Ray, J.The questions which we have to deal with, in these appeals, arise in connection with a land acquisition proceeding, case No. 10 of 1937-38, in the district of Shahabad. The Provincial Government of Bihar made a declaration No. 6185R/II-7, dated 11th November 1937, for acquiring certain lands for Sone Valley Portland Cement Co. Ltd., for the purpose of the Companys constructing an aerial ropeway, car roads, godowns for stacking limestone and other incidental purposes. The declaration was in respect, inter alia, of plot No. 3 of village Jaintipur, plots Nos. 1 and 22 of village Nimhat, and plot No. 2 of village Deodand comprised within Taluqa Khandaul. The claimants for compensation before the land acquisition Collector were the zamindar of Taluqa Khandaul, namely, the Raja of Sonepura who is the appellant in F.A. No. 44, and three mukarraridars, namely, (1) Babu Bhagwati Prasad Narain Singh, who owns mokarrari interest of village Deodand entire and a moiety of village Nimhat, (2) Babu Onkarnath Dube owning 8 as 10 pies interest in village Jaintipur, and (3) Babu Bishwanath Dube, owning an interest of 2 as in village Nimhat. The land acquisition Collector, by his award on 19th October 1938, valued the lands at the rate of Rs. 64 per acre, and held that Nagendranath Sahi, the proprietor, appellant in F.A. No. 44, was entitled to the entire value of the said lands. He disallowed the claims of the mukarraridars.

2. Being dissatisfied with this award, all the aforesaid claimants filed applications u/s 18, Land Acquisition Act calling upon the Collector to make a reference to the Court. The Sonepura Court of Wards Estate, then representing the minor proprietor Nagendranath Sahi, raised the question of inadequacy of valuation in his petition for reference, while Bhagwati Prasad Narain Singh, besides raising the same question, also complained against the Collectors finding that his rights in the village were only confined to culturable lands, and that, therefore, he was not entitled to any part of the compensation representing the value of the lands which were on the slopes of the Hills. The other two mukarraridars, Onkarnath and Bishwanath, also raised the same objection as Bhagwati Prasad Narain Singh. In both these petitions, the mukarraridars contended that according to the mukarrari kabuliats, the mukarraridars were entitled to all sorts of rights including the sub-soil rights of the villages excepting the right to bamboos, timber and banker in one case and to bamboos and timber in the other, and that the proprietor, in the circumstances, was entitled to no part of the compensation.

3. The questions raised in the aforesaid petitions for reference were duly referred to the District Judge of Shahabad who, by his order dated 16th January 1942, came to a finding that the Sonepura estate was entitled only to the capitalised value of the mukarrari rent and the annual revenue realised as royalty from the jungle, and the mukarraridars were entitled to the balance of the compensation amount. Considering the mukarrari kabuliats, as he did, he held that the mukarraridars possessed the surface rights over the hill and jungle areas of the villages the--present proceedings being only in respect of such surface right. He also relied on the survey entries as also the tanaza, disputes (Exts. 3, 7, 17, 1 to 6 and 16).

4. Against this order of the learned District Judge, the aforesaid two appeals have been preferred, appeal No. 44 by the Sonepura Raj in which all the mukarraridars and the Province of Bihar have been impleaded as respondents, and appeal No. 46 by the Province of Bihar impleading all the claimants-objectors as respondents. The Collector in his appeal, disputes the correctness of the valuation made by the District Judge, and urges that the valuation fixed by the land acquisition Collector was the correct valuation, and the award should have been made accordingly.

5. The subject-matter of Appeal No. 44 is the question of apportionment of the compensation, as between the proprietor and the mukarraridars.

These appeals were consolidated and heard analogously. As the subject-matter of Appeal No. 46 is the amount of compensation, it would be more convenient to deal with that question first.

6. Mr. Mehdi Imam, who appears for the appellant, contends that there are two sets of documents on the record, which he classifies as class A and class B, and that class A documents which were relied upon by the Collector represent the correct valuation of the lands, namely the rate of Rs. 64 per acre, while the learned District Judge relying upon class B documents, arrived at a figure of Rs. 176 per acre which, according to him, is wrong.

7. Class B documents are Exts, O, 35 and 11. Exhibit O, dated 23rd March 1934, is an agreement signed by the Manager, Bhagwati Wards Estate (representing Babu Bhagwati Prasad Narain Singh, mukarraridar), the Manager, Sonepura Wards and Encumbered Estate (representing Nagendranath Sahi), Bishwanath Dube, Nagendranath Dube, Onkarnath Dube and others agreeing to settle with the Company any of their lands for transport of limestone, for any works in connection with the manufacture of any products therefrom, for building upon or depositing overburden and rejected stones or for any other purpose for which the Company may require, at a nazrana of Rs. 16 reserving an annual rent of Rs. 8, per acre.

Exhibit 35 is a similar agreement of the same date by one mukarraridar.

8. Exhibit 11 is a permanent mukarrari lease by Jugal Kishore Ram Dube and others to Sone Valley Portland Cement Co. Ltd., dated 22nd December 1934, by which Onkarnath Dubey and others had demised 25, 71 acres of land at a premium of Rs. 8638-5-6 at the rate of Rs. 210 per bigha, reserving an annual rent of 4 as per bigha, and the lease is to enure so long as the Company continues to carry on their business. The lands so demised are in village Gursote.

9. It is true that the learned District, Judge arrives at the valuation assessed by him, relying on Exts. O and 35 read with Ext. 1-A. Exhibit 1-A is a letter from the Manager of the Company to the land acquisition Collector, Shahabad, on 22nd February 1937. In this letter the Manager by way of explaining Ext. O says:

With further expansion of the cement work it was found necessary to take leases of further quarries to the west and also a strip of land for road and ropeway for transporting limestones. The mukarraridars were called including the Manager, Bhagwati Wards Estate and the General Manager, Sonepura Wards Estate, he being the proprietor of these mukarrari villages. It is necessary to mention here that the Company were under the impression that they will enjoy the same surface rights over the planes adjoining the foot of the hills as their predecessors-in-interest who had placed a number of pillars, which they were assured, were the boundaries of their demise, So the Company thought and were justified in thinking that they would require only a small additional area to serve their purpose. It was then settled in a meeting in which Manager, Bhagwati Estate and Manager, Sonepura Estate and some principal mukarraridars were present, that the Company should pay for their road and ropeway lands at Rs. 16 as salami per acre and Rs. 8 as rent per acre per annum.

10. It is further said that accordingly a draft promise (referring to Ext. O) was drawn up by both the Managers and the mukarraridars present on 23rd March 1934. But later on, the mukarraridars failed to get the lease executed by all and the negotiation fell through. Later, however, the Government took interest in the venture of the Company. There was then a re-survey of the lands, and it was found that the Companys sub-lease terminating at the base of the exposed limestone, gave them no right over any of the adjoining lands; thus the need for more additional lands arose, and in view of the fact that the mukarraridars failed to keep their promise, the Company decided to obtain lands by land acquisition proceedings.

11. With regard to Ext. 11, the Manager of the Company, in his aforesaid letter, admitted that formerly when they were in urgent need of lands near their quarry near Gursote, without which their work had come to a standstill, Martin & Co., their managing agents, under the aforesaid compelling circumstances, had been bound to pay salami at the rate of Rs. 200 per bigha reserving an annual rent of 4 as. in the year 1921, and later, when additional lands were required adjoining the aforesaid lands, by the time that a small village and a market had been established near them, the lands had become more valuable, the Company "did not grudge to pay an additional sum of Rs. 10 as compensation per bigha" over the above Rs. 200, the price already paid as above.

12. The letter Ext. 1-A then makes out two points: (1) that the terms of agreement of Ext. O had been accepted by the Company not under any pressing necessity but because the area proposed to be acquired was small; and (2) that Rs. 210 per bigha for Gursote lands was considered proper because at the time (of Ext. 11) the lands had become valuable on account of its proximity to a market and a village and also because a precedent for such a high value had been created by Messrs. Martin & Co., under pressing necessity of their business.

13. The learned District Judge, relying upon these documents, and making allowance for the distance of six miles between Gursote lands and the lands under acquisition, has fixed the valuation at Rs. 176 which, in fact, is the capitalised value of what was agreed to be paid, for a permanent lease as per Ext. O between the Company and the parties concerned. The learned District Judge, in accepting the value, as evidenced in these documents as the proper value, observes that these documents indicate the value that would be paid by a willing purchaser to a willing vendor of the land with its potentiality.

14. Mr. Mehdi Imam contends that this is not really so; that in both these cases, it was compelling necessity of which advantage had been taken by the vendors, and under which the purchaser agreed to pay, not willingly but under an abnormal circumstance or pressure of their demand for it. The submission, therefore, is that the evidence of price furnished by these documents should not be considered as proof of the standard.

15. He, however, relies on the documents of class A which, according to him, consist of Exts. F series, C, C(1), B and B(1). Ext. F is a deed of sale, by Ram Raj Singh to Faquir Muhammad, in the year 1931, of 3 pies English share in mauza Nimhat, and 10 pies out of 1 anna 4 pies English share in mauza Deodand for a consideration of Rs. 900, the annual Mukarrari jama of the vended properties being Rs. 8-4-0. Exhibit F(1) is another sale deed of the year 1938, in favour of Faquir Muhammad, in respect of 3 pies share of village Nimhat, and 3 pies share of village Deodand, for a consideration of Rs. 700, the annual jama of the vended properties being Rs. 5-2-0. Exhibit F (2) is another sale deed in favour of Fakir Muhammad in. the year 1984 in respect of 6 pies share of village Nimhat and 6 pies share of village Deodand for a consideration of Rs. 100. Exhibit F (3) is a sale deed of 1934 in favour of Fakir Muhammad in respect of 3 pies in khewat No.13 and 11 pies in khewat No. 14 of village Nimhat, and 11 pies each in khewats 12 and 13 of village Deodand for a consideration of Rs. 100. The learned Counsel handed over a statement to us, in course of argument, for the purpose of demonstrating that calculating, in terms of the area of the land sold in the aforesaid sale deeds, the price of lands per acre comes to Rs. 29 in Ext. F, Rs.43-12-0 in Ext. F(1), Rs. 8 in Ext. F (2) and Rs. 20 in Ext. F (8). The figures given, in that statement, do not appear either from the aforesaid sale deeds or from any other document on the record.

16. It is difficult, therefore, to rely upon these statements for the purpose of arriving at any conclusion as to the price of lands sold therein. But it is obvious, however, that the price obtained in Ext. F is nearly 109 times and that in Ext. F (1) is 125 times of the annual jama of the properties sold therein. The other two sale deeds do not mention the annual jama of the vended shares. In none of these documents, the area equivalent to the shares sold is given. In relying upon Ext. C series, he invites our attention to the low annual rental payable by the cultivating raiyats of the villages in question. Exhibit C, the cess valuation of village Deodand shows that the average rate of the cultivating raiyati lands of the village is 13 AS. per acre, while that for Jaintipur is Rs. 1-13-9 and the Collector fixes rental value for village Deodand, for homestead lands of 33 acre, at Rs. 53 and the rental for banker lands at the rate of 5 As., per acre. In village Jaintipur the Collector values the annual rent at Rs. 1914 for an area of 1214 acres. On the other hand, these cess valuation papers are relied upon by the respondents, to show that the lands in Deodand and Jaintipur are of superior quality to those of Gursote because Ext. 27, the cess valuation paper of Gursote shows that banker lands are assessable at 4 As. per acre while similar lands of Deodand are assessable at 5 annas per acre. In my judgment, however, none of these documents help us to come to a decision.

17. Next reliance is placed upon Exts. B and B (1) which are leases by the Government to the Company, of lands on Rohtas hill for the purpose of manufacture of limestone and cement.

18. In those leases the ground rent reserved is Re. 1 per acre subject to maximum rental of Rs. 100, and the learned Counsel argues that 25 times the annual rent bring the price to Rs. 25 only per acre. The comment of the learned Counsel for the respondents, which I think is a correct one, is that the document, read as a whole, shows that the Government was thereby entitled to get an annual minimum royalty of Rs. 5000 in addition to the ground rent, and therefore the rate of ground rent reserved cannot be taken as a standard either of ground rent or for value of lands.

19. I have said before, that in Exts. F and F (1) the prices secured for the lands sold represent 109 times in one case and 125 times in another of the annual rent. Calculating by that rate and taking one rupee per acre as annual rent for the lands under acquisition on the basis afforded by Exts. B and B (1), it would not be unfair to say that the price should be between 109 to 125 times per acre, and as Exts. B and B (1) are very much relied upon by the appellant and as I arrive at this figure by calculating at the rate of Exts. P and P (1), the appellant can possibly have no reply. There may or may not be a fallacy in this my calculation because a purchaser pays so many times annual jama of the property according as it is commensurate with a margin of profit left to him out of his collections from the undertenants. But at the same time it cannot be overlooked that the profits derivable from land used for an industrial concern do not compare very unfavourably with those from agricultural operations. In this view of the matter, I may not be far from correct in arriving at the standard by the aforesaid method of computation, but I am not willing to place much reliance over this unless I am re-inforced by certain other facts grounded on a firmer basis.

20. Before coming to a conclusion on the point, I shall address myself to the principles that should guide a court in such a matter. Section 15 of the Land Acquisition Act proves that determination of the amount of compensation shall be governed by the provisions contained in Sections 23 and 24 of the Act. Section 23 provides, inter alia, that the compensation shall include the market value of the land at the date of the publication of the notification, the damage sustained by reason of the taking of any standing crops or trees on the land, damages sustained by reason of the acquisition injuriously affecting other property and a sum of fifteen per centum on such market value in consideration of the compulsory nature of the acquisition. In the present case, there does not arise any other kind of damage except value of trees which, has been taken into consideration by the Court below; and I do not propose to interfere with his finding on this count. The only question which is not free from difficulty is ascertaining the yardstick with which the market value of the land in question should be measured.

21. Though the documents such as Exts. O and 11 in a different context would furnish a sure basis for ascertainment of the market-value, the efficacy of their evidentiary value is challenged by the learned Counsel for the Collector, on the ground that the circumstance of compulsion environs them. He, therefore, calls our attention to the documents relied upon by the Collector which, as I have shown above, on proper analysis, provide no guide whatsoever. It may be noted here that no such circumstance of compulsion is alleged to have affected the transactions evidenced by Exts. B and B(1) which I have dealt with previously and shall come to deal with them again later. It is also far from correct to say that Ext. 11 is subject to the criticism of compulsion. I am inclined to omit Ext. O from consideration for the reason that they were then proposing to take a small extent of land. The learned Counsel in support of his proposition relies upon the case in AIR 1939 98 (Privy Council) . It would be profitable to quote here certain passages from the aforesaid decision in which the word "market-value" occurring in Section 23(1)(i) has been interpreted. Their Lordships observed:

It is perhaps desirable in this connexion to say something about this expression the market-price. There is not in general any market for land in the sense in which one speaks of a market for shares or a market for sugar or any like commodity. The value of any such article at any particular time can readily be ascertained by the prices being obtained for similar articles in the market. In the case of land, its value in general can also be measured by a consideration of the prices that have been obtained in the past for land of similar quality and in similar positions, and this is what must be meant in general by the market value in section 23. But sometimes it happens that the land to be valued possesses some unusual and it may be, unique features as regards its position for its potentialities. In such a case the arbitrator in determining its value will have no market value to guide him, and he will have to ascertain as best he may from the materials before him, what a willing vendor might reasonably expect to obtain from a willing purchaser, for the land in that particular position and with those particular potentialities. For it has been established by numerous authorities that the land is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined that time under the Indian Act being the date of the notification u/s 4(1), but also by reference to the uses to which it is reasonably capable of being put in the future. No authority indeed is required for this proposition. It is a self-evident one. No one can suppose, in the case of land which is certain, or even likely, to be used in the immediate or reasonably near future for building purposes but which at the valuation date is waste land or is being used for agricultural purposes, that the owner, however willing a vendor, will be content to sell the land for its value as waste or agricultural land as the case may be. It is plain that in ascertaining its value, the possibility of its being used for building purposes would have to be taken into account. It is equally plain however that the land must not be valued as though it had already been built upon, a proposition that is embodied in section 24(5), of the Act and is sometimes expressed by saying that it is the possibilities of the land and not its realised possibilities that must be taken into consideration (at page 102, Col. 2).

22. While dealing with the practical side of what a willing vendor might reasonably expect to obtain from a willing purchaser for the land in that particular position and with those particular potentialities, their Lordships said:

The disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy must alike be disregarded. Neither must be considered as acting under compulsion. This is implied in the common saying that the value of the land is not to be estimated at its value to the purchaser. But this does not mean that the fact that some particular purchaser might desire the land more than others is to be disregarded. The wish of a particular purchaser, though not his compulsion, may always be taken into consideration for what it is worth. But the question of what it may be worth, that is to say, to what extent it should affect the compensation to be awarded is one that will be dealt with later in this judgment. It may also be observed in passing that it is often said that it is the value of the land to the vender that has to be estimated. This however is not in strictness accurate. The land, for instance, may have for the vendor a sentimental value far in excess of its market value. But the compensation mast not be increased by reason of any such consideration. The vendor is to be treated as a vendor willing to sell at the market price, to use the words of Section 23 of the Indian Act.

23. In laying down, the principles for ascertaining the value of lands with reference to their potentialities or possibilities their Lordships said:

In the ease instanced above of land possessing the possibility of being used for building purposes, the arbitrator (which expression in this judgment includes any person who has to determine the value) would probably have before him evidence of the prices paid, in the neighbourhood, for land immediately required for such purposes. He would then have to deduct from the value so ascertained such a sum as he would think proper by reason of the degree of possibility that the land might never be so required or might not be so required for a considerable time. In the case however of land possessing potentialities of such an unusual nature that the arbitrator has not similar cases to guide him, the value of this land must be ascertained in some other way. In such a case moreover there will in all probability be only a very limited number of persons capable of turning the potentialities of the land to account. (P. 102 col. 2)

24. Their Lordships have in their judgment deprecated a standard to be derived by the method of an imaginary auction, (p. 103, col. 1)

25. With a view to dispel any doubt as to the method of ascertaining potentiality of any particular land and in clarifying the position as to how far it is a compulsion on the part of the intending purchaser on account of the vicinity, or other circumstances of like nature of the land, in question, to his other property, in the interest of which the acquisition is needed, it will not be out of place to quote from the judgment what I should call an apt illustration given by their Lordships, in order to demonstrate how the market value of the property to be acquired might be affected in particular circumstances. In this connection their Lordships observed:

There was a house of which the value to any one except certain trustees was no more than 750. These trustees were the owners of a nurses home which adjoined the house, and they were desirous of extending their premises. They accordingly purchased the house for 1000, the owner thus receiving 250 for the potentiality his house possessed by reason of its position adjoining the nurses home. It was held by the Court of appeal that 1000 was the value of the house to a willing seller. To say, said Lord Cozens Hardy M.R. that a small farm in the middle of a wealthy landowners estate is to be valued without reference to the fact that he will probably be willing to pay, a large price, but solely with reference to its ordinary agricultural value, seems to me absurd. Had the house in that case been acquired compulsorily by a railway company, or local authority under the provisions of the lands Clauses Consolidation Act, 1845, before its purchase by the trustees, the house ought, in their Lordships opinion, and for the reasons already given, to have been valued at 1000 and not merely at 750.

26. Applying the principles laid down by the Judicial Committee as aforesaid, the position, in this case reduces itself to this, namely, that you cannot value the land with reference to its present use, or, in other words, with reference to the income that is at present derivable from it by the owner thereof; that in assessing the market value you have to take into consideration the potentiality of the land derived from its proximity to the quarries of the Company; in considering this potentiality you have to keep in view that there are not many other persons than this Company who can realise its possibilities; that you cannot at the same time disregard the fact that the Company might desire to purchase the land more than others, that is, Companys desire to purchase though not under compulsion may always be taken into consideration for what it is worth.

27. Bearing this in view, I do not think that the evidence afforded by Exts. F series and C series is of any assistance in ascertaining the market price, But, on the other hand, Exts. 11, B and B (1) are of considerable assistance in this matter, but while basing our conclusion on these latter documents, allowances should have to be made to the circumstances under which those transactions were entered into and to the position and character of the lands acquired under them.

28. Exhibits Band B (1) are transactions of a very recent date, being of the year 1936. Secondly, those transactions, it is not disputed, are transactions between willing parties, there being no element of compulsion present. It has, however, to be borne in mind that those are leases not only of the surface right but also of the mining rights in the land. The value of the mining rights is represented by the minimum annual royalty fixed therein while the value of the surface right is represented by the annual rent reserved. With regard to Ex. 11, no compulsion is attributed by the manager of the Company in his letter Ex. 1-A, but what he says is that the precedent that was adopted by the Company in entering into this transaction was already there created under compelling circumstances by Martin & Co. But one fails to understand, if the Company did appreciate that the precedent created by Martin & Co. was a bad one, that they should have agreed voluntarily to enhance the value by Rs. 10 per bigha. In Ex. 11 which is a lease and not a deed of sale out and out, the premium per bigha is Rs. 210 with reservation of an annual rent of 4 as. per acre which has been rightly assessed at Rs. 336 per acre by Moti Singh, vide Exs. 1 (b) and 1(c), while in leases Exs. B and B (1) the surface right of the land is leased at an annual rent of Rs. 1 per acre. The present is different from these transactions in the sense that it is a sale out and out. The lands demised under those documents, though at some distance from the lands under acquisition, are not dissimilar and the lands-stated in Exts. B and B(1) are in mahal Rehal which is just to the north of the lands in question. Possibility or potentiality is the same in the case of Ex. 11 as in the case under consideration, because they are very near the extended quarry operations of the Company, and, therefore, at the data of declaration, they stood a fair chance of being acquired by the Company, for their very useful purposes connected with their manufacture of lime or cement.

29. In these circumstances, I should say that I am reinforced in my view of fixing the market value at the rate of. Rs. 110 per acre as was roughly deducible from Exts. F and F(1) dealt with above. This is nearly one-third of the price paid under Ex. 11 by the Company at a near about date. Exhibits F (2) and F (3) seem to be, in contrast with Exs. F and F(1), but they are documents brought into existence by the Company through one of their agents Fakir Muhammad Khan at a time when the Companys need for acquisition was very imminent. These documents have been attacked on this ground by the respondents and the validity of this attack has also found favour with the learned Court below. I have no hesitation in ruling out these two documents as of no evidentiary value for the purpose in hand.

30. In my judgment, therefore, the valuation, as herein proposed by me, namely, Rs. 110 per acre plus a statutory compensation of 15 per cent is, if it is an error at all, on the side of leniency towards the purchaser. Had the proposed acquisition been placed on a slightly different context with regard to the position of the lands it should not have been unreasonable to value at the rate of more than Rs. 210 per bigha. But as the lands sold at that rate are at a distance of six miles from the lands in question, it will be unreasonable to bodily accept it. I would therefore modify the decree of the learned District Judge to the extent indicated above.

31. I have forgotten to mention that reliance was also placed on Ex. 23 by the appellant in support of this contention that the terms of his document work out the value to be Rs. 72 per acre, but it has been rightly pointed out by the respondents that this is a lease for 15 years only and is in respect of lands passing along ahars (sic) for constructing a road. Therefore, it is not relevant.

32. I shall now proceed to deal with the Appeal No. 46. This appeal relates to the apportionment of compensation between the zamindar Nagendranath Sahi, appellant on one side, and the respondent mokarraridars on the other. The position maintained by the latter is that under kabuliats Exs. 24 and 1-3, they being permanent mukarraridars of the lands in question subject to the proprietors right to levy some fees for bamboos and timbers exported for the purpose of trade, they are entitled to the whole of the compensation money. The appellants case is that the leases were agricultural leases, in respect of arable lands of the villages, subject to baskati rights excepted from the demise, and reserved for the benefit of the proprietor, and that the disputed lands being on the slopes of Rohtas hills, they were not demised at all and hence the mokarraridars have no right to the compensation.

33. The lease (Ex. 24) is in respect of mauzas Nimhat and Deodand Asli and Ex. 1-3 is in respect of half of mauza Jaintipur. Exhibit 24 is in the following terms:

We have taken perpetual istimrari muqarrari descendible to children generation after generation both in the male and famale lines of the said entire mauza appertaining to taluqa Khandaul pargana Haveli Bohtas district Shahabad together with all habub (grains) at an annual jama of Rs. 307/8/- in kaldar sikka coins consolidated from all sources, save and except timber bamboos and banker with effect from 1236 Fasli on the same being granted by the Maharaja Saheb-Maharaja Damar Nath Sahi, owner, proprietor and muqarraridar of taluqa Khandaul, pargana Belanjar and filed the qabuliat before the hazur of our free will and accord (undertaking) to deposit {the rent) instalment after instalment crop after crop in accordance with the details given below into the treasury of the Sarkar and we shall not put forward any plea and objection. We have therefore put, into writing these few words by way of a qabuliat so that they may be of our use when required.

34. Exhibit 1-3 is in the following terms:

Kabuliyat exeouted by Mahanth Injor Singh, Raghubir Singh and Bhairo Dayal. We have executed an istamrari mukarrari kabuliyat descendible to children in both male and female lines generation after generation in respect of mauza Jaintipurnisf and the entire village Chanseani in talluq Khandaul Kila, etc., otherwise known as Belanja, Sarkar Eohitas, district Shahabad, pergana Haveli (at a jama of) Rs. 18/12/- (Rupees eighteen and annas twelve in the Imperial sikka coins in favour of Sri Maharaj Damar Nath Sahi, malik mukarraridar, of our own accord and sweet will. We shall cultivate the same peacefully and appropriate the produce thereof and pay the rent according to the terms of the mukarrari year after year, crop after crop, instalment after instalment without any plea on the ground of calamity and without objection into the treasury of the Sarkar, with the exception of bamboos and timber (for) trade, which will concern the Sarkar.

35. In view of the contentions of the parties the following questions arise for consideration, (1) whether the villages demised included the hills and the hill slopes and (2) whether what is excepted from the subject of demise are rights to bamboos, timber and banker in Ex. 24 and bamboos and timber in Ex. 1-3 or the entirety of what is known as baskati mahals rights.

36. Along with Ex. 24 was executed by the mokarraridar lessees an agreement on the same date, which is to the effect that the mokarraridars shall have no concern with the ground rent and parjota (quit rent in ground rent of houses) of any of the tenants of the proprietor who are at present settled in the villages or who may come from another village and settle in the villages and that the said ground rent or quit rent will be collected by the Raja. In respect of the other half of village Jaintipur another lease was granted by the proprietor (Ex. 25, dated 19 5-1937) which is to the effect that the lessees will have permanent heritable mokarrari istimrari right in the village which they should cultivate and appropriate the proceeds thereof and pay rent year after year, harvest after harvest, instalment after instalment, to the lessor. Bamboos and timber shall be excepted and be held by the Sarkar (proprietor). The rent reserved was Kharif harvest Rs. 11, Rabi harvest Rs. 6, total Rs. 17.

37. Learned Counsel who appears for the appellant-proprietor contends that the leases are only agricultural leases and the villages as mentioned therein where not the same as the present survey villages and the exception clause was but an infelicitous way of describing the baskati rights in their entirety.

38. It is to be borne in mind that the earliest survey that was made in the area was the revenue survey in the years 1844-45, "which was probably followed by the thakbast survey. The latest survey was the cadastral survey followed by the preparation of the record of rights between the years 1912 to 1916. It is, therefore, obvious that the term "mauzas" or " villages " in the mokarrari leases has to be interpreted in the light of contemporaneous usage relating to land tenures of the tract of country to which they appertain, and similarly the exception clauses will have to be interpreted in the light of contemporaneous usage and subsequent conduct of the parties in relation to their dealings with the respective rights either derived from or reserved by the said grants.

39. Before proceeding to examine the documents and review the history in so far as they have a bearing upon this single out standing question of construction that have been invoked by the respective parties in support of their respective contentions (sic).

40. Dr. Katju appearing for the respondents urged very strenuously that the words of the grant are clear, certain and unambiguous, and therefore they would be interpreted in their plain ordinary grammatical meaning and consideration of any extraneous matter or evidence would be completely irrelevant. No doubt, this rule of construction is a correct rule. It has, therefore, to be examined whether the expressions in the documents are clear and unambiguous.

41. The leases in question do not mention the area nor the boundary of the lands leased, but they are expressed in terms of the village names. If villages had by then been defined by survey and settlement papers, or if any other public paper of the time were available with the help of which the villages would be defined both in respect of areas and boundaries, there would in fact be no ambiguity, and the question would not admit of solution by the help of extrinsic evidence. But as I have said, already, there is no such paper available. The respondents have not been able to adduce any contemporaneous evidence either oral or documentary in support of their contention.

42. The same is the case with regard to the exception clauses. Exception is expressed in terms of bamboos and timbers. In my judgment, the exception should mean at least some thing more than mere bamboos and timbers. If the grant was in respect of some moveables, the exception clause expressed in the aforesaid terms would be quite plain in its meaning but in the case of a demise of immovable property, to except some movable such as bamboo and timber from the demise would be meaningless, unless it is taken to mean some sort of right in the subject of demise relating to bamboo and timber. In my judgment, therefore, both the general expressions of the demise and the exception clauses contained in the leases is question are far from being clear, certain and unambiguous. In the circumstances indicated above extrinsic evidence is relevant and should be had recourse to, for the purpose of constructing these deeds.

43. Mr. P.B. Das appearing for the appellant refers to, for the meaning of "Mauza", Wilsons Glossary, p. 531, where it is said to mean one or more clusters of habitations, and all the lands belonging to their proprietary inhabitants, and relied upon Norton on Deeds, pp. 154 and 157 and the cases in Duke of Beaut fort v. Mayor of Swansea (1849) 3 Ex. 413, Duke of Devonshire v. Pattinson (1887) 20 Q.B.D. 263, Right Hon. Lord Waterpark v. Joshua R. Fennell (1859) 7 H.L.C. 650.

44. Norton at p. 154 says:

Evidence is admissible as to the interpretation placed upon ancient documents by persons who lived at, or at a time not remote from, the time of the execution of the document.

45. This is known as contemporaneous interpretation or interpretation by contemporaneous usage. In this view of the matter either documentary or oral evidence of contemporaneous usage throwing light upon the subject of the grant and its ambit will be admissible.

46. In Duke of Beaut fort v. Mayor of Swansea (1849) 3 Ex. 413 the question arose whether an ancient grant of a manor of Gower included the sea shore between high and low water mark. The trial Judge told the jury:

you cannot define the seigniory of Gower, merely from those words. You cannot say that the spot which the plaintiff claims is his, as being part of the seigniory of Gower, merely from those words. But if by usage, which is of so long-standing, that we may presume it to be contemporaneous with the grant itself, the sea shore in question has always been considered to be part of the seigniory of Gower, then you will take the grant and usage together, or, in the language of the learned Judge looking at all the evidence in the case, not the documentary evidence alone (which he expressly tells the jury does not necessarily carry the right of the Crown), but looking at the grant, coupled with the usage, you are to form your own opinion.

47. Pollock, C.B. said:

I think that direction is perfectly correct and that, so far as it relates to this matter, the rule must be discharged.

48. Barron Park agreeing with Pollock, C.B. said:

Unquestionably, if evidence may be given to show what was the boundary of the manor upon the sea side, the evidence here shows that, in point of fact, the manor in the hands of the Crown, and, possibly, in the hands of a subject before was actually bounded by the then line of demarcation, namely, the low water mark. All modern usage to that effect is evidenced to show what was the meaning of the grant. I have no doubt that all ancient documents, where a questionarises as to what passed by a particular grant, can be explained by modern usage.

49. In Duke of Devonshire v. Pattinson (1887) 20 Q.B.D. 263 the question arose whether the fishery fronting a particular manor formed a parcel thereof. The Court said:

We do not know whether the fishery was at that date in the hands of the Duke or of a tenant;...but we know that for many years previous it had been let as a fishery, and we feel bound to presume that the modern user, which has been proved with regard to the fishery, existed in 1767, that the fishery was then as now known and treated as a tenement distinct from the closes adjoining the river and the fact that the corporation had never, for more than a century after the grant of 1767, set up any title to fish under this deed, or exercised any such right, is a strong confirmation of our conclusion. All ancient documents, as was rightly said by Lord Wensleydale in Duke of Beaut fort v. Mayor of Swansea (1849) 3 Ex. 413 where a question arises as to what passed by a particular grant can be explained by modern usage.

50. In Right Hon. Lord Waterpark v. Joshua R. Fennell (1859) 7 H.L.C. 650 their Lordships said:

The construction of a deed is always for the Court; but, in order to apply its provisions, evidence is in every case admissible of all material facts existing at the time of the execution of the deed, so as to place the Court in the situation of the grantor. In deeds, as well as wills, the state of the subject at the time of execution may always be inquired into; and as with respect to ancient deeds the state of the subject at their date can seldom, if ever, be proved by direct evidence, modern usage and enjoyment for a number of years is evidence to raise a presumption that the same course was adopted from an earlier period, and so to prove contemporaneous usage and enjoyment at the date of the deed. These deeds are to be construed by evidence of the manner in which the subject has been possessed or used.

51. Duke of Beaut fort v. Mayor of Swansea (1849) 3 Ex. 413 is relied upon. Then it is said:

Lord Hardwicke with reference to the construction of ancient grants and deeds, says there is no better way of construing them than by usage and contemporanea expositio is the bestway to go by.

52. Lord St. Leonards says:

One of the most settled rules of law is that you may resort to contemporaneous usage for the meaning of a deed. Tell me what you have done under such a deed and I will tell you what the deed means.

53. (His Lordship, then, observing that there was no oral evidence of contemporaneous usage discussed documentary evidence regarding such usage and came to the conclusion as follows.) In my judgment, the contemporaneous usage indicate exclusion of the Hill slopes from the "Mouzas" mentioned in the leases.

54. Let us then address ourselves to the documents evidencing modern usage and showing how the parties acted under the deed (per Lord St. Leonards: "Tell me what you have done under such a deed and I will tell you what the deed means").

55. (His Lordship then discussed documentary evidence bearing upon modern usage from which contemporaneous usage could be presumed and concluded.)

56. Mr. P.R. Das relying upon this group, of exhibits of indenture argues, I think rightly that they prove that it is the Baja alone who was exercising acts of possession over the hill slopes from near the cliff down to its bottom, without any let or hindrance from, the mokarraridars.

57. It is argued in the alternative, that these will make out a case of title by adverse possession as against the mokarraridars, in case it is held that the hill slopes were included within the aforesaid grants in their favour. To this Dr. Katju representing Bhagwati Prasad Narain Sahi gives two replies: (1) that these documents only prove either possession of Baskati rights by the Baja on the hill slopes or (2) possession of mineral rights which include collecting lime-stone either from the surface or from beneath the surface. In his view therefore title to the surface of these lands which only is the subject-matter of the land acquisition proceedings is not in the least affected. Dr. Katju further argues that mere proof of grant of leases does not amount to proof of actual possession. Mr. P.R. Das in reply to this last argument of Dr. Katju invites our attention to a series of documents consisting of entries in the general ledger of the estate of Sonepura, entries in cash books of the lessees abovenamed and receipts by the Sonepura estate on various dues relating to this hill. (His Lordship then, after discussing this set of documentary evidence came to the conclusion that they did not afford any proof of exercise of acts of possession by the mokarraridars over the slope of the hills.)

58. The position, therefore may be summarised like this. The hill slopes for the purpose of Baskati rights have admittedly been in possession of the proprietor of Mahal Khandaul since the year 1813 or at least since 1847 up to date. In course of exercise of Baskati rights, quarries of lime-stones have been made, kilns have been constructed, buildings, roads, wells etc. have also been built for purposes incidental to the manufacture of lime and extraction of lime-stones. These operations whenever they have involved exercise of surface rights and interference with the grounds, they have been done without any reference to or without any let or hindrance by the mokarraridars. At least from the year 1920, if not earlier, the proprietor of the Sonepura Estate has been realising ground rent for the lands on the hill slopes whenever they have been taken possession of by his lessees in addition to the royalties for lime-stones and royalties for forest produce. The Portland Cement Co., after getting assignment of the lease granted in favour of Karuna Ranjan Dutt and Jugal Chandra Dutt have constructed various buildings, roads, car roads, ropeways and other kinds of structures by virtue of those leases and have had never to pay anything to the mokarraridars. This conduct on the part of the mokarraridars is only consistent with their having no sort of right whatsoever over the hill slope areas.

59. This view is sufficiently reinforced by the fact that in course of the last cadastral survey when there was a dispute between the Government as owner of the plateau villages and the Raja of Sonepura as owner of Mahal Khandaul with regard to whether these hill slopes will be included within the boundary of Government plateau or within the zamindari villages of Mahal Khandaul, the mokarraridars not only stood aside but made definite admissions that they had no claim to them and they filed petitions Exts. 1-22 dated 10th February 1912 and 1-43 dated about the same time (date not given in the document) before the Assistant Superintendent of Surveys agreeing that the revenue survey boundary may be relayed between villages, Nimhat, Jaintipur and Deodand on one side and Rohtas (Government village) on the other. At this point I may call attention to a very clear admission on the part of Onkamath Dubey in this respect-vide Ext. E, dated 9-6-36. This is a plaint filed by Onkarnath Dube against Sone Valley Portland Cement Co., and others for specific performance of a contract of sale of the lands described therein and basing his cause of action on Ex. O. In para. 5 of the plaint he says that during the revisional cadastral survey, dispute arose regarding the northern boundary of Jaintipur with village Shekhpura which is on the mountain and constitutes the. Khas Mahal Estate of the Government between the Raja of Sonepura and the Government with the result that in the revenue survey map which was finally published, the hill slope was not shown in village Jaintipur. Then he says that ultimately by the judgment of the Commissioner dated 28th February 1916, it was held that the entire slope of the mountain lay within the ambit of village Jaintipur. Accordingly the said slopes had been shown by letters A, B, C, D, B, F, G, H, I, J and K in the sketch map attached to the plaint. This, in my view, is a clear admission that the disputed lands or at any rate the hill slopes lay in the revenue survey within the boundary of the Government village, and was never till the cadastral survey boundary considered by the mokarraridars to be a part of their morkarrari villages.

60. From the above, it is perfectly clear to me that in the years of the leases 1828 to 1833 theterm "mauzas" occurring therein was never conceived either by the grantor or by the grantee to include the hill slopes. To put another construction would be somewhat abnormal. There is no doubt that since at least 1847 the proprietor was granting leases of parts of the hill slopes for the purpose of manufacture of lime. I have shown that in the judgment of the High Court of Bengal in 1866 it was either assumed, or decided that between the Khandaul plain villages and the Rohtas plateau there intervened a property of the proprietor. All these converge to the only conclusion that this part was never included within the ambit of demise under the leases in question. In this view of the matter, the question of title by adverse possession does not arise. In case I was to decide it, I would be inclined to hold in favour of the appellant in view of the principles enunciated in (1934) 66 MLJ 134 (Privy Council) and Jones v. Williams (1837) 6 L.J. Ex. 107. The possession of the appellant has been exclusive, open and continuous and though it does not cover every moment and every inch of the lands, it is quite sufficient to make out a case of adverse possession from the nature of the property and from its common character. But I dont, decide it.

61. The learned Counsel for the appellant has urged that according to the exception clause of the leases, the Banskati Mahal right was excluded from the grant and the Banskati Mahal right being the only source of whatever revenue is derivable from these hill slopes, exclusion of that amounts to exclusion of the hill slopes. In support of this, his contention, he relies upon a decision of this Court in Jyoti Prasad Singh v. Samuel Henry Seddon AIR 1940 Pat. 516 In my view, the principles laid down there are not applicable to the facts of this case because there one of the clauses in the grant provided that:

all the estate, right, title, interest, claim, and demand whatsoever of the assignors into, of, or upon the said one-eighth or two-annas share.

had been assigned and another clause provided that the

assignees shall and may at all times hereafter peaceably and quietly enjoy and receive the said share of the said salamis and royalties, hereby assigned or intended so to be without, any let, stay, eviction, interruption claim or demand whatsoever from or by the assignors or any person or persons lawfully claiming through them etc.

62. In the present case, the exception clause is not couched in terms so wide as that, but for reasons recorded above, I have no hesitation in holding that the hill slopes were not included in the leases concerned as they were not considered within the ambit of villages at the foot of the hill. At least they never extended beyond the Revenue Survey boundary of the villages of Khandaul.

63. In this view as to the interpretation of the leases in question, the reservation clauses such as except bamboo, timber and banker in Ext. 24 and except bamboo and timber for trade in Ext. 1-8 do not fall to foe considered. Those exception clauses relate to the rights reserved for the benefit of the proprietor in the plain areas down below the foot of the hill which form the subject-matter of the leases aforesaid.

64. The next question we have to consider is whether the lands under acquisition He on the hill slopes or within the plain areas of the relevant villages. All the evidence oral and documentary, unmistakably indicates that they form part of the slopes of the hills. To start with the reference to the Court u/s 18, Land Acquisition Act, describes the condition and the capacity of the lands in terms of "hill tract and unfit for cultivation." In the proceedings u/s 11 of the Act the lands are descri. bed as "waste lands, jungle, pahar (hill) unfit for cultivation purposes." The kanungo, Syed Mohammad Mazoor Rizvi, witness No. 1 for the Collector, a disinterested witness, swears "the area under acquisition is on slope of a hill. It is not correct that there is no slope of hill in the villages under acquisition," and says in another passage, "the lands under acquisition is rocky and unfit for cultivation." Witness No. 2 for the Collector, another kanungo, swears:

I made local inspection of the area under acquisition. The area under acquisition waste land and unculturable. I did not find any crops on the lands.

65. Witness No. 1 for the applicant, Bhagwati Prasad Narain Singh, admits that the land in dispute is partly a hill slope. Ext. N, note of kanungo regarding acquisition of land dated 26th May 1938, states,

The land under acquisition is recorded in the khatian as jungle pahar. It is rocky all over in quality and not fit for cultivation and even unfit for production of good bamboos and timber.

66. In the khatian the lands are described as jungle and hills.

67. In my opinion, therefore, the disputed lands are the slopes of the hill and the mokarraridars respondents have no sort of interest in them. I am in accord with the view of the land acquisition Collector that the whole of the compensation money should go to the appellant-zamindar.

68. Mr. Hubbacks Settlement Report makes it clear that in the cadastral survey the revenue survey line was not exactly followed. For this reason as well as for the reason that the cadastral survey boundary was set aside by the Commissioner, the cadastral survey boundary line can bear no presumptive value. The same Settlement Report also expresses doubt as to the correctness of the revenue survey boundary which too was found to be incorrect by the aforesaid judgment of the Commissioner. The revenue survey and the cadastral survey map, therefore, are not reliable in this connection.

69. In this view of the matter the question of apportionment of compensation between the appellant and the respondents does not arise.

70. Before closing I shall have to notice the contention raised by the appellant that the claims of Onkarnath and Bishwanath Dubeys were barred as, u/s 18 of the Land Acquisition Act they did not apply for reference within the period of six weeks from the date of the award. The delay is not disputed by the learned Counsel for the Dubeys. But he contends that the District Judge had no jurisdiction to entertain this plea, the Collector having decided to make the reference. Reliance is placed upon Sections 20 and 21 and it is urged that the Court shall have the power only to investigate the matter referred, and not the question if the Collector had acted rightly or wrongly in making the reference. In support of this contention Mr. D.N. Varma refers to the case in Secy. of State Vs. Bhagwan Prasad and Another , which lays down that the Court to which reference is made u/s 18 of the Act has no jurisdiction to go behind the reference in order to scrutinise its regularity. This case is a direct authority on the point and supports Mr. Varmas contention fully. He also relies upon the case in Venkateswaraswami v. Sub-Collector, Bezwada AIR 1943 Mad. 327 . In this ease it is held that the Collectors order is final both when he makes a reference, and when he refuses to make a reference. The Land Acquisition Court cannot sit in appeal against his order. Mr. P.R. Das for the appellant urges that the Collectors jurisdiction to make a reference is derived from the Statute--in this case, Section 18, Land Acquisition Act, and it is a universal principle that he must comply with the specified terms on which the jurisdiction is given. One of the terms in Section 18 is set forth in the proviso in the following terms:

Provided that every such application shall be made (a) if any person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collectors award.

71. It is not disputed that Dubeys application for reference falls under (a) of the proviso, and that it is beyond time. He, therefore, contends that the Collector in making the reference in disregard of this mandatory provision of law, has acted without jurisdiction, and the claim of Dubeys should not have been entertained by the Court. He relies upon the case in Mahadeo Krishna Parkar Vs. The Mamlatdar of Alibag, in which Beaumont, C.J. (Rajadhyaksha, J. agreeing) disagreeing with the Allahabad view held that "it is the duty of the Court to see that the statutory conditions have been complied with". There is thus conflict of authority on the point, and the question is one fraught with difficulties. That point, however, does not need a decision, in view of the circumstances of the present case.

72. In this case, two applications, namely, by (1) Raja of Sonepura and (2) Bhagwati Prasad Narain Singh were filed before the Collector u/s 18 invoking a reference, and they necessitated a reference to the Court. The Court having seisin of the reference is empowered u/s 20 of the Act to direct appearance before him not only of the (a) applicant (that is, applicant for reference) but also (b) all persons interested in the objection except such (if any) of those as have consented without protest to receive payment of the compensation awarded. The term "interested" in (b) is wide enough to include both, the persons interested in supporting, or opposing the applicant, that means, clause (b) must have reference to parties having conflicting claims to the compensation either whole or part, as against the applicant and otherwise. Collector is thought of in Clause (c) of the section in certain specified cases. The Court, therefore, had power, irrespective of any reference in that behalf, to investigate the claims of Onkarnath Dubey and Bishwanath Dubey. Their claims or, in other words, the valuation of their interest could not be lost sight of or left undetermined in valuing the interest of the proprietor of the co-sharer mukarraridars. In complying with Section 21 of the Act the Court had to consider the claims of the aforesaid Dubeys. The point raised is, there, fore, decided in favour of the respondent The Collector in F.A. No. 44 was not entitled to raise the question, he himself having made the reference. The point also was not seriously pressed on his behalf.

73. In the result the appeals succeed to the extent indicated above, and the judgment of the learned District Judge stands modified accordingly.

74 In conclusion Appeal No. 44 is allowed with costs to be paid by the principal respondents Nos. 1, 2 and 3 (mokarraridars) and Appeal No. 46 is allowed in part. Under the circumstances, each party will bear its own costs.

Meredith, J.

I agree.