was included in the district of Birbhum, the jaigir was analogous to one described in Reg. 29 of 1814, and further that the jaigir was not liable to attachment and sale in execution of a decree for debt against the predecessor of the jaigirdar. Pergannah Pachete is close to pergannah Jheria in Manbhum.
51. In respect of a tenure in the District of the Sonthal Pergannahs in the case of Binode Bam Sen v. The Deputy Commissioner of the Sonthal Pergannahs (1867) 7 W.R. 170, it was held that the rents of a Ghatwali tenure are not liable for the debts of a former deceased holder of the tenure on the ground that the rent was assessed so as to leave the holder of the tenure what was at the time considered sufficient for the performance of his services and each Ghatwal was entitled to the whole of it, and in the case of Chittro Narain Singh Tekait v. The Assistant Commissioner of the Sonthal Pergannahs (1870) 14 W.R. 208 it was held that a transfer by Government on default on the part of the Ghatwal was valid.
52. In the case of Forbes v. Mahomed Tuquee (1870) 13 Moo. I.A. 488, 463 already referred to, it was noticed that a clear distinction must be drawn between the grant of an estate burdened with certain duties and the grant, of an office, the performance of whose duties are remunerated by the use of certain lands, and in the case of Radha Pershad Singh v. Budhu Dashad (1895) I.L.R. 32 Calc. 938, 941 it was also held that a further distinction must also be drawn between a grant for services private or personal to the grantor, and one for services of a public nature.
53. The farmer class of grants in each instance were liable to resumption by the grantor, while the latter class were not so liable.
54. In the ease before us, it has in our opinion been fully established that the services to be performed were police service and purely of a public nature. The zemindar having certain public services to perform settled a certain number of villages with the Digwar on the condition that he would perform those services due to Government, and reserved for himself only a quit rent of Rs. 64. The same sent has been paid ever since, and the tenure has passed to different members of the family Who have in turn been found by Government fit to discharge the public services. On default Digambar Singh was dismissed by Government and the tenure passed to Broja Nath Bose, defendant No. 1, who was appointed Digwar by Government in his place. The tenure was, therefore, in our opinion created in the first instance to enable the holder to discharge public duties and has all along been so regarded. We hold, therefore, on the authority of the case last mentioned that the tenure is not liable to resumption by the landlord.
55. In the suit No 33 of 1885 (Ex. R. 1), the Government successfully asserted that the lands were not liable to sale for debts of the Digwars as they were Police Digwari lands, and on the dismissal of Digamber Singh, the tenure was transferred by Government to defendant No. 1. These circumstances show that the tenure corresponds with those in the Sonthal Pergannahs which formed the subject of the two cases noted above and a transfer by Government on default of the Ghatwal would be valid: Chittro Narain v. Assistant Commmioner of the Sonthal Pergannahs (1870) 14 W.R. 203.
56. It has also been established that the tenure is ancient, that it is hereditary, and that it has been held all along at a fixed rent of Rs. 64. At the same time, it would appear that the mouzahs of which it consists were included in the zamindari for assessment at the time of the Permanent Settlement. In these respects it resembles the tenure in Pergannah Pachete. The question then arises, whether we should follow the view taken in the case of Bukronath Singh v. Nilmoni Singh (1879) 5 Calc. 389 ; (1882) I.L.R. 9 Calc. 187 and hold that the tenure must he regarded as analogous to the Ghatwali tenures in Birbhum so as to carry the same incidents. It is clear that it was treated as such by the Deputy Commissioner of Manbhum, when he gave the sanction to the lease of the mining rights; a sanction which is required by Act V of 1859 in the case of mining leases, granted by the Ghatwals in Birbhum. The opinion of the local officer is no doubt not conclusive, but we think that in a matter like the present, where local knowledge is valuable, it is entitled to some consideration.
57. We find further that as early as 1816, the Nizamat Adalut regarded the Ghatwals of the jungle mehals as similar to those in Birbhum (see. Ex. A). In 1883 (see Ex. R) and in 1903 (see Ex. S) the Government asserted its right to control the. Digwars in executing leases of mineral rights, and the evidence of Gopal Mollah (D.W. 4) is to the effect that all leases executed by Digwars were subject to the control and. sanction of Government. The evidence of the Digwars who are witnesses for the defendants (D.W. 1 & D.W. 6) is also to the effect that Government exercised entire control over the Digwars, and that the zemindar had no power of control over them. It further appears (see Ex. Q 1 and Ex. A 1) that leases of sub-soil rights have been granted by Digwars in other parts of Manbhum without any objection having been taken by the zemindar.
58. We think that all these circumstances justify us in holding that the position of the Digwar in the present case is analogous to that of the Ghatwals in Birbhum, and in inferring that he has been recognised throughout as possessing the same rights. In this view of the case, we hold that the mineral rights in the tenure do not belong to the zemindar.
59. The argument of the learned pleader for the respondent based on Mr. Millet's report of the 26th March 1842, the letter from the Secretary to the Board of Revenue to the Government of Bengal, dated 9th January 1872, Ex. 16 A., and the Despatch of Secretary of State for India, dated 25th March 1880, Ex. 26, that Government has disclaimed all title to mineral rights in lands which were included in the Permanent Settlement, and that, therefore, such rights belong to the zemindar, cannot have weight in determining the question before us, which is whether the zemindar or the Digwar is entitled to the mineral rights. The question as between the zemindar and Government is not in issue.
60. Further, we hold that on other grounds also we should arrive at the same conclusion. We have found that the tenure was created not later than 1814, that it has been held at the same rental ever since, that it has descended by inheritance to members of the family of the original grantee until Digamber Singh in 1887 was dismissed for misconduct, that the zemindar has never exercised the power to appoint or dismiss a Digwar holding the tenure, that this power has all along been exercised by Government, that the tenure passed on the transfer by Government, and that the only profit which the zemindar has received from the tenure during the long course of years has been the rent, which seems to have been a quit rent. Under such circumstances we think that the only possible conclusion at which we can arrive is that the tenure was created as a permanent tenure on a fixed rent, and that it was heritable: see Ram Ranjan Ghakerbati v. Ram Narain Singh (1891) I.L.R. 22 Calc. 533, 543 and Dhunput Singh v. Gooman Singh (1867) 11 Moo. I.A. 433, 466. All that the zemindar reserved Was the fixed rent of Rs. 64. Such being the Case we see no reason to differ from the view taken in the case of Sri Ram Chakrabutty v. Kumar Sari Narain Sinha (1905) 3 C.L.J. 59, and we hold that the Digwar, as holder of a permanent tenure, possesses all underground rights, including mining rights, unless there is an express reservation to the contrary (see also Shyama Charan Nundy v. Abhiram Goswami (1906) 3 C.L.J. 306, Tituram Mukerji v. Cohen (1905) I.L.R. 33 Calc. 203, 215. In this case no such reservation is shown to have been made in fact, nor can it be implied from the conduct of the zemindar.
61. We are of opinion that the cases of Bagdu Majhi v. Raja Durga Prosad (1904) 9 C.W.N. 292 and Prime Mahomed Buktyar Shah v. Rani Dhojamani (1905) 2 C.L.J. 20 relied on for the respondent, are not in, point, In the former, the defendant was holding under an ijara created twelve years before suit, and the, latter was, a case of maintenance, grant.
62. Further, we hold that the conclusion at which the Subordinate Judge has arrived, based on the finding that the defendant No. 1 was not an independent taluqdar, is not sound. The learned Counsel for the appellants explains that defendant No. 1 never set up the title of an independent taluqdar. Hie contention was that Section 5 of Regulation VIII of 1793 was; not exhaustive and that the Digwari tenure held by defendant No. 1. was a peculiar tenure, analogous to the Ghatwali tenures, in Birbhum, referred to in the preamble of Reg, 29 of 1814 to which the provisions of the then existing Regulations did not apply. This indeed has been the case urged throughout before us and we think that no conclusion adverse to defendant can be drawn from the fact that he has failed to prove that he is an independent taluqdar.
63. We are unable, therefore, to agree with the conclusion at which the Subordinate Judge has. arrived, that the title to the sub soil rights in the Digwari tenure in suit, is with the zemindar, the plaintiff.
64. It is not necessary to determine the other points raised in the subsequent issues.
65. The result is that the appeal is decreed with costs and the suit of the plaintiff is dismissed with costs.