S.C. Lahiri, J.
1. The subject matter of dispute in this appeal by the plaintiffs is subsoil right in an area of 382 acres of land out of which 340 acres appertain to R. S. mouza Sangramgarh and 42 acres to R. S. mouza Samdi. These two mouzas are two of 32 mouzas of Taraf Achra and they appertain to four Touzis, viz., Tauzi Nos. 21, 22, 23 and 24 of the Manbhum Collectorate, 1/3rd to Tauzi No. 21, 1/6th to Tauzi No. 23 and the remaining 1/2 share to Tauzis Nos. 22 and 24. According to the plaintiffs all the four tauzis are parts of a permanently settled estate known as Pandra Estate which consists of three branches, the senior branch being known as Pandra Raj, another branch being known as Sambandhapur Babus and the third and the juniormost branch as Jemeri Thakurs. According to some family arrangements the Pandra Raj which is represented in this litigation by Raja Sam Sundar Sing (Defendant No. 22) became entitled to Tauzis Nos. 21 and 23 and the Sambandhapur Babus to Tauzis Nos. 22 and 24. At some time in the past now lost in antiquity Raja Saheb Sing, the founder of the Pandra Estate made a grant of 32 villages included in Taraf Achra to his youngest son, Shib Sing, who is the founder of the line of the Jemery Thakurs. According to the plaintiffs this grant was in the nature of a khorposh grant and confined to surface rights only, the underground rights remaining vested in the grantor who is now represented by Raja Shamsundar Sing (Defendant No. 22). On 27-9-1932 one Kaluram Agarwalla, predecessor-in-interest of plaintiffs Nos. 2 to 10 and one Bhusan Chandra Ukil purchased the interest of Raja Sham Sundar Sing in Tauzi No. 23 at an auction sale held by the Subordinate Judge, Dhanbad and obtained a sale certificate which is Ex. 17. This sale was set aside by the Dhanbad Court but was upheld on appeal by the Patna High Court and the judgment of the Patna High Court was affirmed on appeal by the Privy Council by a judgment dated June 17, 1938. By this auction purchase Kaluram Agarwalla and Bhusan Chandra Ukil acquired title to 1/6th, i.e., 2as 8pies share of the two mouzas Samdi and Sangramgarh which appertained to Tauzi No. 23. Bhusan Chandra Ukil sold his interest on 29-6-38 to one Bimalananda Tarkatirtha who in his turn sold his share to Shib Chandra Banerjee Plaintiff No. 11 by a conveyance dated February 13, 1944. By an indenture of lease dated September 22, 1941, the Agarwalla plaintiffs Nos. 1 to 10 acquired title to underground rights in respect of 6as 8pies share of the two mouzas Samdi and Sargramgarh comprised in Tauzis Nos. 22 and 24 from the Sambandhapur Babus (See Ex. 21). Thereafter on 22-8-47 the Agarwalla plaintiffs purchased 4as 8pies share of the proprietary interest of Tauzis Nos. 22 and 24 from the Sambandhapur Babus by a conveyance Ex. 20 (c). Thus, according to the plaintiffs, they acquired title to 2as 8pies plus 6as 8pies equal to 9as 4pies share of the underground rights in the two mouzas in dispute.
2. The plaintiffs further allege in their plaint that defendants 1 to 20, who will hereafter be described as Hazra defendants, 'surreptitiously made some sporadic and intermittent attempts' to extract coal from a portion of mouza Sangramgarh; but after the decision of the Privy Council in what is known as the Dendua case, made no further attempt to raise coal. Dendua was one of the 32 villages in Taraf Achra. In 1915 the Manager of the Pandra Estate, appointed under the Chhotanagpur Encumbered Estates Act (Act VI of 1876) instituted a suit on behalf of the proprietors of the Estate against the Jemery Thakurs for a declaration that the subsoil rights in mouza Dendua remained in the proprietors of the Estate and did not pass to the Jemery Thakurs under the grant by Raja Saheb Sing to Thakur Shib Sing. That suit was dismissed by the two Courts in India but was decreed by the Privy Council by a judgment reported in 58 I. A. 125. The plaintiffs further allege that though the Hazra defendants removed their belongings from mouzas Samdi and Sangramgarh after the decision of the Judicial Committee in 1931, they were making fresh attempts to start a colliery in the said two mouzas. Accordingly the plaintiffs prayed for a declaration of their right to nine annas four pies share of the subsoil of the two mouzas and for an injunction restraining the Hazra defendants and their agents and servants from carrying on mining operations therein.
3. The suit was contested by the Hazra defendants by two written statements, one filed by defendant No. 8, Ram Bandhu Hazra and the other filed by the rest. Both the written statements, however, challenge the plaintiffs' claim on similar grounds. It is asserted that the interest of the Jemery Thakurs in Taraf Achra is not subordinate to the Pandra Estate but constitutes an absolute zemindary interest including all subsoil and mineral rights, although the revenue of Taraf Achra is paid through the holders of the residuary share, the Pandra Estate; that the predecessors of the Hazra defendants acquired title to the minerals in mouza Sangramgarh by three documents (a) Potta dated 20th Sraban 1232--August 13, 1825, (b) confirmatory potta dated 14th Falgun--1250 March 24, 1844 and (c) Decree in T. S. 259 of 1889 and in mouza Samdi by a putni lease dated 25th Sraban 1277--August 9, 1870; that after acquiring mineral rights by the aforesaid documents the predecessors of the defendants dealt with coal mining rights in respect of different portions of the property by various documents ranging from 1871 up to 1905, that the defendants and their predecessors have at all material times been in possession of all coal and coal mines within the two mouzas continuously, openly and as of right from the year 1884 at the latest and that they have from time to time dug inclines, sunk pits and quarries, made airshafts, purchased machinery for extracting coal, constructed bungalows, dhowras and Railway siding for working coal.
4. Upon these pleadings the two principal questions that arose for the consideration of the learned Subordinate Judge were (a) whether the title to the underground coal and other minerals in the two mouzas remained vested in the Pandra Estate in spite of the grant in favour of Thakur Shib Sing, the founder of the Jemery Thakurs or whether it passed to Jemery Thakurs, (b) whether the title of the Pandra Estate to the underground minerals was extinguished by the adverse possession of the Hazra defendants. On the first question it was conceded before the trial court by the Hazra defendants that if the title remained with the Pandra Estate the plaintiffs might be held to have derived that title to the extent of the share claimed by them and it was also conceded by the plaintiffs that if that title vested in the Jemery Thakurs the Hazra defendants might be regarded as having acquired the same. Before us, however, Mr. Pramatha Nath Mitra appearing for the plaintiffs has gone behind the admission made on behalf of his clients in the trial court and argued that the Hazra defendants acquired no title to minerals under the leases granted to their predecessors by the Jemery Thakurs and relied upon the principle formulated by the Privy Council in a series of cases beginning with Harinarayan Sing v. Sriram Chakravarty, 37 Ind App 136, which is known as the Petena Case and ending with Bhupendra Narayan v. Rajeswar Prosad to the effect that
'if a claimant to subsoil rights holds under the zemindar or under a grant emanating from him, even though his powers may be permanent heritable and transferable he must still prove express inclusion of the subsoil rights'--See the observations of Sir George Lowndes in Gobinda Narayan Singh v. Sham Lal Singh . Dr. Pal appearing for the Hazra defendants on the other hand, has contended that the application of the above principle is confined to leases entered into on grants made by the zemindar himself and cannot be extended to leases granted by a person holding under the zamindar, and that in this latter class of leases general words of conveyance such as 'with all rights and interests' are sufficient to pass title to minerals. In other words, according to Dr. Pal, if Jemery Thakurs had mineral rights in the two mouzas in dispute, general words used in the leases granted by them would pass those rights to the Hazra defendants even though mineral rights were not expressly granted to them because the Jemery Thakurs were not zamindars themselves but were holding under the zemindars. This argument has been advanced by Dr. Pal upon the finding arrived at by the trial court to the effect that the Jemery Thakurs were not independent and absolute proprietors of Taraf Achra but were subordinate permanent tenure-holders at a fixed rent under the Pandra Estate.
5. It is not necessary for me to enter into the merits of this controversy or to express any opinion about it because the decision of the learned Sub-Judge that the Jemery Thakurs were subordinate tenure-holders under the Pandra Estate and that the mineral rights to the mouzas in dispute did not pass to them is not challenged before us. As between the Pandra Estate and the Jemery Thakurs the question whether Taraf Achra is an independent estate or a tenure under the Pandra Estate has been conclusively decided against the Jemery Thakurs by the Privy Council in . There it has been held that the Jemery Thakurs are only subordinate tenure-holders under the Pandra Estate at a fixed rent holding under a grant emanating from Raja Saheb Sing and as such the mineral rights to the village Dendua which was one of the villages in Taraf Achra did not pass to them. It was further held in that case that the title of the Pandra Rajas had not been extinguished by the adverse possession of the Jemery Thakurs in Dendua 'though the appellants (i.e. the proprietors of the Pandra Estate) may have lost their rights in other villages. This judgment, however, is not binding upon the Hazra defendants because the Dendua suit was instituted in 1915 and the Hazra defendants who acquired their interest in mouzas Samdi and Sangramgarh under leases executed between 1825 and 1870 were not parties to the suit. Indeed, the findings of the Privy Council in that case are not even admissible against the Hazra defendants. The learned Subordinate Judge has therefore very properly considered the question of the title of the Jemery Thakurs upon independent evidence adduced by the parties and upon a very careful consideration of that evidence has come to the conclusion that the Jemery Thakurs had no proprietary interest in Taraf Achra but were permanent tenure-holders under the Pandra Estate.
6. In this Court the Hazra defendants do not challenge the finding that the interest of the Jemery Thakurs was subordinate to the Pandra Estate and so it is unnecessary for me to discuss the evidence upon which the court below has arrived at that finding; but certain legal consequences flow from that finding which have not been accepted by Dr. Pal. The first is that the owners of the Pandra Estate must be assumed to have title to the minerals in the disputed mouzas as being successors in interest of the persons with whom Permanent Settlement was concluded. Dr. Pal contends that under the Permanent Settlement the zemindars did not acquire title to minerals by being declared proprietors and relies upon the statement of the law in Phillip's Tagore Law Lectures on Land Tenures delivered in 1875 and also upon the opinion expressed in the Fifth Report. It is well known that there was a controversy with regard to the rights of the zemindars under the Permanent Settlement. According to one view supported by Phillips, the Fifth Report and the majority decision in the Great Rent Case Thakooranee Dossee v. Bisheshur Mookerjee, Beng LR Sup Vol. 202 (FB), the Permanent Settlement did not intend to create an absolute estate in the zemindars because as observed by Travor J., in the Great Rent Case 'the notion of an absolute estate in land is as alien from the Regulation law as it is from the old Hindu and Mahomedan law of the country.' With regard to mineral rights Phillips observes at page 322 of his lectures that ''the Permanent Settlement does not seem to have been considered to entitle the zemindar to the minerals as part of the soil for which he was settled with as actual proprietor.' According to the contrary opinion supported by the authority of Field in his Introduction to the Regulations of the Bengal Code--Article 34, page 36, a zemindar is the absolute proprietor of the soil subject to payment of a fixed amount of revenue to Government. He is entitled to rent for all land lying within the limits of his zemindari, and the rights of mining, fishing and other incorporeal rights are included in his proprietorship.' For our purposes, however, this controversy is not of any practical importance because we consider ourselves bound by the decision of the Judicial Committee in the case of Ranjit Sing v. Sm. Kali Dasi Debi, 44 Ind App 117: (AIR 1917 PC 8), where Lord Parker points out that
'whatever doubts be entertained as to whether before the British occupation the zemindars had any proprietary interest in the land comprised within their respective districts, the settlement (meaning the Permanent Settlement) itself recognises and proceeds on the footing that they are the actual proprietors of the land for which they undertake to pay the Government revenue. ...................It is clear that since the settlement (i.e. the Permanent Settlement) the zemindars have had at least a prima facie title to all lands for which they pay revenue.'
This passage docs not, of course, expressly state that the mining rights also belong to the zemindars and it is interesting to note that the question whether mineral rights belong to the Government or to the persons with whom the Permanent Settlement was concluded was left open even in the cases of Nageswar Bux v. Bengal Coal Co. Ltd. and . In the last mentioned case Sir George Lowndes observes at page 132 (of Ind App) : (at p. 90 of AIR), that subsoil rights 'at all events where not claimed by the Crown, will be assumed to be in the zemindar.' In Nageswar Bux's case , the defendant challenged the title of the zemindar to the ownership of the minerals and that challenge failed before the Subordinate Judge who tried the suit, but succeeded before the Patna High Court and when the appeal was argued before the Judicial Committee their Lordships caused a notice to be served upon the Secretary of State asking him whether he would intervene in view of the fact that questions affecting the title of the Government to minerals were raised. Upon the Secretary of State's refusal to intervene the Judicial Committee without expressing any opinion on the contrary view taken by the Patna High Court proceeded on the assumption that the proprietary right of the zemindar in eluded mineral rights as well. In the case of Durga Prasad v. Brojo Nath, 39 Ind App 133, however, the question whether the Government is a necessary party to a, suit by a zemindar of a permanently settled estate for establishment of his right to minerals was directly raised and one of the grounds upon which the suit was dismissed by this Court was that in the absence of the Government the suit was defective. On appeal the Judicial Committee reversed the decision of this Court and Lord Macnaghten in delivering the judgment of the Board made the following observations:
'Government is not a necessary or proper party to this suit. Apparently the Government does not claim the minerals under permanently settled estates. However that may be, the Government has never claimed the minerals--or put forward any claim inconsistent with the rights now asserted by the zemindar. The rights of the Government, whatever they are, will not be prejudiced or affected by the result of a suit to which it is not a party'.
These observations of Lord Macnaghten are sufficient to dispose of the point raised by Dr. Pal to the effect that the proprietary right of the holders of the Pandra Estate did not embrace mineral rights under the Permanent Settlement and that the mineral rights really vested in the Government. Moreover, in this case the defence of the Hazra defendants instead of containing a challenge to the title of the owners of the Pandra Estate to the mineral rights in the two mouzas proceeded on the basis that the Jemery Thakurs being co-owners with the holders of the Pandra Estate had equal rights to underground minerals along with them (See Para 14 of the written statement of defendants 1 to 7 and 9 to 20). In view of this defence it is not open to the Hazra defendants to raise the question that mineral rights in the two mouzas did not belong to the Pandra Estate but vested in the Government.
7. The second legal inference which flows from the subordination of the interest of the Jemery Thakurs to the Pandra Estate is that in the absence of express inclusion mineral rights do not pass to a tenure-holder however wide his rights may be and that those rights must be presumed to belong to the zemindar. This principle was first formulated by the Judicial Committee in the case of 37 Ind App 136 which is known as the Petena case and subsequently followed by a long series of decisions ending with the case of . In the case of Raghunath Roy v. Durga Prashad, 46 Ind App 158: (AIR 1919 PC 17), the principle was extended to rent free Bramhottar Grants and finally in the cases of Bejoy Singh Dudhoria v. Surendra Narayan Singh, 55 Ind App 320: (AIR 1928 PC 234) and , it was applied to putni grants. A classical pronouncement of the law on this subject is to be found in the following observations of Lord Buckmaster in the case of Sasibhusan v. Jyoti Prasad, 44 Ind App 46 at p. 53: (AIR 1916 PC 191 at p. 193):
'These decisions, therefore, have laid down a principle which applies to and concludes the present dispute. They establish that when a grant is made by a zemindar of a tenure at a fixed rent, although the tenure may be permanent, heritable and transferable, minerals will not be held to have formed a part of the grant in the absence of express evidence to that effect.'
8. In this case there is no evidence that the owners of the Pandra Estate parted with their mining rights in favour of the Jemery Thakurs and so upon the principles formulated by the Privy Council the Jemery Thakurs cannot be regarded as having any title to those rights. It is however interesting to note that prior to these decisions of the Privy Council the law of this country was just the opposite of what the Privy Council laid down. In , Sir George Lowndes said as follows at page 137:
'It seems clear that until the decision of the Board in Sasi Bhusan Misra's case 44 Ind App 46 : (AIR 1916 PC 191) there was ground for believing that the subsoil rights passed with any permanent tenure created by a zemindar at a fixed rental.'
An authoritative statement of the law on this subject prior to the pronouncements of the Privy Council is to be found in the Tagore Law Lectures on the Land Laws of Bengal delivered by Saroda Charan Mitra in 1895. There the learned author states at pages 393 to 396 of his book that in the absence of an express contract to the contrary a temporary lessee is not entitled to work mines, but
'I think a person holding under a permanent lease in which there is no reversion to the landlord has the right to open mines....Permanent leases are practically conveyances of land, and it seems to me that the lessees have full rights to use the land demised as they please, provided there is ample security for the proprietors' dues. Prima facie the owner of the surface is entitled ex jure nature to everything beneath or within it. The transfer to permanent tenure-holders of the rights which the zemindars derived from the Government necessarily conveys the right to the minerals underneath.'
Even before the statement of the law by Saroda Charan Mitra in his Tagore Law Lectures the same view was taken by Prinsep and Hill JJ. in the year 1889 in the case of Ali Quader v. Jogendra Narain, 16 Cal LJ 7. The observations of Saroda Charan Mitra were followed by Pargiter and Pratt JJ. in the case of Sriram Chakravarti v. Hari Narayan, ILR 33 Cal 54. In that case Pratt J. said that he was at first inclined to doubt whether the grant of a permanent tenure should! be held to include mines when not expressly granted, but he added that in Bengal the grantors of such tenures considered that they had parted with all their interests in the soil and were entitled to the quit rent reserved and he further pointed out that the Common Law of England regarding mining rights of temporary lessees could not be made applicable to permanent tenures in rural parts of Bengal. All these authorities, however, were swept away by the Privy Council on appeal from the judgment of Pargiter and Pratt JJ. in the aforesaid case. In reversing that judgment Lord Collins observed at page 145 of the report in 37 Ind App 136.
'No decided case was cited in support of the view of the High Court which seems practically to ignore the distinction between the mere tenure-holder and the zemindar and the law as laid down in Mitra's Land Laws of Bengal does not appear to quite accord with the view of Mr. Field in his admirable Introduction to Bengal Regulations.'
Then follows a quotation from page 36 of his book which I have already read. Dr. Pal has contended before us that there is no real conflict between the opinion of Mitra and the opinion of Field. Field was merely contradicting the opinion then prevailing in certain quarters, e.g., the Fifth Report, Phillip's Tagore Law Lectures on Land Tenures, that under the Permanent Settlement, the zemindars did not become proprietors of the soil. He has further contended that Field was dealing with the rights of the zemindars as against the Government whereas Mitra was dealing with the rights of the permanent tenure-holders as against the zemindars and that far from expressing any opinion contrary to the opinion of Field, Mitra really proceeded upon the view of Field that under the Permanent Settlement the zamindars had acquired proprietary right to the soil and all that Mitra stated in his lectures was that whatever rights were acquired by the zemindar under the Permanent Settlement passed to permanent tenure-holders in the absence of any reservation to the contrary. Dr. Pal accordingly argues that the decision of Lord Collins in the Petena case, 37 Ind App 136, is not right in so far as it is based upon a supposed conflict between the opinion of Mitra and the opinion of Field and since the decision in the Petena case is root authority of all the subsequent decisions of the Privy Council on the point Dr. Pal has challenged the correctness of all of them. Speaking for ourselves, however, we must consider ourselves bound by the decisions of the Privy Council leaving it open to Dr. Pal to impugn their correctness if this case is taken on appeal to the Supreme Court. I must therefore hold that as there is no evidence that mineral rights were granted to Jemery Thakurs they acquired no title to them and the predecessors of the Hazra defendants also did not acquire any title to the subsoil rights by virtue of their leases from the Jemery Thakurs.
9. I have discussed the question of title and particularly the law as it stood prior to the decisions of the Privy Council in some detail not because I had any doubt as to the absence of the title of the Jemery Thakurs and their lessees the Hazra defendants, to the subsoil rights of the two mouzas in dispute, but because the law as it stood before the pronouncements of the Privy Council will, as will presently appear, have an important bearing on the question of adverse possession which is the principal issue in this case and which has been decided in favour of the defendants by the Court below.
10. The predecessors of the Hazra defendants took mukrari maurashi lease of R. S. mouza Sangramgar by a potta dated 20th Sraban 1232 B. S. corresponding to August 5, 1825 A.D. (Ex. A) from the Jemery Thakurs at an annual jama of Rs. 84/-and this potta was confirmed by Ex. A(1) dated the 22nd Ashar, 1233--July 6, 1826 and Ex. A(2) dated the 26th Pous 1235--January 10, 1829 and by a third potta Ex. A3 dated the 14th Falgoon 1250--February 26, 1844. In 1899 one Raj Kumar Tha-kur and Thukur Sir Laksminarayan Sing who were some of the Jemery Thakurs instituted T. S. No. 259 of 1899 in the Court of the Subordinate Judge. Burdwan challenging the right of the Hazra defendants to exercise mining rights in mouza Sangramgar on the strength of the aforesaid leases and by a compromise petition filed on the 14th September 1900, they recognised the title of the Hazra defendants 'in respect of all kinds of surface and underground interest in mouza Sangramgar'. The petition of compromise is Ex. VV and the decree which followed it is Ex. SS(3):
11. With regard to R. S. mouza Samdi the Hazra defendants claim title under a putni potta, Ex. A4 dated the 25th Sraban 1277--August 9, 1870 executed by one Janaki Prasad Sinha, one of the Jemery Thakurs in favour of Ishanewar Hazra at an annual rent of Rs. 111/- and a selami of Rs. 777/-. The translation of this potta with regard to mining rights has been the subject-matter of some controversy before us and so we had to look at the recitals in the original in Bengali. With regard to mining rights the recital in the original is as follows:
(Transliteration in Devanagari script.)
^^ekStk mifLFk vks fuEuLFk /kkrq 'ksokbZ dks;ykvk isLrksjknh ts dks.kq vkdj vkls orHkfc';rs gksbcs bR;kfn 'ks leLFk gkdwd etc**-
The appellants have translated it as 'surface right and subsoil metals excluding coal, stone etc., of any kind which now exist or will come into existence in future you do continue to enjoy and possess the same.' According to this translation all kinds of mining rights were granted except mining rights regarding coal, stones etc. According to the respondents the word ^^'ksokb** qualifies the words ^^fuEuLFk /kkrq** which precede it and the correct translation should be 'surface and subsoil rights regarding coal, stones etc., excluding underground metals'. In my opinion the translation suggested by the respondent is correct, otherwise the result will be that the lessee will acquire title to underground metals like gold, silver, copper etc. but no title to coal and stones which could never have been the intention of the lessor. Judging from the point of view of acquisition of legal title to subsoil rights according to the Privy Council decisions the presence or absence of any recital by the Jemery Thakurs expressly conferring subsoil rights to the Hazras or the recognition of those rights as in Ex. VV or Ex. SS(3). is of no importance; because under the Privy Council decisions the Jemery Thakurs themselves had no title to those rights.
12. With regard to mouza Samdi the recital in Ex. A(4) and with regard to Sangramgarh the recognition of underground rights by Ex. VV and Ex. SS(3), are however, important pieces of evidence to show that the Hazra defendants commenced mining operations in these two mouzas not as mere trespassers or squatters but under a colour of title. Under the law as it was understood in our country prior to the decision in Shashibhusan Misra's case, (AIR 1916 PC 191) to quote the words of Sir George Lowndes 'there was ground for believing that subsoil rights passed with any permanent tenure created by a Zemindar at a fixed rental'. Therefore the owners of the Pandra estate thought that mineral rights had passed to the Jemery Thakurs when their tenure was created about two or three centuries ago and the Jemery Thakurs in their turn thought that those rights had passed to the Hazras under the leases of 1825 (Ex. A) and 1870 (Ex. A(4)). Therefore when the Hazra defendants started raising coal in these two mouzas they did so under a title which was valid at that time but which was found to be invalid, according to Sir George Lowndes, in the year 1916 when Shashi Bhusan Misra's case (AIR 1916 PC 191) was decided.
13. The difference between the possession of mere trespasser and the possession of a person claiming under a colour of title is that whereas the possession of the former is deemed to be confined to the area actually possessed the possession of the latter is 'co-extensive with the premises as described by the deed under which the occupant claims and which he believes gives him sound title'. In other words, the doctrine of 'tantum prescriptum quantum possessum' (the title acquired by adverse possession is limited to the area actually possessed) is confined to a mere trespasser who claims title only by possession without any claim or colour of title whereas the possessory title of a person claiming under a deed which is not sufficient in law to confer that title, extends to the whole area as described in the deed, provided however that the claimant 'exercised such dominion over the property as to justify the inference that he was in possession of the whole'. This principle has been adopted by the learned Subordinate Judge on the authority of a passage in Buswell on Adverse Possession and also from a decision of the Judicial Committee in the case of Hafiz Mohammed v. Firm Swarup Chand Hukum Chand . Buswell's book was available to the learned lawyers appearing for the parties in the Court below, but it is not available now. The authority of the Privy Council decision Hafiz Mohamed's case , however, is there and in my opinion this principle was also accepted and applied by Lord Macmillan in Nageswar Bux's case . Mr. Pramatha Nath Mitra appearing for the appellants, however, strenuously challenged the correctness of the above principle and contended before us that the rule of tantum prescripturn quantum possessum is an absolute rule of law incapable of relaxation or modification on the plea of entry under a colour of title and relied upon a number of English decisions. It is no doubt useless to enter into a discussion of the English decisions cited by Mr. Mitra because the authority of the decisions o Sir John Beaumont in Hafiz Mohammed's case ; and of Lord Macmillan in Nageswar Bux's case is binding on us, but since a considerable time was spent in the discussion of English cases I may briefly refer to them. The first case relied upon is a decision of the House of Lords in Lord Advocate v. Wemyss, (1900) AC 48. With great respect to Mr. Mitra I am bound to say that this decision establishes just the converse of the proposition for which it has been cited. At page 68 Lord Watson in his speech says as follows:
'There is in my apprehension, or ought to be, a practical distinction recognised between the prescriptive possession which establishes a new and adverse right in the possessor, and the prescriptive possession which the law admits, for the purpose of construing or explaining, in a question with its author, the limits of an antecedent grant or conveyance. In the first case the rule obtains tantum prescriptum quantum possessum. In the second, it appears to me a much more liberal effect has been given to partial acts of possession as evidencing proprietary possession of the whole.'
The present case in my opinion falls under the second alternative proposed by Lord Watson, the question being whether mineral rights passed to Jemery Thakurs under the grant of the Pandra estate and to the Hazras under the leases executed in their favour by the Jemery Thakurs. Under the law as it was understood in this country for 91, years from 1825 to 1916 both the lessors and the lessees thought that they had passed till the Privy Council held otherwise in the latter year. The next case cited by Mr. Mitra is that of Glyn v. Howell, (1909) 1 Ch 666. This case again recognises the distinction between the two kinds of possession referred to by Lord Watson in Lord Advocate's Case 1900 AC 48, because Eve J, makes the following observations at page 678:
'I think Mr. Upjohn is right when he says that decisions have proceeded upon two lines, the one being those cases where the possession of the part has been treated as possession of the whole, because the Court has found either by contract or according to conscience, that possession of the whole is what the person possessed of the part was intended to have, and the other being those cases in which the Court, finding no just reason for inferring in favour of a person relying solely on possession of a part, a constructive possession of the whole, has refused to make such inference. I hold that this case falls within the latter of the two classes.'
This decision was cited in the case of Nageswar Bux and distinguished by Lord Macmillan at page 36 on the ground that Nageswar Bux's case fell within the first class mentioned by Eve J. That is precisely the position in the case before us and we have no manner of doubt that this case falls under the first class. In the case of Glyn v. Howeli, (1909) 1 Ch 666 the defendant had no claim or colour of title to the undivided one-sixth part of the mine in respect of which the plaintiffs were seeking relief and Eve J. was dealing with the effect of the possession of a rank trespasser and held that the defendant had acquired statutory title only to that portion of which his predecessors were in actual possession. Of the other cases cited by Mr. Mitra the case of Thompson v. Hichman, (1907) 1 Ch 550 merely follows the decision of Ashton v. Stock, (1877) 6 Ch D 719 which, however, does not deal with the case of a person working coal under a colour of title and points out that even a mere wrong-doer and trespasser might, under certain circumstances acquire title
'to the whole thing as a mine or as a seam of coal, and not merely to the particular quantity of coal that was actually hewn and gotten. That is, not however this case, and it is not necessary for me to say more than that such a case may exist.'
See the observations of Hall V. C. at page 726. The only other decision cited by Mr. Mitra is that of Davis v. Shepherd. (1866) 1 Ch A 410. In this case in construing the effect of an agreement to grant a lease when the intended lessee went into possession without a lease, Lord Cranworth L. C., in delivering the judgment of the Court of Appeal said at page 415
'In the case of a demise of unworked minerals there can hardly be said to be actual possession of any part of them except of what the intended lessee is actually working; but I think that when the lessor allows his intended lessee to take possession and the lessee does take possession he must be construed as constructively in possession of all which the lessor has bound himself to demise. I cannot, however, think that the lessee can be treated by this Court as constructively in possession of anything of which the lessor did not intend to put him in possession and of which this Court shall say the lessor is not bound to grant a lease.'
These observations of Lord Granworth have no bearing on the question which we have before us now. All that was laid down in this case was that the constructive possession of the intended lessee was co-extensive with the area intended to be demised by the lessor. It is no authority for the proposition that the rule of Tantum prescriptum quantum possessum is a rigid and inflexible rule of law.
14. There was a considerable controversy at the bar with regard to the true effect of the decision of the Court of Appeal in the case of Law Moor Co. v. Stanley Coal Co., (1876) 34 LT 186. In that case one Dixon granted mineral rights to one Holroyd without a deed and Holroyd acting under imperfect title worked certain seams of coal from 1834 to 1844 arid then after 11 years of inaction sold to the plaintiffs in 1855. The plaintiffs possession was interfered with by Stanley Coal Company who purchased from Dixon's legal representatives. The question that arose for the decision of the Court of Exchequer was whether the plaintiff's possession was confined to the seams actually worked or whether it should be deemed to extend to all other seams which were not actually worked. The Court of Exchequer presided over by Bramwell B. held that possession of all the seams is to be presumed: See the judgment of Bramwell B. in Low Moor Co. v. Stanley Coal Co. Ltd., (1875) 33 LT 436 at p. 444 and this judgment was affirmed by the Court of Appeal in (1876) 34 LT 186. I cannot therefore agree with Mr. Mitra that this case is an authority for the proposition that no presumption extending the actual possession can be made in favour of a trespasser even if he believed that he had title to the subject matter. On the other hand this case establishes the contrary proposition that if one enters upon the land under a document which professes to pass title but fails to accomplish it, his possession is not to be confined to the area actually possessed but extends to the whole area purported to be conveyed. Dr. Pal also cited a passage from the judgment of Story J. of the U.S. Supreme Court in the case of Thomes Ellicott v. William Pearl, (1836) 9 Law Ed 475 in support of the aforesaid proposition. That passage is at page 488 and runs as follows:
'An entry into possession of a tract of land under a deed containing specific metes and bounds gives a constructive possession of the whole tract, if not in any adverse possession, although there may be no fence or inclosure round the ambit of the tract, and actual residence only on a part of it.'
15. On a review of the aforesaid authorities the principle that I find applicable to the possession of the Hazra defendants is this : If the Hazra defendants are found to have worked coal in parts of the two mouzas their possession of underground coal will be treated as extending over the whole of the two mouzas, both horizontally and vertically for the simple reason that they not only entered upon the land under deeds but actually started working coal under leaser which up to the decision of the Judicial Committee in Shashi Bhusan Hazra's case (AIR 1916 PC 191) in 1916, were understood both by the lessors and the lessees as conveying title to underground coal. In my opinion the possession of the Hazra cannot be limited to the seams or portions of seams actually worked by them and the rule of Tantum prescriptum quantum possessum has no application to this case. Bearing in mind this principle of law I shall proceed to discuss the evidence as to possession. (After enumerating the evidence, his Lordship proceeded).
16. According to Mr. Mitra the Hazras never worked a mine within the meaning of the Indian Mines Act (Act VIII of 1901) before 1908 and between 1909 and 1931 when, according to Mr. Mitra, the mines were finally closed there were four breaks in the continuity of the possession of the Hazrat which prevented the acquisition of title by prescription. With regard to the first branch of the argument it is pointed out that under Section 3(d) of the Indian Mines Act a mine did not include any pit, quarry or other excavation the depth of no part of which exceeded twenty feet and Section 16 of the Mines Act required the owner, agent or manager of an existing mine to give notice in writing about the particulars mentioned in the sections to the authority named in the section within three months after the commencement of the Act. The Indian Mines Act of 1901 came into operation on 22-3-1901 and no notice under Section 16 was given by the Hazras within three months of that date. In fact, as I have already pointed the first notice given by the Hazras is Ex. M(1) dated 5-12-1908 and from this it has been strenuously argued that the Hazras for the first time worked coal beyond a depth of twenty feet at or about the time Ex. M(1) was submitted to the mining department. There is, however, unimpeachable evidence on the record to show that the Hazras worked coal considerably beyond a depth of 20 feet long before 1908, Ex. UUU (7) pucca Khata of the Hazras for the year 1301 B.S. shows expenses for cutting coal from Pit No. 1 and Quarry No. 1 Ex. SSS(4) Khatian for the year 1300-1893-94 mentions accounts under the head of setting up of machinery for cutting pits Nos. 1 and 2. According to Ex. M the report of the mining department, No. 2 pit was sunk to coal but not opened out. In memoirs of the Geological Survey of India by E. R. Gee--Vol. LXI published under the authority of the Government of India at page 166 there is a passage about Shyamdi Colliery which runs as follows: 'A shaft put down near the chimney which is indicated on the 4 inch sheet (sheet No. 8) just south of Karkanali was reported to have reached to a depth of 237 feet.' Sheet No. 8 referred to by Gee has been produced at the trial by the Hazras and marked as Ex. CCC. The chimney mentioned in the above passage has been shown in the map prepared by the pleader commissioner in this case on the north-eastern side of mouza Shyamdi and there is no dispute before us that the 'shaft' mentioned in Gee's report is identical with pit No. 2. There is therefore no doubt that pit No. 2 was sunk to a depth of 237 feet. It has, however, been argued by Mr. Mitra that the fact that it was not opened out means that it was never worked. According to D.W. 2 Jnanendra Nath Hazra, the construction of pit No. 2 was commenced in 1897 or 1898 and completed in 1901 or 1902 and according to him its depth was 240 feet. He says that pit No. 2 was worked for 2 or 3 years by driving four main galleries and without driving any side galleries and as the coal that was extracted was not marketable coal the working of pit No. 2 was discontinued in 1905. The dates of inspection on the basis of which the report Ex. M was prepared are March 20, 1909 and May 28, 1913 when the working of pit No. 2 was admittedly discontinued. So the entry in Ex. M to the effect that pit No. 2 was not 'opened out' cannot be taken to mean that pit No. 2 was never worked at any time. It would be unreasonable to infer that the Hazras incurred all the expenses of sinking a pit to a depth of 237 feet without making any attempt to raise coal. Considering all the relevant evidence on the point, I hold that the entry ''No. 2 pit sunk to coal but not opened out'' in Ex. M. means that the pit reached coal but it was not fully exploited. As the Hazras found that the extraction of coal from pit No. 2 was not commercially profitable they abandoned it after working it for sometime.
17. With regard to Pit No. 1 the finding of the learned Subordinate Judge is that it was not worked or at any rate the extent of its actual working cannot be ascertained. He finds that there is no dispute that this pit was shown in the map Ex. J(7) prepared in the year 1894 by Messrs. Burn and Co. but he holds that the delineation of the colliery of the Hazras in Ex. J(7) looks suspicious. D. W. 2 Jnanendra Nath Hazra states that pit No. 1 was constructed between 1886 and 1888 and that it was worked till 1912-1913 and that it went up to a depth of 70 feet. The Subordinate Judge holds that since no closure notice was given by the Hazras in respect of this pit in 1912-1913 it must be inferred that this pit was not worked. I am, however, unable to accept this finding. Exhibit UUU(7) pucca khata for 1301 shows expenses of cutting coal from pit No. 1 Ex. SSS(4), khatian for 1300 also shows the same thing. The reasons for not relying on Ex. J(7) are, as I have already shown, wrong. There were good reasons for showing the neighbouring colliery of the Hazras in the plan prepared by Messrs. Burn and Co. D. W. 2 Jnanendra Nath Hazra says that there was a chimney in pit No. 1 and this chimney was attached to the boiler. This chimney is referred to in the Memoirs of Geological Survey of India by E.R. Gee, Vol. LXI, page 166 and it is also shown in the map prepared by the pleader commissioner in this case at a distance of about 3/4 inch to the south of the mouth of pit No. 1 which according to the scale of the pleader commissioner will be about 247 feet. The height of this chimney is noted by the pleader commissioner as 85 feet. In Ex. MMM(13) the annual return submitted by the Hazras for the year ending 31-12-1922, the date of opening of the Samdi mine is stated to be November, 1886. The pleader commissioner on an examination of local features states in his report that although this pit is in hopeless ruins there are indications that there must have been extensive workings through this pit. It is true that the Hazras did not submit any working plan or closure notice in respect of pit No. 1 as they were required to do under the Indian Mines Act of 1901 or Rules framed thereunder; but it is equally true that the extent of the vertical working of the different pits, inclines and quarries by the Hazras cannot be determined by what they were required to do under the Indian Mines Act or the Rules. The evidence adduced in this case clearly indicates that the Hazras sunk pits, drove inclines and galleries and made quarries for working a mine within the meaning of Section 3(d) of the Indian Mines Act long before the date of commencement of the said Act and their omission to give notice under Section 16 of the Act might have been an offence under that Act; but from this omission no inference can be drawn to the effect that the Hazras did not work a mine within the meaning of Section 3(d) before the date of the return Ex. M(1). I cannot therefore brush aside the evidence of D. W. 2 Jnanendra Nath Hazra to the effect that pit No. 1 was sunk to a depth of 70 feet between 1886 and 1888 on the grounds stated by the learned Subordinate Judge.
18. With regard to pit No. 3 the entry in Ex. M, the report of the Mining department based upon inspections in 1909 and 1913, is that this pit was sunk on a dyke. D. W. 2 Jnanendra also admits that but he says that the dyke intervened after it had been sunk to a depth of 100 feet and he further says that the sinking of the pit started in 1903 or 1904 and was stopped in 1904 or 1905. In the map prepared by the pleader commissioner the depth of this pit is stated to be 82 feet. As this pit is mentioned in the report of inspection held by the mining department in the year 1909 the evidence of Jnanendra that it was sunk in 1904-1905 is substantially true and though the estimate of Jnanendra about its depth is exaggerated I can take it that it was sunk to a depth of 82 feet as stated by the pleader commissioner. It is true that there was no working of coal through this pit as it struck a dyke but the fact that it was sunk to a depth of 82 feet affords excellent evidence of possession to a depth exceeding 20 feet which is the point for present consideration.
19. Pit No. 4 is shown by the pleader commissioner on the western side of the right-angled triangle on the north of the Railway line. In the plan Ex. I(2) prepared on 23-4-1926 and submitted to the Mining department it is shown as having been sunk to a depth of 70 feet. D. W. Jnanendra says that it was sunk by Martin a sub-lessee of the Hazras in 1901 or 1902 and that the Hazras did not work it. In cross-examination he says:--'The only pit that has been shown in this map is pit No. 4. It has not touched coal. Galleries have been driven under it No coal was extracted from the pit No. 4 so far as the map goes'. There is evidence that in 1875 one Grant took settlement of 50 bighas of lakheraj land from the Hazras; Grant sold to Burn and Co. who sold to one Higby who in his turn sold to Martin. On August 12, 1905 the interest of Martin was auction-purchased by the Hazras--See Sale Certificate--Ex. TT. The evidence of Jnanendra together with the plan makes it clear that though Martin sunk pit No. 4 to a depth of 70 feet, the Hazras did not work it and extracted coal from that area by driving inclines Nos. 1, 2 and 4. The relevant point for consideration at the present moment, however, is not whether coal was extracted through pit No. 4, but whether possession was exercised beyond a depth of twenty feet. The sinking of pit No. 4 by a sub-lessee of the Hazras in 1901 to a depth of 70 feet is certainly relevant on that point.
20. The argument that prior to 1908 the Hazras never worked a mine within the meaning of the Indian Mines Act of 1901 is a little misleading, because the Hazras might have exercised possession to a depth of hundreds of feet beneath the surface of the earth before 1901 with the intention of extracting but without actually extracting any coal. The proper question therefore is whether the Hazras exercised possession to a depth beyond twenty feet before 1901 with the intention of raising/ coal and that possession can be exercised both by raising coal from a depth beyond that limit and also by sinking pits, making bore holes, driving galleries and inclines beyond that limit, without raising any coal. The question whether any coal was actually raised from any of the pits is therefore not strictly relevant on the question of possession provided there was an intention to work coal, the only question being whether the Hazras exercised possession beyond a depth of twenty feet before 1901.
21. The evidence adduced by the Hazras leaves no room for doubt that they exercised possession to a depth of 237 feet long before 1908 both by extracting coal and also by sinking pits and driving galleries without raising coal. (His Lordship went through evidence and continued:) It is unnecessary to multiply instances. There is overwhelming evidence on the record to show that the Hazras possessed the colliery in dispute by working coal in open assertion of their right in any manner they liked from the years 1884 to 1886.
22. All this evidence is of no avail, according to Mr. Mitra, because D. W. 2 Jnanendra has submitted that between the years 1895 and 1902 the Hazras had another colliery in the locality named Lalbazar Colliery and still another colliery at Lohat. It is conceded that the coal extracted from the colliery at Lohat, used to be sold locally and so no importance should be attached to it but it is strongly argued that all the coal shown to have been despatched by the coal despatch books other documents must be the coal that was obtained by working the Lalbazar Colliery. The futility of this argument will appear from the letters TTT(6) to TTT(9) to which I have already referred and which expressly refer to Shamdi Colliery and Shamdi Steam Coal. It has also been argued that there is no intrinsic evidence connecting the pucca khatas Ex. UUU series and the other documents referred to the previous paragraph with the colliery in dispute. This argument was not raised before the trial Court; no suggestion was made to the witnesses who produced those documents that they related to a different colliery. What is more, none of those documents have been printed in full in the paper-book and in my opinion it will be extremely dangerous to allow the appellants to raise a point like this for the first time in the appellate court, more particularly in view of the voluminous character ot the documentary evidence adduced by the Hazras. Dr. Pal has, however, shown us some of the original khatas of Ex. UUU series from which it appears that the name of Sangramgarh Colliery is written on the front page and not merely on the labels which have been recently pasted on the khatas; see for example the writing on the front pages of Ex. UUU(7) for 1301; Ex. UUU25 for 1319; Ex. UUU27 for 1320 and Ex. UUU 28 for 1321. The front pages of many of the other account books appear to have been worn out by lapse of time. But even upon the paper-book as it stands there are enough materials to show that there was an extensive working of the colliery between 1884 and 1908. Ex. F the Resolution of E. I. Rly, dated the 15th May, 1896 shows that the temporary siding of the Hazras at Shamdi was converted into a permanent assisted siding and Ex. E is the memorandum of agreement dated the 16th May, 1899 with regard to that matter. If Lalbazar Colliery was the important colliery as contended for by Mr. Mitra why was not the permanent assisted siding extended upto Lalbazar and why was it constructed upto Shamdi only? D. W. 2 Jnanendra says that the coal which was raised from Lalbazar Colliery used to be carried to the Assisted Siding at Samdi in carts. This fact alone is sufficient to prove that the Samdi Colliery was the more important of the two and that the raising from Lalbazar Colliery was negligible.
23. Then again it has been argued by Mr. Mitra that the mining activity of the Hazras prior to 1908 was confined to outcrop coal which can, according to him, be obtained by scratching the surface or by digging quarries upto a depth of 10 or 15 feet. (After considering evidence, his Lordship proceeded:) In view of the fact that pits Nos. 1, 2 and 3 were sunk long before 1908, in view of the fact the Hazras were sending moneys to the boiler department from the year 1897 and in view of the further fact that they have produced boiler certificates from the year 1903, the argument that prior to 1908 they were merely scratching the surface, seems fantastic.
24. Assume for a moment, however, that the Hazras did not go beyond the depth of 20 feet before 1908. Upon the view of law which I have already taken after a view of the authorities cited before us, that docs not make the slightest difference to the title acquired by the Hazras, by prescription. In my opinion possession of a part of the colliery under a claim of title which was well founded at the time when possession commenced and which was held to be unfounded in 1916 about 32 years after the commencement of possession amounts to possession of the entire coal field. In the words of Story J. in the case which I have already read, it is wholly unnecessary for me to see how far the possession of the Hazras extended. In this case possession of a part will fructify into title to the whole by adverse possession, because the Hazras exercised such dominion over the property as to justify the inference that they were in possession of the whole. I do not agree with the proposition of law formulated by Mr. Mitra that entry under a claim of right will not entitle the Hazras to prescribe for a larger area than they actually possessed and, as I have already shown the rule of Tantum prescriptum quantum, possessum has no application to a case where possession commenced under a claim of right. Moreover, as pointed out by Lord Macmillan in Nageswar Bux's case at page 35 of 58 I A : (at p. 188 of AIR 1931 PC) :
'In considering the character and effect of acts of possession in the case of a mineral field, it is necessary to bear in mind the nature of the subject and the possession of which it is susceptible, owing to the inaccessibility of minerals in the earth it is not possible to take physical possession at one of a whole mineral field; it can be occupied only by extracting the minerals and until the whole minerals are exhausted the physical occupation must necessarily be partial. The real question is what in fact has been possessed.''
In this case when the Hazras started extracting coal in the year 1884 or 1886 they did so under a bona fide belief that they were entitled to all the subsoil rights upto the centre of the earth and all the acts of possession exercised by them are consistent only with the hypothesis that they intended to exercise dominion over the entire coal field that lay within the geographical boundaries of the two mouzas. Judged from this point of view another argument of learned counsel for the appellants to the effect that there was more than one seam in mouza Samdi and that the possession of the Hazras must be confined to the seam actually worked loses all importance. One seam or more than one seam the possession of the Hazras must in my opinion be deemed to extend over all the seams and they must be deemed to have acquired a valid title to all the seams by prescription by continuously working the colliery from the year 1884 or 1886 upto the year 1908. But the possession of the Hazras did not stop with the year 1908 but continued upto 1931 but that is another chapter of events which I shall presently discuss.
25. Although in my view a decision as to the number of seams in Samdi is entirely irrelevant I have to record my opinion on this controversy because it has been argued before us with a good deal of tenacity. (After considering this point his Lordship proceeded:)
26. From what I have discussed uptill now it is quite clear that the Hazras acquired a prescriptive title by continuously working coal from the year 1884 or 1886 upto 1908.
27. I shall now pass on to the possession of the Hazras between 1908 and 1931. D. W. 2 Jnanendra has admitted in his evidence that the Hazras stopped the colliery in 1931 because the coal market was getting dull from 1927 or 1928 and was the dullest in 1931 resulting in heavy losses. Although the colliery was stopped Ex. EEEE to Ex. EEEE(3), Fireclay despatch books of the Samdih Sangramgarh Colliery show that the Hazras were extracting fireclay from the disputed mouza between the years 1933 and 1945. During this period, however, the Hazras were submitting their returns and working plans to the Mines Department as they were required to do under the law. According to Mr. Mitra the continuity of the possession of the Hazras was broken on four different occasions during this period during which, according to him, the constructive possession of the rightful owner revived. (After considering the closures, his Lordship continued:)
28. The point that requires consideration is whether these temporary stoppages of the working of the colliery amount to discontinuance of the possession of the adverse claimant so as to attract the principle that the constructive possession of the rightful owner revives. After giving the question my best consideration I am entirely unable to say that they have any such effect. Ex. JJJ(9), coal despatch book for the year 1916 shows despatch of coal throughout the whole of 1916-1917. Ex. JJJ(12) and Ex. JJJ (15)--coal despatch books for 1920 and 1924, show the same thing for those years. Many of the closure notices expressly state that the workings of certain inclines and quarries had to be stopped on account of the dull market of the coal trade & insufficient supply of wagons; e.g. Exs. P9, R(4) and Ex. R7 etc. Almost all the closure notices mention that the working was being suspended 'for the present'. Mining activity is not confined to mere extraction of coal, but it also includes despatch of coal already extracted, preparation of coke, purchase of machinery for future operations and other connected activities. If the actual raising of coal is temporarily suspended on account of the exigencies of trade it does not mean cessation of all mining activity and abandonment of possession. Closure notices are required to be given under Rules 2 and 3 framed under the old Mines Act and under Rules 5 and 6 of the Rules framed under the new Mines Act. They are required to be given for various purposes, e.g. assessment of cess, preparation of statistics for output or coal, the welfare of labourers employed by mine owners and managers etc. and from these notices of suspension the inference does not necessarily follow that the mining operations were completely abandoned. In Ex. 29(b), closure notice dated 13-9-1916 it was stated that the working of Samdi and Sangramgarh coal mine had to be stopped from 25-8-1916 'on account of water'. From this statement it has been seriously argued by Mr. Mitra that it is sufficient to attract the operation of the principles enunciated by the Judicial Committee in the cases of Secretary of State v. Krishnamani Gupta, 29 Ind App 104 and Basanta Kumar Roy v. Secretary of State, 44 Ind App 104 : (AIR 1917 PC 18) to the effect that during submergence of land by diluvion or seasonal reflooding occurring for several months in each year, the constructive possession of the true owner revives. Although this point has been seriously argued I do not think it requires serious consideration; because no rational analogy can be drawn between submergence by diluvion or seasonal reflooding by the action of a river on the one hand and the accidental flooding of a pit or quarry of a colliery by the action of subterranean springs on the other. In the former case the property becomes incepable of possession by human agency whereas in the latter case the action of the colliery owner or manager in pumping out the water and dewatering the pit is itself an act of possession.
29. For the reasons given above I am entirely unable to hold that there was any break in the continuity of the possession of the Hazra between 1908and 1931, and the result is that from 1884 or 1880 upto 1931, i.e. for about 45 or 47 years, the Hazras were in continuous possession of the underground minerals in open assertion of their right and as such acquired an indefeasible title by prescription.
30. Learned Counsel for the appellants also argued that the Hazras possessed the Samdi and Sangramgarh Collieries as two distinct units of property and not as one unit and so they must prove separate acts of possession in respect of the two collieries. He has pointed out that title to Sangramgarh was acquired by Ex. A in the year 1825 whereas title to Samdih was acquired by Ex. A(4) in the year 1870 and there was thus an interval of 45 years between the acquisition of title to these two mouzas. Reliance has also been placed upon the annual returns submitted by the Hazras, Ex. YY series in which the name of the mine has been described as 'Samdi and Sangramgarh' mines and also upon Ex. 27 series, lists of coal mines worked under the Indian Mines Act of 1901, in which the names of Samdi and Sangramgarh mines have been separately entered and the dates of closure and reopening of each have been separately shown. In Ex. YY(4), annual return for the year 1922 there is an entry to this effect: 'Date of opening :--Samdi--November 1886 Sangramgarh--October, 1887'. It has been strenuously urged that having regard to the fact that the Hazras acquired title to the two mouzas by different documents of title separated by an interval of 45 years they cannot be said to possess the colliery as a single unit of property as in the absence of unity of title there cannot be unity of possession; it has also been argued that the acquisition of land by the Government for the construction of the railway that intersects R. S. Mouza Sangramgarh and the subsequent construction of the Salanpur siding line destroy the unity of the possession of the Hazras. I am free to confess I have not been able to understand why unity of title should be required to constitute unity of possession. If A acquires title to two villages X and Y by two documents and subsequently starts one colliery spread over both the villages I do not know why the colliery cannot be treated as one because the two villages were acquired at different times. In the present case title to Sangramgarh was acquired in 1825 and title to Samdi in 1870; but the colliery was actually started in 1884 or 1886--1884 according to Ex. M and 1886 according to YY (4). There was nothing to prevent the Hazras from starting a single colliery extending over both the villages. With regard to the splitting up of the colliery by the acquisition of land and construction of the railwayline, Dr. Pal has invited our attention to Clause 6 of Ex. E, the memorandum of agreement between the E. I. Railway and the Hazras dated the 16th May, 1899. The material portion of that clause runs as follows :--Surface rights only will be acquired. An applicant, if also the owner of mining rights in the land so acquired. .... .will be allowed to work and get minerals under the said land, provided that all operations connected therewith are carried out in such a manner as not thereby to injure or endanger the safety of the undertaking or any part thereof. The procedure laid down in the Land Acquisition Mines Act XVIII of 1885 shall be strictly adhered to in regard to all proposed working of mines under such land.' Attention was also invited by Dr. Pal to Section 8 of the Land Acquisition Mines Act XVIII of 1885 which saves the rights of mine owners whose mines lie on both sides of the Railway subject to certain restrictions. Under Clause 6 of the agreement Ex. E read with Section 8 of the Land Acquisition Mines Act of 1885, therefore it cannot be said that the unity of the colliery worked by the Hazras was split up. The only effect of the construction of the Railway was that the right of the Hazras to work coal underneath the railway was partially restricted so as not to endanger the safety of the railway-line.
31. In Ex. YY(1) the annual return submitted by the Hazras for the year ending on the 31st December, 1919 it is stated that no coal was raised from the Sangramgarh mine during the year. But in the Inspection Report of Samdi Sangramgarh Coal Mine dated the 9th June, 1920 by H. Lancaster, Inspector of Mines in India, Ex. L(1) the out-put of the previous year 1919 is stated to be 15075 tons. In this inspection report it is also stated that Samdi Colliery was discontinued in April 1920. From the fact that no coal was raised from Sangramgarh Mine in 1919 and the fact that the total output of coal from Samdi Sangramgarh Coal Mine is stated to be 15075 tons in 1919 it is strongly urged by the appellants that there must have been a separate return for Samdi Mine for the year 1919. I totally fail to understand how I can infer the existence of separate collieries from the fact that separate returns were submitted for the different mines. A single colliery, as I understand may consist of a plurality of mines within the definition of Section 3 (d) of the Mines Act of 1901 and under Rules 2 and 3 of the old Rules and Rules 5 and 6 of the new Rules the owner of the mine is required to give notices of suspension Or reopening of each 'mine, seam or view.' That is also the provision of Rule 12 referred to in Ex. 29, Letter from the Inspector of Mines dated the 11th June, 1920 printed at page 1299 of the paper-book. The annual returns were filed under Notification No. 5072-113 dated 1st July, 1916 under the Indian Mines Act of 1901 and Notification No. M-498 dated the 29th June, 1922. All these notifications require the 'agent, owner or manager of a mine' to submit annual returns in prescribed forms. The word 'mine' in these notifications must mean a mine as defined by Section 3 (d), if that be so, there may be hundreds of returns or closure notices or reopening notices in respect of different mines within a single system of colliery and no inference can be drawn as to the plurality of collieries from the plurality of annual returns or closure or reopening notices. In the case of Nages-war Bux , Lord Macmillan pointed out at page 35 that the word colliery is a comprehensive term which includes, both the worked and the as yet unworked minerals. If it is wide enough to include the unworked minerals it is certainly sufficiently wide to include all pits, quarries, inclines and shafts the depth of which exceeds twenty feet and which constitute a mine within the meaning of Section 3 (d) of the Act of 1901. For the same reason no inference as to the plurality of the colliery can be drawn from the lists of coal mines Ex. 27 series all of which have been placed before us with meticulous care by the learned Advocate for the appellants. Column No. 2 of these lists bears the heading 'Name of mine and number of separate mines as defined by Rule 27', and under that column the names of Samdi and Sangramgarh are shown separately. These entries merely indicate that Samdi and Sangramgarh are separate mines not that they are separate collieries. If I am right in my conclusion that a single colliery may consist of a plurality of mines, the separate returns submitted by the Hazras and the mention of Samdi and Sangramgarh as separate mines prove nothing in support of the appellants' contention that the colliery was not a single unit of property. It is true that in some of the inspection reports the plural number has been used in describing the Samdi--Sangramgarh Colliery; for example, in Ex. L(1), Inspection Report dated 9-6-1920 the manager of the colliery has been described as 'authorised to manage Samdi and Sangramgarh collieries' but it is equally true that the Inspector of Mines used that expression rather loosely without properly realising what he was required to state. The column under which that entry was required to be made is this :--'Rules 51-52 (permission to manage more than one mine)'. Therefore what the Inspector of Mines was required to state was whether the Manager was permitted to manage more than one mine and in making the statement the Inspector made the entry that the Manager was authorised to manage Samdi and Sangramgarh Colleries. The same conclusion is corroborated by the entry in the next column bearing the heading 'Rules 2-3 (Notices of abandonment and reopening)'. Rules 2 and 3 require closure and reopening notices to be given in respect of a mine; but the Inspector made an entry like this : 'Samdi Colliery discontinued in April, 1920. Notice to be given'. It is quite clear that the Inspector did not either know or did not observe the distinction between a colliery and a mine in making these entries. In Exs. L(2), L(3), L(4), L(5) and L(6), however, the description is 'Samdi and Sangramgarh Coal Mine.' In Ex.R.(2), a letter elated 25-5-1926, J. Hazra writing for B. Hazra and Co. to the Chief Inspector of Mines in India was stating as follows :--'We do not keep any separate account of our Sangramgarh Colliery as it is one system of Colliery. We keep accounts of all mines in one account.' The Colliery has been variously described in numerous documents as Samdi Colliery, Sangramgarh Colliery or as Samdi Sangramgarh Colliery, but it was managed by one Manager throughout the entire period of working and it had one office and one set of accounts. From these facts the conclusion cannot be resisted that the colliery was one and was possessed by the Hazras as a single unit of property.
32. In Para 14 of the plaint the plaintiffs state that 'they have been informed and believe that the principal defendants made the aforesaid sporadic attempts on the top seam of coal in Mouza Sangramgarh under the name and style of Samdi-Sangramgarh or sometimes loosely called Samdi Colliery or Sangramgarh Colliery, though as a matter of fact the said mouzas are quite distinct and separate and no workings were done in any portion of mouza Samdi or in any other seam in or under the said mouzas'. This passage means that though the two mouzas were separate the Hazras worked their colliery spread over both the mouzas as a single unit of property. It accordingly operates as an admission that the colliery was one. At the trial also the plaintiffs conceded before the learned Subordinate Judge that the Colliery was one though if was described by a variety of names but this admission like all others has been withdrawn before us by the learned Counsel for the plaintiffs.
33. An important question now remains to be considered and that is what is the context of the title acquired by the Hazras by adverse possession horizontally and vertically? Mr. Mitra has contended that that title must be confined to the surface land actually possessed and the vertical depth actually worked because the Hazras are trespassers. I have already discussed this argument at length and have held that in this case the rule of tantum prescriptum quantum possessum will not apply and that the partial possession of the Hazras should be construed as possession of the whole. But apart from this there is some evidence on the record to show that the possession of the Hazras was not confined only to the area of 227 bighas on the north of the Railway line and enclosed within a right angled triangle by the pleader commissioner, though the evidence of mining activity relates principally to that area.
34. For the purpose of considering the evidence as to possession the area lying to the south of the Railway line can be divided into two parts : (a) The area to the south of the Railway line and north of the Local Board Road shown in the map of the pleader commissioner, which is within the R. S. mouza Sangramgarh and (b) the area on the south of the Local Board Road which is within R. S. Mouza Samdi. I shall discuss the evidence of these two areas separately.
35. (His Lordship discussed the evidence with regard to (a) and continued).
Viewed as an isolated act of possession this working of coal underneath the Railway for a short period of 6 year's may not be of much importance, but when one remembers that it is a link in a chain of diverse acts of possession beginning from the year 1884 or 1886, it acquires considerable significance and proves beyond doubt that the Hazras exercised dominion over the whole mineral field extending over the whole of the mouza lying to the north as well as to the south of the railwayline.
36. (After discussing evidence with regard to area (b), His Lordship proceeded).
37. I accordingly hold that the mining activity of the Hazras within R. S. mouza Samdi, South of the Local Board Road is proved by the quarry S, the Manager's bungalow and also by the bore-hole on the southern boundary of the R. S. Mouza Samdi. But even apart from this, as I have already held, the adverse possession of the Hazras extended over the entirety of the two mouzas, because they exercised such dominion over the two mouzas as to justify the inference that they were in possession of the whole. The learned Subordinate Judge has held in favour of the defendants in respect of R. S. Mouza Samdi on the latter ground only and I entirely agree with his conclusions on the principles of law applied by him.
38. My conclusion therefore is that the Hazras worked the colliery openly and publicly by spending several lacs of rupees by sinking quarries and pits, driving galleries and making bore-holes and inclines at random at all likely places within the two mouzas for a period of 45 or 47 years from 1884 or 1886 upto 1931 and as such they have acquired an indefeasible title to all the underground minerals within the ambit of the two mouzas. My further finding is that although the Hazras stopped the working of the colliery in 1931 on economic grounds they went on working fireclay and other minerals upto the time of the institution of the suit and that their possession is adequate in continuity, publicity and extent so as to confer on them an absolute title by prescription.
39. For the reasons given above I would dismiss this appeal with costs. In assessing the hearing fee I cannot lose sight of the fact that the appellants made unsuccessful attacks on all the admissions made by their counsel in the court below. Some of them being admissions on questions of fact are binding on the appellants. Still, however, Mr. Mitra told us in the course of his argument that in view of what happened in the court below his instruction was not to take any chances in the court of appeal. The learned Subordinate Judge has observed that in spite of the voluminous character of the record his task became somewhat easy on account of the concessions made by learned Counsel for plaintiffs. We have however been denied that satisfaction and Mr. Mitra has ransacked the entire evidence before us with scrupulous care and with wonderful thoroughness and tenacity. The attempt made by Mr. Mitra brings back to my mind the observations made by the Judicial Committee in Shamdasani's case, Parashuram Dattaram v. Tata Industrial Bank Ltd., 55 Ind App 274 : (AIR 1928 PC 180). 'Their Lordships cannot but regret that so much industry had not been reserved for a less barren controversy'. I would accordingly assess the hearing fee at the rate of 10 gold mohurs for each day of hearing.
40. The Hazras are entitled to withdraw the amounts deposited by them in the Court below.
S.K. Sen, J.
41. I agree.