1. It is admitted by Mr. Banerji that the question between the parties is in substance whether his client the plaintiff shall receive and continue to receive royalties in respect of coal raised for over a long period of years stated to be 999 years in the lease, the minimum royalty payable by the defendants to the plaintiff being Rs. 3,200 per annum. In my view that bring the value of the subject-matter of the suit in the Court of first instance over the amount of Rs. 10,000. The liability is of a recurring nature and the case is governed by the decision of the Privy Council in the case Surapati Roy v. Ram Narain Mukherjee 50 I.A. 155 : 73 Ind. Cas. 193 : A.I.R. 1923 P.C. 88 : 45 M.L.J. 219 : 50 C. 680 : 18 L.W. 681 : 33 M.L.T. 314 : 39 C.L.J. 26 : 28 C.W.N. 517(P.C.). Further the decree made by the Court directly or indirectly involves a claim or question to or respecting property of over the value of Rs. 10,000. This brings the matter within the second limb of Section 110 of the Civil Procedure Code. On those grounds and regard being had to the fact that the decree appealed against is one of reversal, I am of opinion that leave to appeal to the Privy Council should be granted.
Appeal NO. 7 OF 1935
2. Similar order is made as in Appeal No. 6 just now disposed of.
Appeal NO. 4 OF 1935
3. In this appeal the plaintiff is asking for leave to appeal. This appeal and Appeals Nos. 6 and 7 arise out of the same matter decided by the same judgment and the questions of fact and law involved in Appeal No. 4 are substantially those involved in Appeals Nos.6 and 7. The plaintiff originally claimed royalties on the ground that he was the owner of the land in question and that he had granted a lease of mineral rights to the defendants. The defendants defended the action on the ground, namely, (1) that the plaintiff was not the owner of the land and (2) that they were not liable to pay royalties under the lease. The Court of first instance decided against the plaintiff following the contentions (1) and (2) of the defendants. The plaintiff appealed to the High Court and the High Court held that the contention (1) was correct and that the plaintiff had no legal title to the land but also held that the defendants contention (2) was incorrect and that notwithstanding the plaintiff had no title to the land the defendants were estopped because of the kabuliyat from denying the plaintiff's title to the land and were, therefore, liable to pay the royalties in question. The final paragraph of Mr. Justice Mitter's judgment reads: 'The result is that this appeal is allowed and plaintiff's suit is decreed in full. With regard to costs as plaintiff has failed on the principal issue of the title he will get half his costs throughout.' The plaintiff now wishes to appeal against that part of the decision of the High Court which decided that he had no title to the land.
4. I think this case is a proper one in which we can certify sunder Section 109(c) of the Civil Procedure Code that it is a fit one for appeal to His Majesty in Council. In the first place, the decree appealed from involves directly or indirectly some claim or question to or respecting property of the value over Rs. 10,000; secondly, there is involved in it as appears in the judgment a substantial question of law; and, thirdly, unless leave is given to the plaintiff to appeal in this case it may not be possible for justice to be done between the parties in view of the final decision in Appeals Nos. 6 and 7; moreover, it is convenient that the matters in issue between the parties raised in these three appeals should be decided together and finally in one appeal. For these reasons I am of opinion that leave to appeal to His Majesty in Council should be granted in Appeal No. 4 also.
5. I think I might refer to the case of Muhammad Wali Khan v. Muhammad Mohi-ud-Din Khan 37 A. 124 : 27 Ind. Cas. 378 : 13 A.L.J. 57, which supports to some extent the view that I have taken in this matter.