JUDGMENT 1. BY this motion under section 115 of the Procedure Code, 5 of 1908, the plaintiff, Nimcha Coal Company limited, ("nimcha" hereafter, for short)seeks reversal of an appellate order dated September 17, 1964 dismissing its appeal from an order dated August 14, 1964 of the trial court which rejected its application for a temporary injunction under order 39, rule 1, read with section 151 ibid. 2. ON September 25, 1963 "nimcha" instituted the suit (out of which this interlocutory matter arises) in the second court of the munsiff at Asansol, impleading Sriniwas Goenka and sriram Goenka as the principal defendants and Bengal Coal Company Limited as a pro forma one. Necessarily they figure as opposite party before me in this trevisional application under section 115. By such suit the principal reliefs "nimcha" prays the court for are two: (i) a permanent injunction restraining the Goenkas from raising any manner of construction and doing anything whatever which will change the natural state of the land in controversy, and (ii) a mandatory injunction directing them to remove the constructions already made there. 3. BUT what is the land in controversy - the land which is the subject-matter of the suit ? That has got to be known first, even though the subject matter in suit is the two-fold injunction just noticed. 4. THE land in suit is the surface only of a 500 bigha plot demised by the pro forma defendant: Bengal Coal company limited, (for short, "bengal" hereafter) to Barabani Coal Concern limited by an indenture of lease dated September 22, 1961 which describes the subject-matter of demise inter alia, as a plot of five hundred bighas of coal land. " (See paragraph 11 of the plaint and schedule C there to, specifying what the suit land is.) But to know this little is not to get at the root of the litigation. So, much more has got to be stated yet this lease of September 22, 1916 was proceded by another, a little more than eight years back : an indenture dated may 7 13, 1908 by which was demised a plot of 1,000 bighas and that too by the same lessor to the same lessee. "barabani" - that is how I shorten Barabani co. "barabani" - that is how I shorten Barabani co. I Concern Limited - commenced colliery operations, first on the 1000 big a plot, and then extended such operations on the 500 bighas plot, both plots being contiguous to one another. Years later, "barabani" suffered its cess dues to fall into arrear. Result: certificate proceedings were initiated against it, the certificate case No. being c/122 of 1927-1923. Such proceedings culminated in a sale on August 17, 1927 when Rai Saheb Chandanmull Karnani purchased the certificate-debtor "barabani 3" right, title and interest in the leashold, in his business name : Rai saheb Chandanmull Indra Kumar. A sale as this was confirmed on October 29, 1927. That was followed by delivery of possession having been taken through court by the auction-purchaser on March 23, 1928. 5. DELIVERY of possession thus taken the colliery was worked, as usua1, by the auction-purchaser just in terms of the two indentures dated May 13, 1908 and September 22, 1916, Rai saheb Chandanmull Karnani then died, leaving behind him surviving four sons end a widow, members all of a Hindu mitakshara joint family, the Karta of which was the deceased Rai Saheb's eldest son : Seth Indra Kumar Kamani. As manager too of the joint family business, he carried on the colliery operations under the name and style of rai Saheb Chandanmull Indra Kumar, as his father did during his lifetime. 6. THEN came another devolution, but by a private treaty. One more indenture of lease dated February 15, 1949 and Seth Indra Kumar Karnani qua karta and manager of the joint family business, demised this leasehold in favour of "nimcha", the plaintiff petitioner before me. Ever since "nimcha" has been in possession of the colliery, known as Nimcha colliery too, together with all relevant surface land including the surface land in suit. The surface land in suit is in close proximity of some of Nimcha colliery's pits. "development work" in this area has ' been completed. What is more, the permission of the chief inspector of mines has been obtained to start depillaring operations right here. The surface land in suit is in close proximity of some of Nimcha colliery's pits. "development work" in this area has ' been completed. What is more, the permission of the chief inspector of mines has been obtained to start depillaring operations right here. And once the "development work" is completed, if the coal pillars are not removed but allowed to remain intact, due to the nature and quality of coal seams under the surface land in suit, there is every chance of spontaneous combustion and fire inside, with the resuit that the surface above will be useless for any habitation. 7. SUCH then is the stance of "nimcha". What it as up against and herein lies the seed of this litigation - is that the surface land proper, just the land in suit, belonged to "bengal", the pro forma defendant. Recorded as danga land in the finally published records of rights during the last cadastral survey operations, such surface land, the land in suit, was leased out on June 1, 1949 by "bengal" to the two Goenkas, the two principal defendants, who have "a small colliery" of their own, by the name of Sri amritnagar Selected Colliery, just on the south of "nimcha's" Nimcha Colliery. A lease as this is void, and by virtue thereof the lessees, the two Goenkas, cannot impair "nimcha's" right, dating as far back as September 22, 1916 the date of "bangal's" lease to "nimcha's" predecessor, "barabani", to extract coal underground the 500 bigha plot. But this is just what the Goenkas have been doing. They have already constructed pucca structures on the surface land in suit, followed by preparations to construct more. "nimcha" protested. "nimcha" requested the Goenkas not to do what they were going, but all in vain. "nimcha" petitioned too the local magistrate under section 144 of the criminal Procedure Code, 5 of 1898. That again yielded little result, the officer in charge of Ranigunj police station, whom the magistrate had directed to report, having sat tight over the matter. Hence the suit by "nimcha" on September 25, 1963 followed by a prayer for temporary injuction and issue of an interim one that very day, 8. THE two Goenkas and "bengal" answer the suit, as also the prayer for temporary injunction, with very various pleas. Hence the suit by "nimcha" on September 25, 1963 followed by a prayer for temporary injuction and issue of an interim one that very day, 8. THE two Goenkas and "bengal" answer the suit, as also the prayer for temporary injunction, with very various pleas. For the purpose of the interlocutory matter I am seized of, suffice it to note the following pleas they resist the grant of a temporary injunction with : one, the indenture of September 22, 1316 did not more than confer a right on the then lessee, (to which I add : and necessarily on such lessee's successor in interest, namely, "nimcha") to the underground coal lying up to a depth of 600 ft. from the surface land in suit, the surface proper having never been part of the grant. Two, that the surface of the 500 bigha plot, the very land in suit, never formed part of 'September 16, 1922' grant is proved to demonstration, so to say, by the internal evidence of the grant itself, providing for a month's notice by the lessee and waiting for the lessor to make all necessary arrangements, before the lessee can enter upon, appropriate or damage any part of the aforesaid surface. Three, the grant of September 16, 1922 makes it a condition that the lessee shall have to work the colliery "according to the most effectual and approved practice for the time being adopted in similar mines in the same district. " The approved practice in similar mines in the district is too extract the entire coal left in the pillars by stowing sands into the area where from pillars are taken out. Nimcha colliery, situate as it is so close to the damodar river, can have nothing like a problem in getting an adequate supply of sand at a comparatively low cost. The very terms of the grant of September 16,. 1922 therefore, disentitles the lessee to depillar any area without providing for adequate support of the relative surface. Nimcha colliery, situate as it is so close to the damodar river, can have nothing like a problem in getting an adequate supply of sand at a comparatively low cost. The very terms of the grant of September 16,. 1922 therefore, disentitles the lessee to depillar any area without providing for adequate support of the relative surface. Worse, if as the result of depillaring the surface above tumbles down - and tumble down it must- the mine much more than which the nimcha colliery is, and all the rest, will be a total loss, even though "bengal" has the right - a right it will start exercising in the near future - work its bottom seams below 600 feet from the surface, which falls outside of the grant of September 1 (5, 1922. Four, what is put forward by "nimcha" in its plaint as the surface of the 500 bighas plot as the land in suit does form part of a much bigger area in what is now mouza. Amkula, the history of posession of which is traced as under : a. Indenture of June 1, 1949. By this indenture, the Goenkas and on Jagannath Buchasia had had, from "bengal", mining rights in and under 2066 bighas of coal land in mouza amkula land as well as liberties and powers to assess and occupy the surface necessary for running a colliery. Since, then they started and worked Sri amritnagar Selected Colliery in and upon these 2066 bighas of land. B. Indenture of April 24, 1952. By this indenture, the Goenkas and buchasia gave away 400 bighas of amkula land to 'bengal' and got in exchange "bengal's" 600 bighas of land from mouza, Paraskole. Result : amkula land in possession of the Goenkas and Buchasia fell from 2066 bighaa to 1666 bighas : 2066 minus 400. C. Indenture of August 1, 1953. The Goenkas and Buchasia surrendered. by this indenture, another 100 bighas to "bengal", the area in their possession thus going down to 1566 bighas in mouza Amkula, where they carried on their colliery work in all its phases and erected, even from 1952, on the surface land in suit, some of the structures, now complained of, and that again, with the approval of "bengal. " d. Indenture of March 30, 1955. " d. Indenture of March 30, 1955. By this indenture, effective from January 1, 1955, they took lease of S77 bighas of surface land which includes the land set out in the plaint. So. they did for the convenient working of their colliery, a much bigger one than "nimcha's", e. Indenture of Partition dated December 27, 1955. By this partition deed, Amritnagar select Colliery, inclusive of all surface land, fell to the share of the two goenkas who have been in exclusive possession thereof as of right. Five, Sixty houses scattered all over the surface land in suit have already been built under the Labour welfare Housing Scheme, and more have to be built yet, in order to provide for the accommodation of their labour force, some 3,500 strong. Stoppage of such building programme will spell disaster for their colliery and cause them an irreparable loss, six, why this pother, when they as rightful owners of the surface land are entitled to do what they did or were doing, and when "nimcha" with no manner of a right thereto has no right either to raise the objection it did ? It has been held by the trial judge, and on appeal, by the appellate judge, to notice only the outline of their findings : (i) "nimcha," the plaintiff, has no fair prima facie case in support of the right claimed. (ii) Surface holders, as the goenkas are, have every right to raise buildings on the surface, just as they were doing. (iii) Insistence by "nimcha" on depillaring by the caving method, fraught with the grave risk of subsidence of the soil, when its right is the limited right of the subsoil-holder confined to the working of the mine underneath only, and that too in preference to the scientific method of hydraulic sand stowing, which ensures the maximum of extraction of coal, disentitles it to the discretionary relief of a temporary injunction. 9. SUCH being the findings, the trial judge by his order dated August 14, 1964 vacated the interim injunction he had granted on September 25, 1963 and dismissed "nimcha's" petition of that date for a temporary injunction. 9. SUCH being the findings, the trial judge by his order dated August 14, 1964 vacated the interim injunction he had granted on September 25, 1963 and dismissed "nimcha's" petition of that date for a temporary injunction. And the appellate judge, by his order dated September 17, 1964 dismissed the appeal preferred by "nimcha" on august 18, 1964 thus having taken only a month to decide the appeal - a feature which is deserving of appreciation when what is seen all around is law's delay. 10. HAVING been aggrieved by this appellate order of affirmance, "nimcha" has come up to this court in revision and obtained a rule, in which I am rendering this judgment. The learned advocate-general, appearing in support of the rule, contends that the courts below have travelled outside the scope of an interloautory injunction in holding that "nimcha", the plaintiff petitioner, has no fair prima facie case in support of the right it claims. Have they really ? If they have, I shall interfere, even though I am seized of an application under section 115 of the Code, for the simple reason that they have then exercised a jurisdiction not vested in them by law. But upon the whole of the two judgments under revision, I am more than satisfied that the learned judges have kept themselves within bounds in deciding the application for a temporary injunction. It is common learning that an interlocutory relief as this cannot be had for the mere asking. The very first ingredient "nimcha" has to satisfy the court about is that it has a fair question to raise as to the legal right it sets up. Looking at all the facts of the litigation, as disclosed by the pleadings and affidavit-evidence, both the courts consider that "nimcha" has not been able to show a fair and substantial prima facie case as to existence of the legal right claimed. This they are entitled to do. Indeed, it is Within their rights to do so, when "nimcha" has not been able to show1 that little. On the contrary, had they blinked such an important consideration - a consideration a court cannot simply do without in deciding whether to grant an injunction or not - they would have laid themselves open to the charge of not exercising a jurisdiction vested in them by law. On the contrary, had they blinked such an important consideration - a consideration a court cannot simply do without in deciding whether to grant an injunction or not - they would have laid themselves open to the charge of not exercising a jurisdiction vested in them by law. What is perhaps at the back of the learned advocate-general's contention is that the learned judges have in a manner prejudged the very question in the cause. Mr. Ranjit Banerjee, rising to reply in the temporary absence of the advocate-general, makes that clearer still. The judges, he submits, have tried the suit as it were. I am clear, they have not. The judgments under revision show that the learned judge have been alive to the principle that if a prima facie substantial question between the litigating parties is there, the title to injunction becomes good enough, even though the title to relief the suing party (here "nimcha") prays the court for may ultimately fail All that the learned judges have held, -and they are in duty bound to hold so, if the whole of the materials they have had put before them warrants such a con fusion -, that "nimcha" has prima facie no fair question to raise the accent is on prima facie. It is, after all a temporary injunction the learned judges have dealt with. So, when the suit is brought to hearing, it may very well be that "nimcha" by examining witnesses who tell and by producing good enough materials, will be able to convince the trial judge that what looks prima jade on the affidavits and the pleadings is not the real state of affairs upon the whole of the evidence. Should that come to pass as it very well may, I have no manner of a doubt in my mind that the learned trial judge will not flinch from holding so, simply because he has come to a provisional finding upon affidavit-evidence, which can be no substitute for evidence at the trial consisting of the open oral examination of the witnesses so justly prized. Not to go the way I am going, but to deny the interlocutory judge this little, is to gag him about the existence of a fair and substantial prima facie case, and worse still, to g ant a temporary injunction, as a matter of course turning a blind eye to such a basic ingredient, - a clear reductio ad absurdum. I, therefore, reject the learned advocate-general's contention, that the courts below have overstepped the limits of the interlocutory relief "nimcha" prayed them for. 11. PRIMA facie and only prima facie, is the unrestricted use, by the lessee of the surface land in suit provided for by the grant dated September 22, 1916 ? The advocate-general contends, it is Mr, Ranadeb Chaudhuri, appearing for the Goenkas and Mr. Joy gopal Ghose, appearing for "bengal", contend just the opposite ; it is not. What do the contetns of he grant itself point to ? Here are some of the indicia. : a. Settlement of a plot of 500 bighas of coal land, b. Not up to the bottom where-ever that bottom be, but only up to the depth of 600 feet underneath the surface of that 500 bigha plat. C. Liberty and power, for the purpose of the grant, and all other purposes connected with the due and proper management, working, and development of the demised mines, to erect and construct, amongst other things, houses, workshops, coolie huts, bungalows, engine sheds, coke ovens; brick kilns, buildings etc. as be necessary or convenient in or upon the demised mines and premises and as may be appropriated or used for the purpose, in, upon; over or under such portion; as be necessary or proper, of the surface of the land. 12. THE learned advocate-general relies upon what goes before and contends thtt "nimcha's" right to use the surface is plainly there. What bulks large in this litigation is not so much the use simpliciter of the surface land in suit as the manner of its use. Mr. 12. THE learned advocate-general relies upon what goes before and contends thtt "nimcha's" right to use the surface is plainly there. What bulks large in this litigation is not so much the use simpliciter of the surface land in suit as the manner of its use. Mr. Chaurhuri, therefore, pertinently draws my attention to the restrictive covenant in the grant of September 16, 1922 in the form of a proviso, which bears : "provided always that the lessee shall not for any of the purposes aforesaid, or in the exercise of any of the liberties, powers and rights hereinbefore granted or demised, enter upon, appropriate, use or do any act or thing, which shall damage or injuriously affect the surface of any portion or portions of the said land. " The proviso restricting the use of the surface, including even use simpliciter, goes a little more. It divides the surface into two parts - (i) the surface of which "bengal", the lessor, is the owner and (ii) the surface of which it is not. The first part again admits of a dichotomy - (i) the surface of which "bengal" is in Khas possession and (ii)the surface of which it is not, but cultivating royts or other parties are. Hence, by another proviso, added to the proviso just noticed, it is further provided : "provided that the lessee shall before entering upon and using or appropriating or doing any act which may Injure or damage any part of the surface of the. . . . land under the liberties, power, or authorities, hereinbefore granted or demised, give to the lessor one calendar month's previous notice of its intention so to do. . . . . . ". Upon such notice being given -and here it is not even "nimcha's" case that the requisite notice has been given- "bengal", the lessor, shall use its best endeavour to procure the consent of all interested parties and the lessee in turn shall stand all expenses for procuring such consent of the necessary parties "for their being deprived of or disturbed in, enjoyment of the surface" to be entered upon, appropriated, damaged or injured. Such then is the grant of September 16, 1922 no more of which need be noticed for the purpose of this interlocutory matter, save that it enjoins the grantee to work the mine demised, "according to the most effectual and approved practice for the time being adopted in similar mines in the. . . . . . district", or as is said further down, to work the mine energetically and effectually and "in a proper, skilful and effectual manner according to the best and most approved practice. . . . . . . . . . adopted or used in the district. " 13. NO right of unrestricted use of the surface land in suit by "nimcha" do I see in this grant. Two big restrictions are plain to be seen instead. One, want to work the mine in such a manner that it will damage the surface ? What to enter upon, use or appropriate the surface ? Give then a calendar month's notice which is a condition precedent to your working the mine so or using the surface. (And you have not given any notice.) Two, you are not at liberty to work the mine in any manner you think fit, employing say, a crude and antiquated method. You must adopt the most effectual and approved practice prevalent in the vicinity. That this has close affinity to the us of the surface wilt be clear soon enough. 14. THIS brings me to the question of depillaring operations which "nimcha" is bent upon doing, and for which the permission of the chief inspector of mines has been obtained, as the eleventh paragraph of the plaint avers. Much too much is being made of the permission granted by the chief inspector whose eminence as an expert is not denied. Is not denied too depillaring as a method for conservation - a method which is recognized by rule 38, sub-rule 4, of the Coal Mines (Conservation am Safety) Rules, 1954 (shortened hereafter into the "rules") made by the central Government, in exercise of the powers conferred by section 17 of the coa Mines (Conservation and Safety)Act, 12 of 1952. What is denied, and that too prima facie on the limited materials had at this stage, is the competence of the expert to advise on matten forensic - a field in which he is layman. What is denied, and that too prima facie on the limited materials had at this stage, is the competence of the expert to advise on matten forensic - a field in which he is layman. If depillaring operations by the caving method do lodge the surface above in a cave, as they are very likely to do, automatically arise considerations not in the realm of mining, but in the realm of law such as : (i) who the surface belongs to, (ii) how far is the right, if any, of "nimcha", to whom permission has been accorded, in the surface above, (iii) do the surface above and the coal land beneath constitute one tenement or two separate tenements, (Mr. Chaudhuri contending for he latter), on a proper construction of the relevant documents etc. matters which the expertness of the mining xpert avails not. And that, as the result of depillaring, the danger is always there of the surface above giving way appear to be even implicit in the expert's written, permission dated July 20, 1963 the sixth term of which bears: "no extraction, reduction or splitting of pillars shall be done beneath and in the vicinity or" a dwelling building or public road, if any, likely to be affected by the depillaring operation," Why this prohibition if there is no danger of the surface subsiding ? And here Mr. Joy Gopal Ghose, appearing for "bengal", has a point when he argues that subsidence of the surface above, so likely after depillaring operations by the caving method, will damage beyond repair its mine, lying at a depth below 600 feet from the surface, and cause a loss which neither money can value nor compensation, if realizable, can afford a full and complete remedy. 15. THEN, contrast operations depillaring with operations hydraulic stowing, as the result of which the strata above the seams extracted stay undisturbed and the roof above does not collapse but remains intact too. So does necessarily the surface which is but another name for the roof of a colliery. That this is so is borne out by a paper captioned : History of hydraulic Stowing in India, read by N. Barraclough, a quondam chief inspector of mines in India, in a conference held in December 1952 under the auspices of the Council of the National Association of Colliery Managers (Indian Branch ). That this is so is borne out by a paper captioned : History of hydraulic Stowing in India, read by N. Barraclough, a quondam chief inspector of mines in India, in a conference held in December 1952 under the auspices of the Council of the National Association of Colliery Managers (Indian Branch ). It will not be right to burden this judgment with quotations from such an authoritative paper. But here are the three excerpts T have chosen-excerpts one cannot do without in a case of this type: "many cases may be cited of seams,. . . . . . . . . . which have been developed by galleries but in which no pillar extraction has been, nor dared to be done. Depillaring of an upper seam in such cases would cause 'crush' in the lower seams ; depillaring of the lower seams would inevitably ruin the upper seams. Such developed seams can only be extracted if stowing is practised. " And still insist on depillaring in preference to stowing What Mr. Joy gopal Ghose contends for about "bengal's" lower seams, lying below 600 ft. and necessarily below "nimcha's" seams, therefore, appears to be a truism. Again, summarising the reasons why stowing, (the hydraulic variant), considered necessary in Indian mines, has been adopted, the paper continues : "large rivers (Barrakar, Damodar and Ajoy) run through the coalfields and depoits large quantities of sand in coal areas each year. " The Damodar, the requisite sand and the Nimcha colliery go so well together. Furthermore, here is the indelible mark of hydraulic stowing being a method - effectual, approved and prevalent : "in India for the year ended march 31, 1941, 24,43,009 tons of material were hydraulically stowed, whereas in the year ended march 31, 1952 the tonnage of material stowed was 42,66,024; the figures indicate a steady, if not spectacular, increase in the extent of such operations. " And 1952 to 1963, the year of institution of the suit, is 11 years, during which period hydraulic stowing operations are being carried on "in neighbouring collieries," as is averred in the affidavit in opposition filed before me, and as is so probable in the very nature of things. 16. THE attempt to pooh-pooh such a treatise, only because it is academic, is not apt to carry conviction. The learned judges have gone by the opinion in the treatise. 16. THE attempt to pooh-pooh such a treatise, only because it is academic, is not apt to carry conviction. The learned judges have gone by the opinion in the treatise. So do I. The author of the treatise is an expert without doubt. True, the existence of essential ingredients of the Evidence act's section 60, paragraph 5 (inclusive of the first proviso)-the treatise being offered for sale and the author being dead, unavailable etc.- is not proved. But the penultimate paragraph of section 57 is there. The subject the learned judges have dealt with and I am dealing with is a matter of science. Hence the court may resort for its aid to appropriate books or documents of reference. Barraclough's paper is such a document of reference. If in (1) Thakooranee Dossee v. Bishesur Mookerjee, (1865) 3 W. R. (Act X Rulings) 29, decided by Peacock, c. J. and fourteen of his companion judges, Mountstuart Elphinstone's. History of India, Harrington's Analysis, sir John Shore's Minute of June 1789, mill's Political Economy, Tod's rajpootana, Malcolm's Central India, buchanan's Journey in Mysore,etc. can be resorted to by the court for its aid, if in (2) Krishna K. Dassi v. Mr. R. Braunfield, (1915) 20 C. W. N. 1028, a dicision by a division of this court (N. R. Chatterjea and Roe, JJ.), Captain hirst's Notes on the Old Revenue surveys can be referred to, if in (3)Santala Bewa v. Badasuwri Dasi, (1923)27 C. W. N. 669, a decision of another division of this court (C. C. Ghose and panton JJ.), Sir Herbert Risley's Tribes and Castes of Bengal can be resorted to for the court's aid and-there is a crowd of decisions on the subject-in the case in hand Barrachlough's treatise can surely be pressed into service by the learned judges and me. And once that is done, hydraulic stowing operations must prevail over operations depillaring, as in fact they have prevailed, the grant of a subsidy by the Coal board, for such measures voluntarily undertaken by the owner, as prescribed in rule 49 et seq. of the Rules, Mr. Chaudhuri refers me to, being a significant pointer. The stance taken by the gonenkas and "bengal" is just that too, as contended for, and rightly in my judgment, by their counsel : 'we do not stand in the way of 'nimcha' extracting coal from its leasehold. of the Rules, Mr. Chaudhuri refers me to, being a significant pointer. The stance taken by the gonenkas and "bengal" is just that too, as contended for, and rightly in my judgment, by their counsel : 'we do not stand in the way of 'nimcha' extracting coal from its leasehold. Let it do so by all means, applying the scientific method of stowing as above, which will yield it the maximum extraction, but do us no harm at the same time. ' 17. ON this consideration alone, the discretionary interlocutory relief of an injuction, "nimcha" prays the court for, appears to be out of the question. And, if to this be added the surface abov1e and the mine below being two separate tenements, separately dealt with, just as Mr. Chaudhuri contends, the case for an interlocutory injunction becomes weaker still, What to say of others, even the suing party, "nimcha", seems to be well aware of what's what about the two tenements. The second paragraph of its plaint refers to the indenture of September 22, 1916 demising the 500 bigha plot, and concludes that such a demise is: "with relative surface right under the terms and conditions mentioned in the said Indenture dated 22.9.1916," Relative surface right, and that too hedged in by the terms and conditions, the most glaring of which have been reviewed in paragraph 17 ante, is not the large right now claimed. Again, paragraphs 10 and 11 of "nimcha's" plaint amount to an admission that the surface land in suit belonged to "bengal". 18. IN vain have I been referred to the indenture of March 30, 1955 - that lease of S77 bighas of surface land by "bengal" to the Goenkas, referred to in paragraph 11 ante, - as having conferred no interest upon the Goenkas. Why no interest conferred ? Because the recitals in the body of the indenture do not agree, it is said, with the schedule thereto. I do not feel called upon to enter into it at this stage. Leaving it to the decision at the trial as to which part of the indenture will prevail over what, I assume instead that such an approach is right. So what ? The surface of the 877 bigha plot will then remian "bengal's", It will not be "nimcha's" at any event. Leaving it to the decision at the trial as to which part of the indenture will prevail over what, I assume instead that such an approach is right. So what ? The surface of the 877 bigha plot will then remian "bengal's", It will not be "nimcha's" at any event. All that emerges then is that "nimcha" falls out of the frying pan of the Goenkas into the fire of "bengal". The learned advocate-general has referred me to articles 726 and 727 of Halsbury's Laws of England, 3rd edition by Lord Simonds, volume 26, at pages 344 and 345. No controversy rages about the law summarised there : whether the mines are granted without the surface or the surface is granted without the mines is a matter for construction by express words or by necessary implication. Here, prima facie, the words in the grant of September 22, 1916 are words of severance and convey the mine below without the surface above: just what the law is, as summarised in the next article, article 728, to which Mr. Chaudhuri invites my attention: "728. Principles upon which the implication is made. The insertion of a clause in the instrument of severance conferring general powers of working, expressed in the widest terms, is not sufficient to rebut the presumption in favour of the surface owner; such a clause prima facie confers only the powers of working incident at common law to the ownership of mines. " 19. AGAIN, to quote from another article, article 714 ibid Mr. Chaudhuri refers me to, "the right of support is a right to have the surface kept at its ancient and natural level. It is not an easement but a natural right incident to the ownership of the soil. The right of support arises on the severance of the surface and the minerals. " Just so here. 20. IT now remains for me to notice the cases cited at the Bar. (4)Pountney v. Clayton, (1883) 11 Q. B. 820, the learned advocate-general refers me to, comes to this. The surface owner, the railway company, has no right to support. Indeed, its purchase was purchase of land without the right of support. Could common law govern such purchase, the railway company owning the surface of land, would have had a right to have it supported by the minerals below. The surface owner, the railway company, has no right to support. Indeed, its purchase was purchase of land without the right of support. Could common law govern such purchase, the railway company owning the surface of land, would have had a right to have it supported by the minerals below. What governed the purchase instead was sections 77-79 of the Railway Clauses Consolidation Act, 1845 (8 Vict. c. 20) by which the railway company, buying the surface only, did not buy and did not pay for any right of support. Ergo, a purchase from the railway company had no such right either. Surely the railway company could not give its purchaser a bettar title than its own. Therefore, for the burden the purchaser had placed on the surface by having erected some houses, he had no right of support from the mines below. Necessarily, he had no right either for the surface having been let down by the working of the mines below in the usual way prevalent in the district. If anything, the principle of this decision supports the goenkas and "bengal", "nimcha" having no right prima facie to let down the surface above or to ruin the mine below 600 feet from the surface - a mine which is not "nimcha's" but "bengal's. " The two cases Mr. Chaudhuri relies upon are (5) Bindu Basini chowdhrani v. Jannabi Chowdhrani, (1896)24 I. L. R. Calcutta 260, and (6) The printers (Mysore) Private Limited v. Pothan Joseph, (1960) 3 S. C. R. 713. That an act threatening danger to one's land, for example, by digging on the verge of the boundary, affords a safe resting place for the grant of a perpetual injuniction restraining the continuance of such act, damage or no damage, is one of the burdens of the former : the calcutta case. Mr. Chaudhuri says, what else is mining but digging ? But the injection against "nimcha" is not the burden of this litigation. The burden is just the other way round : an injunction by "nimcha", the 'digger', against the Goenkas, Hence I leave this case alone as doing no duty here. 21. THE other case - the supreme Court decision - turns on the propriety of refusal! to stay a suit under section 34 of the Arbitration Act, 10 of 1940, both by the trial judge, and on appeal by the High Court. 21. THE other case - the supreme Court decision - turns on the propriety of refusal! to stay a suit under section 34 of the Arbitration Act, 10 of 1940, both by the trial judge, and on appeal by the High Court. And the metter having come up before the supreme Court under article 136 of the constitution, the law laid down is that the appellate court would not normally be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion : page 720 of the report upon which Mr. Chauudhuri relies, Mr, Ranjit Banerjee, on the other hand, refers me to page 719 of the same report where it has been observed inter alia that there is no test of universal and automatic application and that discretion must be exercised according to common sense and justice. 22. IT will be a profitless task to proceed on this line, because mine is not a court of appeal. Mine is a court of revision with the fetters of section 115 of the Procedure Code, No jurisdicional error on the part of the learned udges do I she - not even one under clause (c) of sec. 115, Mr. Banerjee presses in his aid. It is plain that the learned judges have the jurisdiction to decide "nimcha's" application for a temporary injunction in the manner they have done, Ergo, I have no jurisdiction to interefere with the appellate judgment of affirmance now sought to be revised. In the last resort, the learned advocate-general wants me to record a working order by which, amongst other things, "nimcha" will be allowed to go on with operations depillaring, on an undertaking to indemnify its adversaries of the damage that may result, and the Goenkas in turn will cease to build any more, pending the litigation. Mr. Chaudhuri and Mr. Ghose are wholly opposed to it. In the working order proposed, all I see is a temporary injunction in another garb. But a temporary injunction in any form "nimcha" is disentitled to. The learned judges find just that. So do I. 23. IN the result, the rule fails and do stand discharged with costs. Let the records be sent dawn with the utmost expedition. In the working order proposed, all I see is a temporary injunction in another garb. But a temporary injunction in any form "nimcha" is disentitled to. The learned judges find just that. So do I. 23. IN the result, the rule fails and do stand discharged with costs. Let the records be sent dawn with the utmost expedition. The learned trial judge will do all he can to conclude the hearing of the suit and to deliver his judgment, untrammelled by my observations and findings here, within six months from the date of notice of arrival of records in his court to the parties through their advocates.