1. The only question arising for our decision in the present appeal is whether the minerals lying beneath: the mauza Jitpur in the pargana of Jheria passed to the ancestor of the Tewari defendants by a Moghali brahmottar grant at a rent of Rs. 16 a year by the -ancestor of the defendant No. 1. The plaintiff has acquired a 15 annas, 2 1/4 gandas share in the subsoil of the mauza from the Tewaris and brought the suit for the declaration of his title to such share. His claim wag resisted by the contesting defendants on various grounds, the only one of which it is now material to consider is the defence that the brahmottar granted by the ancestor of the defendant No. 1 to the ancestor of the Tewari defendants did not pass the minerals to the grantee. The evidence before us is small and the case largely depends upon what are the proper inferences of fact to be drawn from certain admitted facts.
2. There is no document evidencing the grant of the brahmottar, although it would appear that it was grunted more than 100 years ago. At that time it is not probable that any one thought of there being coal under these lands. In an attempt to prove the origin of the brahmottar grant the plaintiff called the defendant No. 17 to prove the origin of the grant His statement was that he hoard from his grandmother, that his ancestor had become degraded for some spiritual services rendered to the ancestor of the defendant No. 1, and, therefore, the former Raja made a gift of the whole of his rights in the mauza. The learned Judge very properly refused to accept this statement as proving the origin of the grant.
3. The only facts proved we, first, that the grant was a Moghali brahmottar grant; and, secondly, that it has been held for more than 100 years at the same rent of Rs. 16. From these facts the learned Judge drew the inference, that the brahmottar was a permanent tenure held at a rent of Rs. 16 a year. He, however, came to the conclusion that such a grant did not transfer the minerals to the grantee. It is not suggested in the present case that there were any mines opened on the property at the date of the grant, nor that the plaintiff, or the persons from whom he derives title have a prescriptive right to work any of the minerals under the property. The learned Judge, therefore, came to the conclusion that the plaintiff had not shown that the former Raja parted with the minerals when he made the brahmottar grant to the Brahmin, Behari Tewari.
4. I think the learned Judge in this view was correct. The present case appears to me to be covered by authority.
5. The first case to which we have been referred is the case of Hari Narayan Singh Deo v. Sriram Chakravarti (1910) I. L. R. 37 Calc. 723, which is a decision of the Judicial Committee of the Privy Council. The contest in that case was between the zemindar and certain Goswamis, the shebaits of an idol. Lord Collins in delivering the opinion of their Lordships made the following” remarks: “On the whole, it seems to their Lordships that the title of the zemindar Raja to the village Petena as part of his zemindari before the arrival of the Goswamis on the scene being established, as it has been, he must be presumed to be the owner of the underground rights thereto appertaining in the absence at evidence that he ever parted with them, and no such evidence has been produced.” I think that decision covers the case now before us. There can be little, if any, distinction between the case of a Moghali debutter and a Moghali brahmottar grant. It has, however, been argued before us that that decision does not apply to the present case, having regard to certain remarks made by Lord Collins in an earlier portion of the judgment. But a, perusal of the judgment convinces me that in using the expression “occupancy right”, their Lordships were not considering whether the idol was a tenure-holder, or a raiyat with tin occupancy right or a raiyat with a non-occupancy right. It seems manifest to me that their Lordships were using this expression as opposed to the right of the zemindar who had the proprietary interest.
6. The next case that, was cited to us was that of Jyoti Prasad Singh v. Lachipur Coal Co. (1911) I. L. R. 38 Calc. 845. The facts in that case are indistinguishable from the present. The grant in that case was a Moghati brahmottar grant. The learned Judges held that, such a grant, even though permanent, did not pass the mines unopened at the date of the grant. Next comes the case of Durga Prasad Singh v. Braja Nath Bose (1912) I. L. R. 39 Calc. 696. which was also a decision of the Judicial Committee of the Privy Council. The contest in that case was between the persons claiming title from a Digwar and the zemindar, and it was held that the minerals were vested in the zemindar. Against these decisions the appellant relies on the case of Sonet Kooer v. Himmut Bahadoor (1876) I. L. R. 1 Calc. 391. But the only point decided in that case was that on the failure of heirs of a person to whom a permanent tenure had been granted the escheat was to the Crown and not to the zemindar. But that case has nothing to do-with the question of what was granted to the tenure-holder in the first instance. I think, therefore, that the learned Subordinate Judge came to a correct conclusion when he held that the Moghali brahmottar grant to the ancestor of the Tewari defendants did not pass the minerals under the mauza.
7. Accordingly the present appeal fails and must be dismissed with costs. We allow only one set of costs to be divided between the different sets of respondents who have appeared. The respondents are not entitled to the paper-book costs incurred by them.
8. I agree that the case is covered by authority and that the appeal must be dismissed.