Judgement Appeal from a judgment and decree of the High Court (December 19, 1906) reversing a decree of the Subordinate Judge of Manbhum. The appellant instituted a suit claiming a declaration that the respondents had no right to the coal or other minerals under certain lands which had been leased by the appellant to the respondents predecessor in title by a mokarari pottah dated July 10, 1865. He also claimed an injunction and damages. The material terms of the pottah were as follows " I settle in mokarari the whole of mauza Baramashya, with all rights (mai hak hakuk) as per boundaries given below appertaining to my zamindari, the third kismat, perganna Nawagarh, which is in my possession, together with bil, jhil, orchards, tanks, cultivated lands, with homestead and jungle standing on the same .... at an annual jamma of Rs.59 and two seers of ghee and one goat. You shall enjoy and hold possession of the aforesaid village with your sons and grandsons at your full bliss on payment of the said rent to me every year. If you do not pay the rent .... the mokarari will be cancelled at the end of the year.....You shall be entitled to the extra collections which will be realized in the village, and you will take the price of the tolls of the same by cutting and selling them, to which I shall not have any right. There will never be any increase in this rent." The Subordinate Judge made a decree in favour of the appellant. On appeal the High Court (Rampini and Mookerjee JJ.) set aside the decree, relying in part upon decisions of that Court subsequently reversed by the Privy Council. The appeal is reported at I. L. R. 34 Calc. 358. 1917. June 18, 19. De Gruyther, K.C., and Dunne, for the appellant. The decision of the Board in Sashi Bhushan Misra v. Jyoti Singh (1) is conclusive in the appellants favour, unless it can be shown that the terms of the pottah amount to an express grant of the minerals. The language of the pottah shows that surface rights only were intended to be granted. The words " mai hak hakuk " mean all rights relative or appurtenant to the surface rights. Sir Erle Richards, K.C., and Sir W. Garth, for the respondents. The language of the pottah shows that surface rights only were intended to be granted. The words " mai hak hakuk " mean all rights relative or appurtenant to the surface rights. Sir Erle Richards, K.C., and Sir W. Garth, for the respondents. In Sashi Bhushans Case (Ante, p. 46.), and the decisions of the Board there followed, the actual grant was not in evidence. Those decisions establish only that a grant of the minerals is not to be inferred merely because the tenure is permanent and heritable. There must be express evidence of a grant of the minerals, not necessarily evidence of an express grant; a grant in general terms is sufficient if, according to the ordinary rules of construction, it includes the minerals. Here the grant is in evidence, and the words " mai hak hakuk " include every right in the soil. The generality of those words is not cut down by the limited words which follow. There is nothing in the pottah to limit the grant to surface rights. [Kerr v. Pawson (( 1858) 25 Beav. 394, 406.) was also referred to.] July 19. The judgment of their Lordships was delivered by LORD SHAW OF DUNFERMLINE. The appellant is the proprietor of the zamindari of perganna Nawagarh, being mahal No. 16 of the taujeh of the collectorate of district Manbhum. In 1865 he executed a mokarari pottah of a small portion of mauza Baramashya " with all rights" (this being the translation of the expression " mai hak hakuk ") " as per boundaries .... appertaining to my zamindari, the third kismat perganna Nawagarh, this is in my-possession." An annual jamma was fixed of Rs.59 and two seers of ghee and one goat. appertaining to my zamindari, the third kismat perganna Nawagarh, this is in my-possession." An annual jamma was fixed of Rs.59 and two seers of ghee and one goat. It is admitted that the possession was of a permanent and heritable character, subject to the payment of rent, failing which latter the mokarari " will be cancelled at the end of the year." There is also a clause as to trees in these terms " You shall be entitled to the extra collections which will be realized in the village, and you shall take the prices of the trees of the same by cutting and selling them, to which I shall not have any right." In 1903, minerals having been discovered below the surface of the land which was the subject of the mokarari pottah, the respondents began to work them, claiming that they had a right to do so in respect that the minerals were within the subjects of their mokarari lease. This claim was resisted by the appellant, who brought the present suit for an injunction and damages. The appellant is the zamindar. On the one hand, it is admitted that minerals were not expressly included within the terms of the pottah; on the other, that the terms were general, as above quoted, and that there was no exclusion of these minerals. The Subordinate Judge held that the mokarari lease did not pass the underground and mineral rights. The learned judges of the High Court of Calcutta on December 19, 1906, held that it did. They accordingly set aside the decree and judgment of the lower Court and dismissed the suit. In their Lordships opinion the judgment and decree of the High Court are erroneous, and those of the Subordinate Judge should be restored. It is unnecessary to enter into the general question of law, as, in their Lordships opinion, that has been conclusively and recently settled by this Board. It is unavailing to urge that the right granted by the mokarari pottah to the lessee is of a permanent, heritable, and transferable character, as, even although this be the case, it does not advance the question of whether the lease itself embraced within its scope the mineral rights. It is unavailing to urge that the right granted by the mokarari pottah to the lessee is of a permanent, heritable, and transferable character, as, even although this be the case, it does not advance the question of whether the lease itself embraced within its scope the mineral rights. On the contrary, unless there be by the terms of the lease an express or plainly implied grant of those rights, they remain reserved to the zamindar and part of the zamindari. Their Lordships refer to the judgment of the Board in Kumar Hari Narayan Singh Deo Bahadur v. Sriram Chakravarti. (( 1910) L. R. 37 Ind. Ap. 136.) In that case a clear finding had been made which may be cited from the judgment of Pargiter J. (( 1905) I. L. R. 33 Calc. 54.) " 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." This judgment was reversed by this Board, and it was held that the zamindar " must be presumed to be the owner of the underground rights thereto (that is, appertaining to the zamindari), in the absence of evidence that he ever parted with them." Their Lordships think it right to refer to this case because in the judgment of the High Court the Calcutta decision is referred to as if still law, this not being the case. Hari Narayan Singhs case was followed by that of Durga Prasad Singh v. Braja Nath Bose. (( 1912) L. R. 39 Ind. Ap. 133.) This had reference to a claim for minerals underlying two mauzas of a zamindari. The zamindar claimed them and the defendant also did so, he being in possession under a digwari tenure. This tenure is hereditary and inalienable, subject to the digwars liability to be dismissed by the Government for misconduct. (( 1912) L. R. 39 Ind. Ap. 133.) This had reference to a claim for minerals underlying two mauzas of a zamindari. The zamindar claimed them and the defendant also did so, he being in possession under a digwari tenure. This tenure is hereditary and inalienable, subject to the digwars liability to be dismissed by the Government for misconduct. The judgment of the Board was pronounced by Lord Macnaghten, to the effect " that it must be presumed that the mineral rights remain in the zamindar in the absence of proof that he had parted with them." Finally, in Sashi Bhushan Misra v. Jyoti Prashad Singh Deo (Ante, p. 46.), and after a review of the decisions, it was held that the grant by a zamindar of a tenure at a fixed rent does not carry a right to the minerals. In the language of Lord Buckmaster " These decisions, therefore, have laid down a principle which applies to and concludes the present dispute. They establish that when a grant is made by a zamindar of a tenure at a fixed rent, although the tenure may be permanent, heritable, and transferable, minerals will not be held to have formed part of the grant in the absence of express evidence to that effect." On the general question, accordingly, one need not proceed further to consider the suggestion that the lessee in a mokarari pottah has a right to the minerals by reason of the nature of such a grant. Such a suggestion stands negatived upon authority. There are two points, however, which remain as applicable to the present case. It is said that minerals must be included because of the use of the expression " mai hak hakuk " in this pottah. On the assumption that the expression means " with all rights," or may be properly amplified as " with all right, title, and interest," such expressions, in their Lordships1 opinion, do not increase the actual corpus of the subject affected by the pottah. They only give expressly what might otherwise quite well be implied, namely, that that corpus being once ascertained, there will be carried with it all rights appurtenant thereto, including not only possession of the subject itself, but it may be of rights of passage, water or the like, which enure to the subject of the pottah and may even be derivable from outside properties. It must be borne in mind also that the essential characteristic of a lease is that the subject is one which is occupied and enjoyed and the corpus of which does not in the nature of things and by reason of the user disappear. In order to cause the latter specialty to arise, minerals must be expressly denominated, so as thus to permit of the idea of partial consumption of the subject leased. Their Lordships accordingly are of opinion that the words founded on do not add to the true scope of the grant nor cause mineral rights to be included within it. A second point mentioned as a specialty in the present case is the reference in the pottah to the trees. The lessee is given power to cut and, if he cares, to sell these ; and the zamindar renounces any right in them and their proceeds. Had the mokarari pottah, however, been a document which by its nature gave as in property the entirety of the land both on and below the surface, such a provision with regard to the trees would be entire surplusage. The point is not of great importance, but it negatives the idea that the mokarari pottah can be so comprehensively viewed. Such a lease is a lease of the surface only. This is the general case to which in the present case there is alone super added a right to the trees. The minerals are not included. Their Lordships will humbly advise His Majesty that the appeal should be allowed with costs here and below and the decree of the Subordinate Judge restored.