JUDGMENT 1. The following facts are not in dispute in these two appeals: Mouzas Salanpore, Sibdaspur and Chak Sibdaspur within Asansole Sub-division of the Burdwan District appertain to the impartible zemindary estate known as Chakley Panchkote or Pachet. This zemindary belonged to Raja Nilmony Singh Deo Bahadur. He died in 1893. After his death, his eldest son Raja Hari Narayan Singh succeeded to the estate under the customary law of lineal primogeniture. He died in 1902. After his death, Raja Jyoti Prasad Singh succeeded to the estate. He died on 29th September 1933. After his death the plaintiff, his eldest son, has succeeded to the estate. In 1869 Raja Nilmoni Singh granted a patni of surface and underground rights in Mouza Salanpur to his son Kumar Ram Narayan Singh. In 1886, Kumar Ram Narayan Singh granted a lease of surface and underground rights in Mouza Salanpur to one Karali Prosanna Mukherji. In the same year Karali Prosanna Mukherji assigned his lease hold interest to Shergarh Coal Co. Ltd In 1891 Shergarh Coal Co. Ltd., assigned their rights to the defendant company. The defendant company surrendered their rights in Mouza Salanpur in 1932. 2. The zamindars of the Chakley Panchkote estate are the owners of the underground rights in Mouza Shildapore and Chak Sibdaspur. Certain persons had nishkar Brahmottar rights to the surface of these two mouzas. Some of these Brahmottardars granted a patta of the underground rights in these two mouzas in the year 1886 to one Karali Prosanna Mukherji. Another set of Brahmottardars granted a patta of the surface and underground rights in these two mouzas in the year 1887 to Shergarh Coal Co. Ltd. Karali assigned his coal mining right in these two mouzas to the Shergarh Coal Co. Ltd. On 16th February 1891 the Shergarh Coal Co. Ltd., assigned their, surface and underground rights in these two mouzas to the defendant company. The defendant company surrendered their surface and underground rights in these two mouzas on 28th January 1914. The underground rights in these mouzas did not belong to the Brahmottardars of the said two mouzas. The Shergarh Coal Co. Ltd., or the defendant company did not acquire any right to the minerals in these two mouzas on the basis of the pattas granted by the Brahmottardars. The underground rights in these mouzas did not belong to the Brahmottardars of the said two mouzas. The Shergarh Coal Co. Ltd., or the defendant company did not acquire any right to the minerals in these two mouzas on the basis of the pattas granted by the Brahmottardars. Between 1891 and 1918 the, defendant company extracted coal from the mines in these two mouzas and appropriated the same to their own use in the bona fide belief that the company was entitled to work the mines in the two mouzas. On 3rd November 1988 the plaintiff raised two suits in the Court of the Subordinate Judge at Asansol, viz., suits Nos. 44 and 45 of 1938 for damages for the conversion by the defendant company of the coal taken from the mines in Mouzas Sibdaspur and Chak Sibdaspur respectively. 3. The defence of the defendant company, so far as it is relevant for the purpose of these appeals, is this: (1) that the plaintiff alone is not entitled to maintain suit No. 44 of 1938; (2) that the plaintiff is not entitled to maintain suit No. 45 of 1933 as Chak Sibdaspur is debutter property and the plaintiff had not brought the said suit as shebait of the said debutter estate; (3) that the plaintiff's title to the coal fields in mouza Sibdaspur and mouza Chak Sibdaspur was extinguished by the adverse possession of the defendant company for more than 12 years, and (4) that the suits are barred by limitation. The trial Judge has accepted the defence of the defendant company and has dismissed the suits. Hence these two appeals F. A. NO. 122 and F.A. NO. 123 of 1941 by the plaintiff against the decrees in suits Nos. 44 and 45 respectively. The first point for determination is whether the plaintiff alone is entitled to maintain suit No. 44 of 1938. This suit is for damages for conversion of coal taken from mouza Sibdaspur. The zemindary right in mouza Sibdaspur appertaining to the impartible estate Chakley Panchkote has devolved upon the plaintiff after the death of his father Raja Jyoti Prasad Singh in the year 1938 under the customary law of lineal primogeniture. Movable properties do not form an accretion to an ancestral impartible estate. The zemindary right in mouza Sibdaspur appertaining to the impartible estate Chakley Panchkote has devolved upon the plaintiff after the death of his father Raja Jyoti Prasad Singh in the year 1938 under the customary law of lineal primogeniture. Movable properties do not form an accretion to an ancestral impartible estate. It devolves on all the heirs of the deceased zemindar under the ordinary law of inheritance : 59 I. A. 331 Shiba, Prasad Singh T. Prayag Kumari Debi (321 19 4. I. R. 1932 P.C. 216 : 59 Cal. 1399 : 59 I. A. 331 : 138 I. C. 861 (P. C.). Immovable property includes land, benefits arising out of land and things attached to the earth or permanently fastened to anything attached to the earth. (Section 1, cl. 25, General Clauses Act, Act 10 [X] of 1897). Movable property means "property of every description except immovable property" (S. 1, cl. 34, General Clauses Act, Act 10 [x] of 1897). Under the English law aright of action arising out of tort is a chose in action (Halsbury's Laws of England, Hailsham Edn., Vol. 4, p. 424). A chose in action is personal property (ibid p 418). Choses in action are subject to transfer by operation of law upon death, bankruptcy, etc. (ibid p. 426). Section 6, T. P. Act, by implication shows that a right of action is property. At suit for damages for conversion of coal is a suit for recovery of movable property: 56 I. A. 93 L. P. E. Pugh v. Ashutosh Sen ('29) 18 A. I. R. 1929 P.C. 69 : 8 Pat. 516 : 56 I. A. 93 : 114 I. C. 604 (P. C.), 57 I. A. 144 Adjai Coal Co., Ltd. v. Pannalal Ghose ('30)17 A. I. R. 1930 P.C.,113 : 57 Cal. 1341 : 67 I.A. 144 :123 I. C. 726 (P.C.). A right to sue for damages for conversion existing in favour of a person at the time of his death survives to his legal representatives: 57 I. A. 144 Adjai Coal Co., Ltd. v. Pannalal Ghose ('30)17 A. I. R. 1930 P.C., 113 : 57 Cal. 1341 : 67 I.A. 144 :123 I. C. 726 (P.C.),- 53 Cal. 987 Bhupendra Narayan Sinha v. Chandramoni Gupta ('27)14 A. I.R. 1927 Cal. 277 : 53 Cal. 987 : 100 I. C. 286 and S. 306, Succession Act. 1341 : 67 I.A. 144 :123 I. C. 726 (P.C.),- 53 Cal. 987 Bhupendra Narayan Sinha v. Chandramoni Gupta ('27)14 A. I.R. 1927 Cal. 277 : 53 Cal. 987 : 100 I. C. 286 and S. 306, Succession Act. The right of the plaintiff's father to sue for damages for conversion of coal taken from mouza Sibdaspur, therefore, devolved after his death upon his heirs under the ordinary law of inheritance. Plaintiff's father Raja Jyoti Prasad Singh died leaving three sons. Plaintiff, therefore, is not alone entitled to maintain Suit NO. 44 of 1938. The contention of the plaintiff is that in any view of the case plaintiff is entitled to sue for the recovery of l/3rd of the damages. The conversion took place from the year 1891 to the year 1913. This period covers the tenure of three lives; (a) Raja Nilmani Singh from 1891 to 1898; (b) Raja Hari Narayan Singh from 1898 to 1902 and (c) Raja Jyoti Prasad Singh from 1902 to 1913. Raja Nilmoni had 13 sons, Raja Hari Narayan had 3 sons and Raja Jyoti Prasad had 3 sons. We are therefore unable to accept the contention of the plaintiff that plaintiff alone is entitled to sue for recovery of l/3rd of the damages in suit No. 44 of 1938. The second point for determination is whether plaintiff is entitled to maintain Suit No. 45 of 1938. This suit is for recovery of damages for the conversion of coal taken from Chak Sibdaspur. Raja Jyoti Prasad Singh executed a deed (EX. I (10)) on 11th September 1933. From this document, it appears that a mouza called Chak Sibdaspur was dedicated by him for the worship of certain idols. The receipts for the payment of minimum royalty (Exs. 9 to 9 (1), 9 (i)) show that mouza Chak Sibdaspur is debutter property. The case of the plaintiff is that this debutter mouza Chak Sibdaspur is to the west of mouza Salanpur and that the mouza Chak Sibdaspur from which the defendant company extracted coal is to the east of mouza Salanpur and is not debutter. The plaint of Suit No. 45 of 1938 shows that the mouza Chak Sibdaspur which is involved in that suit bears the revenue survey No. 1581 and thana NO. 27. The plaint of Suit No. 45 of 1938 shows that the mouza Chak Sibdaspur which is involved in that suit bears the revenue survey No. 1581 and thana NO. 27. This description of mouza Chak Sibdaspur in the plaint exactly tallies with the description of mouza Chak Sibdaspur as given in item No. 24 of Sch. A of EX. 1-10. Mouza Chak Sibdaspur which is to the west of Salanpur has no separate revenue survey number. It is a part of mouza Dighari which is revenue survey NO. 1587 and thana No. 7. We therefore hold that mouza Chak Sibdaspur from which coal was extracted by the defendant company is debutter property. 4. By Ex 1 (10) the estate, right, title, interest, property, claim and demand whatsoever, both at the law and in equity, of Raja Jyoti Prasad of, into, out of or upon the mouza Chak Sibdaspur or any part thereof was made debutter. The right to recover damages for conversion of coal from Chak Sibdaspur, therefore, vested in the trustee or shebait of the debutter estate. According to the terms of Ex. 1 (10) Raja Jyoti Prasad was the first trustee or shebait for his life. After his death plaintiff became the trustee or shebait. It is laid down in Ex. 1 (10) that each trustee or shebait upon becoming a trustee or shebait is to execute a declaration that he shall conform to and carry out the directions and provisions in the document and that if the trustee or shebait refuses or neglects to execute such a declaration the next person entitled to become a trustee under the document and willing to execute such declaration shall become the trustee or shebait on executing such declaration. Plaintiff has not brought suit No. 45 of 1938 as a trustee or shebait of the debutter estate. He has instituted the suit in his personal capacity. Plaintiff is, therefore, not entitled to maintain suit NO. 45 of 1938 in the present form. In the course of the hearing of this appeal, plaintiff filed an application for amendment of the plaint in suit No. 45 of 1938 and prayed that he might be allowed to sue as trustee. He has instituted the suit in his personal capacity. Plaintiff is, therefore, not entitled to maintain suit NO. 45 of 1938 in the present form. In the course of the hearing of this appeal, plaintiff filed an application for amendment of the plaint in suit No. 45 of 1938 and prayed that he might be allowed to sue as trustee. In the written statement of the defendant company in the trial Court it was definitely stated that mouza Chak Sibdaspur was debutter property, that plaintiff was appointed shebait subject to certain conditions laid down in the deed of dedication and that plaintiff was not entitled to sue in his personal capacity. After the written statement was filed three applications for amendment of the plaint were made in the trial Court but in none of these applications plaintiff prayed for being allowed to sue as trustee. On the other hand, he adduced evidence to show that mouza Chak Sibdaspur from which coal was extracted by the defendant company was not debutter property. In the lower Court plaintiff throughout asserted a hostile title in defiance of the trust or endowment. The amendment prayed for by the plaintiff in this Court would introduce a totally different, new and inconsistent case. Again, it appears from the evidence of the plaintiff that he has not yet made any declaration according to the terms of Ex. 1 (10). From the evidence on record it is not possible to say that was not due to neglect. Plaintiff's application for amendment of the plaint is therefore disallowed. 5. The third point for determination is whether the plaintiff's title to the coal fields in mouza Sibdaspur had been extinguished by adverse possession of the defendant company for more than 12 years. Cases as to adverse possession of mineral rights fall to be decided under Art. 144, Limitation Act. Once title is found or admitted to be in the zemindar he would be presumed to continue in possession until adverse possession by the trespassers is established and that whether the trespasser is the grantee of the surface or a stranger, 58 I. A. 228 Bhupendra Narayan Sinha v. Rajeswar Prasad (31) 18 A. I. R. 1931 P. C. 162 : 59 Cal. 80 : 58 I. A. 228 : 132 I. C. 610 (P. C.). 80 : 58 I. A. 228 : 132 I. C. 610 (P. C.). To constitute title by adverse possession the possession required to be proved must be adequate in continuity, in publicity and in extent. In order that possession of mineral rights be adequate in publicity, the defendant must prove that there was that to be seen on the surface which the plaintiff or his predecessor being reasonably vigilant ought to have seen and so seeing would have been put on their guard although they did not have any title to the surface, 62 I. A. 40 Srisohandra Nandy v. Baijnath Jugal Kishore ('35) 22 A. I. R. 1935 P. C. 36 : 14 Pat. 327 : 62 I. A. 40 : 153 I. C. 929 (P. C.). As a general rule, where title is founded on adverse possession the title will be limited to the area of which actual possession has been enjoyed. In the case of mines there is no presumption in law that possession of a part of a seam infers possession of the whole seam much less of all the seams in the mineral field in which part of a seam has been worked. Possession is a question of fact, the extent of possession is an inference of fact. 58 I.A. 29 Nageshwar Bux Boy v. Bengal Coal Co. Ltd. ('31) 18 A.I. R. 1931 P. C. 186 : 10 Pat. 407 : 58 I. A. 29 : 130 I. C. 315 (P.C.). 6. It is not disputed in these two appeals that the defendant company worked the mines in mouzas Sibdaspur and Chak Sibdaspur in the bona fide belief that they had acquired the underground rights in these two mouzas on the basis of the pattas granted by the Brahmottardars of the two villages. Mouza Sibdaspur is partly to the north and partly to the east of Salanpur. Mouza Chak Sibdaspur is partly to the south and partly to the east of mouza Salanpur. Mouza Bonbibi is to the east of Chak Sibdaspur and Sibdaspur. (After discussing evidence, the judgment proceeded.) Having regard to the evidence and the whole circumstances, we are of opinion that the possession of the defendant company from 1891 to 1913 was effective possession of the mineral field underlying mouzas Sibdaspur and Chak Sibdaspur. Mouza Bonbibi is to the east of Chak Sibdaspur and Sibdaspur. (After discussing evidence, the judgment proceeded.) Having regard to the evidence and the whole circumstances, we are of opinion that the possession of the defendant company from 1891 to 1913 was effective possession of the mineral field underlying mouzas Sibdaspur and Chak Sibdaspur. We therefore hold that the defendant company acquired title by adverse possession to the whole mineral field underlying mouzas Sibdaspur and Chak Sibdaspur before they surrendered their rights in these mouzas in 1914. The last point for determination in these two appeals is whether the plaintiff's suits are barred by limitation. These two suits are suits for damages for the conversion, by the defendant company of specific movable property, viz., coal wrongfully extracted from the plaintiff's mine and sold or otherwise disposed of by the defendant company to their own use. It has been held in 56 I. A. 93 L. P. E. Pugh v. Ashutosh Sen ('29) 18 A. I. R. 1929 P.C. 69 : 8 Pat. 516 : 56 I. A. 93 : 114 I. C. 604 (P. C.), that Art. 48, Limitation Act, applies to all conversions whether dishonest or not. Under that Article the limitation of 3 years begins to run when the person having the right to possession of the property first learns in whose possession it is. 7. The plaintiff's case is that his father came to know of the conversions for the first time in June 1938. The present suits were filed on 3rd November 1938. If the plaintiff's case is true then the suits are within time. In A. I. R. 1936 Pat. 179 Srish Chandra Nundy v. Ramji Bechar Das ('36) 23 A. I. R. 1936 Pat. 179 : 161 I. C. 855 and in 13 Pat. 752 Sunderji Shivji v. Secretary of State ('34) 21. A. I. R. 1034 Pat. 507 : 13 Pat. 752 : 151 I. C. 995 the Patna High Court has held that the onus is upon the defendant to prove that the knowledge of the plaintiff was beyond three years. The Bombay High Court, however, in 24 Bom L. R. 513 The Bank of Bombay Vs. A. I. R. 1034 Pat. 507 : 13 Pat. 752 : 151 I. C. 995 the Patna High Court has held that the onus is upon the defendant to prove that the knowledge of the plaintiff was beyond three years. The Bombay High Court, however, in 24 Bom L. R. 513 The Bank of Bombay Vs. Fazulbhoy Ebrahim, AIR 1923 Bom 155 has held that when the defendant pleads limitation it is for the plaintiff to prove the facts which would bring the claim within the time prescribed by Art. 48, Limitation Act The general rule is that wherever the plea of limitation is raised by the defendant it is for the plaintiff to show prima facie that the cause of action is not barred by limitation: 5 Cal. 86 Md.Ibrahim v. M.B. Morrison ('78) 5 Cal. 36. In A. I.R. 1929 ALL. 721 Yudhishter Lal Vs. Fateh Singh and Another, AIR 1929 All 721 the Allahabad High Court has held that the burden is on the plaintiff to lead evidence prima facie at any rate establishing the date of his knowledge. The burden of proof rests upon the party who substantially asserts the affirmative of the issue. (Halsbury's Laws of England, Hailsham Edition, vol. XIII, page 542). The burden of proof in a suit lies on that person, who would fail if no evidence at all were given on either side." (See S. 102, Evidence Act). "The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person." (See S. 103, Evidence Act), " When any fact is especially within the knowledge of any person the burden of proving that fact is upon him." (See S. 106, Evidence Act.) 8. We are of opinion that the onus is upon the plaintiff in these suits to, prove that the knowledge of his father was within three years of the suit. We are of opinion that the onus is upon the plaintiff in these suits to, prove that the knowledge of his father was within three years of the suit. (After discussing evidence the judgment concluded.) From the above facts and circumstances and the absence of any reliable evidence to show that the plaintiff's father came to know of the conversion of the coal by the defendant company in June 1938 the reasonable inference is that the knowledge of the plaintiff's father about the conversion of the coal by the defendant company from mouzas Sibdaspur and Chak Sibdaspur was beyond 3 years of the suits. The plaintiff's suits, therefore, are barred by limitation. The result, therefore, is that the appeals are dismissed with costs to the defendant company. There will be however only one hearing fee in the two appeals.