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Nageshwar Bux Roy Vs. Bengal Coal Co. Ltd. and Others - Court Judgment

LegalCrystal Citation
CourtPrivy Council
Decided On
Case NumberPrivy Council Appeal No. 101 of 1926 (From Patna: Patna Appeal No. 29 of 1925)
AppellantNageshwar Bux Roy
RespondentBengal Coal Co. Ltd. and Others
Advocates:W. H. Upjohn and E. D. Raikes, for Appellant ; A.M. Dunne and G.D. McNair, for Respondents. Solicitors for Appellant, Watkins and Hunter; Solicitors for Respondents-Sanderson Lee and Co.
.....the village has long been known, as the granting of the invalid lease of the minerals in 1855 to a coal company itself evidences, and workings have been intermittently carried on in the area for a very long period. the revenue survey map of 1865-1866 shows two shafts in rajhara. according to the district gazetteer systematic operations were begun by the company at rajhara in 1901, and although it appears that these systematic operations referred also to workings in an adjoining colliery the subordinate judge is satisfied that they included two pits in rajhara itself. the workings have been commonly described as a colliery, a comprehensive term which includes both the worked and the as yet unworked minerals within a defined area. it was of the colliery in this sense that the company claim.....

Lord Macmillan:

The subject matter of dispute in this appeal is the right to the minerals and particularly the coal lying under the village of Rajhara. The plaintiff, how the appellant, claims that these minerals belong to him in virtue of his proprietorship of the Bisrampur Estate, within which the village of Rajhara lies, and in his plaint prays for a declaration to that effect.

It appears that by sanad dated 21st February 1789, an ancestor and predecessor-in-title of the plaintiff granted the village on jamabrit tenure to Pande Shiva Ram and Pande Shankar Ram. The successors of the latter in turn granted in 1855 a mukarrari patta or lease of the village to the Secretary of the Bengal Coal Co., Ltd., on behalf of that company with an express right to work the under-lying coal. The suit is directed against the Coal Co. and the present representatives of the grantees under the sanad of 1789 who are also the representatives of the grantors of the lease of 1855 in the company's favour.

So far as the lease of 1855 is concerned, its validity as a title to the mineral rights in question depends upon the title of the lessors to grant these rights. The sole title of the lessors consisted of the jamabrit grant of 1789. Now it is well settled that in the case of such a grant nothing short of express words will convey the mineral rights, and the sanad of 1789 contains no express grant of the minerals. It therefore conferred no mineral rights on the grantees, and this, indeed, appears to have been conceded by the defendants in the High Court. It follows that the grantors of the lease of 1855, having themselves no title to the mineral rights in the village, were not in title to let them to the Bengal Coal Co. Both the Subordinate Judge and on appeal the High Court of Judicature at Patna have accordingly held that the defence fails, so far as founded on the lease of 1855 taken by itself-that lease, as regards the mineral rights, having been granted a non dominis. With this conclusion their Lordships agree.

But the defence contained a challenge of the title of the plaintiff himself to the ownership of the minerals, and thus attacked the plaintiff's title to sue for the declaration which he asked. The precise ground of this attack was not specified in the defendant's pleadings, but, despite the plaintiff's protests, was developed in the course of the proceedings and the topic was fully investigated both by the Subordinate Judge and by the High Court. The former held that the attack failed while the latter held that it succeeded. As will appear their Lordships do not find it necessary to examine this aspect of the case and need only mention that in the view of the High Court the title to the mineral rights in question was at least till 1895, and probably still is, vested in the Government. Consequently when the present appeal was partly opened before their Lordships on 26th February 1929, attention was drawn to the fact that the Government was not a party to the case and was not represented although important questions possibly affecting the title of the Government to minerals in India generally were raised. The appeal was therefore directed to stand over in order that its dependence might be intimated to the Secretary of State for India. In reply to their Lordships' communication, the Secretary of State has intimated that the Government of India does not propose to intervene in the appeal, and the case having again been set down for hearing, their Lordships now proceed to dispose of it.

Without expressing any opinion as to the soundness of the contrary view taken by the High Court, their Lordships propose to assume that the plaintiff's title embraced the mineral rights in question and to consider what has become the main issue in the case as argued before them, namely whether the plea of the Bengal Coal Co. that they have acquired a title to the minerals under the Statute of Limitations is well founded. The plea was rejected by the Subordinate Judge but sustained as an alternative ground of judgment by the High Court. It is plain that if this contention of the company is made out there is an end of the case.

Under the Limitation Act, 1908 (No. 9 of 1908), it is provided that every suit for possession of immovable property of which the plaintiff while in possession of the property has been dispossessed or has discontinued possession shall be dismissed if instituted after a period of 12 years from the date of dispossession or discontinuance of possession (Ss. 3 and 28 and Sch. 1, Art. 142). It is also provided that every suit for possession of immovable property or "any interest therein not hereby otherwise specially provided for" if instituted after a period of 12 years from the time when the possession of the defendant becomes adverse to the plaintiff shall be dismissed (Ibid. Art. 144).

The Courts below appear to have treated the present case as raising an issue of adverse possession under Art. 144 rather than of dispossession under Art. 112. In the result the distinction is here probably not material as adverse possession by the defendant may and in the present instance does imply dispossession of the plaintiff. Their Lordships however think it right to point out that the case in their view falls to be decided under Art. 142.

The present suit was instituted in 1919 and the question therefore is whether the defendant company have established dispossession of the plaintiff for a period of 12 years preceding 1919. They will have established this if they can show that they have for such period been in possession to the exclusion of or adverse to the plaintiff:

"On the evidence," says Adami, J., "I find that the defendant company were in possession of Rajhara and were working the colliery by raising coal to a greater or less degree all through the years 1901 to 1912 and that it is not proved that at any time in 1912 the work was stopped by a notice from the plaintiffs nor was the colliery abandoned. Therefore oven if the plaintiffs had proprietary rights in the minerals during the period the defendants were in adverse possession for 12 years and would gain title."

The evidence as to the mining activities of the company in Rajhara was subjected to a minute and critical examination by Mr. Upjohn on behalf of the appellant. He emphasized the absence of records of continuous working for 12 years of the three pits which were in existence in Rajhara in 1901, and finally maintained that in any event, if it should be held that as regards one of the pits there had been adverse possession for 12 years, the company thereby acquired right only to the particular area of coal of which it was in actual physical possession for the requisite period and no more, and this at most was the small area worked by No. 3 pit. Such possession, he contended, could not be held to confer a right to the minerals under the whole village which comprised some 1,342 acres.

Now there is undoubted authority for the proposition that where a person without any colour of right wrongfully takes possession as a trespasser of the property of another, any title which he may acquire by adverse possession will be strictly limited to what he has actually so possessed. The maxim tantum prescriptum quantum possessum is rigorously applied to him. And it has been held in the case of mines that there is no presumption in law that the possession of a part of a seam infers possession of the whole seam, much less of all the seams in the mineral field in which part of a seam has been worked. On the other hand, possession is a question of fact and the extent of the possession may be an inference of fact: Low Moor Co. v. Stanley Coal Co, Ltd.

(1); McDonnell v. McKinty (2)and see Ashton v. Stock (3).

In considering the character and effect of acts of possession in the case of a mineral field, it is necessary to bear in mind the nature of the subject and the possession of which, it is susceptible. Owing to the inaccessibility of minerals in the earth, it is not possible to take actual physical possession at once of a whole mineral field: it can be occupied only by extracting the minerals and until the whole minerals are exhausted the physical occupation must necessarily be partial. The real question is what in fact has been possessed.

In the present case the village of Rajhara has always bean treated as a unit of property and the minerals underlying it constitute a defined unit as much as the surface overlying them. The existence of coal under the village has long been known, as the granting of the invalid lease of the minerals in 1855 to a coal company itself evidences, and workings have been intermittently carried on in the area for a very long period. The Revenue Survey map of 1865-1866 shows two shafts in Rajhara. According to the District Gazetteer systematic operations were begun by the company at Rajhara in 1901, and although it appears that these systematic operations referred also to workings in an adjoining colliery the Subordinate Judge is satisfied that they included two pits in Rajhara itself. The workings have been commonly described as a colliery, a comprehensive term which includes both the worked and the as yet unworked minerals within a defined area. It was of the colliery in this sense that the company claim to have been in possession. The actings of the coal company have throughout, indeed, been consistent only with the assertion of a right to the minerals under the whole village to which they thought they had right. They openly sank at least three pits at different points, two of them being half a mile distant from the third. They selected the places at their own discretion, brought the requisite plant on to the ground and erected bungalows for their mining employees. Mr. Evans who was resident Assistant Manager of the colliery at Rajhara from 1907-1908 to 1913 himself made bores in the mineral field during his time. It is nothing to the purpose that the company may not have worked any one pit for 12 years continuously if for 12 years they have carried on operations in various parts of the mineral field. The fact that one pit in a mineral field is discontinued and another opened in a different part of the field and that bores are sunk in likely places is excellent proof of possession of the whole area. There was no concealment on the part of the company; they behaved openly as persons in possession not of one pit, but of the mineral field underlying the village as a whole, and as entitled to sink pits anywhere in the village they chose. All this they did without any challenge from the plaintiff or his predecessors, and in the bona fide belief that their lease entitled them to work the minerals anywhere in the area let.

The case of Glyn v. Howell (4), is distinguishable. There the operations of the trespasser had been confined to a single area of two acres and he had made no attempt to work any other part of the field. Here the operations of the company were only consistent with their being, as they conceived, in possession of the whole minerals under the village as they were in law in legitimate possession of the whole surface. The plaintiff received rent from the company for the village as a whole and the receipt of this rent from a company with so significant a name as the Bengal Coal Company, which" was actually carrying on raining operations at various points in the village, is indicative of recognition of their possession of the underlying minerals as well as of the surface.

Their Lordships are not at all disposed to negative or to weaken the principle that as a general rule where title is founded on an adverse possession the title will be limited to that area of which actual possession has been enjoyed. But the application of this general rule must depend upon the facts of the particular case and in the present instance their Lordships, having regard to the whole circumstances and without pursuing further the details of the evidence so closely analyzed both in the High Court and again at their Lordships' Bar, find themselves in agreement, with the view expressed by Adami, J., in the passage above quoted, and are of opinion that the possession had by the company for a period of at least 12 years daring their occupation was effective possession not only of the surface of the village but of the whole mineral field underlying it, and that for such period the plaintiff has been dispossessed of the whole mineral field. Their, Lordships will therefore humbly advise His Majesty that the appeal be dismissed with costs.

Appeal dismissed.

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