1. This is an appeal on behalf of the plaintiff, the Raja of Ramgarh, in a suit for recovery of possession of land, for damages, for perpetual injunction and for incidental reliefs. The first eight defendants are alleged to be jagirdars under the plaintiff. The ninth defendant is the manager of the estate of the first eight defendants under the Chota Nagpur Encumbered Estates Act of 1876. The remaining defendants, ten in number, are members of the firm of Bird and Company, who have obtained a prospecting lease from the manager with a view to open up mines and quarries. The case for the plaintiff is that the jagirdars are incompetent to grant a lease or a license in respect of mines and quarries as they had no underground rights whatever; he further asserts that the jagirdars held under the condition that if they failed to pay rent according to the prescribed instalments or disputed lawful orders and rules, the villages would be forfeited. It is also stated that the defendants have granted a prospecting lease in respect of a village named Dumri, which is not included in their jagir. On these allegations, the plaintiff seeks a decree for ejectment and mesne profits; he further prays that a perpetual injunction may issue on the lessee defendants restraining them from prospecting for coal and from opening mines and quarries There is also a prayer for the issue of a temporary injunction and for the appointment of a Receiver pendente lite. The suit was commenced on the 8th October 1909. The defendants entered appearance and from time to time obtained adjournments to enable them to file their written statement. No written statement, however, was filed, and on the 9th August 1910, the defendants took exception to the competency of the suit on the ground that it was barred under Section 91 of the Chota Nagpur Tenancy Act of 1908. The Subordinate Judge gave effect to this objection and dismissed the suit with costs. The substantial question in controversy in this appeal, consequently, is whether the suit as framed is barred under that section.
2. Section 91 provides that when an order has been made under Section 80 or under any law in force before the commencement of the Act, directing the preparation of a Record of Rights, then notwithstanding anything contained in the preceding sections of the twelfth Chapter of the Act, no Deputy Commissioner or Civil Court shall, until six months after the final publication of the Record of Rights, entertain any suit or application in which there is in issue, either directly or indirectly, the existence or non-existence, in the area to which the Record of Rights applies, of any right referred to in Clause (n) of Section 81 or for the alteration of the rent, or the determination of the status of any tenant in such area. In the case before us, it is not disputed that in respect of a portion only of the subject-matter of the litigation, an order has been made for the preparation of a Record of Rights. It is obvious, therefore, that if the construction adopted by the Subordinate Judge be well founded, the objection to the competency of the suit is valid, only in respect of a portion of the disputed property. From this point of view the suit ought not to have been dismissed in its entirety.
3. The real question in controversy, however, is whether the objection is valid in respect of any portion of the subject-matter of the litigation. On behalf of the appellant, it has been contended that neither Clause (a) nor Clause (6) of the first subsection of Section 91 is applicable; not Clause (a), first, because as the defendants have not yet filed their written statement, it is impossible to ascertain what matters are in issue between the parties to the suit, and secondly, because none of the questions covered by Clause (n) of Section 81 arises, directly or indirectly, for determination in the suit as framed; nor Clause (6), because the suit cannot be deemed as one for alteration of the rent or the determination of the status of any tenant in such area.
4. In so far as Clause (a) is concerned, it plainly does not present any bar to the maintainability of the suit. Before that clause can be applied, the Court must ascertain what matters are in issue between the parties. Here the plaintiff has made allegations which have not, yet been challenged by the defendants. No doubt, the plaintiff apprehends that upon certain points, his case will not be acceptable to the defendants. But that does not, with any approach to certainty, indicate what will ultimately be the actual matters in issue between the parties. It may be conceded, as explained in Gobind Mohan Das v. Kunja Behari Das 10 C.L.J. 407 at p. 411 : 4 Ind. Cas. 364 : 14 C.W.N. 147 that the Court may sometimes be in a position to ascertain the matters in question in the suit, before the issues have been framed, and even before the written statements have been filed, though ordinarily, this can be done only after the pleadings have been filed. Let it be assumed, therefore, for a moment that Clause (n) may be applied before the written statement has been filed by the defendant, the question still remains whether any of the matters covered by Clause (n) of Section 81 will be in controversy directly or indirectly in this litigation. Now, Section 81 Clause (n) refers to the right of any person, whether a landlord,or tenant or not, to take forest produce from jungle land or waste land or to graze cattle on any land in any village in the area GO which the Record of flights applies. The term 'forest produce' is defined as follows in Section 3 Clause (XI): 'Forest produce,' unless there is anything repugnant in the subject or context, includes the following, whether taken from a forest or not, that is to say, peat, surface-soil, rock and minerals, including iron-stone, coal, clay, sand and lime-stone (when taken by any person for his own use). It is plain that Clause (n) of Section 81 does not include coal contained in a mine which has not yet been opened; such coal cannot be described in any sense of the term as forest produce from jungle lands or forest lands. It has been suggested, however, that the extended meaning given to the expression 'forest produce' in Clause (e) of Section 3, shows that coal may be included thereunder. This argument is obviously unfounded. Clause (e) mentions peat, surface-soil, rock and minerals (including iron-stone coal, clay, sand and lime-stone when taken by any person for his own use). It cannot be reasonably argued, nor, indeed, has it been seriously contended, that the lessee-defendants, when they open a mine, can be deemed to take coal for their own use; the clause refers obviously to minerals lying on the surface of the soil which may be taken by any person, tenant or not. It is clear, therefore, that the right mentioned in Clause (n) of Section 81 cannot be directly or indirectly in controversy in this litigation; and this is the view which commended itself to the Subordinate Judge.
5. In so far as Clause (b) is concerned, it has not been suggested that the suit is one for alteration of the rent. But it has been argued that the suit is one for determination of the status of a tenant in an area in respect of which preparation of the Record of Rights has been directed. In this connection, we must not overlook a remarkable difference in the phraseology of the two Clauses (a) and (b); Clause (a) speaks of a suit in which there is in issue, either directly or indirectly, the existence or non-existence of certain rights: Clause (6), on the other hand, speaks of a suit for the determination of the status of a tenant. This difference in phraseology must be taken to have been intentional; Clause (b), therefore, does not refer to a suit where, as here, the question of the status of the tenant arises only indirectly for consideration. In no sense of the term, can the present suit be deemed for the determination of the status of the defendants as tenants under the plaintiff; nor can the question raised be regarded as a question about the status of the defendants as tenants. There is no question that the defendants are jagirdars and the lessees under them cannot obviously have higher rights than their lessors. The different classes of tenants, recognised by the Chota Nagpur Tenancy Act, are defined in Section 4 and it is clear that, in the present case, the plaintiff does not invite the Court to determine to which of these classes the tenancy of the defendants belongs. The real point in controversy is, whether the defendants as jagirdars possess any mining rights; to put it plainly and broadly, the question is, whose property is the underground coal? The plaintiff asserts that the defendants as jagirdars do not possess any mining rights. What position will be taken up by the lessee-defendants, has not been disclosed by them up to the present stage; but if we assume that their contention will be that the jagirdars defendants were entitled to the coal, it cannot be successfully argued that the suit is for the determination of the status of the defendants as tenants. The conclusion follows that neither Clause (a) nor Clause (b) of Sub-section (1) of Section 91 bars the suit as framed. In this connection, we must remember that, as pointed out in the case of Mavoulu Seetharam Naidu v. Doddi Rami Naidu 33 M. 208 : 6 Ind. Cas. 137 : 7 M.L.T. 181 : 20 M.L.J. 91 it is an elementary principle of law that every presumption shall be made in favour of the jurisdiction of a Civil Court and that it shall not be taken away except by express words or by necessary implication see also Winter v. Attorney-General 6 P.C. 378 at p. 380 : 41 L.J.P.C. 65 : 24 W.R. 327. In the case before us, the jurisdiction of the Civil Court has not been taken away by the express words of the statute, nor can it be deemed to have been taken away by necessary implication. On the other hand, it is extremely unlikely that the Legislature should have intended that questions of this description should be determined by the Revenue Authorities under Section 81 of the Chota Nagpur Tenancy Act of 1908.
6. We may finally observe that even if the view taken by the Subordinate Judge had been well founded, he ought not to have dismissed the suit. Section 91, where it is applicable, merely provides that the Civil Court shall not entertain a suit of a particular description. That does not mean that the suit, if instituted, shall be dismissed. The proper course to follow in such a contingency is to adjourn the trial of the suit till the final publication of the Record of Rights. The view we take is supported by the principle recognised in Rendall v. Blair 45 Ch. D. 139 at p. 157 : 59 L.J. Ch. 641 : 63 L T. 265 : 38 W.R. 689; Azmat Ali v. Lalli Begum 8 C. 422; Alimuddin Khan v. Hira Lal Sen 23 C. 87; Jijaji v. Balkrishna 17 B. 169; Bandu v. Jambu 12 Bom. L.R. 801 : 7 Ind. Cas. 986; Jagat Tarini Dasi v. Nabogopal Chaki 34 C. 305 at p. 311 : 5 C.L.R. 270 and Sarat Chandra Banerji v. Apurba Krishna Roy 14 C.L.J. 55 : 15 C.W.N. 925 : 11 Ind. Cas. 187 and does not militate against the decision in Chandu Lal v. Awad 21 B. 351. The Subordinate Judge plainly failed to appreciate the true nature of the suit and when he considered that the proviso to the first subsection of Section 91 of the Chota Nagpur Tenancy Act afforded ample relief to the plaintiff, he overlooked that the plaintiff could thereunder obtain relief only when waste or damage had been actually committed. The plaintiff is entitled under that proviso merely to prohibit the continuance of waste or damage; he cannot demand a prohibition of the commission of the waste or damage. It is further clear that under the proviso, no relief can be granted either by the appointment of a Receiver or by the grant of a temporary injunction. The suit, in our opinion, is in its essence a suit for recovery of possession of land and although, incidentally, in the course of the trial, questions may arise as to the rights of the defendants as jagirdars, the suit is clearly not barred under Section 91 of the Chota Nagpur Tenancy Act.
7. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and the case remitted to him in order that it may be tried on the merits. The appellant is entitled to his costs in this Court. We direct, under Section 13 of the Court Fees Act, that the Court-fees paid on the memorandum of appeal be refunded to the appellant.
8. It is conceded that this judgment will govern the other appeals (Regular Civil Appeals Nos. 53 to 55 of 1911). Similar orders will be drawn up in each of them.
9. As the suits were instituted so far back as the 8th October 1909, the Subordinate Judge will take up the cases for disposal as early as practicable. Let the records be sent down at once.