Lakurka Coal Co., Ltd. vs Biseswar Chatterji and others

Ross, J.—This is an application by the defendant company for revision of a decree of the Small Cause Court Judge of Dhanbad awarding the plaintiffs Rs. 370 as damages for letting down the surface of 1 bigha 17 kathas of land under which the defendant company has mining rights.

Three points were argued on behalf of the petitioner: (1) that the suit should not have been tried as a Small Cause because the questions involved were complicated questions of the rights of the parties under the terms of the mining lease; (2) that there is absolutely no evidence as to the actual damage suffered by the other side; and (3) that having regard to the contract between the parties, subsidence was the inevitable result of the grant and unless there be anything in the grant expressly reserving the right to recover damages for such inevitable subsidence, the plaintiffs cannot recover. Having regard to the terms of the rule granted in this case, I shall not consider the first and third points because in my opinion it is only open to the petitioner to argue on the question of damages. On this point it is said that there is no evidence of actual damage; that the plaintiff must prove the extent of the damage and there must be some evidence to show the loss that he has suffered and that there is no material for assessing damages; that the only way to assess damages is to find out the market value or the letting value of the land that has been let down and the only evidence on this point is in Cl. (5) of the lease where it is said that "if the demised land be more than 99 bighas by correct measurement then (the lessors) will be entitled to have rent at Rs. 1-8-0 as rent and Rs. 3 as bonus per bigha for the excess area." It is contended that the true measure of damages in the present case is twenty times the annual rent plus the bonus. In my opinion that is not the true measure of damages because it cannot be inferred from paragraph 5 of the lease what the actual value of culturable land is; nor is it correct to say that there is no evidence on which the Subordinate Judge could have arrived at his finding. The plaintiffs'' witness No. 1 said that he claimed Rs. 10 per katha as compensation. There was no oross-examination of this statement and no rebutting evidence. There was therefore evidence on which the Subordinate Judge could have come to his decision and his decision therefore cannot be disturbed.

The application is dismissed with costs. Hearing fee one gold mohur.