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Rajeswar Prosad Bhakat and ors. Vs. Bhupendra Narayan Sinha Bahadur and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1927Cal956
AppellantRajeswar Prosad Bhakat and ors.
RespondentBhupendra Narayan Sinha Bahadur and ors.
Cases ReferredSatya Niranjan Chakravarti v. Ram Lal Kaviraj and
- b.b. ghose, j.1. these two appeals arise out of one suit brought by the plaintiff baja bhupendra narain sinha bahadur for declaration of his right to a certain hillock within his estate as shebait of idol parbati mata, and in the alternative for a declaration, by virtue of his right as zemindar of the estate, that the principal defendants have no right to take away earth and stones and minerals from the hillock in the exercise of the right that the defendants have as darpatnidars under the patnis within his estate. the plaintiff is one of the four sons of maharaja ranajit sinha. the other sons and grandsons by those sons are defendants 16 to 20 in the case. the patni was created of three mehals within the estate no. 1152/1 by a predecessor in interest of the plaintiff's father. the patni.....

B.B. Ghose, J.

1. These two appeals arise out of one suit brought by the plaintiff Baja Bhupendra Narain Sinha Bahadur for declaration of his right to a certain hillock within his estate as shebait of idol Parbati Mata, and in the alternative for a declaration, by virtue of his right as zemindar of the estate, that the principal defendants have no right to take away earth and stones and minerals from the hillock in the exercise of the right that the defendants have as darpatnidars under the patnis within his estate. The plaintiff is one of the four sons of Maharaja Ranajit Sinha. The other sons and grandsons by those sons are defendants 16 to 20 in the case. The patni was created of three mehals within the estate No. 1152/1 by a predecessor in interest of the plaintiff's father. The patni was granted to two persons in equal shares by deeds dated the 30th May 1851. The throe mauzahs of which the patni was granted were called Tarof Nal-hati, Hat Nalhati and Kalindipur.

2. Out of these three mauzahs the patnidars granted darpatni of Taraf Nalhati and Hat Nalhati by separate leases to Ganga Prosad Saha in 1862; the defendants 1 to 9 came into the possession of the darpatni interest through various mesne purchases by their deed dated 11th October 1898. Defendant 9 died during the pendency of the suit and is represented by his sons defendants 9ka, 9kha, 9ga. 9gha and grandson 11ka. Defendants 10 and 11 were lessees under the darpatnidars of the portion of the property now in suit. The plaintiffs' claim with regard to ownership on the ground that the hillock is the property of the idol Parbati Mata has been found against him in the Court below, and no question has been raised before us about that right of the plaintiff; so we have to consider only the question as regards the plaintiffs' right as zemindar.

3. The plaintiff claims the zemindari right in himself on the ground that by custom of primogeniture prevailing in his family he is entitled to the entire estate to the exclusion of his brothers and their descendants. He also relies upon an ekrar said to have been executed in his favour by his adult brothers and his mother acting as guardian for his infant brother with regard to his sole right to succeed to the estate left by his father. The defendants disputed the title of the plaintiff on the ground of primogeniture to the entire property. They further alleged that they were entitled to take away stones and earth and minerals within their darpatni by virtue of the right granted to the patnidars under the patni settlement, and they also pleaded limitation. The Subordinate Judge found in favour of the plaintiff with regard to the question of title to the minerals and gave a decree to this effect that the plaintiff's title to the minerals lying in the hill by virtue of his being the zemindar be declared, and a perpetual injunction be issued restraining the principal defendants from raising the said minerals by digging and from appropriating the same, but it is ordered that the defendants will be competent to dig and take such stones and gravel as are found on the surface of the hill. The Subordinate Judge found against the plaintiff on the question of primogeniture and he held that the plaintiff was entitled to only 1/4th of the property and gave him a decree for a fourth of the sum which he found the defendants are liable to pay on account of damages for the quantity of earth or minerals taken away by them. The principal defendants 1 to 11 appeal to this Court with regard to that portion of the decree which is against them, namely, the injunction granted against the defendants from raising minerals and the amount of damages allowed to the plaintiff. Their appeal is No. 70 of 1924. The plaintiff appeals against that part of the decree which dismissed a portion of his claim. His appeal is No. 123 of 1924.

4. Appeal No. 70 is the principal appeal and it should be taken up first. The first ground that was taken in the appeal was as to the question of the title of the plaintiff. This question was raised clearly under a misapprehension. It was urged that the zemindari under which the patnis were created belonged to the idol Ram Chandra, Jiu and it was Touzi 1152/2. This argument, as was pointed out by the learned advocate for the respondent, was based upon a misconception of the evidence of plaintiffs' am-mukhtear and pleader printed at p. 63, part 1 of the' paper-book. At line about 25 the figure 1152/2 ought to have been 1152/1, and this is also clear from the fact that the kabala by which the defendants acquired the darpatni mentioned the patni to be within estate 1152/1. Further it appears that in the lower Court the title of the plaintiff' as zemindar was not disputed as will be found from the observation of the Subordinate Judge on issue 17. In reply, however, on behalf of the appellants a futile attempt was made to sustain the plea that it was debatter property, but such a plea could not be allowed to be heard in the circumstances stated above.

5. The principal' points raised are really three that under the terms of the patni lease the patnidars were expressly granted, all minerals and underground rights; secondly, even if there was no express grant, of underground rights in the absence of any reservation the grant of patni conveys all rights including underground rights which belonged to the zemindar; and thirdly, the plaintiffs' right is barred by limitation. The fourth ground is that the amount of damages is excessive. Another ground was taken but was not elaborated that the substance taken out by the defendants was not mineral but mere earth.

6. It was further argued that the defendants had not worked underground but their working had not gone below the level ground and as patnidars they are entitled to remove any maunds of earth within the patni and they cannot be charged with having worked any mines.

7. I propose to take up the question with reference to the construction of the grant of patni first. There are three documents on the record relating to the patni grant, one patta and two kabuliats executed by the two patnidars. They are all in the same terms and one of them was taken by both sides for the purpose of their argument. This was the document which is marked Ex. 42, the kabuliat executed by one of the patnidars Uma Sundari Dasya in favour of Rani Lachmi Kumari Saheba the ancestress of the plaintiff. The official translation of the document with regard to certain parts was questioned by both sides and I have taken the translation which has been agreed to by both sides except with regard to one expression which I shall put down in original. This document Ex. 42 after stating under what right the lessee wanted to take the property, on payment of a premium of Rs. 3,655, and after stating that the zemindar was willing to grant a patni of the mehals in question excluding establishment charges and expenses in connexion with deities, bund, Pulbundi and wages and so forth, and after mentioning other things excluded proceeds thus:

I shall enjoy down to my sons and grandsons etc., in succession in great bliss the mehals within the four boundaries without any deduction, the Chhaya Hrad (shades and lakes), land and water, whatever has been produced and all seeds of production, mal and sayers, barring those sayers prohibited by Government, all sorts of land held without payment of rent but which are liable to be assessed, hasil and patit, nalkar, bankar, falkar and jalkar and Bils, Jhils and all tanks, gardens, trees whether fruit bearing or non-fruit bearing and with the exception of debatter and Brahmatter and Mahatran Piran etc.,...which have been confirmed under the orders of Government and except the aforesaid gifted Brahmatters etc. all rights and interests (darbast hakuk) I shall possess in patni taluk in the mofussil...I shall never make any application to any Government Official for kharij (mutation of my name).

8. Towards the end of the patta after making certain other recitals there is the provision that the grantee will not be entitled to cut down those trees the cutting of which will cause damage to the mehal or loss to the jama. There is a further provision that the zemindar would get the money which will be due from the Government on account of Land Acquisision for cart roads and railways and cacha roads, as well as any kind of road that may be made in future.

9. The first contention on behalf of the appellants is that the expression Chhaya Hrad means sky and underground. Chhaya literally means shadow but in the dictionary it is found that it may also mean sun from which it is contended that it is sky. Hrad means a deep piece of water naturally formed, or in other words, a lake. But nowhere it can be found that it means something underground. This expression Chhaya Hrad in the patta or kabuliat is unmeaning, and I confess it is new to me. In the course of my experience I have seen a large number of these pattas and kabuliats but I have never met with this expression; I cannot hoi I that the expression distinctly means any right to underground minerals.

10. The next contention is that the word 'sayer' includes the minerals because it is stated that sayer means all income which is not derived from land revenue. I am unable to accept that contention, because my impression is that sayer means all sorts of imports in addition to land revenue.

11. Lastly it is contended that all the expressions taking together along with the expression Darabast Hakuk conveys the entire interest of the zemindar in the mehals in question to the patnidar and nothing was reserved. In my judgment that is the proper construction which may be given to those words used. Thei only doubt that has been cist upon this construction is on account of the observations made in the judgment of Lord Shaw in the case of Giridhari Singh v. Megh Lal Pandey A.I.R. 1917 P.C. 163 where it has been observed that the words mai hak hakuk only refers to the rights that were granted previously and not to all the rights of the grantor. However that may be the contention of the learned advocate is that when mehals are granted in patni taluk without any deduction, of everything that can be mentioned within the four boundaries, all rights of the zemindar have been conveyed, and in my opinion there is considerable force in this contention. It is argued on behalf of the respondent on ' this question that when there are reservations as regards the cutting of trees and compensation money that would be obtained for land acquisition for public purposes, it should be held that all rights of the zemindar were not conveyed by the grant. In my opinion that argument is of very little substance. It seems to me that after giving all the right to the patnidar there was a small reservation about cutting down trees which would cause damage to the mehal or loss to the jama so as to affect the right of the patnidar to the rent reserved. With regard to the compensation money the same observation may be made. In the absence of the stipulation about compensation money it would have been divided between the zemindar and the patnidar under the law. By special contract the zemindar provides that the entire amount should be taken by himself. That does not take away from the rights of the patnidar anything more than what was reserved under the grant. It seems to me that the special mention of these reservations shows that nothing else was reserved. I need only . add that minerals were not reserved.

12. The next question is whether by the grant of a patni taluk underground rights have been convoyed. I will rest content by referring to the observations of their Lordships of the Judicial Committee in the case of Satya Niranjan Chakravarti v. Ram Lal Kaviraj . Their Lordships did not agree with the dictum of the Patna High Court that the judgment of Prinsep and Hill, JJ. in Ali Quader Hossein v. Jogendra Narain Roy [1912] 16 C.L.J. 7 has been overruled by the decisions of the Privy Council cited in the judgment. It follows, therefore, that that case decided by the learned Judges of this Court is still good law. So far as we are concerned unless we are prepared to differ from it and refer the question decided thereto a Full Bench, we are bound to follow it. We are not prepared to differ from what was laid down in that case. So we are bound to follow the law laid down in it. The learned advocate 'for the respondent endeavoured to distinguish that case from the present on the ground that the words there used in the patni patta were 'Darabast Zemindari Hakuk', while the words in the present grant are only 'Darabast Hakuk'. I do not think that there is any difference in substance, because the word 'Darabast' means all ', 'entire' and 'Hakuk' is the plural of 'Hak' which means 'right' and when the zemindar grants 'Darabast Hakuk' he grants 'Darabast Hakuk' of his zemindari right. It was next contended that the terms 'Darabast Hakuk' were intended to refer only to those rights which had been previously described,' rights generally known as ejusdem generis. This argument was advanced in the case of Ali Quader Hossein v. Jogendra Narain [1912] 16 C.L.J. 7, cited above, and the learned Judges observed that this expression was intended, to use a familar expression, to throw a net so as to include everything which might be considered as belonging to the zemindari right. With these observations, I respectfully agree.

13. It was next contended by the learned advocate for the respondent that there is really no essential difference between a mokarari and a patni taluk and he referred to the case of Sonet Kooer v. Himmut Bahadoor [1876] 1 Cal. 391 and his contention was that it is open to us to decide notwithstanding the observation of Lord Dunedin in the case of Satya Niranjan Chakravarti v. Ram Lal Kaviraj [1912] 16 C.L.J. 7 cited above that a mokarari and patni are similar in all respects. It is unnecessary for mo to hazard the opinion that a mokararidar should have the same interest as a patnidar. Although there are various points of similarity] between a mokarari and a patni there are evidently many points of difference, and I think it is necessary for me to point out the essential characteristics of a patni which may not belong to a mokarari. First, I would refer to Section 3, Regn. 1819. In Clause (1) of that section it is mentioned that the interest of the patnidar was capable of being transferred by sale etc., in the same manner as other 'real property'. It is contended by the learned advocate for the appellants that in 1819 this Regulation being drafted by English lawyers the expression real property has a particular significance, because a leasehold was not considered real property in English law. So a patni although in form a lease was not a mere [leasehold property. There appears to be some substance in that contention. In the second clause power is given to the patnidar of letting out the lands composing their taluks in any manner that may be deemed conducive to their interest. That also in a matter which should be borne in mind. In Section 11 Clause (1) the defaulting patnidar is described as the 'defaulting proprietor,' and in the second paragraph of the first clause it is stated that the rent receivable by the zemindar is in fact his reserved property in the tenure. In the second clause of Section 11 again the defaulting patnidar is described as the late proprietor. I may refer also to field's Introduction to the Regulations which is a well known authority with regard to land tenures. The learned author observes with reference to such taluks and subordinate taluks in Section 36 of his introduction1:

Considerable sums are paid by way of fine on the creation of both the parent and subordinate taluks. Men who do not like to part with the status of zemindar by an absolute sale of the zemindari will readily enough raise money by allowing the proprietary right to be carved up into estates of minor value, the whole substance going into the hands of others, while the name alone remains to them.

14. Again in the case of Gyaram Mandal v. Gyaram Naik [1862] 22 Marsh 28 it was held by the patni deed every right that the zemindar had passed to the patnidar and that unless there is some limitation expressly mentioned the patnidar can, without let and hindrance, exercise those rights. The observations of the Privy Council in the case of Joykishen Mookerjee v. Collector of East Burdwan [1864] 10 M.I.a. 16 as well as in Raja Ranajit Sinha v. Kali Dasi Debi A.I.R. 1917 P.C. 8 are to the same effect. In Tarinee Churn Gangooly v. Watson & Co. [1869] 3 B.L.R. Ac. 437, Mr. Justice Markby in delivering the judgment of the Court observed with reference to a patni interest.

Though of course, we do not mean to deny that it is a tenure, yet the relation between the zemindar and talookdar has scarcely any analogy to the ordinary one of landlord and tenant. The zemindar parts with all control over his property, and all interest in it except; to an annual rent which has been likened to what in England is called a quit-rent.

15. Lastly I may cite the observations of Mr. Justice Chakravarti, who has considerable experience with reference to land tenures, in the case of Surendra Narayan Sinha v. Bijoya Singh Dudhuria : AIR1925Cal962 , to the effect that patni taluks were really transfer of the zemindari interest, the-consideration being payable not in a lump sum but by annual payment in the shape of rent, and lower down, he observes these patni taluks are really grants of the zemindar's interest without restrictions-unless specially mentioned in the pattah. I need hardly add that I quite agree with the observations made above as regards-the nature of a patni taluk.

16. On these grounds in my opinion the patnidar and the defendants as darpatnidars being grantees from the patnidars are entitled to all the minerals included within the patni grant.

17. The next question of importance is the question of limitation. This hillock as it appears from the plaintiff's evidence is about half a mile in length and a quarter of a mile wide. The height is about 40 feet and the diggings are from 10 to 30 feet and the quarries were down to the level ground. It also appears from the evidence that there are about 300 to 400 pits in all parts of the hillock. The Subordinate Judge has found that the defendants have been working the quarries for stones and earth for about 60 years, and1 it also appears that a railway siding was taken to the hillock for the purpose of carrying stones and gravel. There is no-question that the defendants have been making quarries quite openly and them is no question of surreptitious possession. The Subordinate Judge, however, decides in favour of the plaintiff on the ground that the yellow earth or ochre which is now being taken and found to be of some value was found in large quantities only about six years before suit, and, therefore, the plaintiff's right is not barred by limitation. I do not think the period of adverse possession of the quarries on the hillock may be counted from the time when different sorts of earth were found at different depths of the quarry. In my opinion adverse possession should be considered to have commenced when the side of the hillock. I am aware that it has been held that a stranger cannot ordinarily acquire title to the whole of a mine by working a part of it and he only acquires possession of the minerals which he actually digs. But the question may be different where a stranger works a mine in such a manner as to prove possession to the whole of it. See the observations of Hall, V.C. in Ashlon v. Stock [1877] 6 Ch. D. 719. As I have already said, here the defendants worked the quarries in all parts of the hillock openly and not underground. It is hardly necessary to say anything further than to rely upon the observations of the Privy Council in the case of Satya Niranjan Chakravarti v Ram Lal Kaviraj [1877] 6 Ch. D. 719. Their Lordships say:

Working by the defendants was working not under a lease but by a mere trespasser. If therefore the suit is possessory then it is barred under Article 144 for more than 12 years have elapsed as soon as possession became adverse. If on the other hand the suit is declaratory it is barred under Article 120 for more than six years have elapsed since the right to sue for the declaration emerged.

18. The question of limitation, therefore, must also be decided against the plaintiff.

19. There is the question whether the article taken out is mineral or not. The appellants rely upon the contradictions in the evidence of the two expert witnesses examined by the plaintiff. One is Monmotha Kumar Roy who says that the earth that is mineral contains Sodi Carbonate and Sodium Sulphate, and his witness G.N. Frattini gives in his evidence an analysis of the thing taken away but does not mention that there is either sodi carbonate or sodium sulphate. I do not think much depends on this question. It may be a mineral or some valuable earth underground. If nothing underground was given to the defendants by the patni the plaintiff would be entitled to it. If everything passed to the patnidar then the plaintiff would not be entitled to it.

20. It is unnecessary to discuss another small point which was urged by the appellants and it is this, that the earth itself has no commercial value but is used for the purpose of adulteration of real yellow ochre. There is evidence on the part of the plaintiff that the earth that is taken from there can be sold in the market and there is evidence on the plaintiffs' side about its sale in the locality. If it had really no market value nobody would ever endeavour to raise a quarrel about it.

21. Lastly with regard to the question of damages it was argued on behalf of the appellants that damages have been calculated at a very excessive rate. The defendants, however, have not given any evidence on the basis of which the amount can be reduced. From the evidence on the record the Subordinate Judge has made a. calculation and I do not think there is any reason to differ from it.

22. As, however, the plaintiff's case fails on the other grounds I have already stated this appeal must be allowed and the suit dismissed with costs in both Courts.

23. It was pointed out on behalf of defendant 11(ka) that he obtained the interest of defendant 9 in the property in question by a deed of gift dated 19th November 1919. So if the defendants are liable for any damages this defendant would be liable along with the other heirs of defendant 9 for damages up to 18th November 1919, and defendant 11(ka) would only be liable for damages payable by defendant 9 from 19th November 1919. This circumstance should be noted.

24. The appeal of the plaintiff, that is appeal 123, relates to the matter of damages and incidentally the question of primogeniture arises. It is urged on behalf of the plaintiff that the Subordinate Judge has refused to give the plaintiff the entire amount of the damages on insufficient-grounds. The plaintiff, however, has not been able to show that there was any custom of primogeniture in his family. On the other hand, there is evidence of a plaint in a suit brought by the plaintiffs' father in 1895, Ex. U, where it was stated; by him that his father Raji Kirti Chandra Bahadur got the entire interest in the property under the will executed by his brother Kumar Udoy Chand. This statement strikes at the foundation of the claim of right on the basis of primogeniture by custom. The learned advocate then refers to the agreement, I have already stated, (Ex. 43 dated 18th June 1918) entered into between the plaintiff and his brothers Nripendra Narain, Rajendra Narain and Kumar Birendra Narain, minor represented by his mother and next friend Moharani Kamal Kumari Saheba in which the right of primogeniture was acknowledged and the other three brothers gave up their rights to the property. Assuming that the minor's interest can be legally given up by such an agreement the right of these persons to the property could not be taken to have been transferred by an agreement like this. The law requires a conveyance for the purpose of transfer of title and this cannot be made by a mere agreement see Jadu Nath Poddar v. Rup Lal Poddar [1906] 33 Cal. 967.

25. This is the only ground that was urged in this appeal. This appeal must be dismissed with costs apart from the questions which have been found against the plaintiff's contention in the other appeal.

26. The costs are to be recovered in both the appeals by the defendants-appellants in appeal 70, one set in each appeal.

Roy, J.

27. These appeals arise out of a suit brought by the plaintiff zemindar to establish his right to minerals in a small hill within Mouzah Nalhati. The Subordinate Judge decreed the suit in part. The darpatnidars who resisted the suit are appellants here. The plaintiff has field a separate appeal in respect of his title. It appears that the darpatnidars have quarried stones on the surface of the hill without objection or opposition for many years. Recently ochre has been found below the surface and it has turned out to be of value in the market. A question was raised that the substance was not mineral and that the defendants were not really going below the surface. It has been found by experts that the substance found is a mineral and since pits have been dug up to a depth of 30 feet it may be taken that the dispute is in respect of the sub-soil i.e. of mineral rights in the sub-soil.

28. The substantial question in dispute is whether or not a patni lease, as such, conveys minerals to the patnidar. Our task in this discussion is easy. The question was decided in favour of the patnidar by Prinsep and Hill JJ. in the case Ali Quader v. Jogendra Narayan Ry [1912] 16 C.L.J. 7. It was held here and in the Bihar High Court that the authority in favour of the patnidar has been overruled by the decisions of the Judicial Committee in a series of cases. Their Lordships of the Judicial Committee have now in the case of Satya Niranjan Chakravarti v. Ram Lal Kaviraj , pronounced that the judgment of Prinsep and Hill, JJ. has not been overruled, and that the question whether a patni lease, as such, conveys the minerals to the patnidar is, so far as the Judicial Committee is concerned, still open. Their Lordships go on to say that the question turns on what is, the true nature of a patni tenure.

29. So far as we are concerned, therefore, the judgment of Prinsep and Hill, JJ., still rules the field. We are bound by that decision.

30. It would appear, therefore, that the principle that minerals will not be held to have formed part of a grant unless there was an express grant, apply to the cases of mokrari lease, maintenance grant, talabi brahmatter and grants of that kind. Dr. Basak contended that the nature of a patni tenure is in no way different from the mokrari grant discussed in the case of Giridhari Singh v. Meghlal Pandey A.I.R. 1917 P.C. 163, and he invites us to refer this case to a Full Bench. We are unable to do this for the reason that we do not think that a patni tenure is different in many respects from a leasehold interest.

31. The difference will be apparent from a-brief historical survey of taluks in Bengal.

The word 'taluk' is derived from the Arabic word alak which signifies 'to hang from', 'to depend upon': alak also means a leech which hangs from the body to which it has attached itself and another quality said to have belonged to the talukdar and means connexion and dependence. In Upper India the taluk was dependent upon and subordinate to the Sovereign. In Bengal the taluk was subordinate to the zemindar but not always. The larger talukdars were huzuri, i.e. they were immediately under the supreme Government to which they paid their revenue direct; while the smaller ones were mazkuri or specified i.e. in the sanad of the zemindar through whom they paid their revenue. Doubtless all were originally huzuri but when the revenue came to be collected through the zemindars, the smaller talukdars were directed to pay their revenue through this channel in order to avoid the inconvenience of a multiplicity of small payments into the Khalsa or treasury. (Field's Introduction to the Regulations, page 30 notes).

32. I mention this to show that the talukdar was in status equal to the zemindar. Regulation 8 of 1793, Section 51 recognized the dependent taluks created by the zemindars before the Permanent Settlement and protection was given to them subject to the payment of the fixed rent. A number of the talukdars was given the option of getting separated and holding directly under the Government as owners of separate estates. At the same time Government declared by Regulation 44 of 1793 that no zemindar shall grant pattas to raiyat or other persons for cultivation of lands for a term exceeding 10 years. The zemindars, however, continued to grant leases in violation of the prohibition. Regulation 5 of 1812 removed the restriction of 10 years but no provision was made for validating the leases granted in violation of the prohibition. Regulation 8 of 1819 i.e. the Patni Regulation remedied the omission. The preamble to the Regulation recites the circumstances and Section 2 validates these leases.

33. What happened was that the zemindar of Burdwan was threatened with ruin on account of the high land revenue assessed on the estates settled with him at the Permanent Settlement, and large tracts were let out by him in perpetuity and at fixed rent. Thus were created permanent tenures known as patni taluks and the object was easy and punctual realization of rent to enable the zemindar to pay the revenue to the Government. By 1819 it was found that permanent alienations of this kind had been extensively effected in other zemindaries in the neighbouring districts and these alienations were formally legalized by Regulation 8 of 1819. By the Permanent Settlement, Government gave up its position as the exclusive owner of the soil and contented itself with a permanent rent charge on the land, thus escaping the labour, risk and odium attendant upon detailed mofussil management. The zemindars followed suit and they made the talukdars proprietors in the same way as the Government had made the zemindars proprietors. The Patni Regulation was designed to provide a way to the zemindar to recover arrears of rent from the patnidars, almost identical with that by which the demands of Government revenue were enforced against themselves. Henceforth the zemindar had t obe content with his rent reserved and the patnidar was the proprietor to the raiyats. Hence has grown up the popular idea that the patnidar is also a proprietor. It is well known that many of the mining leases are derived from patnidars and it is an astonishing fact that the zemindars have not challenged the patnidar's right except as far as I know, in this case in which Prinsep and Hill, JJ. gave their decision.

34. The patnidar has been able to maintain his position that unless there was anything expressly reserved in the patni contract everything passed to him. One class of cases is that of choukidari chakran lands. The last case in the subject is that of Ranjit v. Kali Dasi A.I.R. 1917 P.C. 8, and it was the patnidar who got the lands. Recently there was the case of Surendra Narayan Sinha v. Raja Bejoy Singh Dudhuria : AIR1925Cal962 before this High Court. The zemindar sought to restrain the zamindar from making bricks and it was held that the zemindar could not complain when his property was not jeopardised nor his rent threatened. Chakravarti, J. discussed the nature of patni taluks and observed that

these patni taluks were really grants of the zemindars entered without restrictions unless specially mentioned in the patta.

35. Minerals were not thought of when these patnis were created. They were no more thought of when the Permanent Settlement was made with the zemindar. The position as between the zemindar and. the patnidar is that the latter gets everything except what was expressly reserved. This follows from his position that he is a proprietor. The Regulation itself calls the tenure a taluk and the tenure-holder the talukdar and it is not unreasonable to hold that the old significance of the word taluk was retained. In Section 3 it is stated, that the patnidar's property may be dealt with as other 'real property.' Mr. Field in his Digest of the Law of Landlord-and Tenant puts a note of interrogation against the words. I take it the framers of the Patni Regulation had the same idea in their minds as the framers of the settlement of 1793 whereby they recognized and proceeded upon the footing that the zemindars are the actual proprietors of the land. In Section 11 again the patnidar is called the defaulting proprietor and attention was drawn by the Court in Ali Quader v. Jogendra Narayan Roy [1912] 16 C.L.J. 7 to para. 2, Section 11 wherein it is mentioned that 'the rent is in fact his reserved property in the tennre.'

36. The zemindar, therefore, has no grievance if his rent is not jeopardised. If there is no reservation therefore the1 minerals will pass to the patnidar.

37. Turning to the actual terms of the patni grant it is contended that there are no such terms as adhah and urdhah as in the case of Satya Niranjan Chakravarti v. Ram Lal Kaviraj and that the words darbust hakuk' in it are not enough since mai hak hakuk' were not considered sufficient in Meghlal Pandeyis case A.I.R. 1917 P.C. 163. My learned brother has dealt with the matter in detail on this point. I agree with him and all I need say is that all the exclusions and reservations were catalogued and there is a long category of things conveyed giving rise to the inference that everything else was granted by the instrument.

38. I agree, therefore, with my learned brother in the conclusions he has arrived at in the case.

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