JUDGMENT
Madan Mohan Prasad, J.
1. This appeal is directed against the judgment of the Subordinate Judge II, Dhanbad, decreeing the plaintiffs’ suit for money to the extent of Rs. 1,75,888-11 P.
2. Plaintiffs Nos. 1 to 10 carry on coal mining and colliery business under the name and style of Dighapatia Junior Raj Nadkhurkee Colliery and plaintiff No. 11 is the Managing Contractor of the aforesaid firm. The colliery in question was within the zamindari of Nawagarh Estate, which granted a lease to the Roys of Belrui. The Roys, in their turn, granted a sub-lease to the plaintiffs. According to the plaintiffs, after the vesting of the estate of Nawagarh under the Bihar Land Reforms Act (hereinafter referred to as B.L.R. Act) in the State of Bihar, the latter started demanding rent from the plaintiffs on the allegation that the right, title and interest of the Roys had also vested in the state of Bihar ; they demanded the rent with effect from the 29th of December, 1961, threatened action and also issued distress warrants in certificate sales, as a result of which the plaintiffs paid a total sum of Rs. 2,11,913.12 to the State of Bihar up to the year ending with the 31st March, 1954 ; they are making demands, it is said, with regard to the subsequent period also. Plaintiffs say that the State had no right to realise any money towards royalty from the plaintiffs up to the 26th of October, 1964, inasmuch as there was no privity of contract between the defendant State and the plaintiffs until that date. It is said that it was only on the 27th of October, 1964, that Section 10-A was inserted in the Bihar Land Reforms Act, according to which the interest of the top lessees also vested in the State of Bihar. Plaintiffs further say that it was under a mistake with regard to the date of vesting of the interest of the top lessees that they had paid the amount. It is admitted that the State is entitled to the demand with effect from the date of introduction of Section 10-A. In the view of the matter, the plaintiffs say that the State was entitled to realise a sum of Rs. 36,247.01 for the period beginning with 27th October, 1964, and ending on 31st March, 1965. Accordingly, the plaintiffs claim a decree either for the entire amount paid by them or, in the alternative, for the amount after adjustment of the aforesaid sum of Rs. 36,247.01 to which the State is legally entitled.
3. The case of the defendants is that Nawagarh Estate vested in the State of Bihar with effect from the 14th of November, 1959 together with all the rights which the original proprietors had. The Roys, who were the lessees, however, neglected to pay the royalty from the aforesaid date of vesting until the 28th of December, 1961, in spite of repeated demands. They however, requested the plaintiff (the sub-lessee) to pay the dues to the State Government on their behalf and the plaintiffs agreed. Plaintiffs further agreed to pay royalty according to the rate fixed by a notification under Section 30-A of the Mines and Minerals (Regulations and Development) Act, 1957, which was published on the 28th of October, 1961, on their behalf as also on behalf of the Roys. The case that the plaintiffs paid under a mistake or coercion has been refuted It is said that the payment was voluntary in pursuance of the agreement between the State, the Roys and the plaintiffs. Their case further is that the plaintiffs paid the royalty from 14.11.51 to 28.12.61 on behalf of the Roys and that the royalty due from 29.12.61 to 31.12.62 not having been paid, as per agreement, by the plaintiffs, certificate oases were instituted against them. Then the plaintiffs paid the dues to the State at the rate fixed by the notification under Section 30-A of the Mines and Minerals (Regulations and Development) Act, as per agreement aforesaid, on behalf of both, the head lessee and themselves, the sub-lessees, from 1st January, 1.963 to 31st March, 1964. In all, the plaintiffs, it is admitted, paid a total sum of Rs. 1,91,702.62 excluding the bank commission of Rs. 200.50 for the period beginning with the 29th of December, 1961, and ending on the 31st of March, 1964. Further, the defendants say that the plaintiffs as also the Roys were jointly and severally liable to pay to the State of Bihar royalty in view of Section 9(1) read with Section 3(c) of the Mines and Minerals (Regulation and Development) Act. Hence, the royalty from the 14th of November, 1951 to the 28th of December, 1961, had been paid by the plaintiffs both on their own behalf as also on behalf of the lessees (the Roys) and the royalty at the aforesaid rate from the 29th of December, 1961, to the 31st of March, 1964) was payable both by the top lessees and the sub-lessees, jointly and severally. It is said that the plaintiffs’ case is not correct inasmuch as they were not subjected to any threat or duress; the entire amount paid was legally payable to the State by the plaintiffs on their own behalf as also on behalf of the Roys as per agreement aforesaid ; it was thus neither under mistaken view of law nor under coercion that the plaintiffs had made payments of the dues and for these reasons they are not entitled to a refund.
4 The learned Subordinate Judge found that there was no legal liability on the part of the plaintiffs to pay the royalty of rent until the date of insertion of Section 10-A of the Bihar Land Reforms Act. He further found that no agreement had been proved to show that the plaintiffs had undertaken to pay the rent and royalty which the Roys were liable to pay. Thirdly, he found that the plaintiffs either under wrong impression or duress had paid the aforesaid amount. Accordingly, he granted the alternative prayer of the plaintiffs and decreed the suit for the amount mentioned above after making a set off as asked for by the plaintiffs, of the dues of the State with effect from 27th October, 1964, to the 31st of March, 1965.
5. The questions which thus arise are:
(i) Whether the plaintiffs were under law bound to pay rent and royalty only after the enactment of Section 10-A of the B.L.R. Act?
(ii) Whether there was any agreement between the parties to the effect that the plaintiffs were to pay the dues to the State of Bihar which the Roys were liable to pay?
(iii) Whether the payments made by the plaintiffs were under any mistake of fact or law, or under coercion or negligence?
6.Counsel for the State has urged that, as pleaded in the written statement from a reading of Section 9(1) along with the definition of Section 3(c) of the Mines and Minerals (Regulations and Development) Act it would appear that the State had a right to realise royalty in respect of mining leases from the head lessees as well as from the sub-lessees.
7. It may be mentioned that Section 9 of the Act is sought to be made applicable on the assumption–and the parties are not at variance on this point–that the lease granted by the Nawagarh Estate to the Roys was a lease of a date prior to the 25th day of October, 1949. Section 10-A of the Act lays down that the provisions of Sub-section (1) of Section 9 shall not apply to mining leases granted before the 25th of October, 1949, in respect of coal, but the Central Government, if it is satisfied that it is expedient so to do, may; be notification, direct the application of the aforesaid provision. In the present case, there was such a notification under Section 30-A applying the aforesaid provision. The parties have not joined issues even on this point. In this background, it has to be seen whether Section 9(1) lays down the obligation on the sub-lessee to pay the royalty in respect of the mining lease.
8. Section 3(c) defines “mining lease” as a lease granted for the purpose of undertaking mining operations and it includes a sub-lease granted for such purpose. Section 9(1) is as follows:
The holder of a mining lease granted before the commencement of this Act shall, notwithstanding anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed by him from the leased area after such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral.
On the basis o f these two provisions, it is urged, as stated earlier, that the words “mining lease” occurring in Section 9 must be deemed to include a sub-lease and, therefore, in accordance with this provision, the sub-lessee is as much liable as the lessee himself. Reading the aforesaid provisions, it is clear that the holder of a mining lease is made liable to pay royalty in respect of any mineral removed by him at the rate prescribed in the Schedule. It has to be read with the provisions of the Bihar Land Reforms Act in order to find out whether Section 9 creates the liability of the sub-lessee. The question which arises first is what interest vested in the State of Bihar under Section 4 of the Bihar Land Reforms Act, it is the interest of the proprietor or tenure-holder. So the State came into the shoes of the proprietor. The head lessee was not the ‘proprietor’ nor was he a ‘tenure-holder’, within the meaning of the term. Thus, unless the State came into the shoes of the head lessee, there could not be said to be any direct relationship between the two by operation of law. In this connection, it is necessary to read Section (a) of the Bihar Land Reforms Act:
4. Consequences of the vesting of an estate or tenure In the State–Notwithstanding anything contained In any other law for the time being in force or in any contract, on the publication of the notification under Sub-section (1) of Section 3, or Sub-section (1) or (2) of Section 3-A the following consequences shall ensue, namely:
(a) Such estate or tenure including the Interests of the proprietor or tenure-holder in any building or part of a building comprised in such estate or tenure and used primarily as office or cutchery for the collection of rent of such estate or tenure, and his interests in trees, forests, fisheries, jailkars, hats, bazar, mela and ferries and all other sairsti interests as also his interest in all sub-soil including any rights in mines and minerals, whether discovered or undiscovered, or whether being worked or not, inclusive of such rights of a lessee of mines and minerals, comprised in such estate or tenure (other than the interests of raiyats or under raiyats) shall, with effect from the date of vesting, vest absolutely in the State free from all incumbrances and such proprietor or tenure-holder shall cease to have any interests in such state or tenure, other than the interests expressly saved by or under the provisions of this Act.
What vests thus is the estate or tenure including the interests of the proprietor or tenure-holder. It is true that it included the sub-soil rights in the mines and “the rights of a lessee of mines and minerals. It can thus be argued that the rights of the lessee also along with rights of the proprietor had vested in the State. This argument cannot be accepted in view of what is provided in Sections 10 and 10-A of the said Act, which I shall deal with hereafter.
9. Counsel has drawn our attention to Clause (b) of Section 4 of the Bihar Land Reforms Act. Counsel seems to rely upon it for the purpose of showing that royalties would be payable to the State Government. The question is by whom? Clause (a) provides for the vesting of the estate including the rights of a lessee in mines and mineral; Clause (b) says that such rents, cesses and royalties shall be paid to the State and not to the outgoing proprietor or tenure-holder. It is obvious, therefore, that what the proprietor was entitled to get becomes payable to the State in accordance with these provisions. It cannot, however, be said that what the lessee was entitled to receive from the sub-lessee would be receivable by the State which steps into the shoes of the proprietor and not that of the lessee.
10. I would now turn to Section 10 of the Bihar Land Reforms Act which is as follows:
10. Subsisting leases of mines and minerals:
(1) Notwithstanding anything contained in this Act, where immediately before the date of vesting of the estate or tenure there is a subsisting lease of mines or minerals comprised in the estate or tenure or any part thereof, the whole or that part of the estate or tenure comprised in such lease shall, with effect from the date of vesting, be deemed to have been leased by the State Government to the holder of the said subsisting lease for the remainder of the term of that lease, and such holder shall be entitled to retain possession of the lease hold property.
(2) The terms and conditions of the said lease by the State Government shall mutatis mutandis be the same as the terms and conditions of the subsisting lease referred to in Sub-section (2) but with the additional condition that, if in the opinion of the State Government the holder of the lease had not, before the coming into force of the Bihar Land Reforms (Amendment) Ordinance, 1965 (Bihar Ordinance 1 of 1965), done any prospecting or development work in the area or in any part of the area comprised in the lease, the State Government shall be entitled at any time after the coming into force of the said ordinance to determine the lease in regard to the whole or part of such area, as the case may be, after giving three months’ notice in writing but in determining the lease in regard to the part of such area the State Government shall have regard to the reasons for the failure to do any prospecting or development work in such part and to the requirements for the future development of the remaining part but no such action shall be taken in respect of leases of minerals specified in the First Schedule to the Mines and Minerals (Regulation and Development) Act, 1957 (Act 67 of 1957) except with the previous consent of the Central Government:
Provided that nothing in this sub-section shall be deemed to prevent any modifications being made in the terms and conditions of the said lease in accordance with the provisions of any Central Act for the time being in force regulating the modification or existing mining leases
Provided further that the terms and conditions of the said lease in regard to minor minerals as defined in the mines and minerals (Regulation and Development) Act, 1957 (Act LXVII of 1957), shall, insofar as they are inconsistent with the rules made by the State Government under Section 15 of that Act, stand substituted by the corresponding terms and conditions prescribed by those rules and if further ascertainment and settlement of the terms will become necessary then necessary proceedings for that purpose shall be undertaken by the collector.
(3) The holder of any such lease of mines and minerals as is referred to in Sub-section (1) shall not be entitled to claim any damages from the outgoing proprietor or tenure-holder on the ground that the terms of the lease executed by such proprietor or tenure-holder in respect of the said mines and minerals have become incapable of fulfilment by the operation of this Act.
(4) The rent and royalty on account of mines or minerals payable to the State Government shall always be deemed to be the first charge on the property whether or not it is so specified in the document of lease held by the lessee.
It would appear from Sub-section (1) of Section 10 that in case of a subsisting lease of mines or minerals the whole or that part of the estate or tenure comprising the mine shall “with effect from the date of vesting, be deemed to have been leased by the State Government to the holder of the said subsisting lease for the remainder of the terms of that lease; and such holder shall be entitled to retain possession of the lease hold property”. The effect, therefore, is that the interest of the lessee had not been extinguished or vested in the State by the Statutory provision ; the lease would be deemed to have been granted again for the remaining period to the said lessee. I will do well to refer in this connection to the decision of the Supreme Court in the case of the Bihar Mines Ltd. v. The Union of India and Ors. . While construing Sections 9(1) and 10 of the Bihar Land Reforms Act, their Lordships by a majority decision held that the effect of Section 10 of the Bihar Land Reforms Act would be the creation of a new lease by the State to the holder of the lease and, therefore, even the sub-lease in favour of the sub-lessee would be deemed to be a new sub-lease created by the lessee by virtue of the right acquired by him as a statutory lessee under Section 10. The decision clearly brings out that the sub-lessee will be deemed to be so under a new sub-lease granted by the statutory lessee. This rules out the argument that the sub-lessee must be deemed to have acquired the rights as such sub-lessee from the State.
11. The purpose of the Bihar Land Reforms Act, as is well known was to acquire the interest of the proprietors and tenure-holders in land and of the mortgagees and lessees of such interest. However, certain lands in the possession of the proprietors by virtue of Section 6 were deemed to be settled by the State with such intermediary. Similarly, according to Section 10, if there was a subsisting lease of mines and minerals, it is deemed to be leased by the State Government to the holder of the said lease. Subsequently, the Legislature thought it necessary to touch sub-lessee and accordingly, Section 10-A of the Act was inserted by Section 3 of the Bihar Land Reforms (Amendment) Act, 1964 (Bihar Act 4 of 1965). Section 10-A provides as follows:
10-A. Vesting of interest of lessee of mines or minerals which is subject to a sub-lease.
(1) The interest of every lessee of mines or minerals which is subject to a sub-lease shall, with effect from such date as may be notified in this behalf by the State Government in the official Gazette, vest in the State and thereafter the sub-lessee whose lease is not subject to any further sub-lease shall hold his lease directly under the State Government and the provisions of Sub-sections (2) and (4) of Section 10 shall mutatis mutandis, apply to his lease.
(2) No sub-lessee of mines or minerals holding under a lessee whose interest vests in the State Government under Sub-section (1) shall be entitled to claim any damages from his lesson on the ground that the term of the lease in respect of the mines or minerals have become incapable of fulfilment by the operation of this section.
It is this provision which clearly provides for a direct relationship between the State Government and the sub-lessee (whose lease is not subject to any further sub-lease). If the word “lease” in Section 10 included a sub-lease and the sub-lessee’s interest also had vested, then there would be no need for a provision contained in Section 10-A, Counsel for the State urged that it may be merely with a view to remove doubts that Section 10 was enacted, lam not prepared to accept this argument. If that were so, the Legislature would have inserted a provisions by way of an explanation to Section 10 in order to remove the doubt. What Section 10-A does on the other hand is to lay down that the interest of every lessee of mines or minerals subject to a sub-lease shall vest in the State Government with effect from a date “as may be notified in this behalf”. It talks of the future and not of the past. If this were merely by way of an explanation, the provision would not be what it is and provide for the vesting at a future date. The Legislature was aware of the existence of Section 10. The Legislature was equally aware of the meaning of Section 10 and in this background, it thought it necessary to make a new provisions regarding sub-leases as contained in Section 10-A. I am not, therefore, prepared to entertain the argument that the provision under Section 10-A is merely by way of an explanation to remove doubts. It creates a right in the State Government and it is not merely explanatory and it creates the right to accrue in future on the publication of a notification. Obviously, therefore, Section 10 of the Bihar Land Reforms Act did not relate to subsisting subleases of mines.
12. 1 may add one more word that Sub-section (2) of Section 10-A provides that the sub-lessee shall not be entitled to claim any damage from his lesson on the ground that the terms of the lease in respect of the mines and minerals had become incapable of fulfilment by the operation of this section. A protection has thus been provided to the lesson of such sub-lessee. Contrasting this with the provision of Sub-section (3) of Section 10 of the Land Reforms Act, it would appear that the outgoing proprietor is granted a protection in respect of the claim of the holder of a lease on similar grounds. Obviously, therefore, Section 10 and Section 10-A of the Land Reforms Act have to be read as complementary to each other ; one refers to the case of a holder of a lease and the other to the holder of a sub-lease. The argument thus founded upon the definition clause will not be tenable in this situation for the simple reason that, by virtue of what we find in those two provisions, inclusion of a sub-lease within ‘lease’ would be repugnant to the provisions.
13. Counsel has laid stress on the provision of Sub-section (4) of Section 10 which provides that rent and royalty payable to the State Government shall be the first charge on the property whether or not it is so specified in the document of lease. That does not affect the point at issue. That is merely an exception to the provision contained in Sub-section (2) with regard to the terms and conditions which are to be the same as the terms and conditions of the subsisting lease. In other words, this is a super imposition by law of a charge irrespective of it being one of the terms of the lease.
14. To sum up, Section 9(1) of the Mines and Minerals (Regulations and Development) Act, 1957, by itself does not saddle the liability on the sub-lessee. Section 4 of the Bihar Land Reforms Act does not purport to vest the interest of sub-lessee in the State. Section 10 of the Act provides for a direct relationship created thereby between the lessee and the State Government. Section 10-A provides for such direct relationship between the last sub-lessee and the State Government. It is, therefore, difficult to accept the argument advanced before us that in view of the definition contained in Section 2(c) of ‘Mining lease’ read with Section 9(1) of the Mines and Minerals (Regulations and Development) Act, it must be held that the State Government had the right to realise rents and royalties from the plaintiffs. In other words, the State had no legal right to realise the same from the plaintiffs until the 27th of October, 1964, when Section 10-A. came into existence.
15. I am happy to find that the view which I have taken in this case is supported by the authority of decision of the Supreme Court in the case of Sone Valley Portland Cement Co. Ltd. v. The General Mining Syndicate Pvt. Ltd. , to which my attention was drawn after the judgment had been dictated.
It appears that in this case the question arose about the liability of a sub-lessee and the right of the head lessee to realise the royalty from the sub-lessee after the vesting of the estate under the Land Reforms Act. The learned Judges held that a lessee of mines and minerals is not a tenure-holder within the meaning of Section 2(r) of the Bihar Land Reforms Act; thus the right of the head lessee of the mines or minerals under Section 4(a) of the said Act was not affected. Their Lordships drew attention to the last words of Section 4(a) of the said Act, “other than the interests expressly saved by or under the provisions of this Act” and held that in view of Section 10 of the Act, which overrides other provisions of the Act, a lease of mines and minerals after the vesting of the estate becomes a statutory lease. Their Lordships said:
Thus the combined reading of Section 4(a) and Section 10 of B.L.R. Act leaves no room for doubt that the interests of the head lessee were left unaffected by the aforesaid notifications to the extent indicated above, This view receives support from catena of decisions of this Court where this position has been fully recognised and affirmed. See Bihar Mines Ltd. v. Union of India , Chhatu Ram Horil Ram Private Ltd. v. State of Bihar , Hindustan Steel Limited, Rourkela v. Smt. Kalyani Banerjee and State of Bihar v. Khas Karanpura Collieries Ltd. C.A. Nos. 705-724 of 1971 decided on August 6, 1976 to which one of us was a party.
18. The insertion of Section 10-A in the B.L.R. Act by the Bihar Ordinance 3 of 1964 which was subsequently replaced by the Bihar Land Reforms (Amendment) Act (Bihar Act 4 of 1965) also indicates that the law as it obtained prior to the aforesaid amendment was not intended to have the effect of divesting a lessee of his interests in a lease of mines or minerals comprised in the estate or tenure or part thereof which subsisted immediately before the vesting of a notified estate or tenure.
(Paragraphs 17 and 18 of the judgment)
Their Lordships thereafter went on to consider the question whether subsequent legislation maybe looked at in order to see the proper construction to be put upon an earlier Act and held that it is permissible under rules of interpretation. The aforesaid decision thus clearly repels the argument put forward in the present case before us.
16. The next question thus is whether the payments were made by the plaintiffs under mistake of fact or coercion, as alleged by them, or in pursuance of some agreement as alleged by the State of Bihar. In this connection, the agreement, it is said, will appear from a series of letters. Defendants have produced such letters marked A series. Some other letters have been produced by the plaintiffs and they have been marked Exhibit 4 series. Before I consider the question of agreement, it will be relevant to dispose of the question as to whether the plaintiffs were acting under any mistake of fact or law or under coercion. It has been pleaded in the plaint that it was a mutual mistake of fact with regard to the date of vesting of the estate of the lessees, the Roys. On this point, no witness has been examined. Plaintiffs have not examined themselves. Only one witness has been examined by them on the merits of the case, apart from the two formal witnesses who proved their documents. This witness is P.W. 2 who is an office superintendent in one of the offices of the colliery. In his evidence, he states that the Government took this money by threat and by filing a certificate case; that as per rule the Government should not have taken this money from him ; that it Is not true that they had paid the money on the advice of Roys or that the payment was voluntary or that the Roys had consented before. There is nothing in the evidence of this witness to show that the plaintiffs were acting either under mistake of fact or of law.
17. This part of the case is falsified by the documents. Exhibit A (6) is the letter from the District Mining Officer to the plaintiffs’ firm, dated the 20th of September, 1962, referring to a discussion held on the 19th of September, 1962, with the Roys and the representatives of the plaintiffs, B.K. Sana and D.N. Mitra, and informing them that an amount of Rs. 15,932 and odd was outstanding against the Roys up to the period 28th December, 1961. With effect from the date of vesting of the Nawagarh Estate. It further says that the Roys were not able to pay the amount as the plaintiffs had not paid their share of rent and royalties to them. Further, it was mentioned therein that the royalty at the enhanced rate of 2 1/2 percent, of f.o.r. price was payable by the plaintiffs directly to the State Government with regard to the period beginning with 29th December, 1961, to which the Roys had “also agreed upon during the course of discussion”. On the basis of this letter, it is urged that there was an arrangement to which the plaintiffs and the Roys both had consented that the payment on behalf of the Roys would be made by the plaintiffs. The answer to this letter sent by D.N. Mitra, on behalf of the plaintiffs, is Exhibit A(5), dated the 4th October, 1962. Therein, it is said that due to high pressure of work of various kinds they “could not send the amount within the time fixed” by the Mining Officer and, further, that they “shall; pay up the amount” according to the direction of the Mining Officer by the end of the month. The second letter leaves no room for doubt that what was said in Exhibit A(6) was, instead of being controverted, fully accepted by the plaintiffs and they merely regretted that they had not been able to pay up and ; promised to pay it by the end of the month. It would next appear from Exhibit A (4), a letter dated the 5th of November, 1962, that a cheque for the amount mentioned in Exhibit A (6) was sent and It is clearly stated therein that this was in payment of the “dues on behalf of the Roys of Belrui”. Next, it would appear from Exhibit A (2), dated the 14th December, 1962, that the claim at the new revised rate of 2 1/2 per cent, f.o.r. price with effect from the 29th of December, was also made and in answer to that the plaintiffs asked for extension of time for payment by Exhibit A. The last letter produced by the defendants (Exhibit A) is the letter from the plaintiffs to the District Mining Officers, dated the 18th March, 1963. In this letter, for the first time, it was said:
x x x x x
You will appreciate that we have always been maintaining an attitude of co-operation with you. In view of the fact that the Government notification dated 29.12.61 does not clearly state to whom the rent is to be paid and in view of the doubt expressed by our legal advisers as to if the right of the Roys who were our Immediate lessors has vested in the State, we were hesitating to make the payment so long.
In view of the statement contained “in your letter No. 2523-M, dated 20.9.62 that the Roys of Beluri have also agreed to our making direct payment of the royalties to you on and from 29.12.61 and your threat of taking action against us in case of non-payment we have decided to make the payment to you and arranging to do the same and also for filing the necessary returns.
As for payment of Rs. 70,000 we are arranging to make payment of substantial amount forthwith and for payment of the balance that may be due we would request you to be good enough to grant us time and the facility for paying up same by instalments.
It would appear from this letter that the plaintiffs were only hesitating to make payment earlier. However, in view of the fact that the Roys had agreed to the plaintiffs making direct payment of the royalties to the State because also of the threat of the action, they had decided to make the payment. It would appear next from a letter Ext. A-2, dated 14.12.62 from the District Mining Officer to the plaintiffs that a demand was made from them for payment of rent and royalties at the revised rate of 2 1/2 per cent f.o.r. price from 29.12.61 to 31.12.62 latest by the 5th of January, 1963. The answer to this contained in the letter Ext. A/1 dated 20.12.62. In this letter it is said that it would be difficult on the part of the plaintiffs to make payment of the rent and the royalties by the date mentioned, namely, 5.1.63. They prayed for extension of time for payment beyond 5.1.63. It would appear from this that the demand was not controverted. It was accepted and only further time was prayed for by this letter. The letters aforesaid leave no room for doubt that there was an agreement between the parties that the plaintiff would pay not only their own liability but also that of their lessees, the Roys of Belrui.
18.The court below has, however, not taken into consideration these letters for the purpose of finding out the agreement, if any. The reason given is that it appears from the evidence of D.W. 1 that the agreement was reduced in writing on a paper which is in the defendant’s office and the same has not been produced. Referring to the evidence of that witness, it appears that he is a clerk in the District Mining Office. In his examination-in-chief he said that a meeting had taken place among the Roys of Belrui, the plaintiffs and the District Mining Officer in which it was decided that the plaintiffs would pay royalty on behalf of the Roys. He further said that as regards 2 1/2% it was decided that the plaintiffs would pay the dues on behalf of the Roys and the latter agreed to it. He further said that the payments were made under agreement and not under pressure. In his cross-examination he was asked and stated that a register was being maintained for the royalty which was paid and which was called the Demand and Collection Register. He said that he wrote those registers and noted in which connection the money was being paid. Then he said in the next sentence–“…As per written agreement the plaintiff had to make this payment on behalf of the Roys of Belarui. That paper is in my office, I can produce that in court”. This last sentence has been relied on by the court below. It was not the case of the defendants that any documents had been executed containing the agreement. Their simple case was that there were tripartite talks and the plaintiffs had agreed to pay on their behalf as well as the Roys, the lessee. Nor was it suggested by the plaintiffs that there was any written document which had not been produced. It seems to me that the aforesaid statement had been made under the stress of cross-examination. It may be that some form of memorandum of the talks between the parties was kept in the office of the District Mining Officer and it may be that he was referring to such a paper. There was no demand by the plaintiffs on the defendants to produce this paper. Next it would appear, as I have said above, that it was not the case of any of the parties that any written document had been executed. Further, it would appear that no objection was raised to the admissibility of these letters and they were marked without objection. I am not, therefore, prepared to accept the statements of this witness made under stress of cross-examination suggest that there was a written document which contained the terms of contract between the parties with respect to the payment of amount.
19. Assuming, however, that there was such a contract, a reference to Section 91 of the Evidence Act would show that there the terms of a contract have been reduced to writing, no other evidence to prove the terms of the contract is admissible. It must, however, be noted that it is only evidence to prove the terms of the contract which is excluded by Section 91. It is not that the documents become useless for all purposes. It is well known that even an unregistered document which cannot be taken into evidence can be used for collateral purposes. Section 91 does not exclude other proof of the transaction itself. There are decisions, of course, which would show that there is an unregistered sale-deed it may not be used for the purpose of title, but it may be used for the collateral purposes namely, to find out whether there was delivery of possession See Girja v. Girdhari . Where an unregistered deed of surrender was inadmissible, it was held that the fact of surrender may be proved by other evidence See Sringeshwar v. Ajab A.I.R. 1941 Patna 142. Thus, in the present case the letters show that the plaintiffs made payment on behalf of their lessees. It is one thing to say as to whether under the contract they had undertaken the liability to pay ; it is another thing, however, to find out whether they actually paid on behalf of their lessees. It will be borne in mind that in the present case the question is whether the payment was made volunarily or under duress. There is thus no reason for not taking the letters into consideration to show that the payments were voluntary in pursuance of some agreement and that is all that it required to be found out in this case. The court below, therefore, in my view, erred in brushing aside the entire evidence contained in the letters aforesaid. There cannot be the slightest doubt that the letters show the conduct of the plaintiffs beyond any doubt that they paid the money voluntarily on behalf of their lessees in pursuance of some agreement. There is thus no good reason for accepting the plaintiffs contention that the payments were made under mistake of fact or coercion. In fact, they were made in pursuance of some agreement as alleged by the State of Bihar.
20. There is another aspect of this matter which may be considered. The plaintiffs allegation is that they paid under coercion. In this connection it is necessary to refer to the letters produced by the plaintiffs. Ext. 4 (f) is a letter dated 22.4.65 demanding a sum of Rs. 733/- as royalty for the period of April, 1963 to March, 1964. Ext. 4 (g) is a letter dated 9.2.65 from the Mining Officer making a demand of Rs. 20,000/- for the period 1.10.64 to 31.12.64 on the basis of a summary assessment. It would appear from Ext. 4 (a), a letter dated 3.7.65, that the plaintiffs had sent a cheque to the Certificate Officer, in respect of the amount aforesaid. This cheque was dated the 18th of July, 1965. It would appear next from Ext. 4 (c) dated the 3rd May, 1965, that a demand was made for Rs. 40,000/- on the basis of summary assesment for the period 10th October, 1964 to the 31st of Mar oh, 1965. Another demand is contained in Ext. 4 (b) dated the 8th of July, 1965, for a sum of Rs. 21,000/-summarily assessed for the period from the 1st March, 1965. Ext. 4 (a) is another letter dated the 17th of November, 1975, demanding a sum of 42,000/- for royalty and Rs. 630/- as interest for the period 1.4.65 to 30.9.65. Ext. 4 is another letter dated the 16th of February, 1966, demanding a sum Rs. 20,000/- for the period 1st October, 1965 to 31st December, 1965, Ext. 4 (d) is a letter from the Mining Officer to the Certificate Officer saying that the plaintiffs had made complete payment in Certificate case No. III of 1964-65 and the case may be dropped. It further says that in two other cases, namely, certificate case No. 135 of 1964-65 and certificate case No. 25 of 1965-66, payments had been made to the extent of Rs. 200,000/- by cheque dated the 18th of July, 1965, and thus the total in two cases after the set off of Rs. 20,000/- remained as Rs. 96,406/-. Accordingly, a prayer was made to amend the Certificate case Nos. 135 and 21 accordingly. It appears from this letter that certificate case No. III of 1964-65 was for Rs. 70,622.75 paise, certificate case No. 135 of 1964-65 was for a sum of Rs. 40,0000/- and certificate case No. 21 of 1965-66 was also for a sum Rs. 40,000/-.
21. It will appear that Ext. 5 is the first notice of certificate and is dated the 9th of October, 1964. There is another notice Ext. 5 (a), dated the 14th of December, 1965, in respect of a sum of Rs. 43,470/- it would also appear from Ext. 7 (a), the order sheet of Certificate case No. 135 of 1964-65, that the requisition was received and notice under Section 7 of the Public Demands Recovery Act was issued on the 8th of February, 1965. It appears from Ext. 7, the order sheet of Certificate case No. 21 of 1965-66, that the same was done in that case on the 1.2th of July, 1965, Ext. 7 (b) shows that certificate case No. III of 1964-65 was started on the 12th of September, 1964. Turning now to the Plaint in the present case, it will appear that in paragraph 3 thereof it has been stated that “the defendants under the threat of issue of distress warrant and certificate case have realised a sum of Rs. 2,11,913.12 paise upto the period 31.3.64 from the plaintiffs”. It would, however, appear from the dates of payment mentioned in the schedule to the plaint that payments which go to make up the total aforesaid were made even after 31.3.64 stated in paragraph 3 of the plaint. That, however, is not important. What deserves to be noticed is that many of these payments were made long before the notice (Ext. 5) was issued on 9.10.64. They are payments of Rs. 73,154.59 paise on 27.6.63, Rs. 25,000/- on 4.2.64 and another Rs. 25,000/- on 4.2.64. They would make up a total of Rs. 1,23,154/- could these amounts be said to have been paid under duress as a result of certificate proceedings?. The answer is obviously in the negative. If the date of issue of certificate be taken to be the date of threat or coercion, then this is the situation, but can the mere filing of the certificate case and issuance of notice under Section 7 of the aforesaid Act be said to constitute coercion? It is well known that it is open to a certificate debtor to put forward his objections before the certificate court regarding his liability and claim that he is not bound to pay. In substance, therefore, the mere issue of a certificate cannot be said to result in a coercion or duress. The bringing of property to sale or distress warrant can be said to constitute an immediate threat and the person may pay on account of such a threat. In the present case the plaintiffs have produced sale proclamations (Exts. 6 series). They are all in respect of Certificate case No. 135 of 1964-65. Exts. 6 (b) and 6 (c) show that the sale was to be held on the 26th of November, 1965, Ext. 6 (a) shows that the sale was to be held on the 13th of January, 1966, and Ext. 6 shows that the sale was to be held on the 13th of February, 1966. There is not a single item of payment in the accounts contained in the plaint which is after the issue of these sale proclamations at the time. All the payments had been made prior to that. It is, therefore, difficult to accept the plaintiffs’ contention that the payments aforesaid had been made as a result of duress or coercion.
22. Therefore, I find that the plaintiffs have not been able to substantiate their case that the sum of Rs. 2,91,000/- and odd was paid by them to the State under mistake of fact or law under threat, duress or coercion, but that they were paid voluntarily and in pursuance of an agreement between the parties.
23. It logically follows from the aforesaid that the plaintiffs are not entitled to claim a refund of the amount already paid by them to the State of Bihar.
24. In the result, the plaintiffs suit must fail and be dismissed, the decree passed by the learned Subordinate Judge, is, therefore, set aside. The plaintiffs suit is dismissed and this appeal is allowed. In view of the fact that the respondents have not appeared in this Court, there will be no order as to costs of the trial court and the appellate court.
Shivanugrah Narain, J.
25. I agree. I would, however, prefer to rest my decision on the point that the payments made were not as a result of coercion only on the circumstances that they were made in pursuance of an agreement between the parties.