Shreemati Kashi Bai Vs. Sudha Rani
Ghose & Ors [1958] INSC 16 (25 February 1958)
KAPUR, J.L.
BHAGWATI, NATWARLAL H.
GAJENDRAGADKAR, P.B.
CITATION: 1958 AIR 434 1958 SCR 1402
ACT:
Adverse possession--Coal mine--Trespass and
intermittent Working --Whether can constitute adverse possession.
HEADNOTE:
The appellants and the respondents were
lessees of coal mining rights in adjoining areas. In 1917 the predecessors in
interest of the appellants trespassed into a portion of the lands leased to the
predecessors in interest of the respondents, sank two inclines and two air
shafts and (lug out coal there from. There were no mining operations till 1023
when they were restarted and continued till 1926, and were recommenced in 1931
and carried on till 1933. In 1939 the mine was worked for a short time. In 1944
the operations were recommended by the appellants. In 1945 the respondents
brought a suit for fixation of the intermediate boundary, for possession of the
area trespassed upon and for compensation for coal illegally removed by the
appellants.
The appellants contended, inte alia, that
they had been in sole, exclusive, uninterrupted possession of the area in
dispute openly to the knowledge of the respondents and had acquired title by
adverse possession:
Held, that the intermittent working of the
mine in the manner and for the period carried out by the appellants or their
predecessors in interest was wholly insufficient to establish possession which
could constitute adverse possession. During the period when there were no
mining operations no, kind of possession of the appellants was proved and the
presumption that during such periods possession reverted to the true owner was
not rebutted.
Nageshwar Bux Roy v. Bengal Coal CO-, [1930]
L.R. 58 I.A. 29 and Secretary of State for India v. Debendra Lal Khan, [1933]
L.R. 61 I.A. 78, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 118-119of 1956.
Appeal from the judgment and decrees dated
September 27, 1951, of the Patna High Court in Appeal from Original Decrees
Nos. 252 and 254 of 1948, arising out of the judgment and decrees dated May 11,
1948, of the Court of Subordinate Judge Dhanbad in Title Suits Nos. 16 and 50
of 1945 respectively.
1403 M. C. Setalvad, Attorney-General for India, Kshitindra Nath Bhattacharya, S. N. Andley, J. B. Dadachanji and Rameshwar Nath, for
the appellant.
N. C. Chatterjee, S. C. Bannerjee and P. R.
Chatterjee, for respondents Nos. 7 to 13.
P. K. Chatterjee, for respondents Nos. 2-4
and 6 (Minors).
Gauri Dayal, for respondent No. 5.
1958. February 25. The following Judgment of
the Court was delivered by KAPUR J.-In these two appeals brought by leave of
the Patna High Court against a judgment and two decrees of that court a common
and the sole question for decision is one of adverse possession. Two cross
suits were' brought in the Court of the Subordinate Judge, Dhanbad, raising
common questions of fact and law. The appellant and respondent Manilal
Becharlal Sangvi were defendants in one (Suit No. 16 of 1945) and plaintiffs in
the other (Suit No. 50 of 1945).
Respondents Nos. 1-3 were the plaintiffs in
the former suit and defendants in the latter. The other respondents were
defendants in the latter suit and were added as plaintiffs at the appellate stage
under 0. 1, r. 10, Code of Civil Procedure in the appeal taken against the
decision in the former suit. Both the suits were decreed against the appellant
and respondent Manilal Bacharlal Sangvi who took two appeals to the High Court
at Patna. Both these appeals were dismissed by one judgment dated September 27,
1951, but two decrees were drawn up. Against this judgment and these decrees
the appellant has brought two appeals to this Court which were consolidated and
will be disposed of by this judgment.
The facts necessary for the decision of these
two appeals are that on November 26, 1894 Gang, Narayan Singh, a zamindar and
proprietor of pargana Katras granted to Ram Dayal Mazumdar a lease of "the
coal and coal mining rights" in two plots of land, one in mouza Katras and
the other in mouza Bhupatdih. On November 6, 1894 he granted a similar lease in
plots 1404 contiguous to the plots in the lease mentioned above to Bhudar Nath
Roy. In Suit No. 32 of 1896 boundaries between these two sets of plots were fixed
and this was shown in a map which was incorporated in ,,the decree passed in
that suit. On the death of Ram Dayal, his sons Prafulla, Kumud, Sarat, Sirish
and Girish inherited the leasehold rights which they on October 19, 1918,
granted by means of a registered patta and kabulliat to Lalit Mohan Bose for a
term of 999 years. One Bennett who along with one Bellwood had obtained a coal
mining lease from Raja Sakti Narayan Singh of Katrasgarh on September 5, 1917,
trespassed on the northern portion of the land within the area leased to Lalit
Mohan Bose and sank two inclines and two airshafts and dug out coal from this
area. This gave rise to a dispute between the parties which was amicably
settled and the area trespassed was returned to the possession of Lalit Mohan
Bose. This fact was denied by the appellant and Manilal Becharlal Sengvi
respondent in their written statement and in their plaint. Lalit Mohan Bose
died in 1933 leaving a will of which the executors were his widow, Radha Rani
and his brother Nagendra Nath Bose. They leased out 17 bighas of land in
possession of Lalit Mohan Bose to Keshabji Lalji in 1933. The remaining portion
of the area leased to Lalit Mohan Bose was given on lease on March 15, 1938, to
Brojendra Nath Ghose and Vishwa Nath Prasad respondents and to -Ram Chand Dubey
but the possession thereof had been given to them in July 1937 and they (the
above two respondents) and Ram Chandra Dubey carried on colliery business in
the name and style of West Katras Colliery. On the death of Ram Chandra Dubey
his estate was inherited by his sons and widow who on June 25, 1944, sold their
right, title and interest to Nagendra Nath Bose. These three, i.e., Brojendra
Nath Ghose, Vishwa Nath Prasad and Nagendra Nath Bose were the plaintiffs in
Suit No. 16 of 1945.
As stated above Raja Sakti Narayan Singh
leased an area of 256 bighas to Bennett and Bellwood on September 5, 1917, and
they assigned their rights to 1405 the New Katras Coal Company Limited. This
Company worked the coal mine for some time but went into liquidation and in
Execution Case No. 293 of 1922 the right, title and interest of the company
were sold and purchased by Nanji Khengarji father-in law. of Shrimati Kashi Bai
appellant and by one Lira Raja. In August 1923 Nanji Khengarji and Lira Raja
effected a partition, the western portion of the leased coal field fell to the
share of Nanji Khengarji and the eastern portion to Lira Raja. The former
carried on the business in the name and style of Khengarji Trikoo & Co. and
the Colliery came to be known as Katras New Colliery. On the death of Nanji
Khengarji in 1928 his son Ratilal Nanji inherited the estate and on his death
in September 1933 the estate passed to the appellant reemati KashiBai,widow of
Ratilal. In December 1944 she (Sreemati Kashi Bai) entered into a partnership
with Manilal Becharlal Sengvi respondent.
On March 24, 1945 Brojendra Natb. Ghose,
Vishwa Nath Prasad and Nagendra Nath Bose respondents Nos. 1-3 as plaintiffs
Nos. 1-3 brought a suit (Suit No. 16 of 1945) against Sreemati Kashi Bai,
defendant No. 1, now appellant and against Manilal Becharlal Sengvi defendant
No. 2 now respondent No. 10 for fixation of the intermediate boundary and for
possession of the area trespassed upon by the defendants and for compensation
for coal illegally removed by the latter and also for an injunction. They
alleged that the defendants had wrongfully taken possession of the area in
dispute shown in the map attached to the plaint and had illegally removed coal
from their mine. The defendants in their written statement of June 29, 1945,
denied the allegations made by the plaintiffs. They pleaded that the area in
dispute was acquired by Nanji Khengarji and Lira Raja and had been worked by
them and they had been in sole, exclusive, uninterrupted and undisturbed
possession of the area openly to the knowledge of the plaintiffs in that suit
and had therefore acquired title by adverse possession. The claim of ownership
which they had set up as a result 1406 of acquisition from Bennett and Bellwood
was negatived by the courts below and is no longer in dispute before us, the
sole point that survives being one of adverse possession.
The cross suit No. 50 of 1945 was brought by
the defendants in Suit No. 16 of 1945, i.e., Shrimati Kashi Bai (appellant) and
Manilal Becharlal Sengvi (respondent) against the three plaintiffs of suit No.
16 of 1945 (respondents Nos. I to 3) and against heirs of Lalit Mohan Bose and
against Purnendu Narayan Singh son of the original grantor Raja Sakti Narayan
Singh. The allegations by the plaintiff in this suit ( No. 50 of 1945) were the
same as their pleas as defendants in Suit No. 16 of 1945. The two suits were
tried together with common issues. The learned Subordinate Judge decreed Suit
No. 16 of 1945 and dismissed Suit No. 50 of 1945 which were thus both decided
in favour of respondents Nos. I to 3. He held that the land in suit was
included in the area leased to respondents Nos. I to 3, i.e., Brojendra Nath,
Vishwa Nath Prasad and Nagendra Nath Bose and therefore the area in which two
inclines of seam No. 9 were situate formed part of the area leased to them and
that encroachment by the appellant and Manilal Becharlal Sengvi respondent on
the land in dispute was proved. As to adverse possession he held that the two
inclines and airshafts had been sunk in 1917 by Bennett in seam No. 9; that
there had been no continuous working of the seam by Khengarji Trikoo & Co.,
except from the year 1923 to 1926 and from 1931 to 1933, working was again
begun in 1939 but how long it was continued had not been proved and that the
working of this seam had restarted in 1944. He also found that the disputed
area was confined to seam No. 9. From these facts he was of the opinion that
there was no dispossession of the respondents Nos. 1 to 3 and no adverse
possession had been established as against them. He further held that the
working of a part of seam (No. 9) would not give to the trespasser the right to
the entire seam even if continuous possession was proved. In regard to
compensation the learned Subordinate Judge held that 1407 respondents Nos. I to
3 were entitled to it as from December 1944 and the amount would be determined
by the appointment of a Commissioner in a subsequent proceeding.
The High Court on appeal confirmed the
findings of the trial Court and held that the land in dispute was part of the
land leased to respondents Nos. I to 3; that the appellant and Manilal
Becharlal Sangvi respondent had encroached upon the land in dispute; that the
working of the seam had not been continuous and it had only been worked for the
periods mentioned above. The High Court also held that even if there was
continuous possession and working of the mine no title by adverse possession
could be acquired to the whole of the mine. In the High Court the validity of
the lease in favour of the respondents Nos. I to 3 was raised because of s. 107
of the Transfer of Property Act but as the question had not been raised or
agitated in the trial Court, the High Court allowed defendants 4 to 10 of Suit
No. 50 of 1945 to be added in the appeal arising out of Suit No. 16 of 1945
" for complete adjudication of the issues and to avoid multiplicity of
proceedings ". This question is also no longer in dispute before us. The
appellant has brought two appeals against the judgment and two decrees of the
High Court of Patna. As the question of ownership of the land in dispute has
been decided in favour of the respondents by both the courts below, that
question has not been raised before us and the controversy between the parties
is confined solely to the question of adverse possession.
On behalf of the appellant the learned
Attorney General submitted that the carrying on of the mining operations in the
area in dispute even though intermittent as found by the courts below could only
lead to one inference that the possession of the area as well as of the mine
was of the appellant and as she had prescribed for the requisite period of 12
years, her possession had matured into ownership by adverse possession. In our
opinion the operations carried on by the appellant were inconsistent with the
continuous, open and hostile possession or with the assertion of 1408 hostile
title for the prescribed period of 12 years necessary to constitute adverse
possession. It was contended that for the purpose of adverse possession in
regard to a coal mine it was not necessary that it should have been worked for
12 years continuously and it was sufficient if the appellant had carried on
mining operations for a period of 12 years even with long stoppages as in the
instant case. But we are unable to accept this contention.
Even though it may not be necessary for the
purpose of establishing adverse possession over a coal mining area to carry on
mining operation continuously for a period of 12 years, continuous possession
of the mining area and the mine would be a necessary ingredient to establish
adverse possession. What has been proved by the appellant is that the two
inclines opened by Bennett were worked in 1917 or 1918 by the predecessor in
interest of the appellant, there were no mining operations till 1923 when they
were restarted and were continued till 1926. The operations ceased in 1926 and
were recommenced in 1931 and carried on till 1933 when they ceased again till
1939 and whether they were carried on in 1939 or not is not quite clear but
there were no operations from 1939 to 1944 when they were recommended by the
appellant, During the period when there were no mining operations no kind of
possession of the appellant has been proved and thus the presumption of law is
not rebutted that during the period when the operations had ceased to be
carried on the possession would revert to the true owner. Nageshuar Bux Roy v.
Bengal Coal Co. (1) which was relied upon by the learned Attorney-General does
not support his contention. In that case the company claiming adverse
possession had placed facts which were consistent with the assertion of rights
to minerals in the whole village to which the company claimed adverse
possession. They openly sank pits at three different places, two of them being
1/2 mile distant from the 3rd. The company selected the places where they were
to dig up the pits at their own discretion, (1) [1930] L.R. 58 I.A. 29, 1409
brought their plant or machinery on the ground and erected bungalows for their
employees. There was no concealment on the part of the company and they behaved
openly as persons in possession of not one pit but all mineral fields
underlying the whole village and they throughout claimed to be entitled to sink
pits anywhere in the village they chose.
The, company was under a bona fide belief
that under their lease they were entitled to work the minerals anywhere in the
area. In these circumstances the Privy Council held the suit to be barred by
Art. 144 of the Limitation Act as the company had been in adverse possession of
the minerals under the whole village for more than 12 years. It was pointed out
by Lord Macmillan at p. 35, "possession is a question of fact and the
extent of possession may be an inference of fact ". And at p. 37 it was
observed:
" Their Lordships are not at all
disposed to negative or to weaken the principle that as a general rule where
title is founded on an adverse possession the title will be limited to that
area of which actual possession has been enjoyed.
But the application of this general rule must
depend upon the facts of the particular case." The finding in favour of
adverse possession in that case must be confined to the facts of that
particular case.
Another case relied upon by the learned
AttorneyGeneral was Secretary of State for India v. Debendra Lal Khan(1). There
a zamindar claimed title to a fishery in a navigable river by adverse
possession against the Crown. It was held that possession may be adequate in
continuity so as to be adverse even though the proved acts of possession do not
cover every moment of the period. That was a case dealing with fisheries. It is
true that to establish adverse possession nature of possession may vary. In the
instant case no such possession has been proved which taking into consideration
the nature of possession and the nature of the object possessed would lead to
the only inference that the appellant had perfected her (1) [1933] L.R. 61 I.A.
78.
1410 title by adverse possession.
Intermittent working of the mine in the manner and for the period described
above is wholly insufficient to establish possession which would constitute
adverse possession or would lead to an inference of adverse possession and we
are in agreement with the view expressed by the High Court and would therefore
dismiss these appeals with costs. One set of costs between the two appeals
except as to Court-fees.
Appeals dismissed.
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