Case: The Lodna Colliery Co. Ltd Vs. Bhola Nath Roy

4. It is clear that since the settlement the zamindars have had at least a prima facie title to all lands for which they pay revenue, such lands being commonly referred to as malguzari lands.18. The right of the zemindars to the sub-soil minerals under their land follows from their being proprietors of the soil and has been recognized in a number of cases between the zemindars and persons holding land under a tenure from them. It has been held in those cases that, in the absence of the right to sub-soil minerals being conferred on the tenure-holder under the terms of the tenure held by him, he does not get any right to them.19. The first such case is Hari Narayan Singh v. Sriram Chakravarti, 37 Ind App 136 (PC). The same view was expressed in Durga Prasad Singh v. Braja Nath Bose, 39 Ind App 133 (PC).20. In Sashi Bushan Misra v. Jyoti Prasad Singh Deo, 44 Ind App 46 : (AIR 1916 PC 191) Lord Buckmaster said at p. 53 (of Ind App): (at p. 193 of AIR) with regard to the above two cases:"Theses decisions, therefore, have laid down a principle which applies to and concludes the present dispute. They establish that when a grant is made by a zamindar of a tenure at a fixed rent, although the tenure may be permanent, heritable, and transferable, minerals will not be held to have formed part of the grant in the absence of express evidence to that effect.The fact that the tenure was rent free, makes no difference to this principle, as held in Raghunath Roy Marwari v. Raja of Jheria, 46 Ind App. 158 : (AIR 1919 PC 17).21. We are therefore of opinion that the right of property of the persons with whom resumed invalid Lakhraj land had been settled being the same as of the zemindars, extends to the sub-soil minerals of the land held by them.22. Further, the plaintiffs trace their rights to the documents Exhibits 10, 2 and 6(a). Before dealing with them, we may refer to two other Regulations not so far mentioned.23. Regulation II of 1819 modified the then existing Regulations regarding the resumption of revenue of lands held free of assessment under illegal or invalid tenures. Its Section III declared that lands specified therein were liable to assessment in the same manner as other unsettled mahals and that the revenue assessed on all such lands would belong to Government. It laid down the procedure for enquiry about the claim of Government to assess such land and for assessment of revenue. Regulation III of 1828 made certain changes in the procedure, but contains nothing particular which would affect the determination of the question before us.24. Exhibit 10 is the Robakari of the Deputy Collector of burdwan. Dated April 15, 1841, with respect to Touzi No. 2597. It is in pursuance of this order that permanent settlement was made with Madhusudan Roy and Sitaram Roy, predecessors-in-interest of the plaintiffs with respect to the land in suit. It appears from this Robakari that in proceedings between the Government as plaintiff and Manik Chandra Roy, Madhusudan Roy, Sitaram Roy and others as defendants, the claim of the Government, in accordance with the provisions of Regulation II of 1819 and Regulation III of 1828, in respect of the invalid revenue free land consisting of Brahmottar land measuring 156 bighas 10 cattahs and the Debutter land measuring 18 bigghas 10 cattahs, in all 175 bighas, situated in village Pariharupur and other villages within Pergana Shergarh, was decreed in April 1837, with the result that that land was resumed and assessed to land revenue. Madhusudhan Roy and Sitaram Roy and other defendants claimed right to get settlement because it was the Lakharaj property obtained by their ancestors. The settlement was however made with Manik Chandra Roy on April 19, 1838, as the others defendants did not turn up. Subsequently. Madhusudhan Roy applied for settlement jointly with Manik Chandra Roy and others. As a result of the enquiry made, permanent settlement was separately made with Manik Chandra Roy and others with respect to certain area and with Madhusudan Roy and Sitaram Roy with respect to the rest. On April 15, 1841. Amalnama, Exhibit 2. was issued by the Deputy Collector, Burdwan, to Mukhyas and others. It directed them to pay their respective rents to the persons with whom settlement was made.25. Exhibit 6(a) is certified copy of settlement khatian No. 611 in respect of village Sripur, relating to Touzi No. 2597, R. S. No. 2416. It described the interest in the land in suit to be Bajeapti (resumed) Lakhraj Pariharpur and others. It mentions five persons including the son of Madhusudhan Roy and the sons of Sitanath Roy, to be the proprietors in possession of that interest. It also shows the King Emperor of India as possessing the entire superior interest. It is thus clear that the possessors of the Bajeapati (resumed) Lakhraj land in suit held it as proprietors under the King-Emperor of India. They must consequently, have the same rights which other proprietors like zamindars had.26. It is however urged for the appellants that the records prior to the resumption proceedings showed the lands in suit to be the Brahmottar and Debutter lands of the predecessors of the plaintiffs and that therefore, in view of the principle of law laid down by the Privy Council in Hari Narayan Singhs case, 37 Ind App 136 (PC) and the later decisions, they cannot be held to possess rights in the sub-soil in the absence of definite evidence that such rights were conveyed under those grants. We do not agree with this contention. The predecessors-in-interest of the plaintiffs held the land from the Government and not on a subordinate tenure from the zamindars and therefore the principle of law as stated in Hari Narayan Singhs case, 37 Ind App 136 (PC) and later confirmed in several decisions by the Privy Council does not apply to the present case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is clear from this section that the Regulation simply dealt with the question about the liability of certain lands to the payment of revenue and provided that any dispute about proprietary right between the grantees and the grantors would be a matter of a private nature to be decided by the Courts of Diwani Adalat. It, however, definitely provides that the grantees or the then possessors of land, until dispossessed by a decree of the Diwani Adalat, are to be considered as the proprietors of the lands with the same right of property therein as in declared to be vested in properties of estates or dependent taluks according as the land may exceed or be less than one hundred bighas subject to the payment of revenue. Such proprietors of land were to execute engagements for revenue with which their lands may be declared chargeable, either to the Government or to the proprietor or farmer of the estates in which the lands be situated.12. The grantees of invalid Lakhraj lands therefore had the same right of property in that land, subject to the payment of revenue as had been declared to be vested in the proprietors of estates. If the zamindars, the proprietors of estates, have rights not only over the surface of the land but in the sub-soil as well, the persons whose grants had been held to be invalid and who were held to be liable to pay land revenue also possessed rights in the sub-soil of the land settled with them.It is thus clear from the above declarations that the zemindars, the proprietors of estates, were recognised to be the proprietors of the soil.The right of the zemindars to the sub-soil minerals under their land follows from their being proprietors of the soil and has been recognized in a number of cases between the zemindars and persons holding land under a tenure from them. It has been held in those cases that, in the absence of the right to sub-soil minerals being conferred on the tenure-holder under the terms of the tenure held by him, he does not get any right to them.We are therefore of opinion that the right of property of the persons with whom resumed invalid Lakhraj land had been settled being the same as of the zemindars, extends to the sub-soil minerals of the land held by them.22. Further, the plaintiffs trace their rights to the documents Exhibits 10, 2 and 6(a). Before dealing with them, we may refer to two other Regulations not so far mentioned.23. Regulation II of 1819 modified the then existing Regulations regarding the resumption of revenue of lands held free of assessment under illegal or invalid tenures. Its Section III declared that lands specified therein were liable to assessment in the same manner as other unsettled mahals and that the revenue assessed on all such lands would belong to Government. It laid down the procedure for enquiry about the claim of Government to assess such land and for assessment of revenue. Regulation III of 1828 made certain changes in the procedure, but contains nothing particular which would affect the determination of the question before us.24. Exhibit 10 is the Robakari of the Deputy Collector of burdwan. Dated April 15, 1841, with respect to Touzi No. 2597. It is in pursuance of this order that permanent settlement was made with Madhusudan Roy and Sitaram Roy, predecessors-in-interest of the plaintiffs with respect to the land in suit. It appears from this Robakari that in proceedings between the Government as plaintiff and Manik Chandra Roy, Madhusudan Roy, Sitaram Roy and others as defendants, the claim of the Government, in accordance with the provisions of Regulation II of 1819 and Regulation III of 1828, in respect of the invalid revenue free land consisting of Brahmottar land measuring 156 bighas 10 cattahs and the Debutter land measuring 18 bigghas 10 cattahs, in all 175 bighas, situated in village Pariharupur and other villages within Pergana Shergarh, was decreed in April 1837, with the result that that land was resumed and assessed to land revenue. Madhusudhan Roy and Sitaram Roy and other defendants claimed right to get settlement because it was the Lakharaj property obtained by their ancestors. The settlement was however made with Manik Chandra Roy on April 19, 1838, as the others defendants did not turn up. Subsequently. Madhusudhan Roy applied for settlement jointly with Manik Chandra Roy and others. As a result of the enquiry made, permanent settlement was separately made with Manik Chandra Roy and others with respect to certain area and with Madhusudan Roy and Sitaram Roy with respect to the rest. On April 15, 1841. Amalnama, Exhibit 2. was issued by the Deputy Collector, Burdwan, to Mukhyas and others. It directed them to pay their respective rents to the persons with whom settlement was made.25. Exhibit 6(a) is certified copy of settlement khatian No. 611 in respect of village Sripur, relating to Touzi No. 2597, R. S. No. 2416. It described the interest in the land in suit to be Bajeapti (resumed) Lakhraj Pariharpur and others. It mentions five persons including the son of Madhusudhan Roy and the sons of Sitanath Roy, to be the proprietors in possession of that interest. It also shows the King Emperor of India as possessing the entire superior interest. It is thus clear that the possessors of the Bajeapati (resumed) Lakhraj land in suit held it as proprietors under the King-Emperor of India. They must consequently, have the same rights which other proprietors like zamindarspredecessors-in-interest of the plaintiffs held the land from the Government and not on a subordinate tenure from the zamindars and therefore the principle of law as stated in Hari Narayan Singhs case, 37 Ind App 136 (PC) and later confirmed in several decisions by the Privy Council does not apply to the present case.