Judgment S.B.Sinha, J. 1. This First Appeal is directed against a judgment and decree dated 1-2-1977 passed by Shri Gopinath Chandra, Subordinate Judge, Ist Court, Dhanbad in Money Suit No. 164 of 1974, whereby and where under the said learned court allowed the suit of the plaintiffs respondents in part. 2. The plaintiffs respondents filed the aforementioned suit for realisation of sum of Rs. 15,000 from the defendants jointly and severally for damages caused to his house allegedly owing to carrying out of underground mining operation in an unscientific manner by the defendants. 3. The plaintiffs alleged that one Alladin of Kankami was the owner of plot No. 1187 of Mauza Kankani. The said Aladdin transferred about two katthas of land out of the aforementioned plot to the plaintiffs for valuable consideration by virtue of a registered deed of sale dated 10-104957. While taking measurement, it was found that the total area of the land covered by the aforementioned deed dated 10-10-1957 was 2598 square feet and as such the plaintiff had to pay a further sum of Rs. 90 to his vendor. 4. In the year 1968-69, he constructed a pucca building with bricks and cement consisting of 10 rooms, varandah etc. over the land described in Schedule A of the plaint. 5. The plaintiff alleged that the defendant Nos. 1, 2 and 4 were the owners of the underground coal mining right of Mauza Kankani wherein they have been carrying on coal mining operations under the name and style of Kankani Colliery. The said colliery vested in the Bharat Coking Coal Ltd. (the appellant), by reason of the provisions of Coking Coal Mines (Nationalisation Act, 1972 with effect from 1-5-1972. 6. According to the plaintiff, the defendant No. 1 appellant thereafter had been working in the aforementioned colliery. The plaintiff contended that as an underground owner of mine, they were bound to maintain the subjacent and adjacent soil intact and thus affording sufficient and reasonable support to the building of the plaintiff standing on the surface while carrying on their underground mining operations. Allegedly cracks appeared in the said building on and from 22-11-1972 causing damage to it, and as such the plaintiff and its tenant had no other option but to aband on the said building. 7. The defendant Nos. 1 and 4 filed separate written statements. Allegedly cracks appeared in the said building on and from 22-11-1972 causing damage to it, and as such the plaintiff and its tenant had no other option but to aband on the said building. 7. The defendant Nos. 1 and 4 filed separate written statements. In its written statement the defendant No. 1 appellant inter alia, alleged that said purported deed of settlement in the favor of Aladdin is illegal and thus the vendor of the plaintiff had not derived any right, title and interest over the land in question. 8. It was further submitted that the construction of the house was un authorised and illegal as the land in question was declared unsafe for habitation as far back as in 1935-43. 9. According to the defendant No. 1, the plaintiff was fully conscious of the effect of the unauthorised construction. 10. The defendant No. 1--appellant further denied that it had been carrying out mining operation illegally and unscientifically or did not observe the statutory rules and regulations made therefore. 11. The defendant No. 1--appellant stated that all such precautions in working the said mine were taken. The quantum of damages allegedly suffered by the plaintiff was also disputed. 12. The defendant No. 4 in its written statement, inter alia, alleged that the aforementioned Kankani Colliery formerly belonged to Bhowra Kankani Colliery Ltd., and by an order of the Calcutta High Court, the assets of the said collier have been amalgamated with Oriental Coal Company Ltd. 13. It was admitted that the said defendant carried out mining operation in Kankani Colliery but according to it, the same was done upon observance of statutory requirements. 14. The defendant No. 4 further denied that the plaintiff was entitled to any support from the underground strata. 15. Upon the aforementioned pleadings the parties, the learned court below framed the following issues; (1) Has the plaintiff got any cause of action ? (2) Is the suit maintainable ? (3) Has the plaintiff acquired any valid title on the surface land ? (4) Is there any subsidence and crack in the house of the plaintiff due to the working of the mine by any the defendants ? (5) Is the plaintiff entitled to get any decree for damages, if so against which of the defendants and for what amount ? (6) To what relief, or reliefs, is any, if the plaintiff entitled ? 16. (5) Is the plaintiff entitled to get any decree for damages, if so against which of the defendants and for what amount ? (6) To what relief, or reliefs, is any, if the plaintiff entitled ? 16. With regard to issue No. 3, the learned court below held that the land in question belongs to the vendor of the plaintiff and thus the plaintiff acquired right title and interest in relation thereto by reason of the aforementioned deed of sale dated 10-10-1957. The learned trial court, thereafter, took up issue Nos. 4 and 5 together. 17. The learned trial court held that the plaintiff has constructed the building. It was further held that cracks appeared in different rooms and outside the wall of the building. 18. The learned trial court further came to the conclusion that although, the plaintiff has not been able to prove negligence on the part of the defendant in carrying out the mining operation, the doctrine of res ipsa loquitur should be applied. 19. The learned trial court has further held that the mining operations were done by taking recourse to cabin method. 20. The learned court below further held that statutory requirements laid down under Regulation 112(1)(c)of the Coal Mines Regulations were not complied with. 21. In this situation, the learned court below held that the defense of the defendant No. 1 to the effect that the plaintiff constructed his house at his risk was not proved. 22. It was further held that the defendant No. 1 admittedly carried on mining operation after the coming into force of Coking Coal Mines (Nationalisation) Act, 1972 without obtaining prior permission of the Director General of Mines (Safety) as is required under Regulation 105 of the Coal Mines Regulations and thus the said defendant was guilty no negligence. 23. The learned trial court, however, held that the claim as against the defendant No. 4 was barred by limitation as it was made a party to the suit on 8-12-1975 in view of the cracks, subsidence occurred in 1972-73 i.e. after two years from the date when the cause of action for filing the suit arose. 24. It was further held that the plaintiff has not been able to prove any negligence on the part of the defendant No. 4. 25. 24. It was further held that the plaintiff has not been able to prove any negligence on the part of the defendant No. 4. 25. With regard to the quantum of damages, the learned court of appeal below held that in the facts and circumstances of the case, the plaintiff has been able to prove that he has sustained damages to the extent of Rs. 10,000. 26. Mr. V. M.K. Sinha, the learned Counsel appearing on behalf of the appellant raised a short question in support of this appeal. The learned Counsel contended that admittedly Seam No. 15 of the coal mine was worked as far back in 1939-43. 27. The learned Counsel further submitted that D.W. 1 in his evidence categorically stated that Seam No. 15 was situated just beneath the house in question. 28. The learned Counsel further submitted that the said witness stated that the effect of mining coal by cabin method may be felt even after 30 to 50 years. The learned Counsel, therefore, submitted that evidently, the plaintiff has not been able to prove any negligence on the part of the defendant No. 1 appellant in carrying out the mining operation as a result whereof, the plaintiff allegedly suffered damages. 29. Mr. S.K. Ughal, the learned Counsel appearing on behalf of the plaintiff-respondent No. 1, on the other hand, submitted that it is true that defendant No. 4 worked in Seam No. 15 in between 1939-43 and work of extraction of coal from Scam Nos. 13 and 14 was done in the year 1963-64 but the appellant was also under a statutory obligation to work the said mine in accordance with law. 30. The learned Counsel further submitted that, however, in this case, the defendant No. 1 did not deny in its written statement that even after vesting of the colliery in terms of the provisions of the Coking Coal Mining (Nationalisation) Act, 1972, it continued working on the mine and thus if cracks in the building of the plaintiff appeared in the year 1972-73, it must be held that the defendant No. 1--appellant was liable therefore. 31. In view of the rival contentions of the parties, the only point which arises for consideration is as to whether the learned court below rightly granted a decree for a sum of Rs. 31. In view of the rival contentions of the parties, the only point which arises for consideration is as to whether the learned court below rightly granted a decree for a sum of Rs. 10,000 in favor of the plaintiff for damages sustained by him as alleged in the plaint. 32. As noticed hereinbefore, it is not disputed that the appellant became the owner of the mine in terms of the provisions of the Coking Coal Mine (Nationalisation) Act, 1972. There cannot be any doubt that an owner of the building situate on the surface of a mine is entitled to be provided with support both lateral and vertical. 33. Mac Swinney in Article 575 of his Mines, Quarries and Minerals, 5th Edition stated that: A right of support, whether lateral or vertical for land in its natural state has been usually spoken of as "an Incident to the land itself", or as a natural right of property; but it has been sometimes spoken of am an easement, or a natural easement. If, however, it is a right of property, it is not a right of property in the same sense as a right to prevent a trespass on ones land. A surface owner, as such, has not, for instance, any right to the minerals by which his surface is supported. The property in such mineral belongs exclusively to the mine owner. And if a trespass is committed in respect of the minerals, the mine owner is the person entitle to take proceedings. A surface owner, as such, can not, moreover, insist upon the minerals being kept in their natural state. The mine owner may remove every particle of his minerals, even including those immediately adjacent to the surface, if for the natural support which such minerals, would have afforded, he substitutes artificial support. A similar position exists as between the lord of a manor and his copyholder, where the lord has a customary right to work, subject to the condition that he does not let down the surface. In Article 577 of the said treatise, it is mentioned that where a right of support exists, whether lateral or vertical, and whether for land in its natural state or for land in its non-natural state, degrees cannot be measured out to which the right could extend. In Article 577 of the said treatise, it is mentioned that where a right of support exists, whether lateral or vertical, and whether for land in its natural state or for land in its non-natural state, degrees cannot be measured out to which the right could extend. The right is neither affected by the nature of the strata nor by the difficulty of propping up the surface. It is an absolute right to have the surface protected from subsidence and kept securely at its ancient and natural level. Article 583 mentions that the right of a support is not infringed by mere excavations in adjacent or subjacent lands; and, although, something may be done causing results which afterwards produce subsidence, the right is not infringed until the subsidence actually takes place. Another way of stating the same proposition is that merely weakening the support without taking it away, creates no cause of action. Bainbridge of his Mines and Minerals, 5th Edition at page-396-397 quoting dicta of Hamphries V/s. Brogden (1850) 12 Q.B. 739, states that the owner of the surface was entitled to have it supported by the subjacent minor strata; and if the surface subsides through the removal of such subjacent strata, although the operation may not be negligent nor contrary to the usual and and customary made of working, yet the owner of the surface may maintain an action for the damage. 34. Jon Henry Cockburn in his the Law of Goal Mining and the Coal Trade, 1902 Edition at page 385 observed: On the ownership of surface and minerals being severed, the law presumes that the surface will be supported. The right exists unless and until it is taken away or excluded. Where the origin of the right is not known, the presumption is that land above is entitled to support from minerals below; where the origin is known, the rights depend on the statute or document which severs the minerals from the land. 35. Such a right of the owner of a building on the surface of a mine is an absolute right and an interference therewith by the owner would lead to penal consequences under the provisions of Mines Act, 1952 as also for damages under the general law. 36. 35. Such a right of the owner of a building on the surface of a mine is an absolute right and an interference therewith by the owner would lead to penal consequences under the provisions of Mines Act, 1952 as also for damages under the general law. 36. In this case, the finding of fact arrived at by the learned court below to the effect that the plaintiff constructed the building in question upon obtaining permission of the statutory authorities is not disputed. The defendants categorically admitted that cracks appeared in the building and the owner of the building had to abandon the same as it became dangerous to live therein. 37. It is true that initial onus to prove negligence on the part of the owner of a mine is upon the plaintiff. If is not a case where an accident has taken place. 38. The mine had although been worked earlier by the defendant No. 4. The defendants-appellants in their written statement categorically admitted that after vesting of the mines in the defendant No. 1, they worked the same. As an owner of an underground mine, they were enjoined with a statutory duty to give proper support to the building situate on the surface thereof. 39. In terms of the provisions of Mines Act, 1952 , Coal Mines Regulation, 1957, the rules framed there under and the Circulars issued by the Directorate of Mine Safety from time to time an owner of a coal mine carrying out underground coal mining operation is not only required to maintain surface plans showing as to how and in what manner surface is being used showing location of quarters pits, inclines and structures standing thereupon whether belonging to the owner of the mine or other persons. 40. In this situation, apart from reasoning given by the learned court below which have not been questioned before me the doctrine of res ipsa loquitur can be invoked. 41. In terms of Sec. 106 of the Indian Evidence Act, a party to the lis who has special knowledge about certain facts is required to prove the same. 42. As indicated hereinbefore in terms of the provisions of Mines Act Coal Mines Regulations and Circulars issued from time to time, the defendants appellants had special knowledge as to whether it had carried out the mining operation scientifically or not. 43. 42. As indicated hereinbefore in terms of the provisions of Mines Act Coal Mines Regulations and Circulars issued from time to time, the defendants appellants had special knowledge as to whether it had carried out the mining operation scientifically or not. 43. Before the learned court below, the defendant produced certain documents including underground mining plans. However, the said documents were taken back by the appellants and despite several opportunities having been given to them to refill the same, the same was not done. 44. No explanation has also been offered by the counsel appearing on behalf of the appellant No. 1 as to why the said documents have not been refilled. 45. In this situation this Court directed that this appeal will proceed without the aforementioned documents. It is now well known by various decisions of the Supreme Court of India that a party in possession of the documents must produce the same before the Court. Such a duty is expected to be carried out more readily from a State within the meaning of Article 12 of the Constitution of India. 46. In National Insurance Co. Ltd., New Delhi V/s. Jugal Kishore and Ors. 1983 (1) SCC 626, the Supreme Court observed: This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the case to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentality of the State such as the appellant who are under an obligation to act fairly. 47. Such documents thus having not been refilled and no explanation having not been offered in relation thereto, this Court is not in a position to look into the said documents. An adverse inference against the appellant has therefore to be drawn. 48. In the facts and circumstances of this case and in view of the admitted facts that the damage caused to the building was such that the plain tiff had to leave the building in question, in ray opinion, the doctrine of res ipsa loquitur can be invoked. 49. An adverse inference against the appellant has therefore to be drawn. 48. In the facts and circumstances of this case and in view of the admitted facts that the damage caused to the building was such that the plain tiff had to leave the building in question, in ray opinion, the doctrine of res ipsa loquitur can be invoked. 49. It is now well known that if an accident is proved to have happened in such a way that prima facie, it could not have happened without negligence on the part of the defendants, then it is for the defendants to explain how the accident could have happened without negligence. See: Benet V/s. Chemicals Construction G.B. Ltd. 1971 (1) Weekly Law Rep. 1571 at p. 1575. 50. Salmond and Henston on the Law or Torts at page 225 states the effect of operation of the principle of res ipsa loquitur thus: In a case in which the operation of the principle contained in the maxim res ipsa loquitur has been properly invoked the primary and fundamental effect is that the plaintiff is entitled to have his case left to the jury, so that if he has been non-suited by the trial judge a new trial will be ordered on appeal, The secondary effect is that once the case has been properly left to the jury, the mere happening of the accident affords "reasonable evidence, in the absence of explanation by the defendant" that it was due to the defendants negligence. Hence if the defendant gives no evidence a verdict for the plaintiff will stand. So clearly a prudent defendant will feel obliged to offer an "explanation". Opinions have differed as to the nature of the onus which rest upon him. In the first place, it is well settled that the defendant is entitled to succeed even though he cannot explain exactly how the accident happened if he establishes that there was no lack of reasonable care on his part. But it may be difficult for him to how that he took reasonable cars if the disaster was caused by a latent defect. Difficulty arises when the defendant is still unable to explain the accident and his conduct is open to more than one interpretation. But it may be difficult for him to how that he took reasonable cars if the disaster was caused by a latent defect. Difficulty arises when the defendant is still unable to explain the accident and his conduct is open to more than one interpretation. It is submitted that there is not even where res ipsa loquitur, any legal presumption of negligence, so that the legal burden of disproving negligence lies on the defendant. Therefore, if the defendant produces a reasonable explanation, equally consistent with negligence and no negligence, the burden of proving the affirmative, that the defendant was negligent and that his negligence caused the accident, still remains with the plaintiff. 51. In this case as indicated hereinbefore the defendants have utterly failed to prove any reasonable explanation whatsoever. 52. The decision relied upon by Mr. Sinha in District Board, Dhanbad V/s. Pure Mandra Colliery and Ors. 1971 PLJR 257 instead of helping him goes against the contentions. In that case, the suit for damages was not decreed, in view of the fact that the court came to the conclusion that no actual damages had been caused to the road as no subsidence had taken place. 53. It was held that in the facts of that case, that a suit for damages on future apprehension is not maintainable. In that case, it was further held: The later occupier, who has made an excavation is under no duty to substitute artificial support for that withdrawn by his predecessor, not is any liability imposed upon him merely by virtue of his occupation of the mine. (Emphasis supplied) Such is not the case here. 54 In this case, the defendants have admitted that even after the coming into force of Coking Coal Mining Operation (Nationalisation) Act, 1972, they have worked in Mine. 55. No argument had been advanced questioning the quantum of com pensation granted by the learned court below in favor of the plaintiff respondents. 56. In the result, I find no merit in this appeal, which is accordingly dismissed with costs.