Judgement Appeal from a decree of the High Court (March 18, 1907) reversing a decree of the Court of the Subordinate Judge of Manbhum (June 14, 1904). On December 18, 1903, the appellant zamindar of pergunnah Jharia, a permanently settled estate, sued the respondents for a declaration of his rights to the minerals lying under two mouzahs named Tasra and Rohrabund, situate within his zamindari, for a permanent injunction restraining the respondents from working for coals, and for other relief. The first respondent Braja Nath Bose had been on December 5, 1887, appointed by the Government digwar of Tasra, his sanad relating to both mouzahs being dated September 5, 1888, possession being given him in the same month. He thereafter worked the coal in the said mouzahs and paid cesses in respect thereof to the Government under the Cess Act. The second respondent the Tasra Coal Company was the assignee on September 3, 1894, of a lease granted on January 2, 1892, by the first respondent of his subsoil rights in the said mouzahs, including the right to mine for coal. The third respondent Wheeler was the liquidator of the Tasra Coal Company. The mouzahs with an area of 6922 bighas formed an ancient digwari or ghatwali jaigir, and have been held as such throughout by successive digwars of Tasra. The duties of the digwar consisted in his having the charge and management of all the police work in his allotted district, but under the orders and control of the Government officers. The profits accruing from the jaigir formed the sole remuneration attaching to the office of digwar. The jaigir was and had always been subject to a quit rent or cess of Rs.64 payable in respect of both the mouzahs. The office of digwar of Tasra and the jaigir attached thereto were in the gift and subject to the orders of Government. On the digwars appointment possession of the mouzahs was made over to him by the Government, subject to conditions and limitations fettering his power of dealing therewith during his incumbency. The office and tenure had devolved successively on members of the same family on appointments made by the Government for about sixty years previous to 1887, when Digambar Singh, the then holder, was dismissed for having mortgaged the mouzahs, the first respondent being thereupon appointed digwar by the Government. The office and tenure had devolved successively on members of the same family on appointments made by the Government for about sixty years previous to 1887, when Digambar Singh, the then holder, was dismissed for having mortgaged the mouzahs, the first respondent being thereupon appointed digwar by the Government. The allegations in the plaint were that the appellant was zamindar as before stated; that Digambar Singh had held the two mouzahs in suit under an ordinary ijara settlement on payment of an annual rent of Rs.64 ; that in 1888 the Deputy Commissioner of Manbhum appointed the respondent Braja Nath Bose as digwar in succession to Digambar Singh, and put him in possession thereof; that from the time of his appointment in 1888 the respondent Braja Nath Bose had paid, and was still paying, the rent of Rs.64 ; that on January 2, 1892, the said respondent, who had no right or title to the minerals lying thereunder, executed a permanent lease to work the said minerals in favour of Allan Mathewson, who subsequently assigned the lease to the respondent the Tasra Coal Company, Limited; that the Tasra Coal Company, Limited, had removed 8250 tons of coal, worth Rs. 16,500, and were still working the coal. The respondent Braja Nath Bose, by his written statement, contended that the Government was a necessary party to the suit, which could not proceed unless the Government was made a party thereto, and that the suit was barred by limitation. He denied that Digambar Singh had held the two mouzahs under an ordinary ijara settlement, and that the appellant, as zamindar, had a right to the minerals lying thereunder. He denied that Digambar Singh had held the two mouzahs under an ordinary ijara settlement, and that the appellant, as zamindar, had a right to the minerals lying thereunder. He alleged that " the said two mouzahs being property held in digwari right, the digwar appointed for the time being, from time immemorial, renders police service to the Government, and holds possession of the said two mouzahs in suit in digwari jaigir right, together with all the proprietary rights to all things therein, both above and below the surface, by paying the digwari panchak rent to Government, formerly through the plaintiffs predecessors and now through the plaintiff, at the rate of Rs.64 a year "; that he had paid and was still paying the said digwari panchak annual rent of Rs.64 through the appellant or his predecessor; that on the death of one Akbar Singh, a former digwar, his daughters son, Pahalwan Singh, was appointed digwar, and on the death of the latter his son, Matu Singh, got the appointment, but he was removed for misconduct, and was succeeded by Digambar Singh, on whose dismissal for misconduct he, the respondent, Braja Nath Bose, " was in December, 1887, appointed digwar of Ghat Tasra, according to the order of the Deputy Commissioner of Manbhum, and obtained possession of the two mouzahs in suit, which are being held in possession by virtue of digwari right, from long before the advent of the British Government, together with all rights both above and below the surface thereof; and he has accordingly been in possession of them"; that from before the time of the British Government the digwari panchak rent for Tasra was realized by the Government and from " the time of the decennial settlement it is being realized through the zamindar, for the sake of convenience "; that the appellant zamindar had no right whatever in the said mouzahs beyond the right of collecting the panchaki rent of Rs.64 a year; that on January 2, 1892, he granted a permanent lease of the surface and subsoil rights in the two mouzahs to Allan Mathewson, with the consent of the Deputy Commissioner of Manbhum; and that the said Allan Mathewson and his assignee, the respondent the Tasra Coal Company, Limited, had been in possession of the said two mouzahs under him. The Tasra Coal Company relied on the pleas of the first respondent, and further alleged that " long prior to the advent of the British power in India, the then Government of the country assigned the entire rights, including the underground of the lands comprised in the mouzahs in suit, subject to the payment of a quit rent, for the maintenance of the digwar and his subordinates .... The lands constituted a digwari or ghatwali tenure, which was subject to the usual incidents of such a tenure; such as (a) the performance of the public services attached thereto; (b) succession to the post and the emoluments thereof, according to the rules of primogeniture and the impartibility of the tenure amongst the descendants of the original holder; (c) the inalienability of the tenure by the holder thereof, and its non-liability to sale in satisfaction of his debt; (d) the liability of the incumbent to dismissal, and the consequent deprivation of the tenure for misconduct or neglect in the performance of the duties entrusted to him"; "that under the former Government of the country, as also under the British Government, the lands of the mouzahs in suit were held by successive digwars, who performed the duties set forth above, and paid the quit rent to the Government for the time being or the representative thereof." The respondent company also denied that the said mouzahs were included in the permanent settlement of the pergunnah Jharia, and that they were the property of the appellant or his predecessors, and contended that only the quit rent payable for the tenure to the Government was included in the permanent settlement, but admitted that the quit rent continued to be paid to the appellants predecessors and the appellant. The Subordinate Judge held that the Government though a proper was not a necessary party to the suit, which was not barred by limitation. The Subordinate Judge held that the Government though a proper was not a necessary party to the suit, which was not barred by limitation. He found that the two mouzahs in suit were for the first time in 1845 described as digwari mouzahs, so far as the documents proved before him were concerned; that the appellants contention was incorrect in suggesting that the digwars were ordinary izaradars; that the mouzahs were digwari mouzahs; that the digwars of Jharia were as much servants of the zamindar as of the Government; that the zamindar of Jharia had in 1814 been invested with the charge of the police, and was divested of those powers in 1833 ; that there was no eidence to shew that the mouzahs were constituted digwari mouzahs at the time of the permanent settlement; that the digwars were not independent taluqdars of the mouzahs inasmuch as they did not fall within the provisions of s. 5, Regulation VIII. of 1793; that the evidence did not carry the antiquity of the tenure further back than a few years before 1845 ; that the most that could be presumed in favour of the defendants was that the tenure was in existence at the time of the permanent settlement; that there was nothing to shew that the grant had been made by Government ; that the real point for determination was whether the tenure was included in or excluded from the permanent settlement ; that the facts shewed that Tasra was included in that settlement, and that Rohrabund was an offshoot from Tasra at a subsequent date; that consequently the digwars could not claim to be proprietors of the soil of the mouzahs, and had no right to the minerals; that the rights possessed by ghatwals in Birbhum in their tenures could not be applied by analogy as existing in the digwari tenures in dispute; that the tenure in this case was the grant of an office, the performance of the duties of which is remunerated by the use of the lands which did not involve an absolute grant of the soil, but only a grant of the surface; that Government had disclaimed all right to the minerals in a despatch of March 25, 1880, and that there fore the right to the coal and all minerals must be in the zamindar. He made a decree granting an injunction against the defendants and for Rs. 1854.11, the value of the coal with costs. The High Court in appeal dismissed the suit with costs. It held that the digwari tenure in question placed the holder in a higher position than a ghatwal or chowkidar. It found that the tenure was an ancient one and that both office and tenure were hereditary, but with the condition that in the event of dismissal by Government, or there not being a member suitable for the office, both office and tenure would pass to a digwar to be appointed by Government; that all orders for the appointment and dismissal of digwars of Jharia have been made by Government, the zamindar having no voice in the matter; that the digwars have all along been responsible to Government for the due discharge of their duties, police and public; that the tenure had always passed on orders and transfers by Government; that the only profit received by the zamindar since the creation of the tenure had been a quit rent of Rs.64 per annum, and that the digwar of the disputed mouzahs did not hold them as an izaradar under the landlord as alleged by the appellant. It held also that the Government was a necessary party to the suit, and that the plaintiffs claim was not barred by limitation. It found that the evidence satisfactorily established the existence of this digwari tenure as far back as 1814; that the quit rent alone was reserved to the zamindar; that the tenure was created to enable the holder to perform certain public duties, and had all along been so regarded, and that it was not liable to resumption by the landlord; that under the circumstances proved the position of the digwar in this case is analogous to that of the ghatwals of Birbhum, and. that he had been recognized throughout as possessing the same rights. .It held on the facts that the tenure in question was created as a permanent one on a fixed rent, and that the digwar as the holder possessed all the underground and mining rights, there being no reservation to the contrary, and that the said mineral rights in the tenure did not belong to the zamindar. .It held on the facts that the tenure in question was created as a permanent one on a fixed rent, and that the digwar as the holder possessed all the underground and mining rights, there being no reservation to the contrary, and that the said mineral rights in the tenure did not belong to the zamindar. Sir R. Finlay, K.C., Ross, and Parikh, for the appellant, contended that the suit was not liable to be dismissed for non joinder of the Government as a party. There would have been no objection to making the Government a party, but its rights were in no degree affected by the result. Reference was made to Code of Civil Procedure (XIV. of 1882), s. 578, and the later Code (V. of 1908), r. 9. It was concurrently found by the Courts below that the appellant was zamindar, and that the mouzahs in suit had been included in his zamindari for assessment at the time of the permanent settlement. He must accordingly be presumed to be the owner of the underground rights therein in the absence of a grant thereof by him to third parties. The evidence entirely failed to shew that he had ever granted them either to the Government or to the digwars or to anybody. See Hari Narayan Singh Deo v. Sriram Chakravarti. (( 1910) L. R. 37 Ind. Ap. 136,144.) There was a concurrent finding also that the digwars of the mouzahs were independent taluqdars, and it must therefore be presumed that they do not possess the underground rights in dispute, whatever may be their rights over the surface soil. See Rajah Nilmoni Singh v. Pakranath Singh. (( 1882) L. R. 9 Ind. Ap. 104.) Further it was contended that the statutory incidents of ghatwali or digwari tenures in the district of Birbhum were not the incidents of the tenure in suit, and no analogy could be drawn therefrom and applied to this case. In any event the onus was on the respondents to shew title to the minerals in suit and they had failed to discharge it. De Gruyther, K.C., and A. M. Dunne, for the second and third respondents, contended that the appellant had failed to establish his title to either the mouzahs or the minerals. In any event the onus was on the respondents to shew title to the minerals in suit and they had failed to discharge it. De Gruyther, K.C., and A. M. Dunne, for the second and third respondents, contended that the appellant had failed to establish his title to either the mouzahs or the minerals. The title vested in the Government or under Government grant in the digwars from time to time, both in soil and subsoil, and not in the zamindar. The digwars have always held and exercised adversely to the appellant the fullest proprietary rights. The mouzahs in their hands formed an ancient permanent and independent digwari tenure, subject to a quit rent which the appellant and his predecessors may originally have been entitled to but had lost in the course of time. The appellant had failed to establish his title as alleged. Reference was made to Regulation I. of 1793, s. 8, clause 4; to the report of Mr. Money, Deputy Commissioner of Manbhum, dated November 14, 1864, as set out in the High Court judgment in this case (see I. L. R. 34 Calc. at p. 775); Haringtons Analysis, vol. 2, p. 236, note; vol. 3, p. 509; Regulation XXIX. of 1814. It was also contended that the suit was defective as the Secretary of State was a necessary party thereto, his title and rights being affected by the suit and the decree to be made therein. Sir R. Finlay, K.C., in reply, referred to Raja Lelanund Sing v. Government of Bengal (1) and Hari Narayan Singh Deo v. Sriram Chakravarti, (2) The judgment of their Lordships was delivered by LORD MACNAGHTEN. The suit out of which the present appeal arises was brought by the zamindar of pergunnah Jharia, a permanently settled estate, in order to establish his right to the minerals underlying mouzah Tasra and mouzah Rohrabund. The two mouzahs are within his zamindari. They are both held by the digwar of Tasra on digwari tenure at a fixed rent of Rs.64 per annum payable to the zamindar. Digwari tenure is similar to ghatwali tenure. It was granted originally in consideration of the performance of military service, to which police duties were attached. The tenure is hereditary and inalienable. The digwar is appointed by the Government and liable to be dismissed by the Government for misconduct. Digwari tenure is similar to ghatwali tenure. It was granted originally in consideration of the performance of military service, to which police duties were attached. The tenure is hereditary and inalienable. The digwar is appointed by the Government and liable to be dismissed by the Government for misconduct. On dismissal the next male heir, if fit for the office, is appointed. In 1892 the digwar of Tasra granted a perpetual lease of the coal mines underlying the two villages. The lease became vested in the Tasra Coal Company, Limited. The company took possession and raised and sold a large quantity of coal. The zamindar asked for a declaration of right, an account, and an injunction. The Subordinate Judge of Manbhum gave judgment in favour of the zamindar. On appeal to the Calcutta High Court that judgment was reversed and the suit was dismissed with costs. The case was argued at considerable length in both the Courts below and fully discussed before this Board. Two points, and two points only, were seriously argued. It was contended (( 1855) 6 Moo. Ind. Ap. 101.) that the Government ought to have been made a party to the suit, and that in the absence of the Government the suit was defective and ought to be dismissed, and (L. R. 37 Ind. Ap. 136, 145, 146.) that the digwar had a proprietary right in the underground minerals. The High Court decided both points in favour of the defendants. In their Lordships opinion the Government is not a necessary or a proper party to this suit. Apparently the Government does not claim the minerals under permanently settled estates. However that may be, the Government has never claimed the minerals under the two mouzahs or either of them, or put forward ; any claim inconsistent with the rights now asserted by the zamindar. The rights of the Government, whatever they are, will not be prejudiced or affected by the result of a suit to which it is not a party. The second point seems equally clear. The two mouzahs are within the plaintiffs zamindari. Both the Courts below have so held. The permanent settlement was made with the zamindar of Jharia. No separate settlement was made with the digwar of Tasra, if there was a digwar of Tasra at the date of the permanent settlement, which seems more than doubtful. The second point seems equally clear. The two mouzahs are within the plaintiffs zamindari. Both the Courts below have so held. The permanent settlement was made with the zamindar of Jharia. No separate settlement was made with the digwar of Tasra, if there was a digwar of Tasra at the date of the permanent settlement, which seems more than doubtful. No attempt was made to prove that the mineral rights now in question were vested in the digwar before or at the time of the permanent settlement if the lands were then held on digwari tenure. Nor is there the slightest evidence tending to shew or to suggest that the zamindar ever parted with his mineral rights to the digwar. Mineral rights were vested in the ghatwals of pergunnah Sarhat in the north-western part of the Birbhum zamindari, but those ghatwals paid their rent direct to the Government, and in other respects they were in a very peculiar position. They were dealt with by Regulation XXIX. of 1814. They obtained the right to lease the minerals by the Act No. 5 of 1859. With every respect to the learned judges of the High Court no inference can be drawn from the circumstances of their case that the digwars in Manbhum had similar rights or powers. The learned judges on appeal seem to have been misled by a decision of the High Court in the case of Kumar Hari Narayan Singh Deo Bahadur v. Sriram Chakravarti, which was after wards reversed by this Board, and is reported in L. R. 37 Ind. Ap. 136. There certain persons, called goswanis or gossains, priests of a Hindu idol to which a certain village had been assigned on a permanent debottar tenure at a small annual rent, granted a lease of the underlying minerals. The High Court held that the mineral rights were vested in the gossains. But it was laid down by this tribunal that it must be presumed that the mineral rights remained in the zamindar in the absence of proof that he had parted with them. Their Lordships will therefore humbly advise His Majesty that the appeal ought to be allowed, and the decision of the High Court reversed with costs, and the decree of the learned Subordinate Judge restored. The respondents will pay the costs of this appeal.