1. In the suit out of which this appeal arises the plaintiffs sought for a declaration of title to and for a perpetual injunction restraining the defendants from taking sand from the bed of the river Tumni. Their case briefly was that a certain property was sold for arrears of rent in 1886. One Fulkumari Debi who was a dar-patnidar under patni deposited the amount due and obtained possession of the patni as girbidar under Section 13 Regn. 8,1819, on 29th September 1886. The plaintiffs' case was that by various transfers and devolutions the girbi right and interest had passed to her and that aha was in possession of the patni. The main contention of the defendants was that they bad taken a lease of the underground coal and other minerals from the zemindar, Maharaja of Burdwan, and also from the patnidars in 1918; and, therefore, they had a right to the sand. They denied the plaintiff's girbi or possession and alleged that the plaintiffs were not girbidars but were merely benamdars of the patnidars who were their lessors. The trial Court found that the plaintiffs were in possession of the patni interest of the mouza Joalbhanga as girbidars, that they were not benamdars and that the defendants had no right to the sand as against the plaintiffs; it, therefore, decreed the suit. The defendants appealed to the District Court and that Court dismissed the appeal. The Court held that the plaintiffs were not benamdars and the defendants had no right to the sand of the river Tumni.
2. The learned advocate for the appellants has argued four points First, it is argued that the Court below has erred in law as to the legal rights of the girbidars as contemplated under Section 13, Regn. 8, 1819. Secondly, it is said that on a proper and legal construction of the Indenture of 1918 the Courts below ought to have held that the appellants are entitled to the sand in dispute. Thirdly, it is said that the Courts below have erred in law in thinking that the plaintiffs are not bound by the terms of the said Indenture of 1918 Lastly, it is said that on the case made in the plaint and on the findings arrived at by the Courts below they ought to have held that the plaintiffs cannot maintain the present suit specially in the absence of the patnidars. This last ground namely the maintainability of the suit in the absence of proper party, was not pressed. The last three other grounds really in effect depend on the decision of the question as to what are the rights of a girbidar. A girbidar may be said to be creations of Section 13, Regn. 8, 1819 and the material portion of that section is to be found in Clause 4 of that section where it begins with the words:
But shall be considered as a loan made to the proprietor of the tenure preserved from sale by such means and the taluk so preserved shall be the security to the person or persons making the advance who shall be considered to have a lien thereupon in the same manner as if the loan had been made upon mortgage; and he or they shall be entitled on applying for the same to obtain immediate possession of the tenure of the defaulter in order to recover the amount so advanced from any profits belonging thereto.
3. I may say, as far as I can see, these are more or less the rights of a usufructuary mortgagee and this view is supported by the decision of this Court in the case of Boistub Churn Bhudro v. Tara Chand Banerji 11 W.R. 357, where the learned Judges remarked that the position of girbidars was substantially the same as that of a mortgagee in possession under a usufructuary mortgage. Mr. Bose has referred us to three other oases, Lala Bharub Chandra Karpur v. Lalit Mohun Singh  12 Cal. 185, Ram Jiban v. Taj-ud-din  15 C.W.N. 404 and Jakhomull Mehera v. Saroda Prasad Dey  7 C.L.J. 604. He admits that these last three decisions throw no light on the problem with which we are now concerned. As I have stated before it seems to be quite clear that the position of the girbidars is the same as that of a usufructuary mortgagee in possession; and that the patnidar is not entitled to disturb his possession by granting a lease to other persons, and lease so granted is not in any way binding on the girbidars. These contentions are, therefore, decided against the appellants.
4. The last argument by Mr. Bose on behalf of the appellants is 'what is the nature of sand.' Mr. Bose seems to contend that sand being a mineral patnidars had no right to the sand and the girbidars also had no right to the sind He seems to contend that the right to the sand belongs to the zemindar who has joined in granting him a lease. The zemindar apparently was one of the grantors of the lease to the defendants. The original lease by which the patni was created has not been produced and in its absence it is impossible to say what right the zemindar reserved for himself and what rights he demised to the patnidars. In the absence of this lease it is impossible to decide this point. Mr. Bose further argues that under Order 41, Rule 7, Civil P.C., he should be allowed to put in some additional evidence. The additional evidence in question is a judgment of a certain suit and it is dated 13th May 1927. This is a suit apparently brought by the patnidars for a declaration that the money due for arrears of rent has been paid and for recovery of possession. No copy of this judgment has been served on the respondents and we are not prepared at this stage to allow that evidence to be placed before us.
5. The result, therefore, is that this appeal fails and is dismissed with costs.
6. I agree.