Das, J.This appeal arises out of a suit instituted by the appellant Gopiram Bhattioa in substance for a declaration of his title to the minerals in mahal Maheshwari and for certain consequential relief The plaint alleges that mahal Maheshwari is part of the Khaira Raj of which the proprietor was one Guru Prosad Singh, and that Guru Pro-sad Singh conveyed his title in the mahal in question to Mr. A.C Bose on 31st August 1919, and that Mr. Bose in his turn transferred his right, title and interest in the mahal to the plaintiff on 19th March 1920. According to the plaintiff, the defendants are mustajirs of the mahal, paying a rent of Rs. 301 to the plaintiff. It appears that during the war the Government served a notice on the plaintiff, presumably under the Defence of India Act, calling upon him to place his mica mines at the disposal of the Government. A question arose as to who was entitled to the compensation. money in respect of the mica cut and removed by the Government, and the defendants appear to have put forward a definite claim before the Collector of Monghyr to the effect that they were the owners of the mica mines and were accordingly entitled to the compensation money.

2. Having regard to the attitude taken up by the defendants, Guru Pro-sad Singh instituted a suit, being suit No. 98 of 1918 against the present defendants on 16th July 1918 for the following relief:

(a) That it may be adjudged and declared that the plaintiff is the sols and exclusive owner and proprietor of the mica mines and other minerals and other underground or subsoil rights of mahal Maheshwari in the Sub-Division of Jamui in the district of Monghyr bearing tauzi No. 327 in the revenue roll of the Collectorate of Monghyr and the defendants have no right title or interest thereto or therein, and they are not entitled to the compensation money for the mica removed by the Government from the said mahal.

(b) That upon such adjudication the defendant may be restrained by injunction from in" terfering with the rights of the plaintiff to the said mica mines and other minerals and other underground and subsoil substances lying in the said mahal Maheshwari from entering and prospecting or working the said mines and minerals and other underground substances whenever the plaintiff thinks it necessary in such manner and ways as may be necessary for the said purpose.

(c) That costs of the suit may be awarded to the plaintiff against the defendants.

(d) That such other relief or reliefs as may be deemed fit and proper under the circumstances of the case may be granted to the plaintiff, Guru Prasad Sinha.

3. On 14th August 1919, which was the date fixed for the hearing of the suit, neither the plaintiff, nor the defendants other than defendant Chrestien was or were present; and the learned Subordinate Judge thereupon dismissed the suit with costs payable to Mr. Chrestien. The present suit was instituted on 27th February 1923.

4. The defendants other than the defendant Chrestien may be conveniently referred to as the Thakur defendants; and they contested the plaintiffs suit on three grounds; first on the ground that they are independent talookdars and not mustajirs under the proprietor of the Khaira Raj, and are accordingly entitled to the minerals in the mahal; secondly, on the ground that the provision of Order 9, Rule 9, Civil P.C., constitutes a complete bar to the suit; and thirdly, on the ground that the suit is barred by the statute of limitation. The defendant Chrestien (who appears to have taken conveyances of certain shares in the mauza from some of the Thakur defendants and was alone working the mica tooth under his alleged proprietary title as also under certain leases from time to time executed in his favour by the Thakur defendants substantially adopted the written statement filed on behalf of the Thakur defendants without any material change.

5. The learned Subordinate Judge took the view that as the Thakur defendants did not appear when suit No. 98 of 1918 was called on for hearing, it was not open to them to rely on Order 9, Rule 9, as constituting a bar to the suit. He held, however, that Order 9, Rule 9 of the Code was a conclusive answer so far as Chrestian was concerned. He decided the other two questions in favour of the defendants, and, in the result, dismissed the suit as against all the defendants. The plaintiff appeals to this Court.

6. It will be convenient, first, to consider the applicability of Order 9, Rule 9 of the Code. Rule 8 provides that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed; and Rule 9 says that where a suit is dismissed under Rule 8:

the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.

7. Mr. Pugh contends that the cause of action in this suit is wholly different; and he puts his arguments in two ways: first, he invites us to consider the reliefs claimed in this suit and to compare them with those claimed in suit 98 of 1918 and secondly, he contends that the assignments of 31st May 1919 and 19th March 1920 which bring the plaintiff into the Court give him an additional cause of action sufficient to take the case out of the operation of Rule 9. In my opinion neither of these contentions is well founded. It is true that in the present suit the plaintiff is claiming a decree for possession, whereas in the previous suit there was no prayer for possession. But it is well settled that the cause of action does not depend up to the character of the relief prayed for by the plaintiff, but that it refers entirely to the grounds set forth in the plaint as the cause of action, or in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour: Chand Kour v. Partap Singh [1889] 16 Cal. 98, Now the present plaint is an exact copy of the plaint filed in suit 98 of 1918 with two additional paragraphs, one setting out the two assignments which bring the plaintiff into the Court, and the other reciting the dismissal of the previous suit. Para. 9 of the plaint filed in suit No. 98 of 1918 alleged that the cause of action arose:

on 5th April 1917 and on subsequent dates when claim was put forward on behalf of the defendants before the Collector of Monghyr to the mica mines of the said mahal Maheswari and to the compensation payable, there for.

8. In the present suit the date 5th April 1917 is again given as the date on which the Cause of action arose; but the plaintiff goes on to assert that the cause of action also arose:

on 31st August 1919, the data on which Mr. A.C. Bose took an assignment of the said mahal Maheswari from Kumar Guru Prosad Singh, and on 9th March 1920 the date of purchase by the plaintiff.

He further asserts:

that the cause of action for this suit arose on 12th December 1918 and on 15th January 1919 on which dates the defendants Claimed in title suit No. 98 of 1918 to be owners of taluka Maheswari, and not mustajirs, and subsequently from day to day as the defendants have been asserting the said right and working the mines.

9. I will consider the question of the assignments presently; but it seems to me impossible to accept the view that a fresh cause of action accrued to the plaintiff, because there was a fresh as sertion of title by the defendants. In my judgment, the cause of action in the present suit, as also in the previous suit, was the denial of the title of the proprietor of mahal Maheswari to the mica in the mahal, and the setting up of the title to the same in the defendants. The grounds set forth in the present plaint as the cause of action (apart from the assignments, the effect of which I shall presently consider) are exactly the same as those set forth in the plaint in the previous suit. In my judgment, the plaintiff is not entitled to succeed so far as this point is concerned.

10. Mr. Pugh next contends that the assignments to which I have referred have the effect of taking the case out of the operation of the rule. He argues that the assignments are material facts in the case for the plaintiff, which it would be necessary for him to establish, if traversed, in order to support his right to the judgment of the Court, and that, therefore, they constitute part of his cause of action. I entirely agree that, but for the assignments the plaintiff would have no cause of action; but, in my judgment, it signifies nothing that certain transactions have taken place which gave the plaintiff the right to institute the present suit.

11. The problem is has he brought the suit in respect of the same cause of action in respect of which the previous suit was brought There can only be one answer to this question. The whole of the cause of action in the previous suit is included in the cause of action in respect of which the present suit has been instituted. The material facts, which gave occasion for and formed the foundation of the previous suit, have given occasion for and have formed the foundation of the present suit. It must follow, in my judgment, that the present suit has been brought in respect of the same cause of action in respect of which the previous suit was instituted.

12. But there is a more serious argument on the point. It will be noticed that the legislature has deliberately restricted the operation of the rule to the plaintiff and has not brought within the prohibition those claiming title through the plaintiff. Mr. Pugh formulates his argument thus:

The dismissal of the previous suit in terms of Order 9, Rule 8 did not operate in favour of the defendants as res judioata: it merely imposed a personal disability on the plaintiff whose suit was dismissed. It the title which the plaintiff in the previous suit was claiming actually resided in him, then the dismissal of the suit in terms of Order 9, Rule 8, did not have the effect of displacing that title though it made it impossible for him to recover on the foot of that title. In other words, the dismissal of the suit in terms of Order 9, Rule 8, did not affect his right but only affected the remedy which would be otherwise available to him to assert his right. If this be the correct position, then he was free to dispose of his title in any way he chose. He has in fact disposed of it, and the plaintiff in the present suit claims title through him. The present plaintiff has a title good on the assignments, and ha is prepared to establish it in a Court of law. What is there either in the general law or in the special law to prevent him from, taking the appropriate proceedings for the purpose of establishing his title, since the dismissal of the previous suit did not operate as res judioata, and since he is not within the prohibition of Order 9 Rule 9.

13. The argument is a weighty one, and it is necessary to proceed with care. The first branch of the argument is completely supported by the decision of the Judicial Committee in Chand Kour v. Partab Singh [1889] 16 Cal. 98,

14. It was held in that case that the dismissal of a suit in terms of Section 102 of the Code of 1882, Order 9 Rule 8 of the present Code was plainly not intended to operate as res judicata, although it did impose a certain disability on the plaintiff, whose suit was dismissed. The second branch of the argument is supported by reference to the actual words employed by the legislature in enacting Order 9, Rule 9 That rule provides that, "where a suit is wholly or partly dismissed under Rule 8, the plaintiff", (not the plaintiff and those claiming through the plaintiff) "shall be precluded from bringing a fresh suit in respect of the same-cause of action." Mr. Pugh contends that if the disability be a personal one-and does not run with the land, then Order 9, Rule 9 cannot be so construed as to operate as a bar to the present suit. Ha refers us to Section 11 and Section 47 of the Code-to make good his point that where the-legislature has intended that any proceeding between two parties should be binding on the representative in interest of those parties, it has expressed that intention in unambiguous terms.

15. It is unfortunate that there should be-no direct authorities on the point except a somewhat unsatisfactory decision in the Punjab Chief Court in Mamraj v. Ghandwa Mai [1891] 117 P.R. 1891, The question was directly in issue in that case, and the learned Judges held that "the word "plaintiff" as used in Section 103, Civil P.C.," Order 9, Rule 9 of the present Code:

must be held to include the plaintiffs heirs and representatives-in-interest, who cannot claim any better position as regards the maintenance of the second suit than the parson through whom they claim.

But, in so deciding, the learned Judges professed to be guided by the decision of the Judicial Committee in, Shankar Baksh v. Daya Shankar [1888] 15 Cal. 422, a case:

in the view of the learned judges, which strongly resembles the present in all material features.

16. Now, in the Punjab case, one Budhu brought a suit for redemption of a mortgage which had been executed by him. The suit was dismissed under Section. 102 of the Code, the defendant having appeared. Another suit was then instituted by Budhus heirs, and the question arose whether Section 103 operated as a bar to the suit. In Shankar Baksh v. Daya Shankar [1888] 15 Cal. 422, a suit for redemption was instituted by one Bhup Singh. He died during the pendency of the suit, and Shankar Baksh, the grand on of Bhup Singh was substituted in the place of the latter. On 18th July 1868 which was the date fixed for the hearing of the suit, the defendants appeared, bub Shankar Baksh did not appear, and the suit was thereupon dismissed. Subsequently Shankar Baksh instituted another suit for redemption, and he appears to have taken two points, one of which was that the defendants did not appear in the earlier suit, so that Section 99, Order 9, Rule 4 of the present Code, and not Section 103 applied. The Judicial Committee investigated the question and found that the defendants did appear in the earlier suit. The other question discussed by the Judicial Committee does not touch the present case.

17. It is obvious that the decision of the Judicial Committee does not establish that the term "plaintiff" in Order 9, Rule 9, includes the heirs and representatives-in-interest of the plaintiff. The question was not before their Lordships and could not be decided, for the plaintiff in the subsequent suit was, by substitution, the plaintiff in the earlier suit at the date of its dismissal. lam, therefore, unable to act on the Punjab case which clearly proceeds on a misapprehension of what fell to be decided by the Judicial Committee in Skankar Baksh v. Daya Shankar [1888] 15 Cal. 422,

18. The problem nevertheless remains. Some light is thrown on the question by certain cases decided u/s 108 of the Code of 1882. That section provided that;

in any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and, if he satisfies the Court that the summons was not duly served or that ha was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall pass an order to set aside the decree upon such terms as to costs, payment into Court, of otherwise as it thinks fit and shall appoint a day for proceeding with the suit.

19. For reasons to be presently explained, the question cannot arise under Order 9, Rule 13 of the present Code which corresponds to Section 108 of the Code of 1882. The question, however, did arise under the old Code whether the representative-in-interest of the defendant was competent to apply u/s 103 for an order to set aside the ex parte decree, if it so happened that the defendant died after the passing of the ex parte decree. It will be noticed that the problem presented is the same as that with which we are confronted in the present case. The remedy created by Section 108 was in terms limited to the defendant against whom the decree was passed ex parte, just as the bar imposed by Order 9, Rule 9, in terms affects the plaintiff whose suit is dismissed under Rule 8.

20. In Janki Prasad v. Sukhrani [1899] 21 All. 274, the right of the legal representative of a deceased defendant to apply u/s 108 was denied by the Allahabad High Court. In delivering the judgment of the Court, the learned Chief Justice said as follows:

In order to make this remedy available to the legal representatives, some general principle of Jaw would be necessary by which the word defendant should be construed as inducting the legal representative of a deceased defendant. No authority has been cited to us, and we are aware of none, which establishes any such general principle.

21. This decision was dissented from by the Calcutta High Court in Ganoda Prasad Boy v. Shib Narain Mukherji [1902] 29 Cal. 38, In the course of his judgment, the. learned Chief Justice said as follows: "That decision," namely the decision in the Allahabad case:

appears to me to be based upon too narrow a construction of the section and one which might lead to various anomalies and much injustice and, unless we are actually compelled by the language used to place such a construction upon it, I think we may fairly decline to do so.

He added

No doubt the section, only refers to the defendant, but we may look at the whole Code to see who is meant by that term and who fills that position; There is ample provision in the Code for bringing the representatives of a deceased defendant before the Court and substituting the former for the latter, and when that substitution has been duly effected such representatives become the defendants and subject to all the obligations, qua procedure, of the original defendant. And, if they became subject to the obligations, why are they not entitled to the rights and benefits, qua procedure, of the original defendants.

22. It appears that in the Calcutta case, the plaintiff himself brought the representatives of the original defendant upon the record and made them defendants. Referring to this aspect of the ease, the learned Chief Justice said as follows:

The decree is binding upon them as such representatives and, if they are bound by the decree, as they are, it would be inequitable that they should not enjoy the same right u/s 108 as the original defendant enjoyed.

23. In Sambasiva Chetti v. Veera Perumal Mudali [1905] 28 Mad. 361, the Madras High Court took a middle course. That Court took the view that Section 108:

only authorises applications by the defendant against whom an ex parte decree has been made;

but that, if the representatives of the deceased defendant are brought on the record u/s 234 of the Code, an application can be made by such representatives u/s 108. Having regard to this conflict of authority, the Code of 1903 has provided by Section 146 that:

save as otherwise provided by this Code or by any law for the time being in for where any proceeding may be taken or application made by or against any person, then the proceeding may be take or the application may be made by or against any person claiming under him.

24. I confess that I have some difficulty is coming to a confident conclusion on this, point. Section 146 removes the difficulty which used to arise under the old Code in cases coming u/s 103 of that Code; but it leaves untouched the problem under Order 9 Rule 9. On the one hand, I know of DO principle which would enable me to construe the word "plaintiff" as including persons claiming through the plaintiff, especially as I know that the legistature has never left its meaning in doubt when it has intended that any proceeding by or against a person should be binding on those claiming through that person. On the other hand I am in sympathy with the argument that where there is substantial substitution entitling the representative of the original plaintiff or defendant to the rights and benefits, qua procedure of the original plaintiff or defendant, such representative becomes the plaintiff or the defendant as the case may be, and subject to the disabilities which affected the original party. In order to understand the point, the following dates are material:

14th August 1919--Suit 98 of 1918 dismissed.

31st August 1919--Conveyance by Guru Prosad Singh (the original defendant) to A. C. Bose.

11th September 1919--Guru Prosad Singh applied under Order 9, Rule 9 of the Code for the restoration of the suit.

21st February 1920--the application was dismissed.

9th March 1920--Conveyance by A.C. Bose to the present plaintiff.

25th May 1920--Guru Prosad Singh appealed to the High Court from the order of 21st February 1920.

18th December 1920--The present plaintiff was substituted in the record of the appeal in the place of Guru Prosad Singh.

4th January 1922--the appeal was dismissed by the High Court.

27th February 1923--the present suit was instituted.

25. It will be seen that the present plaintiff got himself substituted in the record of the appeal in the place of Guru Prosad Singh, the original plaintiff to enable him to contest the order of 21st February 1920. Had his appeal succeeded, he would have been entitled to proceed with suit No. 98 of 1918 as the plaintiff of that suit. In other words, he took the appropriate proceeding to entitle him to the rights and benefits, qua procedure, of the original plaintiff. It seems to me that he ought to be affected with, the disability of the original plaintiff. By his own conduct, the present plaintiff placed himself in the position of Guru (Prosad Singh for the purpose of Order 9, Rule 9 as effectively as if he had been substituted in the record of suit No. 98 of 1918 in the place of the original plaintiff. Without deciding the question whether Order 9, Rule 9 would have been an answer to the suit if the present plaintiff had not taken advantage of the procedure of that rule for the purpose of securing an order to set the dismissal of suit No. 98 of 1918 aside, I am of opinion that his intervention on 18th December 1920 had the fact of placing him in the position of the original plaintiff for the purpose of Order 9, Rule 9, and that he is therefore precluded from bringing a fresh suit in respect of the same cause of action. I hold that the Subordinate Judge was right in (dismissing the present suit as against Chrestien. (His Lordship then proceeded to consider the question of title by referring to Gazetteers and other documents and came to the conclusion that the predecessors-in-title of the plaintiff were the original proprietors of taluka Maheswari and that the defendants have all along held the taluka under the Gidhaur family of first on a ghatwali tenure and since 1775 on a permanent lease executed in their favour). If this be so, then there is no doubt whatever that the defendants have no title whatever to the minerals.

26. Mr. P.K. Sen appearing on behalf of the defendants contends before us that there is nothing to show that permanent settlement was concluded in respect of mahal Maheswari with the predecessors-in-title of the plaintiff. In all probability the decennial settlement patta is not on the record; but the question was not at issue in the Court below and we decline to enter upon it in this Court. The plaintiff has produced various pattas executed by the East India Company in favour of the predecessors-in-title of the plaintiff. On 1st June 1775 a patta was executed by Capt. James Brown in favour of Raja Amar Singh and Raja Dhurp Singh in respect of mauzas Dumri, Maheshwari and Katauna. A kabuliat was executed by Raja Dhurp Singh and Baja Gopal Singh agreeing to pay Government revenue up to 1193 Rs. The kabuliat is dated the 20th Kartik but the year is not mentioned. On 28th October 1788 another kabuliat was executed by Dhurp Singh, the predecessor-in-title of the plaintiff agreeing to pay the Government revenue in respect of taluka Maheswari and Nisf Katauna, that is to say, eight annas interest of Katauna settled with him. On 21st February 1790 there is another kabuliat executed by Raja Gopal Singh and Raja Dhurp Singh agreeing to pay Rs. 801 as revenue for talukas Dumri, Maheswari and Katauna. Then there is another kabuliat without date executed by Raja Gopal Singh and Raja Nirbhai Singh in favour of the Governor General of India; Mr. Sen contends that this is the last of the kabuliats and as it contains a covenant to the effect that the grantees.

shall not out and destroy the fruit-bearing and non-fruit-bearing trees appertaining to the said taluks

the grant in favour of Raja Gopal Singh and Raja Nirbhai Singh could not be in the nature of a proprietary grant. I am unable to decide this case on a casual statement of this nature since the document leaves no doubt in my mind that what was actually granted was a proprietary title. There is an unqualified statement in the kabuliat that in the event of non-payment of revenue the properties would be liable to be sold by auction and the grantees will be entitled to the surplus money after satisfaction of the Government revenue. As I have said the decennial settlement patta is not on the record but there is an unqualified admission by the predecessors-in-title of the defendants that taluka Maheswari was permanently settled with the predecessors-in-title of the plaintiff. This admission will be found in a petition filed by Thakur Udwant Singh and others the predecessors-in-title of the defendants, on 6th June 1870. The material passage in that petition runs as follows:

Taluka Maheshwari, Pargana Chakai, the mahal settled by the Government in 1196, Fasli corresponding to 28th, October 1788, was; settled permanently with Raja Dhurp Singh, ancestor of Raja Rain Narain Singh.

The petition goes on to assert that:

Before the permanent settlement being made by the Government the said mahal was given by the said Raja Dhurp Singh in is timrari mukarrari, under a patta dated the first Bhado, 1186 Fasli, to Ram Singh Rai, Prem Singh Rai, Manik Singh Rai and Ajit Singh Rai, ancestors of the applicants.

27. The plaintiff is the purchaser of only one taluka out of the considerable zamindari which was settled with the two branches of the Gridhaur family; and it is unlikely that the decennial settlement patta. should be with him. Had the question been raised in the Court below, it would have been possible for the plaintiff to call for the material document. As it happens his predecessor-in-title is recorded as the proprietor of taluka Maheswari both in Register D as also in the khewat prepared under Chap. 10, Ben. Ten. Act. I hold that the plaintiff is the proprietor of taluka Maheswari and that the Thakur defendants are mukarraridars under him.

28. I should like to say one word about the judgment of the learned Subordinate Judge. He says:

The conclusions which can be deduced from the facts stated above are: (1) Taluka Maheswari was not a service tenure, (2) it existed from before the settlement with the Khaira Raj of Taluka Maheswari Nisf Katauna by the East India Company, (3) the Khaira Raj was unsuccessful in ejecting the Thakurs of Maheswari from possession of Taluka Maheswari, (4) the Government revenue payable from Taluka Maheswri Nisf Katauna has been paid since 1870 directly to Government by the Maheswari Talukdars who used to pay nme annas as the yearly quit rent to the Khaira Raj besides cess which has been imposed by the Cess Act of 1880, (5) the Maheswari Talukdars have been claiming milkiat ghatwali interest in the Taluka and deny that the Khaira Raj had any legal proprietary right over the same, (6) there is no evidence on behalf of the plaintiff to show that the Khaira Baj was proprietor of Taluka Maheswari before the settlement by Capt. James Browne with Raja Dhurp Singh, (7) the District Gazetteer shows that the that was of Maheswari and Duinri did not turn up to take settlement from Capt. James Browne and so the settlement was made with Khaira and Gidhaur Raj respectively; and he concludes:

Taluka Mahesri therefore falls under the definition of actual proprietors of land under Clauses 3 and Section 6, Regn. 8 of 1793.

29. Why the learned Subordinate Judge says that taluka Maheswari was not a service tenure in its inception it is difficult to say. The learned Subordinate Judge himself concedes that the defendants and their predecessors-in-title have been claiming taluka Maheswari as their ghatwali interest. In my opinion when all the facts are properly understood there is no doubt whatever that the Chakai ghatwals including the predecessors-in-title of the defendants held the properties on ghatwali tenure under the proprietors. It is true that for political reasons Capt. James Browne settled directly with some of the ghatwals; but he made it clear that the Gidhaur family was the proprietor of those properties since it is conceded that malikana is still paid in respect of these properties to both the branches of the Gidhaur family. That the tenure existed:

from before the settlement with the Khaira Raj by the East India Company

may be conceded; but a case under Clause 3. Section 5, is not made out unless it is established that the taluks of the talukdara who now pay their revenue to the proprietor were formed before the zemindari was formed. As I have shown not only from Ex. 10 the statement of Raja Gopal Singh and Raja Nirbhai Singh to which I have already referred, but also from the final report on the survey and settlement operations, the zamindari of the predecessors-in-title of the plaintiff goes back to the year 1066 A.D. and I have also shown that the predecessors-in-title of the defendants admitted on 23rd January 1833 that their predecessors acquired the ghatwali is timrari mokarrari from the predecessors-in-title of the plaintiff. That the Khaira Raj was unsuccessful in ejecting the Thakurs of Maheswari from possession of taluka Maheswari leads to no inference whatever. The suit of 1840 was dismissed on the ground that it was barred by limitation; and, apart from other circumstances, the fact that the predecessors-in-title of the defendants acquired a permanent mokarrari right in the taluk does not bring the case within Section 5 of the Regulation.

30. It is true that the Government revenue payable for taluka Maheswari Nisf Katauna has been paid since 1870 directly to Government by the Maheswari Talukdars, but that was purely a matter of arrangement between the proprietors and the mokarraridars and does not justify the inference which the learned Subordinate Judge has drawn. The position is that the predecessors-in-title of the plaintiff had to pay Rs. 300-7-0 as Government revenue in respect of Maheswari and Nisf Katauna. The predecessors-in-title of the defendants had to pay Rs. 301 as rent for Maheswari. Defaults were being made by the predecessors-in-title of the plaintiff in the payment of Government revenue and it was open to the defendants to protect their interest to pay the Government revenue direct; but the Government is not a party to this arrangement; and in my opinion, no inference can be drawn from the fact that in order to protect their interest the defendants and their predecessora-in-title have been paying the Government revenue out of the rent payable by them to the proprietors. It is quite true that Maheshwari talukdars have been claiming milidat ghatwali interest in the mauza; but a claim of a ghatwali interest is not sufficient. It must be shown that they had an interest independent of the Khaira Raj and they have neither claimed such an interest nor have they established such an interest. The learned Subordinate Judge proceeds to say that the defendants nave denied that the Khaira Raj had any legal proprietary right over the same. There is no evidence to support this conclusion; on the other hand they have never denied the proprietary title of the predecessors-in-title of the plaintiff. The learned Subordinate Judge then says that there is no evidence on behalf of the plaintiff to show that the Khaira Raj was proprietor of taluka Maheshwari before the settlement by Capt. James Browne with Raja Dhurp Singh. This is a complete misstatement of facts. The evidence is furnished by Ex 10 (part 3, p. 8), the passage from the District Gazetteer to which I have already referred, the admission of the defendants as contained in Ex. Z (112)(Vol. 2, p. 14) and the admission to be (bund in the litigation of 1840, Ex. 2-59 (part 3, p. 24). The last point taken by She learned Subordinate Judge leads to no inference at all. He admits that the settlement was made directly with the two branches of the Gidhaur family and that is sufficient for the purpose of the plaintiff. In my opinion the defendants have not established a case either under Clause 3 or under clause. 4, Section 5, Regn. 8 of 1793. On the other hand they obviously come u/s 7 of the Regulation which provides that:

Talukdars, whose taluks are held under writings or sanads, from zamindars or other actual proprietors of the lands, which do not expressly transfer the property in the soil, but only entitle the talukdar to possession so long as he continues to discharge the rent or perform the conditions stipulated there in, are considered as leaseholders only, not actual proprietors of the soil, and consequently are not entitled to be rendered independent of the Kamindar, or other actual proprietor of the land, from whom they derive their tenures, provided they now pay the rent assessed upon their taluks to him.

I hold that the mineral rights are in the plaintiff and that the defendants) have no right to them.

31. There remains the question of limitation. Taluka Maheshwari consists of 155 villages and has an area of 71 282 acres: see khewat of Maheshwari, Ex 15, (part. 3, p. 236). It is true that from time to time the Thakur defendants gave underground leases to Ghrestien: but the mere grant of leases of subsoil rights will not in itself give a title by adverse possession; what we must consider is the evidence of actual working. It is quite true that there may be cases in which a title by adverse possession can be made out in respect of the mineral; but it does not follow that by working a part of the minerals or opening up particular quarries, possession over a continuous field of minerals of which the portion worked forms part can be obtained. It is well[ settled that a trespasser wrongfully extracting minerals acquires possession only of the minerals worked, but cannot be said to be in possession of the mine itself : see Ashton v. Stock [1877] 6 Ch. D 719, and Thompton v. Hichman [1907] 1 Ch. 515 , unless it is shown that the working of the minerals has been on a large scale; that is to say to adopt the words of Lord Dunedin there has been "a proper working of the field": see Satya Niranjan Chakravarti v. Ram Lal Kaviraj, AIR 1925 P.C. 42 of 4 Pat. Now there is absolutely no evidence in this case that there has been a proper working of the field. The learned Subordinate Judge has given three grounds in support of his conclusion that the suit is barred by limitation. First he says that there were successive leases in favour of Chrestien from 27th January 1687 to 7th July 1896. It is not disputed that Chrestien continued to be in possession up to 1913, but as I have already said the question which has to be considered is whether there has been a proper working of the field and the learned Subordinate Judge has made no attempt to discuss the case from this point of view. The learned Subordinate Judge then refers to a passage in the District Gazetteer, Vol. 17 that a mica mine was opened at Pankatwa in Maheshwari in 1906. This is true enough; but the passage itself shows that the actual working must have been en a very moderate scale. It is stated in that passage at p. 139 that

there are four mines at work, viz, at Paakatwa in Gadi Mahasri opened in 1906, Bahara (1900), Kunrua (1906), and Btramasia (l906).

The learned author then proceeds to say that the

average yield during the five years ending in 1904 1905 was about 14 tons, as compared with nearly 21 tons in the previous quinquennium, the decline being attributed chiefly to the product being outclassed by that of the Hazaribagh mines. In 1907 the outturn was 36 tons, and the total number of employees was 452.

32. Now we are only concerned with the working in Gadi Maheswari. It appears that the average yield in 1907 was 361 tons. When it is remembered that Maheswari consists of 155 villages and has an area of 71.282 acres, it does not seem from the passage just cited that the working has been on any scale at all.

The learned Subordinate Judge also relies upon the entry in. the Record-of-Rights which is to the effect that the subsoil rights were in the mokarraridars; but the Record-of-Rights was prepared at a time when the Calcutta High Court had decided that a grant of a permanent heritable and transferable leasa carried with it the minerals unless they were expressly reserved. In my opinion the entry in the Record-of-Rights throws no light on the question as to the actual working of the mines.

Beni Lal examined on behalf of the defendants admits that "expenses and accounts are written of the mines which are now being worked" and that "those papers are in the office of Mr. Chrestien.

33. Now these accounts would have been valuable evidence on the question as to the actual working of the field; but they have not been produced. On the other hand certain documents called muster rolls of coolies have been produced. Only one of there muster rolls has been printed; but we have summary of the others in the paper book. It is therefore impossible for us to consider the value of these documents. The one that has been printed is the weekly muster roll of coolies from 12th to 18th December 1898. This document shows that there were 65 coolies "engaged in prospecting mine in Maheswari Division from 12th to 18th December 1898."

34. It is impossible to say from this document that there was any working over the entire field. These muster rolls are not referred to in the judgment of the learned Subordinate Judge at all. la my opinion the defendants have not established a case of adverse possession. It is well settled that in the case of mineral rights non-user is not an abandonment of possession on the part of the owner, whose right is not barred so long as the minerals are not worked by some one else; and that by working a part of the minerals or opening up particular quarries, possession over a continuous field of minerals or of quarries cannot be obtained.

35. While dismissing the appeal with costs as against Chrestien, I must allow the appeal, so far as the defendants other than Chrestien are concerned, set aside the judgment and the decree passed by the Court below and give the plaintiff a decree as against those defendants in terms of the relief claimed in this suit. The result is that the plaintiff will be entitled to joint possession with Chrestien, Chrestiens interest being restricted to the shares acquired by him from the Thakur defendants on or before the 14th-August 1919, the date on which the suit 98 of 1918 was dismissed.

36. The plaintiff is entitled to his costs-throughout as against the Thakur defendants.

Wort, J.

I agree.