JUDGMENT 1. THIS is an appeal against a judgment of S. P. Mitra, J. decreeing certain claims of royalty with interest. According to the plaintiff, Raja bishumbar Nath Sahi was the sole proprietor of 663 acres of land, in the district of Sahabad, in the State of Bihar, known as "chunahatta Lime Stone quarries". The estate of the Raja, of which the quarries formed a part, was otherwise known as Sonepur Estate. By an indenture of lease, dated July 31, 1927, the Raja demised the said quarries to karuna Ranj an Dutta and Jugal chandra Dutta, for the purpose of undertaking mining operation of lime stone for a period of 40 years from august 1, 1927, with option to continue for a further period of 25 years. This lease provided inter alia that : (a) Royalty at the rate of -|10|-par 100 Cubic feet would be paid for the first 15 years, that is to say, up to July 31, 1942. (b) Thereafter, royalty at the rate of -/15/- per 100 Cubic feet shall be paid from August 1, 1942 for the next 25 years i.e. up to 1967. The royalties were payable quarterly. 2. ON October 12, 1928, Karuna ranjan and Jugal Kishore Dutt executed a sub-lease in favour of the defendant, Sone Valley Portland Cement Co. Limited, for the residue of the period of lease in their favour. The royalties were payable quarterly. 2. ON October 12, 1928, Karuna ranjan and Jugal Kishore Dutt executed a sub-lease in favour of the defendant, Sone Valley Portland Cement Co. Limited, for the residue of the period of lease in their favour. The sub-lease inter alia provided : "to hold unto the Company and its assigns on the terms thereof for the residue of the period of the said Indenture of Lease being forty years from the first day of August one thousand nine hundred and twenty seven (renewable as therein provided) except the last day thereof subject to the performance and observance by the Company of the Lessee's covenants under the said Indenture of Lease (other than the covenants for payment of royalties and rents thereunder) paying therefor unto the Lessors during the period of the said Indenture of Lease the same royalties and rent as were made payable thereunder in respect of the said premises such royalties and rents to be paid at the times and in manner thereby provided and also paying unto the lessors during the period hereof in respect of limestone quarried (except for ballast or building purposes) during the residue of the first fifteen years of the said period as from the date here of for every hundred cubic feet of solid limetone quarried raised got used or' taken out from the demised premises a royalty of annas sixteen and during the remaining twenty-five years thereafter of the said period for each such quantity a royalty of annas eleven such royalty to be paid at the times when royalty has to be paid under the said indenture of Lease provided that until the thirty first day of July one thousand nine hundred and thirty-two such royalty to the Lessors shall be paid on the actual quantity of limestone quarried (except as aforesaid) and thereafter such minimum royalty shall be paid on a fixed quantity of four lakhs cubic feet in each calender year subject to the terms hereof but irrespective of the quantity actually quarried in each such year being less than the said minimum quantity or whether any limestone has actually been quarried or not". We need concern ourselves with a further provision in the said sublease which was couched in the follow language:- "4 (a) That the Lessors will during the period hereof pay all royalties and rents under the said Indenture of Lease and all cesses and money payable by by the Lessors as Lessees thereunder with power for the Company if the Lessors shall at any time refuse or neglect to make such payments or to produce to the Company on demand the receipts therefor to make such payments at the Lessors expense for and in the name of the Lessors or otherwise with further power for the Company at its option at any time whether the Lessors shall have made such default or not or make such payments to the persons entitled thereto direct. " 3. ON 5th February 1929, Karuna and Jugal abovenamed transferred by a deed of assignment, all their right, title and interest under the lease, dated the 31st July 1927, and the sub-lease, dated the 12th October 1928, to the plaintiff. It is admitted that the defendant had notice of this assignment and accepted the plaintiff as the lessor. 4. The defendant company, according to the plaintiff, in the exercise of the option reserved to it, used to pay to the head lessor the rents and royalties due to him directly upon due notice to the plaintiff, at the rate specified in the lease dated July 31, 1927. The defendant also used to pay additional royalties to the plaintiff in terms of the sub-lease dated October 12, 1928. Things went on in this way up to September 25, 1950, when the Bihar land Reforms Act, 1950 came into operation. It is necessary for us, at this stage, to notice certain provisions of the act in order to appreciate the arguments which were advanced. Things went on in this way up to September 25, 1950, when the Bihar land Reforms Act, 1950 came into operation. It is necessary for us, at this stage, to notice certain provisions of the act in order to appreciate the arguments which were advanced. The preamble of the Act provides : - "whereas it is expedient to provide for the transference to the State of the interests of proprietors and tenureholders in land and of the mortgagees and lessees of such interests including interests in trees, forests, fisheries, jalkars, ferries, hats, bazars, mines and minerals, and to provide for the constitution of a Land Commission for the state of Bihar with powers to advise the State Government on the agrarian policy to be pursued by the State Govendment consequent upon such transference and for other matters connected therewith ; it is hereby enacted " The definition, section, namely, section 2, defines : "2 (i) 'estate' means any land included under one entry in any of the general registers of revenue-paying lands and revenue-free lands, prepared and maintained under the law for the time being in force by the Collector of a district, and includes revenue-free land not entered in any register and a share in or of an estate ; "2 (ii) 'intermediary', in relation to any estate or tenure, means a proprietor, tenure-holder, under-tenure holder and turstee"; "2 (iii) 'intermediary interest' means the interest of an intermediary in an estate or tenure "; "2 (1) 'lease' in relation to mines and minerals, shall include a sub-lease, a prospecting lease and an agreement to lease and sublet, and 'lessee' shall be construed accordingly ; "2 (q) 'tenure' means the interest of a tenure-holder or an under-tenure-holder and includes- (i) a ghatwali tenure (in italics) (ii) a tenure created for the maintenance of any person and commonly known as Kharposh ; babuana etc., and; (iii) a share in or of a tenure but does not include a Mundari Khunt kattidari tenancy within the meaning of the Chota Nagpur Tenancy Act, 1908 (Ben. Act 6 of 1908), or a bhuinhari tenure prepared and confirmed under the Chota Nagpur Tenures Act, 1869 (Ben. Act 6 of 1908), or a bhuinhari tenure prepared and confirmed under the Chota Nagpur Tenures Act, 1869 (Ben. Act 2 of 1869) ; "2 (r) 'tenure-holder' means a person who has acquired from a proprietor or from any other tenure-holder a right to hold land for the purpose of collecting rent or bringing it under cultivation by establishing tenants on it and. . . . . . . . . . . . . . " Sec. 2a, which was inserted in the original Act by the Bihar Land Reform (Amendment) Act of 1953, is couched in the following language : "2a.-The expressions 'proprietor or tenure-holder' and 'estate or tenure' wherever they occur in this Act, shall unless the context or subject otherwise requires, be construed to mean and include 'intermediary' and the 'intermediary interest' respectively. " secs. 3 and 3a of the Act deal with the vesting of estates or tenures in the State in the following language: - "3 (1)-The State Government may, from time to time, by notification declare that the estates or tenures of a proprietor or tenure-holder, specified in the notification have passed to and become vested in the State". "3a (l)-Without prejudice to the provision in the last preceding section, the State Government may, at any time, by notification, declare that the intermediary interests of all intermediaries in the whole of the State have passed to and become vested in the State. (2)-It shall be lawful for the State government, if it so thinks fit, to issue, from time to time, a notification of the nature mentioned in sub-section (1) in respect of the intermediary interests situate in a part of the State specified in the notification and, on the publication of such notification, all intermediary interests situate in such part of the state shall have passed to and become vested in the State. (3) 5. CONSEQUENCE 'of the vesting appears in Sec. 4, from which we set out the material portion: "sec. 4-Notwithstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification under-sub-section (1) of sec. (3) 5. CONSEQUENCE 'of the vesting appears in Sec. 4, from which we set out the material portion: "sec. 4-Notwithstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification under-sub-section (1) of sec. 3, or sub-section (1) or (2) of section 3 A the following consequences shall ensue : (a) Such estate or tenure including the interests of the proprietor or tenureholder in any building or part of a building comprised in such estate or tenure and used primarily as office or cutchery for the collection of rent of such estate or tenure, and his interests in trees, forest, fisheries, jalkars, hats, bazar, mola and ferries and all other sairati interests as also his interest in all sub-soil including any rights in mines and minerals, whether discovered or "undiscovered, or whether being worked or not, inclusive of such rights of a lessee of mines and minerals, comprised in such estate or tenure (other than the interests of raiyats or under-raiyats) shall, with effect from the date of vesting, vest absolutely in the State free from all incumbrances and such proprietor or tenure-holder shall cease to have any interests in such estate or tenure, other than the interests expressly saved by or under the provisions of this Act. (b) All rents, cesses and royalties accruing in respect of lands comprised in such estate or tenure on or after the date of vesting shall be payable to the state and not to the outgoing proprieor or tenure-holder and any payment made in contravention of this clause shall not be binding on the State Government. " 6. BY virtue of a notification under sec. 3 of the Bihar Land Reforms act, dated November 6, 1951, the estate of the Raja of Sonepur, the proprietor of Chunahatta Lime and Stone Quarries, vested in the State of Bihar with effect from November 14, 1951. The proclamation announcing the intention of the state Government to take over all the intermediary interests in certain district, including intermediary interests in the Sonepur Estate, was published in the Bihar Garette dated January 1, 1956. The case made by plaintiff was that although the interest of the Raja of Sonepur vested in the State of Bihar, the interest of the plaintiff as a lessee did not. The case made by plaintiff was that although the interest of the Raja of Sonepur vested in the State of Bihar, the interest of the plaintiff as a lessee did not. In making that case the plaintiff had no doubt in mind the provisions of sec. 10 of the Bihar Land Reforms act, which reads as follows: -"sec. 10 (1) Notwithstanding anything contained in this Act, where immediately before the date of vesting of the estate or tenure there is a subsisting lease of mines or minerals comprised in the estate or tenure or any part thereof, the whole or that part of the estate or tenure comprised in such lease shall, with effect from the date of vesting, be deemed to have been leased by the State Government to the holder of the said subsisting lease for the remainder of the term of that lease, and such holder shall be entitled to retain possession of the lease-hold property. Further case of the plaintiff was that since July 1, 1958 and upto august 7, 1959, the defendant failed to pay the additional royalties payable to the plaintiff under the sub-lease, at the rate of - 11 - per 100 cubic feet. 7. IN the premises, a sum of Rs. 25,181.27 np. was claimed due by the defendant to the plaintiff as arrears of royalty from July 1, 1958 to August 7, 1959, with interest at the rate of 12 per cent per annum up to July 6, 1961. A further sum of Rs. 32,223.64 was claimed due by the defendant to the plaintiff as arrears of royalty from August 8, 1959 to March 31. 1961, with interest at the rate of 12 per cent per annum up to July 6, 1961. The plaintiff also claimed a sum of Rs. 1,444/- on account of deficit payments and interest for the overdue period in respect of payment of royalty for the quarter ending with June 30, 1957, September 30, 1957, December 31, 1957 and June 1958, the interest having been calculated at the rate of 12 per cent per annum. 8. The defendant company filed a written statement, on September 21, 1961, and subsequently, during the hearing of the suit, amended the said written statement, under an order dated December 6, 1962. 8. The defendant company filed a written statement, on September 21, 1961, and subsequently, during the hearing of the suit, amended the said written statement, under an order dated December 6, 1962. The defence under the written statement as originally filed was that as a result of the execution of the sub-lease, Karuna and Jugal became tenure-holders under the proprietor and the defendant became the lessee in possession. Under the notification under section 3 (1) of the Bihar land Reforms Act, dated November 6, 1951, it was declared that the Sonepur estate in the district of Shahabad had passed to and vested in the State of Bihar with effect from the date of the publications of the notification, namely, November 14, 1951. The proprietary right of the proprietor of the estate, in the mines held by the defendant, thereupon ceased to exist and the plaintiff became an intermediary in respect thereof directly under the State of Bihar. The defendant continued to be the lessee in possession of the said mine under the plaintiff. From November 14, 1951, the defendant, in exercise of the option under the sublease dated October 12, 1928 paid royalty under the head lease dated July 31, 1927, directly to the State of Bihar in the following circumstances ; (a) Under the provisions of section 7 of the mines and Minerals (Regulation and Development)Act, 1948, the Government of India framed Rules for modifying or altering the terms and conditions of the existing lease, being Mining Lease (Modification of terms) Rules, 1956, (b)acting under the said Rules, the controller of Mining Leases, by an order dated August 8, 1959, enhanced the royalties payable under the lease, dated July 31, 1927, to the extent of 37 np. per ton of lime stone, (c) in terms of the said order the defendant continued to render account and tender due royalties to the superior landlord, that is to say, the State of Bihar, for and on behalf of the head lessee, that is, the plaintiff herein, as its agent in terms of the sub-lease, dated October 12, 1928 (d) without prejudice to its contention that no royalty was payable to the plaintiff since January 1, 1956, it was stated that as an agent of the plaintiff, the defendant had a lien over and was entitled to deduct from all moneys due or payable to the plaintiff and to the extent thereof any lawfully enhanced royalties payable by the plaintiff as head lessor to the superior landlord under the terms of the lease dated July 31, 1927, (e) such payments were made by the defendant as agent of the head lessor, the plaintiff, to safeguard its possession and enjoyment of the lease-hold property, (f) the rate of the royalties was revised from time to time by the Government in accordance with law and the defendant paid and. was paying the same to the State of Bihar at the revised rates. The defendant admitted that it paid the additional royalty under the sub-lease dated October 12, 1928, to the plaintiff even after the vesting of the Sonepur estate in the State of Bihar up to the period ending on June 30, 1958. It stopped payment of additional royalties to the plaintiff with effect from July 1, 1958. In or about January, 1959, the defendant discovered that, by a notification, dated January 1, 1956, the Government of Bihar had declared that all intermediary interest in the district of Sahabad had passed to and became vested in the State of Bihar. The defendant stated that the interest of the plaintiff, as tenure holder of the said mine, became vested in the State of Bihar and the plaintiff's right to receive additional royalty from the defendant, in terms of the sub-lease, ceased to exist from the 1st January. 1956. On such discovery, the defendant refused to pay further additional royalty to the plaintiff from July 1, 1958. Thus the claim made by the plaintiff under different heads were all denied and disputed by the defendant. 1956. On such discovery, the defendant refused to pay further additional royalty to the plaintiff from July 1, 1958. Thus the claim made by the plaintiff under different heads were all denied and disputed by the defendant. The amendment to the original written statement, which was allowed to be introduced by an order of the trial Judge dated December 6. 1962, we quote in extenso, because much depends upon the construction of the amended written statement in this appeal. The amendment reads : (para. 22)"assuming but not admitting that the interest of the plaintiff in the said quarries did not vest in the State of Bihar either by the Notification dated November 14, 1951 or under the Notification dated January 1. 1956 and that the plaintiff continued to be a lessee under the lease dated July 31, 1927, then the defendant in the alternative states as follows : - (a) By and under the said sublease dated October 12, 1928, the defendant was only liable to pay royalty at the rate of fifteen annas per 100 cubic feet as expressed in the lease dated July 31, 1927 and an additional royalty of eleven annas per 100 cubic feet, aggregating Rs. 1-10-0 per 100 cubic feet equal to twenty four Naya Paise plus seventeen Naya Paise per ton calculating 100 cubic feet, equal to four tons for the period from August 1, 1942 to May 31, 1958. (b) The defendant has duly paid all royalties up to May 31, 1958 payable under the said sub-lease dated October 12, 1928. (c) On and from June 1, 1958, the mines and Minerals (Regulation and Development) Act, 1957 came into force. The said Act provided that the holder of Mining lease granted before the commencement of the said Act shall notwithstanding anything contained in the Instrument of Lease or in any law in force at such commencement, pay royalties in respect of any minerals removed by him from the leased area after such commencement at the rate for the time being specified in the second schedule in respect of that minerals. The rate prescribed in the second schedule of the said Act is five per cent of the sale price at the pits mouth and subject to a minimum of thirty-seven Naya Paise per ton. The rate prescribed in the second schedule of the said Act is five per cent of the sale price at the pits mouth and subject to a minimum of thirty-seven Naya Paise per ton. (d) At all material times five per cent of the sale price at the pits mouth of the quarries the subject-matter of the said lease dated July 31, 1927 and the lease dated October 12, 1928 was less than thirty-seven Naya Paise perton. (e) The plaintiff has been a holder of the Mining lease within the meaning of section 9 of the said Act and the: rate of royalty payable by the plaintiff's under lease dated July 31, 1927 at all material times after June 1, 1951 became and is thirty-seven naya paise per ton in respect of minerals removed from the said quarries. (f) The defendant has been a holder of the mining lease within the meaning of section 9 of the said Act and the rate of royalty payable under lease dated October 12, 1928 at all material times since June 1, 1958 became and is thirty-seven naya paise per ton in respect of minerals removed from the said quarries. (g) The defendant paid and the state of Bihar accepted royalties at the rate of twenty four Naya Paise per ton under the lease dated July 31, 1927 up to August 7, 1959. (h) The defendant at all material times was interested in the payment of royalties at the rate of thirty-seven naiya Paise per ton which the plaintiff was bound to pay to the State of Bihar and which the plaintiff did not pay, and the defendant paid the said amount for the period from August 8, 1959 to March 31, 1961. The defendant at all material times continued to pay after August 8, 1959 the said amount of royalties at the rate of thirty-seven Naya Paise per ton. The defendant is entitled to be reimbursed by the plaintiff to the extent of Rs. 61,684. 40 np. for royalties paid to the State of Bihar from August 8, 1959 up to March 31, 1961 and has also continued to pay subsequently at the same rate. (i) The defendant claims to set off the said sum of Rs. 61,684. 40 np. 61,684. 40 np. for royalties paid to the State of Bihar from August 8, 1959 up to March 31, 1961 and has also continued to pay subsequently at the same rate. (i) The defendant claims to set off the said sum of Rs. 61,684. 40 np. for subsequent payments of royalty against the royalty payable by the defendant to the plaintiff under the lease dated October 12, 1928 in respect of minerals removed from the lease-hold quarries from June 1, 1958 up to March 31, 1961 and thereafter. (j) In the premises nothing is payable by the defendant to the plaintiff by way of royalty under the sub-lease dated October 12, 1928 with effect from June 1, 1958. " 9. ON the pleadings, the first group of issues, which were framed, were : -" (1) Did the interest of the plaintiff vest in the State of Bihar as a result of the Notification dated November 6, 1951, or the Notification dated January 1, 1956 ? (2) Was the plaintiff an intermediary in respect of the estate in suit under the State of Bihar as alleged in paragraph 4 of the written statement ? (3) Is the defendant liable to pay to the plaintiff the royalties under the sub-lease dated the 12th October, 1928 ? 10. The learned trial Judge answered issues 1 and 2 in the negative and issue 3 in the affirmative. The learned trial Judge analysed the provisions of the Bihar Land Reforms Act and observed : "(a) The Bihar Land Reforms Act deals with the vesting of the interests of proprietors and tenure-holders in agricultural lands. A lessee of a mine can never be a proprietor and to say otherwise is contrary to all notions of ownershrip. Then again, a tenuneholder is always an agricultural tenant. A person who is not an agricultural tenant, is not a tenure-holder. There are different classes of agricultural tenants and a tenure-holder is one of them. If the tenancy (as opposed to proprietorship) is not an agricultural tenancy, it cannot vest in the State under section 4 of the Bihar Land Reforms Act. (b) The purpose of the lease obtained by karuna and Jugal had nothing whatever to do with agriculture. The purpose as pleaded in paragraph 2 of the plaint, was that of 'undertaking mining operation of lime-stone'. (b) The purpose of the lease obtained by karuna and Jugal had nothing whatever to do with agriculture. The purpose as pleaded in paragraph 2 of the plaint, was that of 'undertaking mining operation of lime-stone'. Indeed this purpose is virtually admitted in paragraphs 2 and 4 of the written statement. Karuna Ranjan Dutt, a director of the plaintiff company has also in his oral testimony said that, the plaintiff had nothing to do with the surface land excepting for the purpose of quarrying the lime-stone". (c) Section 10 of the Bihar Land reforms Act deals with subsisting leases of mines and minerals. Subsection (1) of section 10 lays down that notwithstanding anything contained in the Act, where immediately before the date of vesting of the estate or tenure there is a subsisting lease of mines or minerals comprised in the estate or tenure or any part thereof, the whole or that part of the estate or tenure comprised in such lease shall with effect from the date of vesting, be deemed to have been leased by the state Government to the holder of the said subsisting lease for the remainder of the term of that lease and such holder shall be entitled to retain possession of the leasehold property. Now, what is the effect of these provisions ? In a case where the proprietor's rights in respect of mines have vested in the state and the proprietor was not directly working the mine ; but had leased it out, the State Government is brought into direct relationship with the lessee of the subsisting lease. This Section supersedes all other Sections. The same would be the result where a tenureholder had mining rights in addition to his rights as a tenure-holder. In the instant case, however, there is not only a lessee but a sublessee as well and Section 2 (1) provides that, 'lease' in relation to mines and minerals shall include a sub-lease. But these definitions have to be read subject to the overriding provision, 'unless there is anything repugnant in the subject or context. When, therefore, there is a 'lessee' and a 'sub-Lessee' it is the 'lessee' and not the 'sub-lessee' who shall be deemed to be lessee under the state Government. Any other construction of this sub-section may lead to absurdity or repugnancy". When, therefore, there is a 'lessee' and a 'sub-Lessee' it is the 'lessee' and not the 'sub-lessee' who shall be deemed to be lessee under the state Government. Any other construction of this sub-section may lead to absurdity or repugnancy". On the above line of reasoning the learned trial Judge held that the interest of the plaintiff did not vest in the State: of Bihar as a result of the Notification, dated the 6th November, 1951 or the notification dated the 1st January, 1956 he further held that the plaintiff was not an intermediary in respect of the estate in suit under the State of Bihar as alleged in para. 4 of the written statement. He also held that defendant was liable to pay to the plaintiff he royalties under the sub-lease dated the 12th October, 1928. 11. The second group of issues, which the learned trial Judge considered, were issues 9 to 12, namely, 9. Was 5 per cent, of the sale proceeds at pit's mouth of the quarries the subject-matter of the lease dated July 31,1927, and dated October 12,1928, less than. 37 pp. per ton from July 1, 1958, to March 31, 1961 ? 10. Was the plaintiff liable to pay royalty to the State of Bihar at the rate of. 37 np. per ton under the lease dated July 31, 1927, on and after July 1, 1958 ? 11 (a) Did the defendant pay royalty to the State of Bihar at the rate of. 37 np. per ton for the period from august, 8, 1959 to March 31, 1961 ? (b. Was the defendant interested in the payment of such royalty ? (c. Is the defendant entitled to set off by way of reimbursement the sum of Rs. 61,68,1.40 or any part thereof ? 12. Was the defendant's liability to pay royalty only. 37 P. per ton for the period from July 1, 1958, to March 31, 1961, as alleged in paragraph 22 (f) of the written statement ? 12. The learned trial Judge was of the opinion that issues Nos. 9 and 11 (a)were not proved. He answered issues nos. 10, 11 (b), 11 (c) and 12 in the negative with the rider that issues Nos. 12. The learned trial Judge was of the opinion that issues Nos. 9 and 11 (a)were not proved. He answered issues nos. 10, 11 (b), 11 (c) and 12 in the negative with the rider that issues Nos. 11 (b) and 11 (c) did not arise for consideration having regard to the negative answer given to issue 11 (a. In so doing, the learned trial Judge analysed the provisions of The Mines and Minerals (Regulation and Development)Act, 1957, the evidence on the point, both oral and documentary, the provisions of Section 69 of the Contract Act and Section 108 (g) of the Transfer of property Act and observed: -"the holder of a mining lease may be a lessee or a sub-lessee. This lessee, or sub-lessee shall pay royalty in respect of minerals removed by him at the rate specified in the second schedule. In the instant case, during the relevant period the plaintiff did not remove any minerals. It is the defendant which removed minerals as the sub-lessee. In the premises the provisions of sec. 9 of the Act of 1957 cannot be applied for realisation of royalties from the plaintiff. The plaintiff has no liability to pay royalties at the rate mentioned in the second schedule at all. Since no mineral was removed by the plaintiff, on the facts and in the circumstances of this Case, the liability of the plaintiff to the State of Bihar during the relevant period was the same as in the Indenture of Lease dated the 31st July, 1927 (i. e., in respect of limestone "quarried, raised, got, used or taken out from the demised premises'". Vide clause 3. If, therefore, the defendant has paid any sum in excess of the sum mentioned in the said document, the defendant has done so entirely by its own choice and at its own risk. The plaintiff was not bound by law to pay to the State of Bihar royalty at the rate of Rs. 0.37 per ton. There can, therefore, be no scope for the application of section 69 of the Contract Act to the facts of the present case. " The last group of issues considered by the learned trial Judge were issues Nos. 4 to 8, namely, "4. Is the defendant liable to pay the sum of Rs.19,388. 24 claimed in paragraph 10 of the plaint and annexure: "d" thereto ? 5. " The last group of issues considered by the learned trial Judge were issues Nos. 4 to 8, namely, "4. Is the defendant liable to pay the sum of Rs.19,388. 24 claimed in paragraph 10 of the plaint and annexure: "d" thereto ? 5. Is the defendant liable to pay the sum of Rs. 5,535. 02 claimed as interest; in paragraph 11 of the plaint and annexure 'd' thereto ? 6. Is the defendant liable to pay the sum of Rs. 28,870. 73 claimed in paragraph 14 of the plaint and annexure 'e' thereto ? 13. IS the defendant liable to pay the sum of Rs. 3,353. 91 claimed as inlerest in paragraph 14 of the plaint and annexure 'e' thereto ? 14. IS the defendant liable to pay the sum of Rs. 1,144 - claimed in paragraph 15 of the plaint and annexure 'f' thereto ?" the learned trial Judge considered the issues together and found that in place of the claim made by the plaintiff a sum of R. s. 47,944-10 was due to the plaintiff as royalty and a sum of Rs. 8887. 93 p. as interest due thereon. He, therefore, passed a decree for rs. 56,832. 03 p. in favour of the plaintiff with costs. Aggreived by the decree, the defendant preferred the present appeal. Mr. A. C. Mitter, learned Standing counsel appearing for the defendant appellant, contended, in the first place, that the learned trial Judge was wrong in holding that the Bihar Land Reforms act did not contemplate vesting of mining leases, which were not agricultural tenancies. He submitted that the preamble to the Act, which supplied the key to the interpretation of the Act, expressly stated that the purpose of the Act was, inter alia, to provide for the transferance to the State of the interest of proprietor and tenure holders in land and of lessees of such interest including interest in mines and minerals. He submitted further that the definition of a lease in section 2 (1) in relation to mines and minerals includes a sub-lease ; section 2 (rn) of the Act defines a mine ; section 4 (a)provides for consequences of vesting of an estate or tenure including interest of proprieors and tenure holders in all sub-soil including any rights in mines and minerals. He submitted also that section 9 of the Act made the position clear by making those intermediaries only the direct lessees under the State, who directly worked the mines, thus divesting superior landlords, if any, of their interest in mines. He lastly submitted that sections 25 and 31 of the bihar Land Reforms Act provided for computation of compensation respectively for vesting and premature termination of the mining leases. He, therefore, contended that despite the nature of the definition of tenure-holders, as in section 2 (r) of the Bihar land Reforms Act, which meant a person who has acquired from the proprietor or other tenure holder a right to hold land for the purpose of collecting rent or bringing it under cultivation, there was enough indication to the contrary in the Bihar Land Reforms Act that the expression would include mining leases and this was what was clear from the opening words of the definition section (namely section 2) reading : "unless there is anything repugnant in the subject or context". Alternatively, Mr. Mitter submitted that collection of rent was the fame thing as collection of royalty and read in that way the plaintiff respondent would satisfy the definition of a tenure holder as in section 2 (r) of the Bihar land Reforms Act. 15. MR. Mitter may be right in his submission that the Act contemplates the vesting of mines and minerals in the State. That the interest of Raja of sonepur, as proprietor of the estate in which there were the lime quarries, vested in the State of Bihar is not disputed by anybody. The question for our consideration is whether the interest of the plaintiff as a mining lessee also vested in the State or whether the defendants became lessee under the state Government under the provisions of sec Lion 9 of the Bihar Land Reforms act WE Agree with the finding of the learned trial Judge that the plaintiff was not a tenure holder in the sense that the expression tenure holder is defined in the Act. The lease in favour of the plaintiff was not an agricultural lease but a mining lease with right to sub-lease No right was conferred upon the plaintiff to bring the surface land under cultivation or to collect rent from tenants on the surface if there were any. The lease in favour of the plaintiff was not an agricultural lease but a mining lease with right to sub-lease No right was conferred upon the plaintiff to bring the surface land under cultivation or to collect rent from tenants on the surface if there were any. The right of the plaintiff to the surface land was strictly limited, to certain particular user and no more, which user did not include the purposes stated in section 2 (r) of the Bihar Land Reforms Act. Thus the plaintiff was not a tenure-holder and the interest of the plaintiff during the material period did not vest in the state Government. 16. WE are not prepared to agree with Mr. Mitter that section 9 of the act would have the effect of divesting the plaintiff of all the interest and investing in the defendant, who was working the mines, the status of a lessee under the State of Bihar, in place of its status of a lessee under the plaintiff. The learned trial Judge gave good reasons why section 9 would not have the effect, which Mr. Mitter was contending for before us, and why section 10 would make the plaintiff the direct lessee under the State Government. The defendant was not an under-tenure holder, the plaintiff not being a tenure holder. The defendant was thus not an intermediary under the definition in section 2 (ii) or the interpretation clause-, section 2a already quoted. Since the defendant was not working the mines as an intermediary, section 9 was not attracted to the case of the defendant. On the other hand, the plaintiff, being a subsisting lessee immediately before the vesting became a direct lessee under the State Government. The view that we take finds support from a judgment of the Supreme Court in (1) Bihar mines Limited v. Union of India, (Civil Appeals Nos. 172 to 174 of 1963, disposed of on October 3, 1966, said to be unreported. (Since reported in AIR 1967 SC 837. In the case before the Supreme Court the facts were as follows. The view that we take finds support from a judgment of the Supreme Court in (1) Bihar mines Limited v. Union of India, (Civil Appeals Nos. 172 to 174 of 1963, disposed of on October 3, 1966, said to be unreported. (Since reported in AIR 1967 SC 837. In the case before the Supreme Court the facts were as follows. On August 11, 1928, Raja Ran bahadur Singh of Palganj, in Bihar, executed a lease with respect to a certain area of his estate in favour of babu Tribhang Murari Chakravarti of asansol for a period of 49 years for the purpose of carrying out mining operations in the said area for soap stone kaoline etc. Chakravarti, the head lessee, executed a sub-lease in favour of Deoji Jairam Solanki, on May 18, 1933. Solanki, in his turn, granted a. sub-lease in respect of the same area in favour of Messrs. Hirji Premji Parmar and Brothers, on May 18, 1934. On October 18, 1954, Messrs. Hirji Premji parmer and Brothers assigned their right, title and interest in the said area in favour of the appellants, the Bihar mines Limited, Calcutta, for a period of 19 years and 7 months, expiring on may 17, 1974. After the Bihar Land reforms Act, 1950 came into force, the government of Bihar issued a notification, under sub-section (1) of section 3, on July 13, 1953, declaring that the estate of Palganj passed to and became vested in the State. On January 26, 1955, the State Government issued a notice under section 3a of the Land reforms Act declaring that the intermediary interest of all intermediaries in the whole estate had passed to and become vested in the State. Chakravarti's mining rights in the area comprised in the lease became subject to the provisions of section 10 of the bihar Land Reforms Act. In 1d1s, the mines and Minerals (Regulation and development) Act, 1948 was enacted for the regulation of mines and made it obligatory that all mining leases must be granted only in accordance with the Rules framed under the Act. The Mineral Concession Rules. 1949 were made by the Central Government, in exercise of its powers under section 5 of the 1948 Act. Thereafter, the 1956 rules were made by the Central government, in exercise of its powers under section 7. The Mineral Concession Rules. 1949 were made by the Central Government, in exercise of its powers under section 5 of the 1948 Act. Thereafter, the 1956 rules were made by the Central government, in exercise of its powers under section 7. Rule 6 of the 1956 rules empowered the Controller of Mining Leases, after following the prescribed procedure, to modify any existing lease so as to bring it in conformity with the 1948 Act and the 1949 Rules. The Mines and Minerals (Regulation and development) Act, 1957 repealed the 1948 Act. In view of the provisions of section 29 of the 1957 Act, the 1956 rules continued to be effective. The controller of Mines took action for the modification of the head-lease, dated august 11, 1928, and the sub-leases executed in favour of Solanki and Hirji premji parmer and Brothers in 1933 and 1934 respectively. Notice was issued to the appellants of the proposed modifications. The appellants, however, did not admit having received the notice of the modifications of the sub-leases. They admitted the receipt of the notice for the modification of the head-lease. They appeared before the Controller and raised objections to the proposed modifications. The Controller, however, passed an order, on July 1, 1961, to the effect that the head-lease and the sub-leases would terminate on July 1, 1981. Against these orders of the Controller the appellant had filed revision petitions to the Central government, which were rejected. It was against those orders of the Controller and the Central Government that appeals were preferred before the Supreme Court. On behalf of the appellant it was contended before the Supreme Court that the head lease could not be modified under the 1956 rules as it did not come within the expression "existing mining lease" as denned in clause (c) of Rule 2 of those rules. "existing mining lease" means a mining lease, granted before October 25, 1949, and subsisting at the commencement of the 1956 rules, but does not include any leases specified in sub-clauses (i) to (iv) of clause (c. The head lease was granted in 1928 and would ostensibly come within the "existing mining leases". "existing mining lease" means a mining lease, granted before October 25, 1949, and subsisting at the commencement of the 1956 rules, but does not include any leases specified in sub-clauses (i) to (iv) of clause (c. The head lease was granted in 1928 and would ostensibly come within the "existing mining leases". The contention, however, was that in view of section 10 of the Land Reforms Act the head lease as such came to an end and a new statutory lease under section 10 replaced it and that, therefore, this new statutory lease was not a lease granted before October 25, 1949. On behalf of the respondent it was contended that the effect of section 10 of the Bihar Land reforms Act was that the old lease continued with the State Government, substituted as the lessor in place of the original lessor, and that, therefore, the lease could be modified as an existing mining lease. The Supreme Court upheld the arguments advanced on behalf of the appellant with the following observations : "the preamble of the Land Reforms act states that it was expedient to provide for the transference to the State of the interests of proprietors and tenure holders in land and of mortgagees and lessees of such interests including interest in trees etc., mines and minerals. Notifications under sections 3 and 3a of the Land Reforms Act passed to and vested in the State the estates or tenure of a proprietor or tenure-holder and also the intermediary interests of all intermediaries. No interest thus remains in the lessor, the original proprietor of the land leased. Section 4 of the Land Reforms Act further emphasized the consequences of the vesting of the estate or tenure in the State. Clause (a) of section 4 mentions one of the consequences and states that on the publication of the aforesaid notification, such estate or tenure including the interest, of the proprietor tenure holder in any building etc. Section 4 of the Land Reforms Act further emphasized the consequences of the vesting of the estate or tenure in the State. Clause (a) of section 4 mentions one of the consequences and states that on the publication of the aforesaid notification, such estate or tenure including the interest, of the proprietor tenure holder in any building etc. in trees etc., as also his interest in all sub-soil including any rights in mines and minerals wriether discovered or undiscovered or wriether being worked or not, inclusive of such rights of a lessee of mines and minerals comprised in such estate or tenure other than the interests of raiyas or under raiyats shall with effect from the date of vesting, vest absolutely in the State free from all encumbrances and such proprietor or tenureholder shall cease to have any interests in such estate or tenure other than the interests expressly saved by or under the provisions of the Act. It is clear, therefore, that the interest of the proprietor or tenure-holder including his rights in mines and minerals, inclusive of rights of a lessee of mines and minerals, come to an end and vest absolutely in the State. Having once so vested, certain rights were conferred by statute on the proprietors and tenure-holders and the lessees. S. 9 provides that the mines which were in operation at the commencement of the Act and were being worked directly by the intermediary shall be deemed to have been leased by the State Government to the intermediary and he shall be entitled to retain possession of those mines as a lessee thereof. The mines in the present case were not worked by the intermediary lessor. The lease by the state Government to the intermediary, according to sub-section (2) of section 9, was to have such terms and conditions as was agreed upon between the state Government and intermediary or in the absence of such agreement, as may be settled by the Mines Tribunal appointed under section 12 thereof, provided that all such terms and conditions shall be in accordance with the provisions of any Central Act far the time being in force regulating the grant of new mining leases. According to the proviso, therefore, such terms; and conditions were to be in accordance with the provisions of the 1948 Act, which was in force at the time the estate vested in the State of Bihar. Section 10 deals with leases of mines and minerals which subsisted on the date immediately before the date of vesting of the estate or tenure. The head lease of 1928, subsisted immediately before the date of vesing of the Palganj estate in the State. Therefore, the whole or that part of the estate or tenure comprised in this lease was, with effect from the date of vesting, to be deemed to have been leased by the State Government to the holder of the lease i.e. the first lessee, up to August 11, 1977, the lease being for 49 years. The holder of the lease would retain possession of the leasehold property till then. We are therefore of opinion that the statutory lease now held by the head lessee from, the State Government is a new lease granted after October 25, 1949. It follows that the Controller had no jurisdiction to modify the terms of the lease which is granted by the state Government to the head lessee in view of sub-sec. (1) of sec. 10. When the head lease could not be modified, it being not an existing mining lease, the sub-leases could also not be modified. They too would be deemed to be new leases granted by the new lessee from the State Government, as the rights of the lessor under the original head lease had ceased on the vesting of the estate and he is deemed to have got a new lease from the State. " In a concurring judgment, bachawat, J. referred to sections 9 and 10 of the Bihar Land Reforms Act ana further observed :-"mark the opening words of s. 10, 'notwithstanding anything contained in this Act'. Notwithstanding what is said in ss. 3, 3a and 4 as to vesting of the estate, tenure, intermediary interests and rights in mines and minerals, section 10 holds the field with regard to subsisting leases of mines and minerals. If there is such a lease, the deeming clause in sub-section (1) requires that certain consequences will follow. Notwithstanding what is said in ss. 3, 3a and 4 as to vesting of the estate, tenure, intermediary interests and rights in mines and minerals, section 10 holds the field with regard to subsisting leases of mines and minerals. If there is such a lease, the deeming clause in sub-section (1) requires that certain consequences will follow. Where immediately before the date of vesting of the estate of tenure there is a subsisting lease of mines or minerals comprised in it, we have to imagine that with effect from the date of vesting, the whole or that part of the estate or tenure comprised in such lease has been leased by the State Government to the holder of the said subsisting lease for the remainder of the term of that lease. How can we imagine this lease without imagining that with effect from the date of vesting, the subsisting lease continues after substituting the state Government as the lessor in place of the proprietor or tenure holder ? How else can the estate be deemed to have been leased to the holder of the subsisting lease for the remainder of the term of that lease ? Subsection (2) tells us the terms and conditions of this lease by the State Government. Lest our imagination might run riot, the proviso to sub-section (2)tells us that we must keep our fancy in check, and remember that this lease is an existing and not a new lease, 17. "The proviso to sub-section (2) of section 10 indicates that the lease referred to in the section may be modified in accordance with the provisions of any Central Act for the time being in force regulating the modification of 'existing mining leases'. Contract language of the proviso to sub-section (2) of section 9. The terms and conditions of the lease referred to in section 9 must be in accordance with the provisions of any Central Act regulating 'the grant of new mining leases'. The two provisos forcefully indicate that section 9 grants a new lease, whereas section 10 continues an existing lease 18. "The legislature intended that the terms and conditions of the mining leases referred to in sections 9 and 10 should be in accordance with the Central act regulating mining leases. The two provisos forcefully indicate that section 9 grants a new lease, whereas section 10 continues an existing lease 18. "The legislature intended that the terms and conditions of the mining leases referred to in sections 9 and 10 should be in accordance with the Central act regulating mining leases. For this purpose, the leases under section 10 are treated as new leases and the leases under section 9 are treated as existing leases, so that they may be modified and brought in conformity with the Central Act. Had section 10 the effect of granting a new lease, the legislature would have treated the lease referred to in section 10 also as a new lease, and the language of the proviso to sub-section (2) of section 10, would have corresponded with that of the proviso to sub-section (2) of section the intention of the legislature would be completely frustrated if we are to hold that the leases referred to in sub-section (2) of section 10 need not be brought in conformity with the laws regulating mining leases. " "section 9 creates from the date of vesting a new lease in favour of the proprietor because before that date he was the owner of the mines and minerals and could not claim to be a lessee. Section 10, on the other hand, continues a lease which was subsisting on the date of vesting. The terms and conditions of the lease are modified and the Government is substituted as the lessor in place of the proprietor or the tenure holder, in other respects, the old lease continues. " 19. That the original Bihar Land reforms Act was insufficient to cause divestment of interest of lessees of mining leases also appears from insertion of a new section, namely, section 10 (A) in the present Bihar Land Reforms Act. the said section reads as follows : -"10 (A) (1) the interest of every lessee of mines or minerals which is subject to a sub-lease shall, with effect from such date as may be notified in this behalf by the State Government in the official Gazette, vest in the State and thereafter the sub-leasee whose lease is not subject to any further sublease shall hold his lease directly under the State Government and the provisions of sub-sections (2) and (4) of section 10 shall, mutatis mutandis, apply to his lease. " 20. " 20. Thus, it is amply clear that the interest of the plaintiff did not vest in the State Government at the material time and the defendant continued to be sub-lessee under the plaintiff bound by the terms of the sub-lease. We, therefore, uphold the findings of the learned trial Judge on the issues Nos. 1, 2 and 3 although on slightly different ground. 21. BEFORE we leave this point we need dispose of one argument of Mr. Mitter which he submitted with considerable emphasis, namely, rent in section 2 (r)should be read as equivalent to royalty, and so the right of the plaintiff would fall within the definition of tenure-holder under section 2 (r) of the Bihar Land Reforms Act. In our opinion this argument is misconceived. the Bihar Land Reforms Act itself maintains a distinction between rent and royalty, for example, section 4 of the Act. Rent, as is well known, must be profit, certain in nature, arising form the thing demised and not a part of the demised thing itself. Royalty in mining lease signifies that part of the reddendum which is variable and depends upon the quantity of minerals gotten. We are, therefore, unable to uphold that royalty must be read as equivalent to rent, in section 2 (r) of the Bihar Land Reforms Act. 22. WE now turn to examine the findings of the learned trial Judge on issue Nos. 9 to 12. In the context it becomes necessary for us to set out the provisions of sections 2 (c), 9 and 16 of the Mines and Minerals (Regulation and Development) Act, 1957. "section 2 (c) 'mining lease' means; a lease granted for the purpose of undertaking mining operations, and includes a sub-lease granted for such purpose. "section 9 (1) the holder of a mining lease granted before the commencement of this Act shall, notwithstanding anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed by him from the lease area after such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral. "16 (1) All mining leases granted before the 25th day of October 1949, shall, as soon as may be after the commencement of this Act, be brought into conformity with the provisions of this Act and the rules made under sections 13 and 18. " According to Mr. Bhabra, who followed on Mr. A. C. Mitter, section 9 of the Mines and Minerals (Regulation and Development) Act, 1957, provides inter alia, that the holder of a mining lease granted before the commencement of the Act, shall notwithstanding anything contained in the instrument of lease or in any law in force at such commencement pay royalty in respect of any such minerals removed by him from the leased area after such commencement at the rate for the time being specified in the Second Schedule in respect of that minerals. Thus, a statutory rate of royalty was being prescribed in place of the contractual rate. Item 8 in the Second Schedule prescribed that for lime stone the royalty payable would be 5 per cent of the sale price at the pit's mouth, subject to a minimum of 37 np. per ton. Calculated at that rate, according to Mr. Bhabra, the defendant's liability from the 1st July, 1958 to the 7th August, 1959 was at the rate of 13 np. per ton, since the defendant had already paid to the plaintiff's lessor royalty at the rate of 24 np. per ton. From the 8th August 1959 to the 31st March 1961, the defendant's liability would, however, be at the rate of 37 np. per ton. We should remind ourselves that Mr. Bhabra made these submissions on the assumption that the defendant had any liability to the plaintiff at all Mr. Bhabra further contended that the plaintiff was the holder of a mining lease in terms of section 9 of the Central Act. Minerals had been removed not by the plaintiff but by the plaintiff's agent, the sub-lessee. Under clause 8 of the lease, dated July 31, 1927, the lessee has the liberty to assign and transfer or sublet or part with possession of the mine or minerals. All the covenants of the lease continued under the State Government after the date of vesting. Under clause 8 of the lease, dated July 31, 1927, the lessee has the liberty to assign and transfer or sublet or part with possession of the mine or minerals. All the covenants of the lease continued under the State Government after the date of vesting. The defendant was, on the assumption stated above, liable to pay to the plaintiff for removal of minerals made by itself, Similarly the plaintiff was liable to the State Government for such removal, because the plaintiff was in constructive possession of the mines through the defendant. Under clause (3) of the lease dated July 31, 1927, the plaintiff had to pay royalty for lime stone, quarried, raised, got, used or taken out. Therefore, in view of the lessee's right to sublet, lime-stone quarried by the sub-lessee was, in terms of the lease, quarried by the lessee. That being the position, the liability of the plaintiff was statutorily raised by the Central Act to 37 naye paise per ton and the plaintiff was liable to the State Government at the rate of 37 naya paise per ton. This sum was not paid. The 8th item in the 2nd schedule of the Central Act, contended Mr. Bhabra, should be read to mean that the minimum of 37 np. per ton must be paid, whether there was any sale or not. The defendant was interested in making payments of these royalties to the State Government upon the defendant demands were made by the State Government. So. as to safeguard its own interest and not to face perils of forfeiture of the lease, the defendants paid and thereupon became entitled either, under section 108 (g) of the Transfer of Property Act or under section 69 of the Contract Act, to get re-imbursed or set off the sums paid against the claim of the plaintiff. Mr. Bhabra submitted that, the total sum paid by the defendant as royalty, which the plaintiff was bound by law to pay, is Rs. 61,684. 40 np. This was for the period from August 8, 1959 to march 31, 1961. The defendant therefore became entitled to set off by way of reimbursement the said sum of Rs. 61,684. 40. 23. The learned trial Judge repelled the contentions, which were also the contentions urged before the trial court on three-fold grounds. 61,684. 40 np. This was for the period from August 8, 1959 to march 31, 1961. The defendant therefore became entitled to set off by way of reimbursement the said sum of Rs. 61,684. 40. 23. The learned trial Judge repelled the contentions, which were also the contentions urged before the trial court on three-fold grounds. He observed that the pleading did not entitle the defendant to raise the issue that 37 np. per ton was the sale price at the pit's mouth and, secondly, the story of payment of royalty at the rate of 37 np. per ton by the defendant was not proved. The third ground on which the learned trial Judge repelled the argument of Mr. Bhabra was : "the holder of a mining lease may be a lessee or a sub-lessee. This lessee or sub-lessee shall pay royalty in respect of minerals removed by him at the rate specified in the second schedule. In the instant case, during the relevant period, the plaintiff did not remove any minerals. It is the defendant which removed minerals as the sub-lessee. In the premises the provisions of sections of section 9 of the Act of 1957 cannot be applied for realisation of royalties from the plaintiff. The plaintiff has no liability to pay royalties at the rate mentioned in the second schedule at all. Since no mineral was removed by the plaintiff, on the facts and in the circumstances of this case, the liability of the plaintiff to the state of Bihar during the relevant period was the same as in the Indenture of lease dated the 31st July 1927. 24. IF, therefore, the defendant has paid any sum in excess of the sum mentioned in the said document, the defendant has done so entirely at its own choice and at its own risk. The plaintiff was not bound by law to pay to the State of Bihar royalty at the rate of 0.37 np. per ton. There could, therefore, be no scope of application of section 69 of the Contract Act to the facts of the present case. So far as Issue No. 12 is concerned it is true that by reading section 9 one gets the impression that the defendant's liability, from the date the act came into force, to pay royalty should only be Re. 0. 37 per ton. So far as Issue No. 12 is concerned it is true that by reading section 9 one gets the impression that the defendant's liability, from the date the act came into force, to pay royalty should only be Re. 0. 37 per ton. But s. 9 has to be read along with s. 16 which provides, inter alia, that all mining leases granted before the 25th October 1949, shall as soon as may be after the commencement of the Act be brought into conformity with the provisions of the Act and the Rules made under sections 13 and 18. I have not been told whether any action has been taken under this section with regard to the defendant. There is no evidence that the defendant's lease has been modified in accordance with sections 9 and 16 of the Act of 1957. And until that is done it cannot be said that the defendants liability is restricted to 37 np. per ton only. " 35. Mr. Bhabra tried to find fault with the above findings of the learned trial Judge with the contention that the learned trial Judge took an unduly restricted view of the pleading. The pleading according to him was wide enough to cover the point that there was no sale and therefore the minimum royalty should be paid. He also contended that the documentary evidence, by which payments were sought to be proved, were admitted and marked as exhibits, without objection, and were supported by oral evidence and should have been accepted as evidence lawfully proved. There may be some substance in the grievance made by Mr. Bhabra. But even then if the liability to pay royalty, in accordance with section 9 of the mines and Minerals (Regulation and Development) Act, 1957, was that of the defendant then no question of reimbursement or set off arises. On that point we are in entire agreement with the findings of the learned trial Judge. We have already set out s. 2 (c) of the Mines and Minerals (Regulation and Development) Act under which a mining lease includes a sub-lease. Thus, the defendant was the holder of a mining lease. Sec. 9 which also we have already quoted makes the lessee who removes minerals liable to pay royalty at the specified rate. This liability thus would fall upon the defendant, who removed the minerals. Thus, the defendant was the holder of a mining lease. Sec. 9 which also we have already quoted makes the lessee who removes minerals liable to pay royalty at the specified rate. This liability thus would fall upon the defendant, who removed the minerals. If the liability was that of the defendant or alternatively also of the plaintiff no question of reimbursement or set off arises. That the liability was that of the defendant alone appears from Ex. L, order dated August 8, 1959, by which the Controller of Mining Leases decided the point and v/e quote the relevant extract from that order : "7. The case proceeded exparte against Shri Karuna Ranjan Dutta and shri Gobinda Chandra Dutta, son of shri Jugal Chandra Dutta who has since died. 8. It is not necessary to refer to the various points urged by the parties during the course of the proceedings, in view of the fact that it was ultimately agreed by all that the original period of 40 years of the lease may be allowed to remain in tact, renewal to be in accordance with the Act and the rules when it falls due. It was further agreed that the rate of deed rent should be fixed at Rs. 10/- per acre per annum. Order passed accordingly. 9. It may be clarified that royally will be payable to State Government by Messrs. Sone Valley Portland Cement company Limited in accordance with section 9 of the Mines and Minerals (Regulation and Development)Act, 1957, and dead rent according to the order passed in these proceedings. " 25. WE, therefore, find no substance in the contention of Mr. Bhabra and uphold the ultimate conclusion of the learned trial Judge on these issues. 26. WE now turn to the claim of the plaintiff. If there be no question of reimbursement and set off, then the amount as decreed by the learned trial judge is unexceptionable. It was not argued before us that if the point about reimbursement and set off be decided against the defendant even then there was any error in the amount of decree passed by the learned trial Judge. In the result, we uphold the decree passed by the learned trial Judge with cost. Certified for two counsel. All interim orders stand vacated.