Judgement Appeal from a decree of the High Court (July 28, 1905) reversing a decree of the additional Subordinate Judge of Burdwan (July 16, 1903). The plaint, dated July 7, 1900, alleged that the Pachete estate was the ancestral revenue-paying zamindari of the first plaintiff. It was brought under the protection of Act VI. of 1876, the second plaintiff being the manager of the estate under that Act. The village Petena was alleged to be a mal village within the Pachete estate, and to be held by three Gossains or Goswamis (named) of Murshidabad, on payment of rent, amounting to Rs.22.15.6 annually, to the said estate. The minerals within the village, including coals, were never let out to any person by the zamindar of Pachete. The plaint further alleged that the firm of Mylne & Co. had begun mining operations in the village without legal right. The plaintiffs asked for a decree declaring their right and title in and to the underground rights of the village of Petena, with consequential relief. The connection of the defendants with the village may be stated in the words Law. Rep. 37 Ind. App. 136 ( 1909- 1910) Kumar Hari Narayan Singh Deo Bahadur V. Sriram Chakravarti 61 of the High Court " It is held by the third group of defendants, who are called the Gossains, on a permanent debottar tenure, subject to a rent of about Rs.23 paid to the zamindar. It is held as a mokurari mourasi tenure under them, by a large number of persons, who compose the second group of defendants, known as the Chakravartis and the Namtirthas, and these mokuraridars gave a lease of the village to the first group of defendants, known as Messrs. Mylne & Co., from May, 1894, to June, 1899, in order that these defendants might work the coal mines discovered in the village." The defence of Messrs. Mylne & Co. Mylne & Co., from May, 1894, to June, 1899, in order that these defendants might work the coal mines discovered in the village." The defence of Messrs. Mylne & Co. was that they were bona fide lessees under the Chakravartis and Namtirthas, and had worked the coal mines from the 22nd Baisakh, 1301; that they relinquished their lease on June 18, 1899, before the institution of the suit; that the plaintiffs had no sub sisting cause of action; that they had paid off all just dues to their lessors, and were not in consequence liable to the plaintiffs for damages; that their lessors had a mokurari and mourasi lease of the entire rights of the said village from certain Goswamis, and were in the enjoyment of the same; that the said Goswamis had acquired the said village before the permanent settlement on behalf of Thakur Gopi Nath Jiu, as an absolute gift, without any reservation whatsoever, by a grant made by the owner of the Pachete estate; that the village was the debottar property of the Thakur, and was possessed by the Goswamis as shebaits from before the permanent settlement, claiming therein an absolute proprietary right, subject only to the payment of an annual revenue to the Government through the zamindar of the Pachete estate; and that the Goswamis, Chakravartis, and Namtirthas were necessary parties to the suit. In pursuance of two orders of the Court the respondents hereto, or their predecessors, and seventeen others were made defendants, who are collectively referred to in the record as the Chakravartis, the Namtirthas, and the Goswamis. Of these additional defendants only the respondents contested the suit, while all the others, including the Goswamis, did not enter appearance. The respondents filed two written statements of defence denying that the said village was mal of the Pachete estate, and relying upon the pleas raised by the defendants Mylne & Co. They further pleaded, inter alia, that the suit was barred by limitation; that by a mokurari pottah dated the 7th Magh, 1228 B.S. (1821 A.D.), the said Goswamis, the shebaits of the said Thakur Gopi Nath Jiu, transferred to their predecessors all rights, including the mineral rights, in the said village, and that they had acquired by prescription title to the underground rights in the said village. The Subordinate Judge decreed in favour of the plaintiffs with Rs.2000 damages against all the defendants except the Gossains. He held that the rajah had a proprietary right to the minerals and had never granted the same to the Gossains or any other persons. The Gossains were tenants in respect of the surface rights only and never acquired any underground rights. The High Court reversed the decree and dismissed the suit. Pargiter J. observed that the question for decision resolved itself into this Did the underground rights pass with the tenure when it was created, or were they reserved to the zamindari ? Admittedly there was no express reservation. The Transfer of Property Act (IV. of 1882) did not, he considered, help in the matter, nor did the law of England furnish a safe guide in the case. The question should be decided solely upon a consideration of the nature of such permanent tenures as were settled by the Land Law of the Province of Bengal. In the result he decided that where a tenure is permanent the tenure-holder possesses all the underground rights, unless there is something to the contrary. Pratt J. concurred and added " At first I was inclined to doubt whether the grant of a permanent tenure should be held to include mines when not expressly reserved. But in this Province the grantors of such tenures consider that they have parted with all their interests in the soil, and are entitled only to Law. Rep. 37 Ind. App. 136 ( 1909- 1910) Kumar Hari Narayan Singh Deo Bahadur V. Sriram Chakravarti 62 the quit rent reserved. Sect. But in this Province the grantors of such tenures consider that they have parted with all their interests in the soil, and are entitled only to Law. Rep. 37 Ind. App. 136 ( 1909- 1910) Kumar Hari Narayan Singh Deo Bahadur V. Sriram Chakravarti 62 the quit rent reserved. Sect. 108 of the Transfer of Property Act does not apply to agricultural holdings, and the common law of England regarding the mining rights of lessees for a term cannot, I think, be made applicable to permanent tenures in the rural parts of Bengal." The reasons for this decision as to the incidents of a permanent tenure were stated by Pargiter J. as follows — " When such tenures are created the zamindar invests the tenure-holder with every right that can appertain to him short of the quit rent due to the proprietorship; the tenure is permanent, heritable, and transferable, its rental is as fixed as the Government revenue that the zamindar pays; and the tenant can do what he likes with it, short of altogether destroying it; in short, it has all the rights of proprietorship except the name; and the zamindar (in the absence of express conditions) has really divested himself of everything except the nominal proprietorship and has turned his rights practically into a perpetual annuity of the amount of the rental. He has no right of reversion. In such a state of their respective rights there is no basis for holding that the underground rights have not passed as part of the tenure. To hold otherwise would be to hold that a tenant in perpetuity can never work mines, because they do not belong to his tenure ; and that the landlord can never work them, because he has no reversion and no right to enter on the land for that purpose. In the absence of any express warrant for such a view, I cannot assent to such an unreasonable proposition. In my opinion the underground rights belong to permanent tenures. When the landlord created the tenure, he made over the land with all its capabilities to the tenant, and merely imposed on the tenure the rental that he thought best in the circumstances. In my opinion the underground rights belong to permanent tenures. When the landlord created the tenure, he made over the land with all its capabilities to the tenant, and merely imposed on the tenure the rental that he thought best in the circumstances. When neither of them knew of undiscovered materials of value within the land, and the idea of reserving anything never entered their minds, it certainly cannot be held, that there was any such reservation in the grant, nor that a distinction can be afterwards drawn between various rights that may exist in the land for the purpose of qualifying the original grant and of importing into it what neither party could then imagine. " The fact, that the land was agricultural when the tenure was created and that the tenure is classed as an agricultural one, does not derogate from the rights conveyed in the tenure, because no restriction was put on the use of the land and the tenure-holders use of it is not limited to agriculture ; he can build on it and apply it to other non-agricultural purposes. There is no distinction in law, or in common usage in this country, between the surface of land and the underlying strata, except when it has been created of recent years, either by the law as in the Land Acquisition (Mines) Act XVIII. of 1885, or by contract. When a man obtains permanent possession of land with heritable and transferable rights, then in the absence of any reservation, he obtains it with all rights attaching to it from the centre of the earth to the sky. If a permanent tenure-holder can use the surface which is agricultural land for non-agricultural purposes, there is no reason why his right in the subjacent strata should be less or different. It is impossible to import into contracts stipulations, that the law did not attach to them, that are not naturally inherent in them, and that the parties themselves had no conception of at the time of contracting. I am ecidedly of opinion, therefore that where a tenure is permanent, the tenure-holder possesses all the underground rights, unless there is something express to the contrary. " The position of the permanent tenure-holder as against the zamindar is very similar to that of the zamindar as against the State. I am ecidedly of opinion, therefore that where a tenure is permanent, the tenure-holder possesses all the underground rights, unless there is something express to the contrary. " The position of the permanent tenure-holder as against the zamindar is very similar to that of the zamindar as against the State. By Hindu law, the sovereign is entitled to a share of all minerals. If when the British Government converted the zamindars into proprietors, and made no reservation of mines or minerals, the zamindars acquired all rights thereto, then by parity of reasoning it would follow that, when zamindars created permanent tenures with all the substantial rights of proprietorship, it must be held that the rights to mines and minerals passed to the tenures. Law. Rep. 37 Ind. App. 136 ( 1909- 1910) Kumar Hari Narayan Singh Deo Bahadur V. Sriram Chakravarti 63 " This view of the rights to mines and minerals has been well expressed in Mitras Land Law of Bengal, where it is said at p. 393, But I think a person holding under a permanent lease in which there is no reversion to the landlord, has the right to open mines, and if he does so, his act, unless there is an express covenant to the contrary, does not amount to legal waste. When the lease is granted by a proprietor not for any specified purpose, and he reserves only the right to receive quit rent in perpetuity, such a use of the land cannot affect him. Permanent leases are practically conveyances of land, and it seems to me that the lessees have full right to use the lands demised as they please, provided there is ample security for the proprietors dues. Prima facie, the owner of the surface is entitled exjure nature to every thing beneath or within it. The working of mines does not, as a rule, permanently injure the land or destroy it to the detriment of the landlords interest. The same thing may be said as to the working of quarries. And again at p. 395, According to the law as Laid down by the great law giver of ancient India, the king is entitled to a half share of hidden treasures underneath the earth and of minerals, as his share for the protection afforded by him to his subjects. .... And again at p. 395, According to the law as Laid down by the great law giver of ancient India, the king is entitled to a half share of hidden treasures underneath the earth and of minerals, as his share for the protection afforded by him to his subjects. .... The Anglo-Indian Government has, by the Permanent Settlement, accepted fixed sums as revenue in lieu of all the rights it had either as proprietor of the soil or as the protector of its subjects. It reserved no right whatsoever, except as to treasures under the Treasure Trove Act. Minerals must necessarily pass with the right to the surface. The present theory of the proprietary right of the Government is not consistent with the Hindu theory of the kings right to a share of the produce or of hidden treasures and minerals, and the Anglo-Indian Government, having accepted and acted upon the theory of the proprietorship of the soil, cannot now claim a share of the minerals on the latter theory. The transfer to permanent tenure-holders of the right which the zamindars derived from the Government necessarily conveys the right to the minerals underneath. "In this case, however, the tenure-holders position is still clearer, for it is in evidence that iron smelting and other mineral operations have been carried on for a long time past according to country methods; that surface pits and quarries have been worked for those purposes; and that the tenure-holders have exercised all the quarrying rights without objection from the zamindar. As such quarrying rights are not modern nor unknown, the exercise of them might interfere with the purely agricultural use of the land, and certainly furnished an additional source of income; yet it is not contended on the plaintiffs behalf that he made any reservation of them or ever objected to the tenure-holders granting quarrying rights. As such quarrying rights are not modern nor unknown, the exercise of them might interfere with the purely agricultural use of the land, and certainly furnished an additional source of income; yet it is not contended on the plaintiffs behalf that he made any reservation of them or ever objected to the tenure-holders granting quarrying rights. If then the landlord made no reservation of known rights other than agricultural, it is impossible to suppose that he reserved underground rights of which no one had any conception." Sir R. Finlay, K.C., De Gruyther, K.C., and Parikh, for the appellants, contended that there were concurrent findings of fact that the village of Petena is a small village of the Pachete estate, that is to say, part of the rajahs ancestral zamindari, that the village is not mogoli debottar of the Goswamis, that the two deeds, of title dated 6th and 7fch Magh B.S. were spurious, and that the respondents had not proved any title by prescription to the underground rights in the village. There was no evidence of any grant by the rajah of mineral rights to the Goswamis; and no evidence that the Goswamis, who did not now dispute the rajahs claim, had been created tenure-holders of the village with permanent heritable and transferable rights. And even if they were tenure-holders as alleged the creation of such tenures unaccompanied by a grant of minerals did not pass to them the right to work the underground mines. Prima facie the rights of mining and fishing and other incorporeal rights belonged to the zamindar as incidents of his absolute title. The onus was on the defendants to shew, not that he had omitted to reserve them, but that he had actually and validly granted them to those from whom they claim title. The only rights under consideration at the time of dealing with the Goswamis were agricultural rights. A lease without mention of underground rights might include opened mines, but not unopened mines. They referred to Regulation 1 of 1793 as to the nature and extent of the zamindars proprietary right; Wine v. Bhoohun Moyee Debia (( 1865) 10 Moo. Ind. Ap. 165, 171); Secretary of State for India, v. Law. Rep. 37 Ind. App. 136 ( 1909- 1910) Kumar Hari Narayan Singh Deo Bahadur V. Sriram Chakravarti 64 Luchmeswar Singh. (( 1888) L. R. 14 Ind. Ap. 6 ; 16 Calc. Ind. Ap. 165, 171); Secretary of State for India, v. Law. Rep. 37 Ind. App. 136 ( 1909- 1910) Kumar Hari Narayan Singh Deo Bahadur V. Sriram Chakravarti 64 Luchmeswar Singh. (( 1888) L. R. 14 Ind. Ap. 6 ; 16 Calc. 223, 231;) After referring to the Transfer of Property Act, ss. 8, 108, and 117, they cited Clegg v. Rowland (( 1866) L. R. 2 Eq. 160, 164.); Elias v. Snowdon Slate Quarries Co. (( 1879) 4 App. Cas. 454, 460) ; Waghela Rajsanggi v. Masludin (( 1887) L. R. 14 Ind. Ap. I. L. R. 89, 96.); Rally Dass Ahiri v. Monmohini Dassee (( 1897) I. L. R. 24 Calc. 440, 447); Abhiram Goswami v. Shyamacharan Nandi(( 1909) L. R, 36 Ind. Ap. 148,166, 167); Land Law of Bengal; S. G. Mitras Tagore Law Lectures, 1895, p. 394. A tenancy of the kind shewn in this case which is not proved to be higher than an occupancy right is inconsistent with the right to minerals. Reference was made to the Bengal Tenancy Act (VIII. of 1865), ss. 2, 4, 5, 6, 10, 11, 16, 18, 19, 20, 75, 76, 77, and 179, and to Lal Sahoo v. Deo Narain Singh (( 1878) 1. L. R. 3 Calc 781.), which was a case under Bengal Act VIII. of 1869 Megh Lal Pandey v. Rajkumar Thakur (( 1906) I. L. R. 34 Calc. 358.), a case under appeal; and to Tituram Mukerji v. Cohen. (( 1905) L. R. 32 Ind. Ap. 185.) As to the extent of the right of the holder of a mokurari lease, see Fields Introduction to the Bengal Regulations, p. 36, and Nafar Chandra Pal Chowdhuri v. Ramlal Pal. (( 1894) I. L. R. 22 Calc. 742, 750.) Ross, for the respondents, contended that the High Court judgment should be affirmed. It had rightly found that the tenure of the Goswamis in respect of which they claimed was a permanent one at a perpetual quit rent created by the predecessors of the appellant sixty years ago and held by the Goswamis and those claiming under them ever since, without any claim by the appellant other than for quit rent. It had rightly found that the tenure of the Goswamis in respect of which they claimed was a permanent one at a perpetual quit rent created by the predecessors of the appellant sixty years ago and held by the Goswamis and those claiming under them ever since, without any claim by the appellant other than for quit rent. By the creation of this permanent tenure the absolute title, subject to a rent-charge and including all underground rights, passed to the tenure-holder, who was shewn by the evidence to have exercised those rights for a considerable space of time without objection. There had been no reservation of the rights now claimed, and after the expiration of sixty years it was too late to put forward a claim which is contrary to the general understanding that the effect of -creating permanent tenures is equivalent to that of a grant in fee simple and was not within the contemplation of the parties at the time the tenure was created. De Gruyther, K.C., replied, citing Harimohun Misser v. Surendra Narayan Singh. (( 1907) L. R. 34 Ind. Ap. 133.) The judgment of their Lordships was delivered by LORD COLLINS. The appellants are the rajah of the Pachete estate and the manager thereof under Act VI. of 1876. The question in the case is as to the right to the minerals lying under a certain village called Petena, situate within the ancestral zamindari of the first appellant. The case has been left singularly bare of evidence, and must be decided chiefly by giving effect to the proper presumptions arising out of a small number of ascertained facts. Happily the field of controversy has been narrowed by certain concurrent findings of fact. Both Courts are agreed that about sixty years ago, in the time of the first plaintiffs predecessor, a transaction took place whereby the latter appropriated to a certain Hindu idol known as Thakur Gopi Nath Jiu, of whom certain persons known in these proceedings as the Goswamis, or Gossains, were the shebaits or priests, an interest of some sort in the village of Petena, at an annual rental of Rs.22.15.6. There is no document or evidence defining the terms of the arrangement with the idol set up at the trial. There is no document or evidence defining the terms of the arrangement with the idol set up at the trial. The defendants, however, against whom the plaintiffs first took proceedings to restrain interference with their minerals, purported to justify their trespasses under the authority of the Goswamis under whom they claimed to hold a lease. Two leases of the 6th and 7th Magh, 1228, respectively (1821 A.D.), purporting to have been granted by the Goswamis to the said defendants, and also certain rent receipts said to have been exchanged, were produced on the part of the defendants at the trial, but they were held by both Courts to be palpable forgeries. Both Courts Law. Rep. 37 Ind. App. 136 ( 1909- 1910) Kumar Hari Narayan Singh Deo Bahadur V. Sriram Chakravarti 65 have held that the village Petena is a mal village of the Pachete estate, i.e., it is a part of the first plaintiffs zamindari. There is no evidence whatever that the zamindar rajah has ever granted mineral rights in the said village to the Goswamis. or any other person. Both Courts agree that no prescriptive rights have been proved by the respondents to any underground rights in the village. The language of the High Court is quite explicit " There is no evidence regarding the extent, publicity, or continuity of such operations to establish the mokuraridars acquisition by prescription of the underground rights claimed." The Subordinate Judge finds that there is no evidence to shew that the plaintiffs 1 and 2 were aware of the exercise of any underground rights before 1898, when steps were immediately taken to stop it. Two decrees in favour of the rajah for the payment of an annual rent of Rs.22.15.6 by the Goswamis were put in, in one of which they were described as " cultivators," in the other as " britti holders." On this meagre foundation of fact the two judges who constituted the High Court have built up the theory that the Goswamis were tenure-holders having permanent heritable and transferable rights. "When such tenures are created," says Pargiter J., " the zamindar invests the tenure-holder with every right that can appertain to him short of the quit rent due to the proprietorship ; the tenure is permanent, heritable, and transferable, its rental is as fixed as the Government revenue that the zamindar pays ; and the tenant can do what he likes with it, short of altogether destroying it; in short, it has all the rights of proprietorship except the name .... In such a state of their respective rights there is no basis for holding that the underground rights have not passed as part of the tenure. To hold otherwise would be to hold that a tenant in perpetuity can never work mines, because they do not belong to his tenure; and that the landlord can never work them, because he has no reversion and no right to enter on the land for that purpose.....In my opinion the underground rights belong to permanent tenures." No decided case was cited in support of the view of the High Court, which seems practically to ignore the distinction between the mere tenure-holder and the zamindar, and the law as Laid down in the passage cited from Mitras Land Law of Bengal does not appear to quite accord with the view of Mr. Field in his admirable Introduction to the Bengal Regulations, p. 36, where he says u the zamindar can grant leases either for a term or in perpetuity. He is entitled to rent for all land lying within the limits of his zamindari, and the rights of mining, fishing, and other incorporeal rights are included in his proprietorship." It would seem, therefore, that Mr. Field did not regard his letting the occupancy right as presumptive evidence of his having parted with his property in the minerals. In the case of leases under the existing law of 1882, no right arises for a lessee to work mines not open when the lease was granted. The learned Subordinate Judge inferred from the smallness of the jumma fixed that only the surface rights and nothing more were intended to be let out to the Gossains. In the case of leases under the existing law of 1882, no right arises for a lessee to work mines not open when the lease was granted. The learned Subordinate Judge inferred from the smallness of the jumma fixed that only the surface rights and nothing more were intended to be let out to the Gossains. On the whole it seems to their Lordships that, the title of the zamindar rajah to the village Petena as part of his zamindari 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 of evidence that he ever parted with them, and no such evidence has been produced. Their Lordships will humbly advise His Majesty that the decision of the High Court be set aside, and that of the Subordinate Judge restored, with costs here and below.