S.N. Bagchi, J.
1. This Second Appeal is at the instance of the defendants in Title Suit No. 37 of 1960 of the Court of the Second Munsif, Chandernagore. The plaintiff proceeded with the following case. The plaintiff is Sri Sri Iswar Tarakeswar Sib Thakur Jiu respectively (sic represented?) by She-bait Mohant Srimat Dandiswami Hrishikesh Asram. The defendants are Bar, Das, Dey & Co. proprietors of the same being GOUR Chandra Bar, Batakrishna Dey and Bijay Basanta Das. The defendants are alleged to have executed an agreement in favour of the plaintiff to take out sand up to 1365 B. S. from plot Nos. 689, 797, 530, 563/1109 comprising 8.86 acres equal to 27 bighas of land situate in Mouza Baligari recorded in Khatian Nos. 27, 23 and 24. The right to take the sand from the aforesaid land under the agreement was to be effective up to 1365 B.S. on payment of the plaintiff Rs. 66 per annum said to be the license fees. The defendants shall have no other concern with the land which shall always remain the property of the plaintiff. So soon as the plaintiff would claim any right the defendants would immediately withdraw themselves from the act of taking sands after 1365 B. S. The license fees for the period 1362 to 1365 B. S. remained unpaid at Rs. 66 per annum amounting in total to Rs. 330. The plaintiff served a notice on the defendants withdrawing the said defendant's license by revoking the license, and the license expired with the expiry of the notice. The defendants did not vacate the land. Hence the suit for recovery of the land and for arrears of license fees.
2. The defendants resisted the suit by a written statement. The defendants asserted that in view of the provisions of the West Bengal Estates Acquisition Act the plaintiffs interest as intermediary in the land had vested in the State of West Bengal wherefor the plaintiff lost any right to sue against the defendants. The defendants are tenants in respect of the land in dispute under the State of West Bengal that has already realised rent in respect of the disputed land from the defendants. It is further contended in the written statement that the interest of the defendants in theland in dispute has been correctly recorded in the finally published revisional record of rights. From 1347 Baisakh, the defendants came into occupation of the disputed land upon an oral settlement as tenants under the plaintiff at an annual rental of Rs. 54. On 10-7-41, there was confirmatory lease in respect of the defendants' tenancy in the land in dispute. Since Baisakh 1347 B. S., the defendants have been in occupation of the disputed land as tea-ants, and as such, have acquired a non-ejectable right therein. It is further asserted in the written statement that upon 1347 B. S., the defendants possessed the disputed land as tenants under the plaintiff, and that from 1362 B. S. the defendants had been possessing the disputed land as tenants under the State of West Bengal, The defendants contended in the written statement that when the plaintiff threatened to enhance the rent of the tenancy and coerced the defendants to execute a document said to be an agreement, the defendants did execute in 1350 B. S. one agreement under undue influence and coercion. The defendants disputed the sufficiency of the notice deter' mining the alleged licence in respect of the land in dispute.
3. Six issues were framed by the learned Munsif upon the pleadings. The learned Munsif in his judgment found that the intermediary interest of the plaintiff in the land in suit vested in the State of West Bengal from 1st Baisakh 1302 B. S., and that the plaintiff was not entitled to retain possession of the disputed land under the provisions of Section 6(1) Clauses (h) and (i) of the West Bengal Estates Acquisition Act. The learned Munsif found that in the disputed land the defendants have acquired a tenancy right. The learned Munsif found also that the plaintiff bad no right, title and interest in the disputed land, and as such, had no right to get arrears of the licence fees from 1362 to 1365 R. S. Accordingly, the learned Munsif dismissed the plaintiff's suit with costs. The plaintiff wont in appeal before the learned District Judge at Hooghly. The learned Judge found that a deed of lease was executed vide. Ext. A, but he considered this Ext. A through utter confusion of law only as a license for extracting sand from suit land being a unilateral document, and not a valid lease. The learned Judge proceeded however to interpret Ext. A upon a mistaken view of law as being a lease in respect of the disputed land for the period of 9 years from 1347 B. S. to 1355 B. S. creating a liability in the defendants to pay annual rent of Rs. 54 to the plaintiff. The learned Judge found that the option of renewal of the lease (Ext. A) was not exercised by the defendants on the expiry of the lease and held that after the expiry of the term of the lease it stood determined under Section 111 clause (a) ofthe Transfer of Property Act. Then the learned Judge proceeded to interpret Ext. 1 dated 27-4-50 registered on 8-8-50. This document, according to the learned Judge, was an agreement whereby the right to extract sand from the suit land for another period of 9 years from 1357 B. S. to 1365 B. S. was created with the defendant's liability to pay Rs. 67 as licence fees under Ext. 1. Then the learned Judge held that the document (Ext. 1) was a licence not a lease, and that the plaintiff realised licence fees of Rs. 66 though granting receipts is the form of rent receipt (Ext. 'B' series). The learned Judge relying on Ext. 1 and 'B' series came to the conclusion that the presumption arising out of the revisional survey khalians, Exts. F and Fi had been rebutted by Ext. 1 which is binding upon the parties. The learned Judge further found that the plaintiff held the suit land, as intermediary within the meaning of Section 2 Clause (i) of the Estates Acquisition Act. He held that under Section 6 Clause (i) of the Estates Acquisition Act debut tar of the deity being an endowment, both charitable and religious, would be entitled to retain in khas, in spite of the vesting of the intermediary interest in the disputed land in the Slate of West Bengal. Further the learned Judge found that the plaintiff's interest in the suit land had not been vested in the State where-for the plaintiff was not required to submit 'B' Form. The learned Judge then held that he is entitled to get the land in khas upon evicting the defendants therefrom and also granted a decree for arrears of licence fees. Ultimately the learned Judge decreed the suit after setting aside the judgment and decree passed by the learned Munsif and allowed the appeal.
4. The defendants have now come up in appeal before this Court which was resisted by the plaintiff.
5. For the defendants-appellants Mr. Ranjit Kumar Banerjee, learned Advocate, appeared, and for the respondent Mr. Dilip Kumar Banerjee, learned Advocate, gave reply.
6. First, I am to observe that neither of the Courts below found it to be their duty to look into the plaint. The plaint schedule speaks of khatian Nos. 22. 23 24 and plots Nos. 589. 797. 330. 563 and 1109. The total area of the plots, according to the plaint schedule, page 3, is 8.86 acres equal to 27 bighas. The revisional khatian that was finally published & marked & exhibited in the lower Court, as Exts. F and Fi had not been looked into by the plaintiff's legal advisers. The khatian Nos. are 807 & 808 not khatian Nos. 22. 23, 24 relate to the suit property. In khatian No. 807 (Ext. F) in the first column under the heading 'superior interest' there are three groups. 22 Darpattani, 23 Darpattani, 24 Darpattani -- Dandi Swami Hrishikesh Asram. These three numberscaused a confusion in him who had drafted the plaint. The plot No. 589 area 3.84 acre is a balukhad and plot No. 597 is a danga. Plot No. 563 is 1.07 acres but in khatian No. 808 the entire plot is not there. The entire plot is 6.36 acres hut in khatian 808 plot No. 563 being one 2 as 13 gds. 3 karas 1 karanti of sixteen annas only covers 1.07 acres. Plot No. 607/1109 is a balukhad. It is a part of the total area, facing 2.63 acres. The plot containing the part of the entire plot, is 14 as. 10 gds. 3 karas 1 karanti of sixteen annas covering an area of 2.39 acre. (Ext. F1). So the remaining portion of the two plots, 563 and 607/1109 belongs to some other person who is not a party, as the plaint shows, in the suit. In the plaint schedule two plots are there-- dag No. 563, 1.07 acre in area and dag No. 1109, 1.39 acres in area. But there is no plot in khatian No. 808 bearing plot No. 1109. Plot No. 670/1109, as I have already pointed out, is a part of the entire plot 2.63 acres. There is no plot No. 797 either in khalian No. 807 or in khatian No. 808.
7. Mr. Banerjee for the respondent submitted that in view of these errors clarification was necessary, I think that he had the idea that the suit should be remanded for 'clarification'. I pointed out to him that clarification is there in the record itself, and that is the reason why I have analysed the khatian vis-a-vis the plaint schedule. Mr. Banerjee for the respondent further submitted that there is no khatians Nos. 22, 23 and 24 but the khatians are 807 and 808 (Exts. F and Fi). I pointed out by my analysis the error in the drafting of the plaint. It referred to khatian Nos. 22. 23 and 24, an error of the draftsman, who should mention khalian Nos. 807 and 808 but mistakenly mentioned the superior Darpatni Interests as were recorded in the relevant Darpatni Khatian of 22, 23 and 24 under the pattanidar. The suit properly covers an interest under the Darpattanidar, and that interest has been recorded in khatian Nos. 807 and 808. For the error in the number in the plots and their areas vis-a-vis left out portions of the pints as described in the plaint schedule, Mr. Banerjee had no point to reply. I have pointed out that if the Courts below would have looked into the khatians (Exts. F and F1) and would have compared the plaint schedule with such khatians they would not have proceeded with the suit and the appeal respectively, and would have called upon the plaintiff to justify the claim as laid in the plaint, when in the plaint, the presumption of correctness of the revisional record of rights (Exts, F and Fl) had not been challenged a whit. The defendants relied on the presumption of correctness of the record-of-rights. The plaintiffs in the plaint did not challenge the presumption of correctness of the record-of-rights. The learned Judge in the Court of appeal belowfound that the Ext. 1 overthrew the presumption of correctness of the record-of-rights without looking and analysing what the record-of-rights say and how it tallied with the plaintiff's claim as laid in the plaint, describing erroneously in the plaint schedule the land said to be in dispute. The learned Judge did not notice that in Khatian No. 807 there are two plots (Ext. F) plots 589 and 597 and in the plaint schedule there is only plot 589, hut not plot 597. Therefore, the learned Judge's finding that Ext. 1 rebutted the presumption of correctness of the record-of-rights (Ext. F) had no legs to stand upon. Then the learned Judge did not also look to Khatian No. 808. Khatian No. 808 consists of two plots -- plot 563 and 607/1109. In the plaint schedule I find there is plot 663, but there is no plot, being number 607/1109. If the learned Judge would have compared the plaint schedule with the Khatian Ext. F-1, he would not have said that Ext. 1 rebutted the presumption of correctness of the said record-of-rights. Therefore, the learned Judge's finding on that point cannot also stand, in the face of the plaint schedule and the two khatians. Accordingly, when there is no case in the plaint challenging the correctness of the record-of-rights, containing the plots as held by the defendants, said to be dakhalikar as recorded in those khatians in respect of the lands claimed by the defendants as appertaining to their tenancy under the plaintiff, it shall be presumed, as the contrary has neither been pleaded, nor proved in regard to the plots, as recorded in those khatians with all their incidence, that the lands have been correctly recorded. Therefore, the finding of the learned Judge that Ext. 1 overthrew the presumption of correctness of the record-of-rights pertaining to the land in actual physical occupation of the defendants-appellants cannot stand, and I, therefore, disagree with that finding.
8. The learned Judge found Ext, A to he an agreement creating a license. It is to beobserved that the plaintiff blacked out this story of agreement in the plaint. The defendants pleaded that from 1347 Baisak, they had entered into the land now in their actual physical occupation upon an oral agreement to pay rent to the plaintiff at Rs. 54 per annum. The defendants asserted that while they were in occupalion under that oral agreement, a document of lease was created on 10-7-1941, being a conformatory lease as it were. The defendants further contended that during the continuance of their occupation of the land to which they were inducted in terms of the oral settlement as well as of the confirmatory lease Ext. K. the plaintiff, by coercion, induced the defendants to execute the other document (Ext. 1). Now, let us see in the light of the documents themselves. Ext. 1 is the certified copy. In this agreementthere are two parties. It reads in the preamble as follows:
^^Jh- Jh- bZ''kj rkjdukFk----izFkei[l----nksfyy nkrk A cj] nkl] ns vW.M dks- f}rh; i,d fxfgrk A**
The recitals would show that on 27-4-1950 corresponding to 14th Baisak, 1357 B. S. a right was created as it were for the first lime between the parties. The recipient of the document, Ext, 1 was permitting as it were the other party to the document that means the defendants' right to extract sand from 27 bighas of land within plots 589, 597, 563 and 1109 of Khatians 22. 23 and 24 of mouza Baligari. This document, as the endorsement of the Sub-Registrar shows, was executed by one Hermbalal Sanyal of Tarakeswar, a service holder and an agent of Dandiswami Ashram under the power of attorney. On the top of the document in the right hand side the executant is Dandiswami Jagannath Ashram. The execution was not admitted by Dandiswami Jagannath Ashram but was admit-ed by one power of attorney-holder of Dandiswami Jagannath Ashram. The cause title of the document, Ext. 1 would not show that it was the deity through Shri Dandiswani, or the deity represented by Dandiswami was executing the document (Ext. 1). The executant of the document was not Shiv Thakur represented by Dandiswami but by Dandiswami himself-Admission of execution was not by Dandiswami as the shebait of the deity but by one holding power of attorney from Dandiswami. A licence requires no such document as Ext. 1. But, for and on behalf of the deity the document (Ext. 1) was not executed by its shebait. Ext. A, however, which was within the knowledge of the plaintiff's shebait was not mentioned in the plaint. From the plaint, it would appear (vide paragraphs 2 and 3) that the property described in the plaint schedule managed by the shebait Dandiswami is covered by an agreement (Ext. 1) which was executed by the defendants for extracting sand up to the end of Chaitra. 1365 B. S. In their written statements the defendants referred to Ext. A and the circumstances under which it came into existence. Jn Ext. A, there are two parties as mentioned in the preamble. The executant of Ext. A is Dandiswami Jagannalh Ashram and the recipient of Ext. A is Bar Das Dey & Co., i.e. the defendants. Ext. A as the preamble shows is an agreement. It is dated 26th Ashar. 13-18 B. S. corresponding to 10th July, 1947. But the terms in Ext. A at page 2, amongst other things, recite:
^^orZeku lu 1347 lkysj cS'kk[kekl gksbZ rs vkxkeh lu 1355 lkysj pS= ekl itr iw.kZ usa cUtj es;k ns tke djh;k]fn;k------A**
9. So, before the execution of the document Ext- A on 26th Ashar. 1348 B. S., theproperties described in schedule of Ext. A had already been in occupation of the defendants. Therefore, the defendants' contention that before 1347 B. S. they had come into occupation of the disputed land on an oral agreement between the plaintiff-deity and themselves creating a liability to pay a rent of Bs. 54 per annum is amply supported by the recitals in the document, Ext. A. No explanation was given as to why the time of commencement was fixed from Baisakh 1347 B. S. to Chaitra 1355 B. S. when the document itself came into existence in Ashar 1348 B. S. There cannot be any third case. If I am to accept the plaintiffs case under Ext. 1, then for the first time the defendants were inducted into the land in dispute as a licensee at work under Ext. 1 on and from 14th Baisak 1357 B. S. = 27-4-50, But Ext. A in its recitals shows that the defendants came into occupation in Baisak 1347 B. S., and supports the defendants' contention that they had come into occupation of the disputed land not as trespassers but as tenants under the plaintiff on an oral agreement from Baisak 1347 B. S., being liable to pay Rs. 54 as rent per annum. Ext. A again was executed by Dandiswami Ashram not by the deity-plaintiff through Dandiswami Ashram, or being represented by Dandiswami Ashram. The law is well established by a Bench decision of this Court in the case of Banku Beliari Mondal v. Banku Bchari Hazra. : AIR1943Cal203 . The execution of the two documents (Exts. 1 and A) in the manner as has been done in the present case would not bind the deity but the Dandiswami in his individual capacity. Therefore, neither by Ext. A nor by Ext. 1 the deity bound himself to be under any obligation. So, we cannot look into the terms of either of Ext. A or of Ext 1.
10. Ext. A was a unilateral document. Therefore, it is not a lease under Section 107 of the Transfer of Property Act, but it is a monthly lease i.e. monthly tenancy, as it were, as such a tenancy under Section 106, but not under Section 107 of the Transfer of Properly Act : 1SCR269 , Ram Kumar Das v. Jagdish Chandra Deo. Ext- 1, though a bilateral document, was not executed by and on behalf of the deity, and is not binding on the deity. Be that as it may, Ext. 1 came into existence during the 'continuance' of the tenancy created under the oral agreement, which was confirmed by Dandiswami, although not by the deity. Therefore, the position is this that the defendants claim that they are holding the land in dispute from 1347 B. S. not adversely against the deity but as tenants. The deity did not accept such position when the plaint was filed. The deity came with the story as if for the first time the deity inducted the defendants into the disputed land under Ext. 1. But that fact cannot be accepted in the face of Ext. A which at least contains an admission by the Shebait of the deity to this extent that the defendantshad been in occupation of the disputed land in 1347 B. S. i.e. from before Ext. A had come into existence. This position is unassailable. Moreover, as the plaintiff's shebait knew this fact, the suppression of such a material fact in the plaint clearly tells against the plaintiff and this Court is not in a position to accept that under Ext. 1 for the first time the defendants were brought into occupation of the land in dispute.
11. Mr. R. Banerjee, the learned Advocate for the appellant, submitted that his clients would go so far as to accept this position in respect of the land in their occupation that they were licensees under the plaintiff. But he contended that even then Chapter IV of the Estates Acquisition Act. particularly Section 28 would stand against the plaintiff's claim for khas possession of the mine in the sand-deposit. Mr. R. Banerjee, the learned Advocate for the appellants, further submitted that both the Courts below overlooked Chapter IV of the Estates Acquisition Act and that the Court of appeal erroneously held that Section 6(1) clauses (h) and (i) of the Estates Acquisition Act entitled the plaintiff to get the reliefs prayed for. Mr. Banerjee's argument raises several important questions both of law and fact.
12. Now let me examine the settlement khatian (Ext. F). Plot 589 is a balukhad, plot 597 is a danga and plot 563 is a danga. Plot 607/1109 is a balukhad. According to the plaintiff and the defendants, all these four plots are balukhad meaning deposits of sand in the sub-soil. Chapter IV of the Estates Acquisition Act heads with these words 'Mines and Minerals'. Section 27 reads as follows:
'27.--Provisions of Chapter IV to override other provisions of the Act. The provisions of this Chapter shall have effect notwithstanding anything to the contrary elsewhere in this Act.'
13. Section 28 reads as follows:--
'28.--Right of intermediaries directly working mines. So much of the land in a notified area held by an intermediary immediately before the date of vesting (including sub-soil rights therein, but excluding rights in hats and bazars not in the khas possession of the intermediary and lands comprising forest, if any) as was comprised in or as appertained to any mine which was being directly worked by him immediately before such date shall with effect from such date be deemed to have been leased by the State Government to such intermediary. The terms and conditions of such lease shall be as agreed upon between him and the State Government, or in default of agreement as may be settled by the Mines Tribunal:
Provided that all such terms and conditions shall be consistent with the provisions Of any Central Act for the time being in force relating to the grant of mining leases.'
14. Section 29 Sub-section (1) Clause (ii) reads as follows:
'(ii) in other cases, -- that if the holder of the lease has developed or done any prospecting work in respect of anv part of the land included in the lease hut has in the opinion of the State Government, failed to do anv prospecting or development work within three years from the date of vesting in respect of the remaining part of the land included in the lease, the State Government shall be entitled to resume the whole or any portion of such remaining part of the land together with the minerals living thereunder, after giving three months' notice in writing, but in so resuming the State Government shall have regard to the reasons for such failure and by the require* ments, as appear to it to be reasonable for the future development of the mining concern of the lease.'
Section 27 lays down that provision of Chapter IV of the Estates Acquisition Act shall have effect notwithstanding anything to the contrary elsewhere in this Act. Now Mr. Banerjee, for the respondent submitted that as nothing in the provisions of Chapter IV were contrary to the provisions of Section 6(1) clauses (h) and (i) of the Act the provisions of Section 6 Clauses (b) and (i) would prevail. Mr. Banerjee, learned advocate for the appellants on the other hand, contended that the contention of Mr. Banerjee, learned advocate for the respondent, was not sound. The expression 'anything to the contrary elsewhere in this Act' in Section 27 shall have to be read as an explanation to Sections 28. 29 of Chapter IV. Section 28 amongst other words says, 'So much of the land in a notified area held by an intermediary immediately before the date of vesting ...... as was comprised in or asappertained to any mine which was being directly worked by him immediately before such date be deemed to have been leased by the State Government to such intermediary.' For the definition of the word 'Mine' we are to look into the Mine Act of 1952 since that expression has not been defined in the Estates Acquisition Act, and for definition of the word 'mineral' in Chapter IV of the Estates Acquisition Act, we are to look into the definition of mineral in the Mines and Minerals (Regulation and Development) Act, 1957 and Mines Act of 1952- The Mine in clause J of Section 2 of the Mines Act, 1952 is defined as follows:
'Mine means any excavation where any operation for the purpose of searching for or obtaining mineral has been or is being carried on and includes.Mineral has been defined by the Mines and Minerals (Regulation and Development) Act, 1957 in Section 3 Clause (a). It includes all minerals except mineral oils. In Clause (e) of Section 3 'minor minerals' have been defined as building stones, gravel.ordinary clay, ordinary sand and other than sand used for prescribed purposes and any other mineral . . . . According to both the parties 27 bighas of land said to be in dispute formed a subsoil deposit of sand. Therefore, the disputed subsoil deposit of sand is a mine and sand is mineral.
15. The provisions of Section 6, Sub-section (1), clauses (h) and (i) of the Estates Acquisition Act are to be understood with reference to the provisions of Sections 27 and 28 of the Act. In Section 28, the two expressions 'mine' and directly worked by 'him' are of much importance. As the provisions in Sec. 28 of the Estates Acquisition Act in regard to a mine directly worked by an intermediary are contrary to the provisions of Section 6, Sub-section (1), clauses (h) and (i) of the Act, the provisions of Section 28 would prevail over the provisions of Section 6, Sub-section (1), clauses (h) and (i) of the Act. Therefore, in regard to the present case, the provisions of Sections 27 and 28 of the Estates Acquisition Act would get better of the pro visions of Section 6, Sub-section (1), clauses (h) and (i) of the Act.
16. The next question is whether on the date of vesting, that means on the 15th April, 1955, the mine which according to both parties is a 'ballykhad' was being worked directly by the plaintiff as a mine by extracting sand, -- a mineral, -- therefrom. It is clear from the evidence that the mine in the disputed land has been worked by extracting sand therefrom from Baisakh, 1347 B. S. by the defendants, and the plaintiff did not. during the period from Baisakh, 1347 B. S. to the date of vesting of the plaintiff's intermediary interest therein, and after, worked the mine directly. Mr. Banerjee, the learned Advocate for the respondent submitted that the defendants did not work the mine directly by extracting sand from the mine, but they worked the mine as licensees of the plaintiff. Mr. Ranjit Banerjee, the learned Advocate for the appellant, submitted that the expressions in Section 28 are 'directly worked' and 'by him', and that the two expressions clearly indicated that the intermediary was required to work the mine himself but not through any other agency of whatsoever description it might be, such as a licensee or a lessee. Mr. Ranjit Banerjee rightly submitted that the word 'directly' used before the word worked' followed by the words 'by him' left no room for holding that if the intermediary had worked the mine either through a lessee or a licensee, it would be the intermediary's directly working the mine. If the intermediary by making installations in the mine engaged labourers and worked the mine, he could he then considered to have had worked the mine directly. I accept Mr. Ranjit Banerjee's contention to be correct.
17. From Baisakh 1347 B. S. the mine in the disputed land has been worked by extracting sand therefrom by the defendants. It is immaterial whether they are licensees or lessees. Mr. D. Banerjee, the learned Advocate for the respondent, submitted that the possession of the mines remained with the plaintiff while the working was done through the defendants as licensees. But that argument, would not alter the meaning of the expression 'directly worked by him' meaning directly worked by the intermediary in the manner I have already expressed hereinbefore in this judgment. I am not required to determine what exactly is the status of the defendants in law vis-a-vis the plaintiff in respect to the mine in the land in dispute. The defendants may be lessees or licensees in respect of the mine in the disputed land. What I find is that from Baisakh 1347 B. S. the mine in the disputed land has been worked not directly by the intermediary but through another agency i.e. the defendants. Accordingly, when the plaintiff's intermediary interest in the disputed land which is a mine vested in the State of West Bengal, the plaintiff had not been then directly working the mine in the disputed land. Therefore, the provisions of Section 28 of the Estates Acquisition Act would come into operation in respect of the mine in the disputed land.
18. It was argued by Mr. D. Banerjee, the learned Advocate for the respondent that the defendants were not lessees and that the plaintiff being an intermediary, should be considered to be the lessee of the mine directly under the Stale Government. Here again, the two expressions 'directly worked' and 'by him' with the reference to the dale of vesting of the intermediary interest of the plaintiff in the mine would stare at the face of the plaintiff. If the mine was directly being worked by the plaintiff at the dale of vesting of his intermediary interest, Mr. D. Banerjee's contention could have prevailed.
19. Mr. D. Banerjee, the learned Advocate for the respondent, submitted that though the learned Munsif held that the defendants were lessees, the learned Judge in the Court below held that the defendants were licensees, and that as such, the defendants should be held as licensees and not as lessees and that they would not, therefore come within Section 29 of the Estates Acquisition Act. I could not accept Mr. D. Banerjee's contention as sound. The plaintiff suppressed a very material fact being that from Baisakh 1347 B. S. the mine in the disputed land had been worked not directly by the plaintiff but by the defendants. The defendants came into occupation of the mine from Baisakh 1347 B. S. as has been admitted by Dandiswami. As the position is this that since Baisakh, 1347 B. S., the defendants have been working the mine in the disputedland but not the plaintiff, a tenancy in favour of the defendants, not under a document of lease as under Section 107 of the Transfer of Property Act. but under an oral agreement came into existence, confirmed by Ext. A. So, from Baisakh, 1347 B. S. under Ext. A, the defendants have become monthly tenants in respect of the land in dispute which is a mine, and as such lessees of the mine but not licensees. The defendants' tenancy in the disputed land which is a mine is one under Section 106 of the Transfer of Property Act, but not under Section 107 of the Act, vide Ext. A. Both the documents, Exts. 1 and A being not a lease as under Section 107 of the Transfer of Properly Act, gave rise to a monthly tenancy since Baisakh 1347, B. S. in respect of the disputed land which is a mine, created by an oral agreement and so admitted by Ext. A. In the finally published record of rights the defendants have been recorded as Dakhalikar in respect of the disputed land which is a mine. So, from Baisakh 1347, B. S., the defendants have been in occupation of the disputed land which is a mine by extracting sand therefrom on payment of Rs. 54/- as rent p. a. to the plaintiff. After intermediary estate of the plaintiff vested in the State of West Bengal, the defendants have been recorded as Dakhalikar of the mine and the State has accepted this much that the defendants had been working the mine but not the plaintiff on the date of vesting of the plaintiff's intermediary interest in the mine in the State of West Bengal. Accordingly, the plaintiff had not, at the date of vesting of his intermediary interest in the mine, worked the mine directly. As lessees at least of the character of a monthly tenant as under Section 106 of the Transfer of Property Act, the defendants have been working the mine and as such have been in exclusive possession of the mine from before and at the date of vesting of the intermediary interest of the plaintiff in the State. So, the defendants may well be placed within the terms of the Sec. 29 of the Estates Acquisition Act.
20. In Roads v. Overseers of Trumington, reported in (1871) 6 QB 56, the question was whether excavation of a mine and the occupation for the purpose of excavation of a mine carried with it the idea of exclusive occupation of the mine when grantor of the right had also reserved to himself the right to enter into the mine if and when necessary. It was held that the agreement created the right of exclusive possession of the land even though grantor of the right reserved to himself the right to enter into the land if and when necessary. The revisional record of rights finally published Exts. F and F-1 and the oral agreement under which the defendants had been brought into occupation of the mine as well as the evidenceadduced by the parties amply lead to oneand only one conclusion that during theperiod from 1347 B. S. till today thedefendants have been in exclusive occupation of the mines by extracting sand andthere is no evidence that during the periodthe plaintiff ever entered into the land.Therefore, the defendants have been inexclusive occupation of the mine by extracting sand, therefrom from 1347 B. S., andhave been recorded as 'Dakhalkar' in thefinally published record of rights. Theplaintiff never directly worked the mineand had never been in exclusive possessionof the mine at any time after Baisakh 1347B. S. till date. Therefore, apart from thequestion whether the defendants arelessees or licensees, though I hold themto be lessees, under Section 106 of theTransfer of Property Act being monthlytenants, they have been in exclusive occupation of the mine directly working themine and the plaintiff-respondent hadnever been in exclusive occupation of themine directly working it during the periodfrom Baisakh 1347 B. S. to 1st Baisakh,1362 B. S. when his intermediary interestvested in the State of West Bengal. Accordingly Section 28, of Chapter IV ofEstates Acquisition Act, would stand inthe wav of the plaintiff respondent'sgetting the mine as a lessee directly holding it under the State of West Bengal. Thedefendants have paid rent for the mineto the State of West Bengal. Therefore,the State of West Bengal has accepted thedefendants as 'lessees of the mine' withinthe meaning of Section 29 of the EstatesAcquisition Act. Mr. D. Banerjee contended by rent decrees and by Ext. 1 thedefendants were estopped from challengingthe plaintiff's right to occupy the mine inkhas. There can be no estoppel againstlaw. If by law, the mine did vest in theSlate of West Bengal and if the mine wasnot in fact directly worked by the plaintiff no amount of admission in Ext. 1 orin Ext. A contrary to law nor sufferanceof rent decrees would create any estoppelagainst law. Therefore Mr. D. Banerjee'scontention as above also fails.
21. Finally I hold that the plaintiff had no right to institute the suit as framed. Therefore, the learned District Judge erred both in fact and in law in granting a decree to the plaintiff-respondent. The suit could hardly be maintained as framed.
22. Accordingly, the appeal must be allowed and it is hereby allowed. The judgment and decree passed by the learned District Judge be and the same are hereby set aside. The plaintiff's suit be and the same is hereby dismissed on contest Since those who are responsible for the carriage of the suit and the appeal before the Courts below had themselves erred in law, the deity should not be made responsible for cost since it is a perpetual minorwho had rested its confidence in its guardian shebait as it were whose legal advisers did not perform their lawful duties in the manner they should have done. Therefore, there would be no order for costs either in the suit or in the Court of Appeal below or in this Court to the appellant.
23. Leave to appeal under Clause 15 ofthe Letters Patent is prayed for by Mr. D.K. Banerjee, and is refused.