Das, J.On the 21st of June 1865, an istemrari mokarrari lease was granted by the then proprietor of the Ramgarh Raj to Kanhai Gir and Jainath Gir. It appears that between 1864 and 1866 the Rama-arh Raj executed a considerable number of istemrari mokarrari leases and that there has been a considerable controversy between the Raj wid the grantees as to the meaning of the term "istemrari mokarri." It was the case of the grantees that by the term "istemrari mokarrari" a permanent heritable, and transferable grant was intended; whereas, the rival case was that all that was intended to be granted was a lease for life Certain test cases were instituted by the Raj and the controversy has now been set at rest by the decision of the Calcutta High Court in the case of Ram Narain Singh v. Chota Nagpur Banking Association [1915] 43 Cal. 332. That decision was pronounced on the 25th of August 1915, and it is no conceded before us that the lease in favour of Kanhai Gir and Jainath Gir was a lease for their life. The survivor of the grantees died sometime in 1890; and it has been found by the learned Judge in the Court below that Defendants Nos. 1 to 5, who are the heirs of the grantees, have been uninterruptedly in possession of the demised land without payment of any rent to the landlord. On the 16th of November 1911, Defendants Nos. 1 to 5 gave an underground lease of 200 bighas of coal lands to Defendants Nos. 6 and 7; and Defendants Nos. 6 and 7 have assigned their interest under the lease of the 16th of November 1911 to Defendants Nos. 8 and 9. On the 27th of September 1915, the Plaintiff, who was the then proprietor of the Ramgarh Raj, served a notice to quit upon the Defendants calling upon them to deliver up quiet possession of the demised land at the end of the Sambat year 1972. On the 18th of September 1915. the Plaintiff served a fresh notice upon the Defendants asking them to quit at the end of the Sambat year 1971, corresponding to the 11th of April 1918. On the 14th of December 1918, the suit out of which this appeal arises was instituted by the Plaintiff for ejectment of the Defendants and for recovery of Rs. 10,000 as damages for the unauthorised removal of coal from the demised land. The learned Subordinate Judge has given the Plaintiff a decree substantially an claimed by him.

2. The critical question in this case is whether having regard to the lapse of time the Plaintiff is entitled to eject Defendants Nos. 1 to 5 from the demised land. The lease came to an end in 1890: and it is not disputed by the Defendants that the Plaintiff was entitled to recover possession of the demised land if he had instituted appropriate proceeding within twelve years from 1890. But the suit was not instituted till the 14th of December 1918. It is contended on behalf of the Defendants that the tenancy having come to an in 1890, the suit is barred under the provisions of Article 139 of the Limitation Act. The case of the Plaintiff is that notwithstanding the determination of the tenancy on the death of the original grantees Defendants Nos. 1 to 5 as the heirs of the grantees continued in possession with the assent of the landlord as tenants from year to year, and that the tenancy from year to year came to an end on the 11th of April 1918. Some attempt was made in the evidence to show that the Defendants paid rent to the Plaintiff, but the learned Subordinate Judge has not accepted that part of the Plaintiffs case and no attempt has been made before us by the learned Counsel appearing on behalf of the Plaintiff to establish that there was any payment of rent at any time by Defendants Nos. 1 to 5 to the Plaintiff The view of the learned Subordinate Judge, however, is that there was an assent on the part of the landlord to the Defendants continuing in possession of the demised land sufficient to convert the tenancy by sufferance into a tenancy from year to year. In this view he has come to the conclusion that the tenancy came to an end on the 11th of April 1918, and that the Plaintiffs suit is well within time.

3. It is necessary to scrutinise the evidence with some care to see whether the finding of the learned Subordinate Judge on this point can be supported. I have referred to the fact that there was considerable controversy between the parties as to the meaning of the term "istemrari mokarrai lease" The controversy was set at rest on the 25th of August 1915 by an authoritative decision of the Calcutta High Court; and it is an undoubted fact that many suits which were held back pending the decision of the Calcutta High Court were instituted subsequent to that decision. It is necessary to remember these facts in dealing with the evidence whether there was an assent on the part of the landlord to the Defendants continuing in possession of the demised land. The first witness examined on behalf of the Plaintiff is Sibsahay Lal. He makes a perfectly general statement in his examination-in-chief that the heirs of the original grantees were allowed to remain in possession of the disputed mouza as year to year tenants; but he admits in his cross-examination that his knowledge was derived from the terms of the notices served upon the Defendants and that he had no knowledge of the real facts independently of those notices. He also admits that there are no papers to show that the Defendants were yearly tenants and that settlement with the Defendants was not made in his presence. Lastly he admits that only those tenants who pay rent are recognized as yearly tenants and that there are no papers in the Raj to show that the Defendants were in possession with the consent of the Ramgarh Raj.

4. The next witness on this point is Mahta Tilakdhari Prasad. In his examination-in-chief he says that the heirs of the original grantees were allowed to remain in possession of the demised land, but in his cross-examination he makes it perfectly clear that he has no personal knowledge of tli3 actual facts and that "there is no written note anywhere of the fact that the heirs of other deceased mokarraridars were allowed to remain in possession."

5. The last witness on this point is Harihar Sahay. He speaks in his examination-in-chief as to a practice in the Raj to make demand for rent upon the heirs of mokarraridars and to treat such heirs as tenants-at-will. In his cross-examination he says as follows: "I do not recollect if demands for rent were made on Defendants Nos. 1 to 5 but such demands must have been made. No steps were taken against them for non-payment of rent." Upon this evidence it is impossible to hold that there was an assent on the part of the landlord to the Defendants continuing in possession of the demised land as tenants.

6. Mr. Sultan Ahmed on behalf of the Plaintiff strongly relies upon an alleged admission made by Maghlal Gir, one of the Defendants. The passage in the evidence of Meghlal Gir upon which reliance is placed is as follows: "The Raj tahsildars used to demand rent for Tarni from us but we said that we would pay rent if receipts are granted in our names, but they said that they would grant marfatdari receipts." Marfatdari receipts, it may be pointed out, are receipts granted in the name of the original tenants through the persons actually paying the rent. The argument of Mr. Sultan Ahmed on this evidence is as follows. The Defendants were actually in possession of the demised land. Their possession operated as an offer by them to accept a tenancy. The offer by the Raj to grant receipts to them operated as an offer to reoognize them as tenants. There was therefore an assent on the part of the landlord to the Defendants continuing in possession of the demised land as tenants. With all respect I am unable to agree with the argument. The Defendants were no doubt willing to be treated as tenants. The refusal on the part of the landlord to grant any receipts other than marfatdari receipts to the Defendants shows that although he was willing to accept rent from them he was not willing to recognize their status as tenants. And when the history of the litigation between the landlord and the different tenants under different istemrari mokarrari leases is remembered, it will be realised that neither party was willing to make any concession until the controversy was settled by an authoritative decision of the High Court. This in my view explains why the landlord was unwilling to give direct rent receipts to the Defendants. The evidence of Meglal Gir upon which reliance is placed establishes that the landlord was willing to recognize the Defendants as tenants. It is quite true that he suffered them to remain in possession; but a tenant by sufferance is in by laches of the landlord and is entitled to the benefit of the law of limitation.

7. The learned Subordinate Judge has strongly relied upon the case of Krishnaji v. Antaji [1893] 18 Bom. 256. That case no doubt supports the conclusion at which the learned Subordinate Judge has arrived. With all respect I am unable to agree with the view taken in that case. The learned Judges in that case followed Hellier v. Sillcox [1850] 19 L.J.Q.B.295. But in my opinion Hellier v. Sillcox [1850] 19 L.J.Q.B. 295 is an authority for the proposition that an action for use and occupation would lie against; a person who is in possession of the demised land after the death of the tenant with the permission of the landlord: it is not an authority for the proposition that the person in possession could not appeal to lapse of time if an action for ejectment was brought against him after the expiry of the period of limitation. The case of Krishnaji v. Antaji [1893] 18 Bom. 256 has, in my opinion, been virtually overruled by the decision of the Bombay High Court in Chandri v. Daji Bhau [1900] 24 Bom. 504. It was held in that case that the possession of a tenant holding over is wrongful, and if there is no evidence from which a fresh tenancy can be inferred in the strict sense of the term, time begins to run against the landlord when the period of the fixed lease expires. In that case there was a lease for a year. At the end of the year the premises were not given up, nor was any rent paid. The suit was brought more than twelve years after the expiry of the lease. The Defendant contended that the Plaintiffs claim to recover possession was barred and the High Court gave effect to that contention and dismissed the suit.

8. In my opinion the decision of the learned Subordinate Judge on this point cannot be supported and the Plaintiffs claim for possession must be dismissed.

9. The next question is whether the Plaintiff is entitled to a declaration that the under-ground leases granted in this case are void and inoperative. He is clearly entitled to that declaration and the Defendants have not challenged the accuracy of the finding of the learned Subordinate Judge on this point before us.

10. The last question is as to the damages claimed by the Plaintiff. In the eleventh paragraph of the plaint the Plaintiff states as follows: "To the best of Plaintiffs information coal worth Rs. 1,000 has already been removed and coal worth Rs. 8,000 is lying stacked on the land near the mines. The total value of coal to which the Plaintiff is entitled, therefore, amounts to Rs. 9,000." There is no evidence before us as to which of the Defendants actually carried away the coal. The case in the plaint is one of collusion and conspiracy; but the evidence does not establish that there was any collusion between the Defendants in the matter of working the coal mine. A more serious difficulty is that there are no materials on the record from which the actual damage sustained by the Plaintiff can be ascertained. The learned Judge relying upon the report of the Commissioner has come to the conclusion that "the total cubical contents of the quarry came up to 2,10,944 cubic feet." According to him this is the measurement of the coal in the cavity worked by the Defendants; but there is no evidence that the whole cavity consisted of coal, nor is there any evidence as to how much coal there vas in that cavity. The learned Judge refers to the evidence of the Amin and comes to the conclusion that 40 cubic feet of space would contain one ton of coal. But the Amins evidence shows that he has no personal knowledge and that he heard from certain Hindustani officers working in certain collieries that "in forty cubic feet of space one ton of coal can be kept." These Hindustani officers have not been examined and the evidence of the Amin cannot be accepted. Upon this evidence it is impossible to give the Plaintiff a decree for damages.

11. In the result I must allow the appeal in so tar as the learned Subordinate Judge has granted the reliefs (a), (b), (c), (e) and (h) claimed in the plaint, and must dismiss the suit so far as those reliefs are concerned. The Plaintiff is, however, entitled to reliefs (d) and (f) and to that extant the decree of the learned Subordinate Judge must be affirmed. Costs will be in proportion to the success achieved by the parties in both the Courts.

Ross, J.

12. I agree.