In R.A. No. 31 of 1915.
1. This is an appeal by the defendant No. 1 from the judgment of the learned Second Subordinate Judge of Burdwan, dated the 18th of September 1914.
2. The plaintiff brought the suit as assignee of a mining lease for recovery of possession and mesne profits. The leases which have been granted of the property appear to be as follows:
The first lease (the date of which does not appear) was of 66 bighas granted to one Mr. D. Smith. This interest is now vested in the Bengal Coal Company.
3. The next lease is dated the 25th of April 1856 and was granted to Messrs, Gordon Stuart and Co. on behalf of the Bengal Coal Co. The lease was by the 16-annas maliks of approximately 800 bighas of patit danga land' at a rent of 8 annas a bigha. The lease granted both the surface and mineral rights. On the 13th of May 1901 the Bengal Coal Co. underleased their rights to the Barabani Coal Co.
4. By a lease, dated the 20th of August 1874, the 12-annas co-sharers granted a lease of 300 bighas within the boundaries mentioned in the lease described as 'Paddy Shuna and waste land' to Bejoy Nath Chatterjee. On the 1st December 1900, this lease was purported to be assigned to the plaintiff. On the 6th of November 1894 a lease was granted by the 12-annas co-sharers to Hari Charan Singh of 1199 bighas. This on the 17th of October 1901 was assigned to the defendant No. 1. The owners of the remaining 4 annas on the 29th of January 1907 granted a lease to the defendant No. 1. The Bengal Coal Co. had on the 2nd of September 1875 instituted a suit in the Court of the District Judge of Burdwan against Bejoy Nath Chatterjee for the purpose of obtaining an injunction restraining Bejoy from continuing two shafts on about half a cotta of land and from 'doing acts of digging coal in the other lands.'
5. By his judgment, dated the 4th of July 1877, the learned District Judge held that the lease to the Bengal Coal Co. included all the 'Danga' land and was not limited to the 800 bighas and further that the two shafts that were being sunk by Bejoy were on land included in the lease to the Bengal Coal Co. He accordingly granted an injunction restraining the defendant from taking coal or minerals from any portion of the land comprised in the lease to the Bengal Coal Co. and from working the two shafts.
6. Bejoy then appealed to the High Court but his appeal was dismissed for default in the year 1878.
7. Bejoy from that time disappeared from the scene and was not heard of again until the present plaintiff found him out and took an assignment of his lease for the sum of Rs. 250.
8. It is said that Bejoy continued to pay the rent reserved by his lease. I have no doubt that the evidence purporting to prove payment of rent is false and was put forward with a view to proving that the lease to Bejoy was subsisting.
9. The defendant No. 1, having acquired the lease to Hari Charan Singh and having taken a lease of the other 4 annas on the 29th of January 1907, began to work the coal. The present plaintiff instituted this suit on the 29th of November 1912.
10. The learned Subordinate Judge by his judgment, dated the 18th of September 1914, decreed the same.
11. The present appeal (No. 31 of 1915) has been preferred by the defendant No. 1 against that judgment.
12. The first argument that was raised on the hearing of this appeal was that the suit was barred by limitation.
13. The property in dispute being mining rights the mere fact that the minerals had not been worked is not a dispossession or discontinuance of possession within the meaning of the Limitation Act. But it was argued that as the Bengal Coal Co. had brought a suit to prevent Bejoy working the minerals and when that suit was successful Bejoy abandoned the property with the intention of exercising no further dominion over the same and so there was a discontinuance of possession within the meaning of the Limitation Act.
14. This argument is closely allied to another argument that Bejoy abandoned the holding and, therefore, his lease has long since terminated.
15. In the view that I take on the second argument it is unnecessary for me to express an opinion on the question of limitation.
16. In this country a surrender or relinquishment does not require to be in writing but can be inferred from the acts of the parties. This is well illustrated by the case of Chunder-moonee Nya Bhooshun v. Sumbhoo Chunder Chuckerbutty W.R. Special No. 270 a decision which has never been questioned in this Court.
17. Do the facts then in this case show that Bejoy intended to relinquish the holding?
18. After the termination of the litigation with the Bengal Coal Co., nothing was heard of Bejoy till he purported to assign his lease to the plaintiff for Rs. 250. During that period I find on the evidence Bejoy paid no rent. Moreover, there is the important fact that in 1894 the 12-annas co-sharers who were Bejoy's landlords granted to Hari Charan Singh a fresh lease; thus recognising that Bajoy had abandoned and relinquished his tenure. It seems fairly obvious that the plaintiff, who was manager and a great friend of Hari Charan Singh's, came somehow to hear of Bejoy's lease which he acquired for a trifling sum and the defendant No. 1 having purchased the lease of Hari Charan the present suit was brought against him as an attempt to compel him to part with a large sum to the plaintiff.
19. In my opinion Bejoy had abandoned the lease long before the sale to the plaintiff and that abandonment had been accepted and acted upon by the 12-annas co-sharers as the landlords.
20. But even if the lease was in existence I could not agree to the form of relief granted to the plaintiff. The defendant No. 1 is admittedly the lessee of the 4-annas share in the property. There being no actual ouster or destruction of the common property by the defendant No. 1 working his pits, the plaintiff is not entitled to an account in the absence of proof that the defendant No. 1 has worked more than his fair share. This proposition is in accordance with the decision of this Court in the case of Mahesh Narain v. Nowbat Pathak 32 C. 837 : 1 C.L.J. 437.
21. The evidence shows that the defendant No. 1 is working the coal under a few bighas. There is nothing to prevent the plaintiff from working his own share if his lease had been found to be subsisting.
22. Further the evidence shows that the plaintiff knew or must have known that the defendant No. 1 was spending large sums of money to develop the mines and having acquiesced in the defendant's so doing it would in any case be much too late for him to come in and claim an account of the profits. see Parrott v. Palmer (1834) 3 My.& K. 632 at p. 643 : 40 E.R. 241 : 41 R.R. 149. The plaintiff himself says he saw the defendant No. 1 in possession from the year 1907 and yet he does not bring his suit till 1912. Nor can the form of the decree ordering ejectment of the defendant No. 1 be supported. If the plaintiff has a subsisting lease his proper remedy is partition and if a partition were to be awarded there should, Ithink, have been a direction to the Commissioner to award to the defendant No. 1, if possible, the portion of the property he was in possession and on which he has spent so much money.
23. I think the judgment appealed against cannot be supported. I would, therefore, allow this appeal and dismiss the plaintiff's suit with costs both in this Court and in the Court below.
In R.A. No. 25 of 1915.
24. This is an appeal by the defendants the Bengal Coal Co. against the same judgment as that appealed against in Appeal No. 31 of 1915. The learned Subordinate Judge found that the plaintiff had no cause of action against the Bengal Coal Co. They say, however, that they apprehend that the observations made by the learned Subordinate Judge may prejudice their position on some future occasion and, therefore, they have filed this appeal. These apprehensions are unfounded as the observations they refer to cannot prejudice their position when the Judge held that there was no cause of action against them. The appeal is dismissed. We make no order as to costs.
Shamsul Huda, J.
25. I agree with my leaned brother.