the minerals.
147 of 1966 and respondent No.
P. Singh, K. M. K. Nair and S. P. Singh, for the appel lants in C.A. No.
In appeal the High Court of Patna modified the decree passed by the trial Court and declared that the plaintiff was entitled to quarry limestone for trade purposes from the Lower Murli Hill, subject to the right which the owner of the Banskati Mahal had therein as set out in the judgment, and restrained the defendants by a permanent injunction from dispossessing the plaintiff from the Lower Murli Hill described in the Schedule annexed to the plaint.
Appeals from the judgment and decree dated November 15, 1960 of the Patna High Court in Appeal from Original Decree No.
The trial Court dismissed the suit.
2 in A. No.
168 of Baknaur and plots Nos.
It was also companyceded by the plaintiff that he was, as found by the trial Court, a tenant from the Zamindar only of five plots one in Baknaur and the other four in Samahuta.
By his plaint the plaintiff claimed that he was a tenant in possession of 250 bighas of land of the Lower Murli Hill within the Banskati Mahal and that he was in possession of the Upper Murli Hill as the local agent of the Kuchwar Company which held lease for twenty years from April 1, 1928 to March 31, 1948, for quarrying limestone and that under the companyenant for renewal in the said leases, the Kuchwar Company had remained in possession of the upper Murli Hill and the State of Bihar had accepted rent from the Company and had otherwise assented to the Company remaining in possession.
T. Desai, R. Chaudhuri, P. K. Chatterjee and Arun Chandra Mitra, for respondent No.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos.
212 of 1961.
The Court further held that 32.50 acres out of plot No.
K. Sen, K. K. Sinha and R. P. Katriar, for the appellant in C.A. No.
148 of 1966 .
With certificate granted by the High Court, the State of Bihar and the Dalmia Jain and Company Ltd. have separately appealed.
The Court of First Instance held that at the date of the suit, the plaintiff was in occupation of 250 bighas of land in the Lower Murli Hill, but he was proved to have derived tenancy rights from the Zamindar only in respect of plot No.
44 of Samahuta were acquired for the Dehri Rohtas Light Railway Company and the plaintiffs right derived from the Zamindar was pro tanto extinguished.
In the Schedule, the two properties in respect of which relief was claimed were i the Upper Murli Hill admeasuring 137 acres together with subsoil and mineral rights situate in pargana Rohtas bearing Touzi No.
The plaintiff also claimed that by immemorial custom and usage recognized by the survey authorities the plaintiff as a tenant of land within the Banskati Mahal had a right to quarry and remove limestone for trade purposes.
The Court also held that the lease in favour of the Kuchwar Company was number renewed, that the customary right to excavate minerals for trade purposes claimed by the plaintiff in the Lower Murli Hill was number proved, that the minerals in the Lower and Upper Murli Hill were vested in the State of Bihar and the plaintiff was merely a licensee from the State in respect of the Upper Murli Hill and was number a tenant holding over.
147 148 of 1966.
1 in both the appeals .
148 of 1966 .
In appeal to the High Court of Patna the claim to excavate minerals from the Upper Murli Hill was number pressed by the plaintiff.
The Judgment of the Court was delivered by Shah, J. Subodh Gopal Bose hereinafter called the plaintiff companymenced an action in the Court of the Subordinate Judge, Sasaram, against four defendants the State of Bihar, the Collector of Shahabad, the Additional Sub Divisional Officer Sasaram, and Dalmia Jain Company Ltd., for a decree declaring that he was entitled to quarry limestone for trade purposes from the Murli Hills described in the Schedule annexed to the plaint, and for an injunction restraining the defendants from dispossessing the plaintiff or granting, a lease of the land to any other person.
In the view of the High Court the right to the minerals in the Lower Murli Hill vested in the Zamindar and number in the State, and the Banskati right was merely an incorporeal right to levy tax on the removal of various spontaneous products and minerals, and did number extend to a right of ownership in the products and.
The finding that at the date of the suit, the plaintiff was in occupation of 250 bighas of land was number challenged on behalf of the defendants.
4769 Tahsil Circle Sasaram, and ii the Lower Murli Hill companyprising an area of 250 bighas within the Banskati Mahal together with the surface, subsoil and mineral rights situate in pargana Rohtas, Touzi No.
4771 Tahsil Circle Sasaram.
42, 128, 130 and 44 of Samahuta.
