Kusunda Nayadi Collieries vs Bholanath Sarkar and others

Das, J.—This appeal arises out of a suit instituted by Bholanath Sarkar, the respondent in this Court, for recovery of case. The facts are these: Bholanath gave a mukarari lease of 100 bighas of land with under-ground rights to Haricharan Bose at a rent of Rs. 2,500 a year. Haricharan transferred his interest to the patnaiks who are Defendants Nos. 2-5 in this suit. The patnaiks gave a mining lease to Kusunda Nayadi Coal Co., Ltd. and It was provided in the lease that out of the royalties and commissions payable by the Company to the patnaiks Rs, 2,500 should be paid direct to Bholanath Sarksr Kusunda Coal Co. was Defendant No. 1 in the suit and is the appellant in this Court.

In 1918 a suit was instituted by the patnaiks against Bholanath and the Company in substance for a declaration that Bholanath had no right to the mouza and for recovery of the royalties paid by them to him through the Company. A. compromise was entered into by the parties. It was agreed that out of Rs. 2,500 payable by the defendant Company to Bholanath under the previous arrangement on account of the annual rent of Rs. 100 bighas of land Bholanath would get an annual rent of Rs. 800 only and the patnaiks, who were the plaintiffs in that suit, would get the balance. It was also agreed that Bholanath would have no other right in the surface or under-ground of the mouza except the right to receive Rs. 800 per year from the defendant Company. The plaintiff contends that he is entitled to recover case from the defendants on the annual rent of Rs. 800 which is being paid by the defendant Company to the plaintiff. The learned Judge in the Court below has allowed the claim of the plaintiff, and the defendant Company appeal to this Court.

The learned Judge has taken the view that on the compromise between the parties the defendant Company must be regarded as the tenants of Bholanath and that as such they are bound to pay his case recoverable under Chap. 2. Now it is to be observed that the defendant Company is in possession of certain mining rights in the mouza. What is being paid to the plaintiff by the defendant Company is rent or royalty in respect of such mining rights and the question arises whether Chap. 2 of the Case Act is at all applicable to a case of ''this nature. S. 6 of the Case Act provides that the road-case and the public works case shall be assessed on the annual value of lands and on the annual net profits from mines, quarries, tramways, railways and other immovable property ascertained respectively as in this Act proscribed. Annual value of land is defined in the Act to mean.

the total rent which is payable, or if no rent is actually payable, would, on a reasonable assessment, be payable during the year by all the cultivating raiyats of such land, estate or tenure, or by other persons in the actual use and occupation thereof.

It is obvious to my mind that a case of rent or royalty payable under a mining lease does not come within Chap. 2 which relates to assessment of case on the annual value of lands and not to assessment on the annual net profits from mines, etc. If this be so, it is clear that the plaintiff cannot recover any ces3 from the defendant under Chap. 2 of the Act. the Defendant Company is no doubt liable to pay case to the Government under Chap. 5 of the Act and as a matter of fact it is paying case to the Government under Chap. 5, The plaintiff is obviously not entitled to ask the defendant Company to contribute towards the case payable by him to the Government on his profits.

I would allow the appeal, set aside the judgment and the decree passed by the Court below and dismiss the plaintiff''s suits with costs throughout.

Adami, J.

I agree.