Jagat Mohan Nath Sah Deo v. Pratap Udai Nath Sah Deo And Ors

Russell of Killowen, J.

1. This is a consolidated appeal which involves the decision of a "dispute which has arisen between the Maharaja of Chota Nagpur on the one hand and the Kumar, his younger brother, on the other hand; and it relates to the ownership of the mines and minerals under the. Parganna Tori. The parties before their Lordships are, on the one hand as appellants, the Kumar and lessees of minerals claiming under him, and on the other, as respondents, the Maharaja and lessees of minerals claiming under him.

2. The questions for determination which have been argued before their Lordships arc four in number : first, whether the Kumar acquired the rights in the mines and minerals under the Parganna Tori by virtue of a certain grant of 11th February 1867 secondly, whether assuming the grant did not include the minerals, he has got the minerals by virtue of an alleged custom ; thirdly, whether the Maharaja, assuming both of those points failed, did not, by abandoning and relinquishing his claim to the mines and minerals in the year 1893, then create a title in the appellant, the Kumar ; fourthly and finally, whether the suit, which was a suit brought by the Maharaja for a declaration of his-rights, is or is not barred by the Limitation Act.

3. These questions will be dealt with in-that order. As regards the construction of the deed in question which has been closely argued before their Lordships, their Lordships think it sufficient to say two things ; first that the position, from the point of view of previous decisions by their Lordships, is summed up in the ease of Gobinda Narayan Singh v. Sham Lai Singh A.I.R. 1931 P.C. 89 (at p. 132 of 58.1. A) in these words:



A long series of recent decisions by the Board, has established that if a claimant to subsoil rights holds under the zamindar, or by a grant emanating from him even though his tenure may be permanent, heritable and transferable, he must still prove the express inclusion of the subsoil rights." [The word "tenure" is put in the place of the word which occurs in the report, "powers," which appears to be a mistake.] "This is laid down ia a passage from the-judgment of Lord Buckmaster in Sashi Bhushan Misra v. Jyoti Prashad Singh A.I.R. 1916 P.C. 191, (at p. 53 of ii I. A.) "which has been so often quoted in subsequent judgments of the Board that it is-unnecessary to repeat it here.

4. The second observation which their Lordships think it necessary to make is this : As regards the construction of this particular grant, they find themselves completely in agreement with the views expressed in the High Court, which held that the deed is incompetent upon its construction to pass the mines and minerals.

5. Passing to the second question which was argued, namely, that the Kumar had a right to the mines and minerals by virtue of a custom, all that need be said is this : that there is no evidence in this case, worthy of the name, establishing any such custom at all.

6. The third point, namely, as regards the claim that by virtue of a certain transaction which took place in the year 1893 the Maharaja then vested the minerals in the Kumar, the document which is relied upon is one which contains a recital of an agreement entered into between the Maharaja and the younger-brother in the year 1893. Their Lordships have carefully considered the terms; of that recital, and in their opinion the agreement therein referred to and the transactions which then occurred, clearly did not amount to any creation of title in the Kumar, On the contrary the agreement and the transactions which then occurred, are evidence of an assertion by the Maharaja of his title at that date. Accordingly that point equally fails.

7. As regards the plea of the Limitation Act, Mr. Do Gruyther, who appeared for the principal appellant, the Kumar, quite proLocly, in their Lordships view, gave up to point and did not argue it. Mr. Hyain however appearing for the lessees claiming under the Kumar, argued the point, but to his credit, be it said, with commendable brevity. In their Lordships opinion, there is nothing in the point. A right in the Maharaja to sue arc so in the year 1921, quite independent of any right to sue which may have arisen in him at an earlier date. The suit in question here was brought in the mouth of August 1922 ; that is therefore clearly within time. For these reasons their Lordships will humbly advise His Majesty that this appeal fails, and should be dismissed. The appellants will pay the costs of the respondents who appeared, such costs to be limited to one set of costs to be shared equally between those two respondents.