Judgement Appeal from a judgment and decree of the High Court (March 26th, 1914) reversing a decree of the additional Subordinate Judge of Purulia. The suit was instituted by the appellants claiming a declaration that under a patta granted to them in 1908 by the respondents Nos. 2 and 3 they were entitled to work and get the coal underlying lands included in the patta. They alleged that they had been dispossessed by the first respondent against whom they claimed mesne profits. Further relief, not material to this report, was claimed against the respondents Nos. 2 and 3. The first respondent by his written statement asserted his title to the mineral rights throughout his zamindari, but denied that he had interfered with the plaintiffs possession. The other defendants asserted their title and denied the alleged ouster. The question arising upon the appeal was whether a grant made in 1791 by the predecessor in title of the first respondent to the predecessor in title of the second and third respondents carried the right to the subjacent minerals. The terms of the grant appear from the judgment of their Lordships. Evidence of the alleged interference with their possession was given by the appellant, no evidence being given by the first respondent, his managers or servants. The Subordinate Judge, by his judgment delivered on June 24, 1912, held that all the subsoil rights in the land in suit had passed under the grant of 1791, and that there had been a dispossession for which the first respondent alone was responsible. He made a decree declaring plaintiffs title and for possession, and that they should receive Rs. 11334 8 from the first respondent. The first respondent alone appealed to the High Court. That Court (Fletcher and Richardson JJ.) by a judgment delivered on March 26, 1914, found that the evidence did not establish that there had been a dispossession of the plaintiffs ; they accordingly allowed the appeal and dismissed the suit. The learned judges did not deal with the question of the title under the grant of 1791. 1919. Jan. 27, 28, 30, 31. De Gruyther K.C. and Kenworthy Brown for the appellants. The High Court erred in reversing the decree so far as it declared the plaintiffs title and awarded them possession ; the Rajas appeal was limited to the decree for money. 1919. Jan. 27, 28, 30, 31. De Gruyther K.C. and Kenworthy Brown for the appellants. The High Court erred in reversing the decree so far as it declared the plaintiffs title and awarded them possession ; the Rajas appeal was limited to the decree for money. The evidence established that the Raja wrongfully disturbed the plaintiffs in the exercise of their rights under the patta and was liable to them in damages. The appellants were entitled to a declaration of their mining rights against the Raja. In any event the suit should not have been dismissed as against the other defendants since they had not appealed. Upjohn K.C, Dunne K.C, and Sir William Garth for the first respondent. Decisions of the Board clearly establish that no title to the subjacent minerals passed by the brahmottar grant of 1791 . Hari Narayan Singh Deo v. Sriram Chakravarti (( 1910) L. R. 37 I. A. 136.); Durga Prasad Singh v. Braja Nath Bose (( 1912) L. R. 39 I. A. 133.); Sashi Bushan Misra v. Jyoti Prashad Singh Deo (L. R. 44 I. A. 46.); Giridhari Singh v. Meghdal Pandey. (( 1917) L. R. 44 I. A. 246.) The third of those decisions related, like the present case, to a brahmottar grant. The grant in that case was subject to a quit rent, but the principle laid down applies at least equally to a rent free grant. There is however no need in this case to apply the presumption because the grant here is extant, and by its terms clearly does not include minerals. As a matter of construction this case is a fortiori the last of the four cases above named, since in that case the grant was " with all rights." This was a mall village forming part of the zamindari, as is stated in the first paragraph of the plaint. Dube for the respondents other than the Raja. The appellants having failed to appeal against the decree of the Subordinate Judge cannot maintain the present appeal against this respondent. De Gruyther K.C. in reply. The four decisions of the Board relied on by the first respondent are not applicable to the grant here in question. Further, the first respondent has no title to the village. The appellants having failed to appeal against the decree of the Subordinate Judge cannot maintain the present appeal against this respondent. De Gruyther K.C. in reply. The four decisions of the Board relied on by the first respondent are not applicable to the grant here in question. Further, the first respondent has no title to the village. Though described as a " rent " free, the grant was lakhiraj or revenue free and consequently formed no part of the permanently settled zamindari. [Reference was made to Ben. Reg. VIII. of 1793, s. 36, Ben. Reg. XIX. of 1793, B.I, and Ranjit Singh v. Kali Dasi Debi. (( 1917) L. R. 44 I. A. 117, 123.) Feb. 20. The judgment of their Lordships was delivered by SIR JOHN EDGE. This is an appeal by the plaintiffs from a decree, dated March 26, 1914, of the High Court at Calcutta, which set aside a decree, dated June 24, 1912, of the additional Subordinate Judge of Purulia, and dismissed the suit. The suit in which this appeal has arisen was brought on April 25, 1911, by the plaintiffs for a declaration that they were entitled, under a patta of May 18, 1908, to work and get the coal underlying 450 bighas of land in mauza Chandkuia, and to use and occupy certain waste danga lands of the mauza as they might require them for the purposes of the colliery. They alleged that they had been dispossessed by the Raja of Jheria, the defendant No. 1, and as against him they further claimed a decree for mesne profits. The defendants Nos. 2 and 3 had granted the patta under which the plaintiffs claimed title, and as against them the plaintiffs sought certain other reliefs to which they alleged that they were entitled. One of ; these other reliefs was an order that the defendants Nos. 2 and 3 should demarcate the 450 bighas of land, the coal underlying which had been leased to the plaintiffs by the patta. The Subordinate Judge who tried the suit refused to make an order for demarcation, on the ground that other persons interested had not been made parties to the suit. The other reliefs claimed by the plaintiffs were not investigated by either of the Courts below. The Subordinate Judge who tried the suit refused to make an order for demarcation, on the ground that other persons interested had not been made parties to the suit. The other reliefs claimed by the plaintiffs were not investigated by either of the Courts below. The Raja of Jherias answer to the suit, so far as he was concerned, was a denial of the title of the plaintiffs to the coal, an assertion of title in himself to all the coal in mauza Chandkuia, and a denial that he had dispossessed the plaintiffs and of their right to a decree for mesne profits. The Subordinate Judge found the issue as to title in favour of the plaintiffs, declared their title, and gave them a decree for Rs. 11,334 8 as mesne profits as against the Raja of Jheria. From that decree the Raja of Jheria appealed to the High Court at Calcutta. One of his grounds in his memoran dum of appeal to the High Court distinctly alleged that the minerals were vested in him alone. The learned judges who heard the appeal in the High Court did not express any opinion on the question of the title to the coal, but having come to the conclusion that the plaintiffs had failed to prove a dispossession by the Raja of Jheria or his servants, set aside the decree of the Subordinate Judge, and by their decree dismissed the suit. What those learned judges apparently considered was that the plaintiffs had failed to prove any facts which would make the Raja of Jheria liable to have a decree for mesne profits made against him as the expression " mesne profits " is defined in s. 2 (12.) of the Code of Civil Procedure, 1908 (Act V. of 1908). As the claim for mesne profits was not dismissed on the ground that the plaintiffs had failed to prove that the title to the coal was vested in them, the claim of the plaintiffs for a declaration of title should have been considered and disposed of by the High Court, From that decree dismissing the suit this appeal to His Majesty in Council has been brought. It is alleged in the plaint that mauza Chandkuia is included in the ancestral zamindari of the Raja of Jheria, and there is nothing on the record to suggest that that statement is not correct. It is alleged in the plaint that mauza Chandkuia is included in the ancestral zamindari of the Raja of Jheria, and there is nothing on the record to suggest that that statement is not correct. In 1791 the Raja of Jherias ancestor, Sri Sri Mohan Lai, who was then the zamindar of mauza Chandkuia, granted to Sri Lakshan Chakravarti " rent-free brahmottar land " in mauza Chandkuia by a patta which, so far as is material, is as translated in the following terms — "January 8.—Patta of agreement granted by the high in dignity, Maharaja Sri Sri Mohan Singh. Respects to Sri Lakshan Chakravarti. I hereby grant you rent-free brahmottar land in mauza Chandkuia in pargana Jheria. You shoul enjoy it comfortably by cultivating and getting the same cultivated by others and should bless me. Hence, this patta is granted to you. Dated at Garh Cutchery, the 29th Chait Akhiri of the year 1197." Their Lordships will presently consider the effect of that patta, as upon the construction of it the question of the title to the coal underlying mauza Chandkuia at the time when the acts complained of by the Raja and his servants are alleged to have occurred depends. On April 21, 1908, the successors in title of the grantee of the patta of 1791, who for brevity may be described as the Chakravarti defendants, granted to persons, who for brevity may be described as the Bhuttacharji defendants, a coal-mining patta of the coal underlying mauza Chandkuia, with liberty to use such danga lands and tanks then in the grantors khas possession as would be required for working the colliery. On May 18, 1908, the Bhuttacharji defendants granted to the plaintiffs a coal-mining patta of the coal underlying 450 bighas of the said mauza, with certain surface rights necessary for working the colliery. After the plaintiffs had obtained their patta of May 18, 1908, they commenced to open up the colliery. The Raja of Jheria thereupon, through his servants, gave to the plaintiffs notice that the coal underlying mauza Chandkuia was vested in him, and insisted that the plaintiffs should not proceed with their workings. Ultimately the plaintiffs ceased to work, and brought this suit to have their rights declared and to obtain such relief as they might be entitled to as against the Raja of Jheria and their lessors respectively. Ultimately the plaintiffs ceased to work, and brought this suit to have their rights declared and to obtain such relief as they might be entitled to as against the Raja of Jheria and their lessors respectively. Their Lordships will confine their advice to His Majesty to the question of the title to the coal underlying mauza Chandkuia, as that title was when the acts complained of by the Raja of Jheria and his servants are alleged to have occurred, and as it was when this suit was instituted, and will not express any opinion as to the rights, if any, which the plaintiffs may have against the defendants other than the Raja of Jheria. The question of the title to the coal in question here must, as their Lordships have said, depend upon the construction of the patta of 1791. On behalf of the plaintiffs, the appellants here, it has been contended that the patta of 1791 was an absolute grant by the then Raja of all his rights and interest in mauza Chandkuia, including the minerals, to Sri Lakshan Chakravarti. On behalf of the Raja of Jheria, a respondent to this appeal, it has been contended that the minerals did not pass under that patta, but remained vested in the grantor, of whom the present Raja of Jheria is the representative in title. The construction of the patta of 1791 contended for on behalf of the plaintiffs would doubtless be the construction to be placed upon it if the patta had been a grant of freehold lands in England by an owner in fee, but the patta in question here was a grant by a zamindar in India of a holding creating a tenure within his zamindari, and must be construed as such grants by zamindars have been construed by the Board. In Kumar Hari Narayan Singh Rao Bahadur v. Sriram Chakravarti (L. R. 37 I. A. 136.) in which the mauza there in question was held of the zamindar by goshains on a permanent debottar tenure, subject to a rent of about Rs. In Kumar Hari Narayan Singh Rao Bahadur v. Sriram Chakravarti (L. R. 37 I. A. 136.) in which the mauza there in question was held of the zamindar by goshains on a permanent debottar tenure, subject to a rent of about Rs. 25 paid to the zamindar, Lord Collins, in delivering the judgment of the Board, said —; On the whole it seems to their Lordships that the title of the zamindar rajah to the village Patama as part of his zamindari before the arrival of the goshains 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." In that judgment the view was referred to with approval that was expressed by Mr. Field in his introduction to the " Bengal Regulations," that " 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." An explanation as to leases in perpetuity in India, given by Jenkins J. in Kally Dass Ahiri v. Monmohini Dassee (I. L. R. 24 C. 440, 447.) is instructive. It was that " Because at the present day a conveyance in fee simple leaves nothing to the grantor, it does not follow that a lease in perpetuity here has any such result. .... The law of this country does undoubtedly allow of a lease in perpetuity. . . . . A man who, being owner of land, grants a lease in perpetuity carves a subordinate interest out of his own, and does not annihilate his own interest. This result is to be inferred by the use of the word lease, which implies an interest still remaining in the grantor." That statement was quoted with approval by the Board in Abhiram Goswami v. Shyama Char an Nandi. This result is to be inferred by the use of the word lease, which implies an interest still remaining in the grantor." That statement was quoted with approval by the Board in Abhiram Goswami v. Shyama Char an Nandi. (L. R. 36 I. A. 148, 167.) In Durga Prasad Singh v. Braja Nath Bose (L. R. 39 I. A. 133.) the present defendant-respondent in this appeal, as the zamindar of pargana Jheria, sued the defendants in that suit for a declaration of his rights to the minerals lying under two mauzas situate within his zamindari, and for a permanent injunction restraining the defendants from working for coal. The first defendant in that suit was the digwar of Tasra, and he had worked the coal in the mauza, and had paid cesses in respect thereof to the Government under the Cess Act. The second defendant in that suit was the assignee of a lease granted by the digwar of Tasra, which included a right to mine for coal in the mauzas. In the judgment of the Board it was stated that the two mauzas were held by the digwar of Tasra on digwari tenure at a fixed rent of Rs. 64 per annum, payable to the zamindar, and that the tenure was hereditary. The Board held that the two mauzas there in question were within the plaintiffs zamindari, and that " 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 show or to suggest that the zamindar ever parted with his mineral rights to the digwar." And the Board advised His Majesty that the decree of the Subordinate Judge which had decreed the plaintiffs claim should be restored. That decree of the Subordinate Judge had been set aside by the High Court at Calcutta on appeal. In that suit it was either admitted or proved that the permanent settlement was made with the zamindar of Jheria, and that no separate settlement was made with the digwar of Tasra. That decree of the Subordinate Judge had been set aside by the High Court at Calcutta on appeal. In that suit it was either admitted or proved that the permanent settlement was made with the zamindar of Jheria, and that no separate settlement was made with the digwar of Tasra. In the present suit no evidence was produced as to what was done at the permanent settlement in respect of mauza Chandkuia, but the absence of such evidence does not lead to a pre sumption that the zamindar had not then vested in him the mineral rights in mauza Chandkuia. In Sashi Bhushan Misra v. Jyoti Prashad Singh Deo (L. R. 44 I. A. 46.), the Raja of Pachete, who was the plaintiff, claimed a declara tion that he was entitled to the mineral rights in the village in that suit. The defendants alleged in their written statement that the mauza was held by them and their predecessors under talabi brahmottar rights from a date before the permanent settlement, and they claimed that their rights were those of proprietors, subject to the payment of a fixed rent, and that they had full rights in the subsoil. The grant relied upon by the defendants was not produced, nor was any evidence as to its terms given at the trial, but there was evidence that in 1790 the predecessor of the plaintiff had referred to the mauza as talabi brahmottar with a jamma of sicca Rs. 25. In the judgment in that appeal, which was. delivered by Lord Buckmaster L.C., the decisions of the Board in Kumar Hari Narayan Singh Deo v. Sriram Chakravarti (L. R. 37 I. A. 136.) and Raja Sri Sri Durga Prasad Singh v. Braja Nath Bose (L. R. 39 I. A. 133.) were considered, and their Lordships said —" These decisions, therefore, have laid down a principle which applies to and concludes the present dispute. They established 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." It has been contended on behalf of the appellants in the present appeal that in the judgment which Lord Buckmaster delivered the Board intended to limit the principle to be derived from the decisions which had been referred to to grants made by a zamindar of tenures at fixed rents, and that the principle did not apply here, where the tenure was granted rent free. It so happened that in that particular case the tenure was at a fixed rent, but it appears clear to their Lordships that the principle must equally apply when the tenure granted by the zamindar is a rent-free tenure. Their Lordships do not know what was the vernacular term in the patta of 1791 which has been translated as " rent free," but in the plaint it is alleged that the right granted was a " rent-free brahmottar right," and the trial judge, who was a native and presumably understood the vernacular, states in his judgment that " The plaintiffs case is that the whole mauza Chandkuia described in the Schedule I. of the plaint belongs to the defendants Nos. 3 to 25 as their rent-free brahmottar property, under a sanad dated 29th Chaitra 1197, from Raja Mohan Singh, the ancestor of the defendant No. 1, granted to Lakshan Chakravarti." If the holding had been described, as on behalf of the plaintiffs it has been contended it was described in the vernacular patta of 1791 as " revenue-free brahmottar," it could make no difference, as the holding was one created or ratified by the zamindar of land within his zamindari, and no mineral rights were mentioned in the patta. In Giridhari Singh v. Megh Lal Panday (L. R. 44 I. A. 246.) in which a mokarari lease of lands by a zamindar contained the words "mai hak hakuk" (with all rights), the Board-applied the principles which had been stated in Lord Buckmasters judgment in Sashi Bhushan Misra v. Jyoti Prashad Singh Deo. In Giridhari Singh v. Megh Lal Panday (L. R. 44 I. A. 246.) in which a mokarari lease of lands by a zamindar contained the words "mai hak hakuk" (with all rights), the Board-applied the principles which had been stated in Lord Buckmasters judgment in Sashi Bhushan Misra v. Jyoti Prashad Singh Deo. (L. R. 44 I. A. 46) The result at which their Lordships have arrived after a consideration of the decisions of the Board is that where a zamindar grants a tenure in lands within his zamindari, and it does not clearly appear by the terms of the grant that a right to the minerals is included, the minerals do not pass to the grantee, and their Lordships hold that the coal underlying mauza Chandkuia when the interferences complained of occurred, and on April 25, 1911, when this suit was instituted, was vested in the Raja of Jheria alone, and on that ground the suit against him should have been dismissed with costs in the courts below, and that this appeal as against the Raja should be dismissed, and they will so humbly advise His Majesty. The appellants must pay the costs of the Raja of Jheria in this appeal. Their Lordships will also humbly advise His Majesty that the suit as against the defendants other than the Raja of Jheria should be remanded to the Court of the Subordinate Judge, to be disposed of according to law. There will be no order as to the costs of this appeal as between the appellants and the defendants other than the Raja of Jheria.