1. The only question arising for our decision in the present appeal is whether the minerals lying beneath the Mauza Jitpore' in the Fergana of Jheria passed to the ancestor of the Tewari defendants by a Mogoli Brahmottar grant at a rent of Rs. 16 a year by the ancestor of the defendant No. 1. The plaintiff has acquired annas 15-2 1/2 gandas in the sub-soil of the mauza from the Tewaris and brought the suit for the declaration of his title to such share. His claim was resisted by the contesting defendants on various grounds, the only one of which it is now material to consider is the defence that the Brahmottar granted by the ancestor of the defendant No. 1 to the ancestor of the Tewari defendants, did not pass the minerals to the grantee. The evidence before us is small and the case largely depends upon what are the proper inferences of fact to be drawn from certain admitted facts.
2. There is no document evidencing the grant of the Brahmottar although it would appear that it was granted more than 100 years ago. At that time it is not probable that any one thought of there being coal under these lands. In an attempt to prove the origin of the Brahmottar grant the plaintiff called the defendant No. 17 to prove the origin of the grant. His statement was that he heard from his grandmother that his ancestor had become, degraded for some spiritual services rendered to the ancestor of the defendant No. 1 and, therefore, the former Raja made a gift of the whole of his rights in the mauza. The learned Judge very properly refused to accept this statement as proving the origin of the grant.
3. The only facts proved are, first, that the grant was a Mogoli Brahmottar grant and secondly, that it has been held for more than 100 years at the same rent of Rs. 16. From these facts the learned Judge drew the inference that the Brahmottar was a permanent tenure held at a rent of Rs. 16 a year He, however, came to the conclusion that such a grant did not transfer the minerals -to the grantee. It is not suggested in the present case that there were any mines opened on the property at the date of the grant, nor that the plaintiff or the persons from whom he derives title have a prescriptive right to work any of the minerals under the property. The learned Judge, therefore came to the conclusion that the plaintiff had not shown that the former Raja parted with the minerals when he made the Brahmottar grant to the Brahmin Bekari Tewari.
4. I think the learned Judge in this view was correct. The present case appears to me to be covered by authority.
5. The first case to which we have, been referred is the case of Kumar Hari Narayan Singh Deo v. Sriram Chakravarty 6 Ind. Cas. 785 : 14 C.W.N. 746 (P.C.) : 11 C.L.J. 653 : 7 A.L.J. 633 : 8 M.L.T. 51 : 12 Bom. L.R. 495 : 20 M.L.J. 569 : 37 C. 723 : (1910) M.W.N. 309 : 37 I.A. 136 which is a decision of the Judicial Committee of the Privy Council The contest in that case was between the zemindar and certain Goswamis, the she baits of an idol. Lord Collins in delivering the opinion of their Lordships made the following remarks: 'On the whole it seems to their Lordships that the title of the zemindar Rajah to the village Petina as part of his zemindari before the arrival of the Goswamis on the scene, being established as it has been, he must be presumed to be the owner of the underground rights thereto appertaining in the absence of evidence that he ever parted with them, and no such evidence, has been produced'. I think that decision covers the case now before us. There can be little if any distinction between the case of a mogoli Debutter and a Mogoli Brahmottar grant. It has, however, been argued before us that that decision does not apply to the present case having regard to certain remarks made by Lord Collins in an earlier portion of the judgment. But a perusal of the judgment convinces me that in using the expression occupancy right' their Lordships were not considering whether the idol was a tenure-holder or a ryot with an occupancy right or a ryot with a non-occupancy right. It seems manifest to me that their Lordships were using this expression as opposed to the right of the zemindar who had the proprietary interest.
6. The next case that was cited to us was that of Rajah Jyoti Prosad Singh v. Lachipore Coal Co. 12 Ind. Cas. 482 : 14 C.L.J. 361 : 38 C. 845 : 16 C.W.N. 241. The facts in that case are un-distinguishable from the present. The grant in that case was a Mogoli Brahmottar grant, The learned Judges held that such a grant even though permanent, did not pass the mines unopened at the date of the grant.
7. Next comes the case of Durga Prosad Singh v. Brojo Nath Bose 15 Ind. Cas. 219 : 39 C. 696 : 16 C.W.N. 482 : (1912) M.W.N. 425 : 11 M.L.T. 337 : 9 A.L.J. 462 : 15 C.L.J. 461 : 14 Bom. L.R. 445 : 23 M.L.J. 26 : 39 I.A. 133, which was also a decision of the Judicial Committee of the Privy Council. The contest in that case was between the persons claiming title from a digwar and the zemindar and it was held that the minerals were vested in the zemindar. Against these decisions the appellant relies on the a se of Sonet Kooer v. Himmut Bahadur 1 C. 391 (P.C) : 25 W.R. 239 : 3 I.A. 92 : 3 Sar. P.C.J. 608 : 3 Suth. P.C.J. 257. But the only point decided in that case was that on the failure of heirs of a person to whom a permanent tenure had been granted the escheat was to the Crown and not to the zemindar. But that case has nothing to do with the question of what was granted to the tenure-holder in the first instance. I think, therefore, that the learned Subordinate Judge came to a correct conclusion when he held that the Mogoli Brahmottar grant to the ancestor of the Tewari defendants did not pass the minerals under the mauza.
8. Accordingly the present appeal fails and must be dismissed with costs. We allow only one set of costs to be divided between the different sets of respondents who have appeared. The respondents are not entitled to the paper-book costs incurred by them.
9. I agree that the case is covered by authority and that the appeal must be dismissed.