1. The suit out of which this appeal arises is substantially one for recovery of possession of two parcels of land, though the plaintiffs have asked for certain subsidiary declaration and also for several incidental reliefs which perhaps are not quite consistent with each other.
2. The defendants Nos. 1 to 8 are the putnidars of Lat Kajora Pargana Shergarh. They may shortly be described as the Hazra defendants.
3. On the 3rd Baisakh 1266 B.S., corresponding with the 15th April 1859, the ancestors of the Hazra defendants granted a mokarari patta of certain lands of Mouza Nij Kajara to Birbal Pandit, benamidar for Gobind Prasad Pandit, and to Dina Nath Panda, benamidar for the Hazra lessors. Two days after, that is, on the 5th Baisakh 1266, corresponding with the 17th April 1859, Dina Nath executed in favour of Birbal Pandit a deed of hissanama which recited that in the mokarari patta, Birbal had a ten anna share and Dina Nath six anna share. The deed contained several stipulations as to the proportion in which costs were to be paid by each share-holder in carrying on the colliery business on the land demised.
4. The plaintiffs are the heirs of Gobind Prasad Pandit. Their claim for possession is founded upon two grounds, first, that the two parcels in suit form an integral portion of the lands comprised in the mokarari patta and secondly, (but this only in the alternative) that the clause in the mokarari patta, under which the lessees are entitled to a lease of additional lands in case such lands are necessary for the convenience of the colliery business, also gives the plaintiffs a right to claim those lands.
5. A Commissioner was appointed to hold a local investigation and he has found on measurement, that the two parcels claimed in the suit contained an area of 419 bighas and 287 bighas respectively. He has also measured the lands pointed out to him by the plaintiffs as being the lands comprised in the mokarari patta. According to the boundaries pointed out by the plaintiffs the area is 2,805 bighas, of which 680 bighas are Hasil and the rest are danga lands. According to the revenue boundary on the west the area is 2,750 bighas, of which 680 bighas are cultivated lands and the rest are danga lands.
6. The plaintiffs claim the whole of 2,805 bighas as being the area granted to them by the mokarari patta, whereas the defendants contend that all that was conveyed to the plaintiffs' ancestor and his co-sharers was 203 bighas only. All these measurements are according to the standard rod of 18 inches to a, cubit; but there is a contest between the parties as to the standard of measurement. The plaintiffs say that at the time when the patta was granted the standard of measurement was a rod consisting of 7 1/2 cubits, whereas the defendants contend that it was the ordinary standard. Therefore, the two principal questions which arise between the parties are first, what was the length of the rod with which land was measured at the time when the mokarari patta was granted, and secondly, what is the area of the land comprised in the mokarari patta.
7. The lower Court has held that the plaintiffs have totally failed to establish their case that the length, of the measurement rod was 7 1/2 cubits. It has also held that what was granted under the mokarari patta was 203 bighas and not the larger area claimed by the plaintiffs, namely, 2,805 bighas. It has accordingly dismissed the plaintiffs' claim for the larger area, but has given a decree for partition of the 203 bighas and also a decree for mesne profits to be ascertained in execution.
8. The plaintiffs have appealed and the defendants have also filed a cross-objection.
9. It will be convenient to dispose of the question of the length of the measuring rod first; because it lies at the threshold of the discussion as to the main question involved in this case.
10. In their plaint, the plaintiffs merely stated, that they obtained a grant of 203 bighas by daura measurement. They did not disclose in their plaint what the length of the daura or rod was. It was not until the plaintiffs' pleader opened his case that he stated that the length of the rod was 7 1/2 cubits; although, as I have stated, the plaintiffs' men had previously pointed out to the Commissioner an area of 2,805 bighas as being the area comprised in the mokarari patta, which is much larger than the area they would have been entitled to even if the length of the rod had been 7 1/2 cubits.
11. The plaintiffs have examined certain witnesses in order to show what the standard of measurement was at the time. They stated that up to 1270, that is 1864, the standard of measurement was 7 1/2 cubits but immediately after that, it was reduced to 4 3/2 cubits.
12. The plaintiffs' case is that 7 1/2 cubits is the standard of measurement prevalent in the purgana. If that is so, they ought to have been able to prove their case conclusively by production of documentary evidence. As a matter of fact, they have adduced no documentary evidence whatever in order to support their case. The Court below has totally disbelieved the evidence adduced by the plaintiffs on this point and I entirely agree in that finding.
13. The next question is the most important one in the case, namely, what is the proper construction to be put on the mokarari patta.
14. The material words in the patta are the following: 'We grant this mokarari patta, after taking kabuliat, in respect of patit danga (that is waste land) in Mouza Nij Kajara within the four boundaries, namely, east of the boundary line of Madhubpore, north of the boundary lines of Harispore and Nachipore and of the Saorabad garden, west of Balia Danga and Bellya Danga tank and of Kopa Nath, and south of the boundary lines of Parash Kulia and Chachura Kuri, measuring 203 bighas, for the purpose of making a colliery fixing at the rate of 11/2 rupee per bigha per annum the annual rental thereof at Rs. 304-8 Company's coin.'
15. It is contended on behalf of the appellant that what was conveyed to the plaintiff under this mokarari patta was all the lands comprised within the four boundaries. On the other hand, it is contended on behalf of the respondent that 203 bighas only were granted out of the larger area comprised within the four boundaries mentioned.
16. I am of opinion that the construction put upon these words by the respondents is well-founded. The rent of Rs. 304-8 is fixed as the annual rental in perpetuity and is calculated at the rate of Rs. 1-8 per bigha on the precise area of 203 bighas. If the appellants' construction were correct, that is to say, if the patta conveyed to the plaintiffs all the lands within the four boundaries which, as is now pointed out by them, consist of nearly 2,800 bighas, the result would be most startling. It is only when the boundaries can be ascertained with perfect certainty that it is possible to infer that the intention of the grantor was to convey to the grantee all the lands comprised within the boundaries, but if the boundaries themselves are uncertain, then the only reasonable construction that ought to be placed upon the words is that the grantor intended to convey the quantity of land mentioned if such quantity is exactly defined. In this case the northern boundary is ambiguous and the boundary line would be different according as the boundary line of Parash Kulia or of Chachura Kuri is taken as the northern boundary of the land.
17. The patta goes on to say that besides Rs. 304-8 rent per annum, a further sum is to be paid as rent and the provision for the payment of this further sum is also very significant as it throws light on the real meaning of the terms of the patta. The words are these: And fixing Rs. 5 in the lump as rent per year for the land to be used as road leading from the said colliery to the public road and up to the Railway Station and for the land to be used for the carts passing to the ghats (places for loading and unloading) making a total rent of Rs. 309-8 of the Company's coin payable annually and taking the sum of Rs 304-8 as bonus or premium.' If the lessors were so particularly careful as to charge Rs. 5 per annum as the lump rent for the small quantity of additional lands to be used as roads, it is strange that they should have fixed Rs. 304-8 as the rent in perpetuity, not for 203 bighas only but for whatsoever lands might be found to be comprised within the four boundaries; or, in other words, that they should have attached no importance whatever to the area which they were conveying under the mokarari patta.
18. There is a further stipulation in the patta that the lessees should not get any remission of rent on the ground of inundation, drought or on any other account nor should there be any variation in the jama on any ground. This provision also points to the inference that the annual rent was fixed with reference to the exact area demised and not with reference to any possible area within the four boundaries.
19. If the parties intended that the sum of Rs. 309-8 was to be unalterably fixed for ever as the rental, however large the area might be within the boundaries, it is difficult to conceive what possible object they could have had in fixing the rate of rent per bigha.
20. I am, therefore, of opinion that the dominant idea and intention of the lessors in granting this lease was to demise the precise area mentioned in the lease and not all the lands comprised within the boundaries some of which are uncertain. 'It is not like the case,' said their Lordships of the Privy Council in Daniel Harrick v. Garret Sixby (1865) L.R. 1 P.C.A. 436 at p. 452 of a conveyance of a certain ascertained piece of land, described precisely and accurately by its boundaries on all sides, adding a statement that it contains so many acres or thereabouts, in which case if it turns out that the quantity is incorrectly stated, it shall not affect the transaction. It is the case of a conveyance of a certain number of acres, or thereabouts, to be taken out of a larger block of land and never yet measured off or ascertained, followed by directions expressed in ambiguous language as to the mode in which it is to be measured off.' The same rule of construction is more fully expounded by Vaughan Williams L.J. in Mellor v. Walmesley (1905) 2 Ch. 164; 74 L.J. Ch. 475; 93 L.T. 574; 53 W.R., 581; 21. T.L.R, 591 in the following passage at p. 174 of the report: 'I cannot, however, agree with the learned Judge that the present case is one in which the undoubted rule that, when you have in the words of description a sufficiently certain definition of what is conveyed, inaccuracy of dimensions or of plans as delineated will not vitiate or affect that which is there sufficiently defined, applies, because the description itself is a description of a piece of land situate on the sea shore of certain dimensions which are set forth. Those dimensions, in my opinion, are not an addition to something which has already been certainly described but are part and parcel of the description itself. The words are not an inaccurate statement of a quality of that which had already been certainly described or defined, but are part and parcel of that description or definition. The dimensions in this case, to use the words appearing on p. 247 of Shephard's Touchstone, are an essential part of the description and not a cumulative description in a case in which there is in the first place a sufficient certainty and demonstration.'
21. I think the present case comes within the second class of cases referred to in the observations I have just quoted and that the definition of the area in the operative part of the lease is the essential part of the description and not merely a cumulative description of that of which there has been in the first place a sufficient certainty and demonstration. The plaintiffs attempted to support their theory by adducing evidence to show that Gobind Prasad Pandit during his life-time dug a quarry outside the area pointed out to the Commissioner as the area demised and situated on its east. Gobind Prasad died so far back as 1868 and we find that in the year 1895, Ram Tarak Hazra, one of the defendants, wrote two letters to the present plaintiffs in which he distinctly stated that only 203 bighas of land at Kajara had been obtained in settlement and only 3 coal pits had been dug up to that time. The plaintiffs sent no reply to these letters. It seems to me that the present theory of a quarry having been dug by Gobind before his death is inconsistent with the case put forward by the plaintiffs.
22. Moreover, if I am right in my conclusion that the plaintiffs have failed to establish that the measuring rod was 7 1/2 cubits long, even supposing that a quarry had been dug outside the demised land, it would not be sufficient to entitle them to any further area in addition to the land demised, if the area of the land is once definitely ascertained.
23. In 1903 the defendants put forward their case that the land demised under the mokarari patta was defined by stone bounds and they have made the same case now in their written statement. The Commissioner has found on the northern boundary of the land a large stone encircled by small stones and on the southern boundary of the land two big stones.
24. The defendants have adduced evidence to show that soon after the lease was taken, Gobind Prasad personally went to the spot which was within 4 miles from his residence, and had the demised land delineated by stone bounds. The Court below has believed that evidence and on a careful consideration thereof, I see no reason to dissent from its findings.
25. I may mention that the appellants have not pressed in this Court the alternative claim founded on what has been called the convenient clause in their mokarari patta.
26. The defendants have filed a cross-objection against the decree of the Court below for mesne profits. I think the cross-objection must be allowed. The lands are dangapatit, that is waste land, and admittedly no profit is derived from any use of the surface of the lands.
27. The respondents do not press their cross-objection against the decree of the Court below directing partition of the 203 bighas.
28. For these reasons, the judgment of the Court below is affirmed and this appeal dismissed with costs.
29. The cross-objection is allowed. There will be no order as to costs for the cross-objection
30. I agree as to the conclusion of fact arrived at by my learned brother and as to the construction which should be put on the mokarari patta. I concur in the order he proposes to make.