Patna High Court
Jagadish Chandra Deo Dhabal Deb vs Indian Copper Corporation Ltd. And Anr. on 30 April, 1953
Equivalent citations: AIR1953PAT283, 1953(1)BLJR42, AIR 1953 PATNA 283
JUDGMENT Das, J.
1. This is a first appeal by the plaintiff, who was the proprietor of what is popularly known as the Dhalbhum estate. The estate has now been taken over by the State of Bihar which has been added as a party to this appeal. The appeal was, however, argued before us on behalf of the plaintiff-appellant, and no separate argument was advanced on behalf of the State of Bihar. The defendants were the Indian Copper Corporation Limited, and a contractor working under the said Corporation. They are the respondents before us.
2. The appellant brought the suit for a declaration that the sand on the bed of river Subarnarekha adjoining village Moubhandar, was the appellant's property, and the respondents had no right to take the sand or appropriate it. He also asked for a decree for damages or compensation for the sand which had been removed by the respondents in January 1940, and from January 1942 to June 1942. It was stated that 50,000 cubic feet of sand were removed in January 1940, and another 50,000 cubic feet of sand were removed from January 1942 to June 1942. The appellant asked for compensation at the rate of Re. 1/- per hundred cubic feet, the total claim for compensation being laid at Rs. 1,000/- only. The appellant alleged that the river Subarnarekha passes through the appellant's estate and the entire bed is the property of the appellant; the whole of the bed of the said river, so far as it adjoined village Moubhandar, was recorded in the name of the appellant, in plots 154, 155, 150 and 397 in the recent revisional survey and settlement. According to the appellant, the respondent Corporation, which was a sub-lessee in respect of certain mineral rights in the Dhalbhum State and on whose behalf a block of land belonging to the appellant in village Moubhandar was acquired by Government under the provisions of the Land Acquisition Act, 1894, had no right to take sand from the bed of the river adjoining Moubhandar, and the rule of 'ad medium filum aquae' did not apply.
3. The respondent Corporation contested the claim of the appellant and alleged that since the acquisition of the land in Moubhandar under the provisions of the Land Acquisition Act, 1894 in pursuance of an agreement dated 29-6-1925, the land was made over to the possession of the respondent Corporation, and on 26-4-1934, the Secretary of State for India in Council conveyed and transferred to the Corporation the land described and set forth in Part III of Schedule 1 appended to the document; that schedule described the land as situate in village Moubhandar, measuring more or less 453.59 acres with the following boundaries : North-- By the Bengal Nagpur Railway line. East-- By Nallah Hathi Jabrakhal. South-- By river Subarnarekha. West --- By a straight line drawn at right angles at a point where the boundary line between villages Moubhandar and Kitadih crosses the railway line to meet the Subarnarekha river. The important boundary is the southern boundary, namely, river Subarnarekha. The case of the respondent Corporation was that, as a riparian owner, they had the right to take sand from liver Subarnarekha abutting on their property; they also alleged that they had a proprietary right in the bed of the river up to the midstream adjoining their property on the rule of 'ad medium filum aquae'. They said that they had been exercising the right of taking sand from the northern half of the river bed openly, continuously and uninterruptedly since 1927 when the land was acquired and made over to the Corporation. It was also pleaded that the claim of the appellant was barred by limitation, because so far back as in 1932 the appellant made certain complaints to the respondent Corporation with regard to the removal of sand from the bed of river Sub-arnarekha and the respondent Corporation clearly and unequivocally told the appellant on 19-7-1932, that they had the right to take sand from the northern half of the bed of river Subamarekha.
4. Several issues were framed of which the important issues were issues 4 and 5. Issue 4 related to the plea of limitation, and issue 5 related to the question of title, namely, whether the appellant had title, or right of property, to the sand of river Subarnarekha adjoining the land of the respondent Corporation. Issue 6 related to the question of compensation -- whether the appellant was entitled to compensation and, if so, to what extent. The learned Subordinate Judge of Chaibasa who tried the suit dismissed the claim of the appellant by his judgment dated 17-2-1947. On the principal issues, namely issues 4 and 5, the learned Subordinate Judge came to the following findings; firstly, he found that the then Government of Bihar and Orissa intended to, and did in fact, acquire a block of land in village Moubhandar along with the bed of the river up to the midstream adjoining the land so acquired, and when the land was later conveyed to the respondent Corporation, the latter obtained a proprietary right in the land up to the midstream of river Subarnarekha; secondly, he found that by virtue of the conveyance in favour of the respondent Corporation, the latter became a riparian owner, and as a riparian owner the Corporation had a natural right to take sand which came along with the water of the river and was left in deposit on the bed; and thirdly and lastly, the learned Subordinate Judge found that Article 120, Limitation Act was applicable to the case and inasmuch as the respondent Corporation, had unequivocally denied the appellant's title and asserted their own right to remove the sand to the knowledge of the appellant in 1932, the suit was barred by time. I may state here that the suit was filed on 1-9-1942, more than six years after 1932.
5. Mr. P. R. Das, who has argued the case on behalf of the plaintiff-appellant, has contested tile correctness of all the three findings of the learned Subordinate Judge. Before I proceed to consider the arguments of Mr. P. R. Das it is necessary to state clearly how a certain block of land in village Moubhandar came to be acquired by the then Government of Bihar and Orissa and was later conveyed by the secretary of State for India in Council to the Indian Copper Corporation, Limited, on 26-4-1934.
6. On 4-7-1925, an agreement between the Secretary of State for India in Council and the Indian Copper Corporation, Limited was published under Section 41, Land Acquisition Act, 1894. This agreement recited that the Corporation had applied to the Governor of Bihar and Orissa in Council for the acquisition of certain lands, described in the schedule and delineated in a map, for the purpose of erection of smelting & refining plants and other works connected with the business and undertaking of the Corporation, expressly including the erection of houses, sheds and other buildings necessary for such business and undertaking and the improvement of their sanitary condition; it further recited that Government on being satisfied by an enquiry held under Section 40, Land Acquisition Act, 1894, that the acquisition was necessary for the construction of the works mentioned above and that such works were likely to prove useful to the public, had consented to the acquisition on condition that the Corporation entered into an agreement with the Government embodying certain terms therein. The agreement then mentioned the terms, of which term No. 3 is important for our purpose. This term reads:
"The company shall use the said land for the busi-ness or some of the business of converting concentrating & manufacturing copper & of manufacturing any by-products of copper and for erection of smelting and refining plants, power plant and any houses, sheds and other buildings and any other works necessary for or incidental to such business, and to quarry, dig and use stone, gravel, sand and clay etc., i.e., building materials such as may be necessary for use in the construction of work for the purpose of which the said lands are being or intended to be. acquired".
This term has been referred to in the course of the arguments before us and I shall advert to it in due course. The boundaries of the lands proposed to be acquired wers given at the foot of the document. We are concerned 'with block A which lay In village Moubhandar. The boundaries of block A mentioned in the agreement were the same as those mentioned in the later conveyance dated 26-4-1934, which I have already quoted in an earlier part of this judgment. On 11-11-1925, the Government of Bihar and Orissa made a declaration under Section 6,. Land Acquisition Act of 1894 and Section 8, Clause (I) of Act 18 of 1885. This declaration Stated that land was required to be taken by Government at the expense of the Indian Copper Corporation, Limited, for the erection of smelting and refining plants & other works in village Moubhandar & other villages. A reference was made to block A, with the same boundaries, situate in village Moubhondar. As I have already stated, the sou-
thern boundary of block A was river Subarnarekha.
At the foot of the declaration it was stated: "Mines of Coal, iron-stone, slate or other minerals lying under the land, or any particular portion of tne land, except only such parts of the mines and mineral as it may be necessary to dig, or carry away or use in the construction of the work for the purpose of which the land is being acquired are not needed". It is not clear from the documents in the record when actually the Collector took possession of the land under Section 16, Land Acquisition Act, 1894. It appears, however, from the recitals in the deed ot conveyance dated 26-4-1934 that part of the land which was the subject of the declaration dated, 11-11-1925, was subsequently released and withdrawn from acquisition; the Collector duly made awards in respect of the acquired land and possession of the acquired land was given by the Secretary of State to the Corporation on the latter paying the necessary amounts; then on 26-4-1934, the Secretary of State conveyed the acquired land to the corporation with all rights which Government had acquired by the acquisition proceedings. The above gives, in brief, the history of the acquisition. proceedings by which block A in village Moubhandar was acquired for the Indian Copper Corporation, Limited, and later conveyed to them by the Secretary of State for India in Council.
7. The first question which falls for consideration is whether as a result of the acquisition proceedings Government acquired not merely the land of block A with the boundaries mentioned in the declaration, but also the bed of river Subarnarekha up to the midstream abutting on the land.
8. The point must be made clear at the outset. It is the admitted position that river Subarnarekha is neither a tidal nor a navigable river and its bed can be the subject of private ownership. The learned Subordinate Judge has said in his judgment that the river is not a tidal or navigable river and dries up in November or December, though there is water in the rainy season. He has further referred to the evidence of a witness who said that the sand flows with the water in the rainy season, but later settles down when the water flows away. It was not seriously disputed before us that prior to the acquisition, the appellant had a right of property in the bed of river Subarnarekha, and the bed was recorded in the name of the appellant in the record-of-rights. The position in English law seems to be well settled and has been summarised at page 93 in L. M. Doss's Law of Riparian Rights, Alluvion and Fishery (Tagore Law Lectures -- 1889), where the learned author states that the rules may be shortly formulated thus:
"(a) The ownership of the soil of the alveus or bed of a non-tidal stream, whether it be navigable or not, 'prima facie' belongs to the riparian proprietors on both sides, not in common, taut in severalty, the 'medium filum aquae' or the middle thread of the stream being the dividing line between the shares of the two properties respectively.
(b) As a corollary of this rule, if the course of such a stream be permanently diverted, and the old alveus or bed be left dry, each riparian proprietor becomes entitled to it up to the line which coincides with what was the middle thread of the stream.
(c) When the lands on both banks of such a stream belonging to the same person, the presumption of law (though rebuttable) is, that the ownership of the whole alveus or bed belongs to him.
(d) The ownership of the alveus or bed of such a stream may be claimed by a person who does not own land on either bank of it, though this is generally not the case."
As to Rule (a), the test of tidality is not strictly applicable in India where the bed of a navigable river is regarded as public domain or public territory. There is no doubt, however, that the rule that the beds of small end shallow rivers or streams or of those portions of rivers which are above the point where navigability ceases 'prima facie' belong to the riparian proprietors; 'ad medium filum aquae', has been accepted & applied in India (see -- 'Kali Kissen Tagore v. Jadoo Lal', 5 Cal LR 97 (PC) (A); -- 'Khagendra, Narain v. Matangini Debi', 17 Cal 814 (PC) (B) & other decisions referred to at pages 113-114 of Doss's Law of Riparian Rights, Auuvion and Fishery). Therefore, there can be no doubt that prior to the acquisition by Government, the ownership of the bed, of river Subarnarekha abutting on the land of village Moubhandar was with the plaintiff-appellant. The question is -- did Goverment acquire the land along' with the bed of the river up to the midstream? The learned Subordinate Judge answered the question in the affirmative. Mr. Das's contention is that the learned Subordinate Judge is wrong in thinking that Government acquired the northern bed of river Subarnarekha up to the midstream. I proceed now to consider the argument of Mr. P. R. Das on this part of the case.
9. In -- 'Micklethwait v. Newlay Bridge Co.', (1886) 33 Ch. D 133 (C), the conveyance on which the plaintiffs relied comprised the lands specified & marked out by metes and bounds but it described the land as bounded on the north by a river and the question was whether this conveyance of a. piece of land described by quantity of yards, and described as being bounded on the north by a river, carried with it as part of that which was conveyed the right to the soil 'ad medium filum aquae'. Cotton L. J. observed :
"In my opinion the rule of construction is now well settled, that where there is a conveyance of land, even although it is described by reference to a plan, and by colour and by quantity, if it is said to be bounded on one side cither by a river or by a public thoroughfare, then on the true construction of the instrument half the bed of the river or half of the road passes, unless there is enough in the circumstances or enough in the expressions of the instrument to shew that that is not the intention of the parties. It is a presumption that not only the land described by metes and bounds, but also half the soil of the road or of the bed of the river by which it is bounded, is intended to pass, but that presumption may be rebutted. In my opinion, you may look at the surrounding circumstances, but only to see whether there were facts existing at the time of the conveyance and known to both parties, which shewed that it was the intention of the vendor to do something which made it necessary for him to retain the soil in the half of the road or the half of the bed of the river, which would otherwise pass to the purchaser of the piece of land abutting on the road or river. There may be facts, whether appearing on the face of the conveyance or not. from which it is justly inferred that it was not the intention of the parties that the general presumption should apply, but in my opinion it is not sufficient that circumstances which afterwards occur shew it to be very injurious to the grantor that the conveyance should include half-
of the bed of the river or half the soil of the road."
Lindley L. J. observed :
"Prom that time down to this the rule has been laid down and acted upon as an ordinary rule of conveyancing, a well-settled law of real property, and it has been expressed in various ways by the Courts when necessity has arisen to discuss it, and nowhere that I know of better than in -- 'Berridge v. Ward', (1861) 10 C. B. (N. S.) 400 (D) and -- 'Dwyer v. Rich', (1871) 6 IRCL 144 (E). There are other cases which are collected by Mr. Elphinstone, and at which I have looked, but I think it is needless to refer to them, because they all go one way, and they all shew this, that upon such a conveyance as we have to deal with here half of the bed of the river passes to the grantee unless circumstances can be shewn which will exclude the application of that rule."
10. The same rule of construction was applied when the subject-matter was a grant from the Crown: --'Mary Lord v. Commissioners for the City of Sydney', (1859) 14 ER 991 (F), and it was observed by their Lordships that the question was a question of intention, to be collected from the language used with reference to the surrounding circumstances. It was further observed : "If lands granted were described as bounded by a house, no one could suppose the house was included in the grant; but if land granted were described as bounded by a highway, it would be equally absurd to suppose that the grantor had reserved to himself the right to the soil 'ad medium filum', in the far greater majority of cases wholly unprofitable." The position has been thus summarised in Hals-bury's Laws of England (Hailsham edition. Vol. 33, p. 562, para. 954) :
"954. A grant or lease of land described as abutting on a river made by a person who is in a position to part, with the soil of the bed is sufficient to pass half the bed of the river without any reference in the document to the river, and the fact that the river is of great breadth does not affect the case.
The presumption may be rebutted by showing (I) that there exists over the bed of the moiety in question a several fishery not belonging to the grantor, because the presumption that the owner of a several fishery is owner of the bed displaces the presumption that arises in favour of the riparian owners: or (2) that at the time of the grant of the riparian land there was no intention on the grantor's part to part with the bed 'ad medium filum aquae': to ascertain this, the facts known to the parties at the time of the conveyance may be investigated, but not circumstances which afterwards occur; or (3) that the grantor had not the bed of the river to convey. The riparian presumption refers only to the origin of title, for the right to the bed of the river is not inseparably bound up for ever with the right to the land, and an owner may retain one and part with the other."
11. Mr. Das has not challenged the correctness of the rule laid down in '(1886) 33 Ch D 133 CO. His argument, however, is that the rule which is a rule of presumption, has no application in the present case for two reasons); his first reason is that in view of certain circumstances, to which I shall presently refer, the presumption if any, of half the bed of the river passing with the land acquired by Government stands rebutted; his second reason is that the rule of presumption which Lindley, L, J. called a rule of conveyancing can have no application to land acquisition proceedings under the Land Acquisition Act of 1894. As to his first reason, Mr. Das relied on the decision in -- 'Duke of Devonshire v. Pattinson', (1888) 20 QBD 263 (G), where it was proved that, prior to the earliest of the conveyances, a fishery in the river fronting the lands conveyed had for a very long time back been from time to time let to tenants by the lords of the manor as a separate tenement, distinct from the riparian closes; and that at the date of the conveyances in 1846 such fishery was actually under lease to tenants; under all those circumstances it was held in that case that the conveyances ought not to be construed as passing any portion of the bed of the river to the grantees. Mr. Das drew our attention to the evidence of some of the witnesses examined on behalf of the plaintiff-appellant, who said that the appellant had leased out ferry' and fishery rights in the river from time to time. Some of the witnesses said that they had taken settlement of the ferry and fishery in river Subarnarekha from the appellant. Mr. Das also drew our attention to Exs. 1(a) to Km) printed at pp. 40-43 of the paperbook. Those documents, showed, however, that the right of fishery or ferrying in river Subarnarekha adjoining village Moubhandar was given by the appellant in 1934 to 1936, that is, sometime after the acquisition and conveyance of the land acquired in favour of the respondent Corporation. As was pointed out by Cotton L. J. in '(1886) 33 Ch D 133 (C), it was not sufficient to rebut the general presumption that circumstances which afterwards occurred showed it to be very injurious to the grantor that the conveyance should include half of the bed of the river or half the soil of the road. The first reason in support of the argument of Mr. P. R. Das is, in my opinion not tenable.
12. I think, however, that Mr. Dss is on much firmer ground with regard to his second reason. In all the decisions which have been placed before us on the subject, the rule has been characterised as a rule of presumption, a rule of construction of grants, a rule of conveyancing as Lindley L. J. put it. It depends on the intention of the parties, and as was observed in (1859) 14 ER 991 (F).
"it is always a question of intention to be collected from the language used with reference to the surrounding circumstances."
Mr. Das's contention is that there is no room for the application of such rule in land acquisition proceedings which do not depend upon the intention of parties but rather on what the acquiring authority wishes to take compulsorily from another person. So far as this aspect is concerned, the present case is a case of first impression and no decision bearing on this part of the case has been brought to our notice. In (1886) 33 Ch D 133 (C) it was urged by Mr. Romer (as he then was) that the rule of presumption could only have arisen from its being useless to vendor, when parting with his property, to retain an adjoining strip of land forming half the bed of a river or half the soil of a road. Cotton L. J. said:
"I think very likely that such was the origin of the rule, but when the rule is once established as a rule of construction we are not at liberty to depart from it merely because it is shown that it would have been to the interest of the vendor to retain the half of the bed of the river."
In a conveyance to which there are two parties, the question whether it is useless to a vendor to retain an adjoining strip of land forming half the bed of a river may be a very relevant consideration. But that consideration cannot arise in a land acquisition proceeding where the acquiring, authority acquires such land as he requires, irrespective of any consideration whether it is useful or useless to the person, from whom the land is acquired. The presumption has been said to be a rebuttable presumption; the question of rebutting such a presumption cannot arise in a compulsory acquisition of land. In my opinion, Mr. P. R. Das is right when he contends that compulsory acquisition of land has to be considered with reference to the provisions of the Land Acquisition Act, 1894, and there is no room for the application of any presumption or rule of construction or a conveyancing rule. Under Section 6, Land Acquisition Act, a declaration has to be made about the "particular land" which is needed for a public purpose or for a company. Under Section 8, the land is to be marked out, measured and planned. Under Section 40, Government can give their consent to the acquisition of land on behalf of a company (a) when the purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the Company or for the provision of amenities directly connected therewith, or (b) when such acquisition is needed for the construction of some work, and that such work is likely to prove useful to the public.
13. Mr. Das has contended that the taking of sand from the bed of river Subarnarekha did not come within the purposes mentioned in Section 40 and Government could not have given consent to the acquisition of the river bed for the purpose of the Company. Mr. B. N. Mitter appearing for the respondent Corporation, emphasised term No 3 of the argument published under Section 41, which I have already quoted in an earlier part of this judgment. That term, no doubt, refers to the taking of building materials, such as stone, gravel, sand etc. Mr. Das's contention, however, is that, the term refers to the land which was acquired. Where such minerals might be found but not to the river bed. The boundaries of the land, which was the subject of the declaration under Section 6, as also the map prepared under Section 8, did not show that the northern half of the bed of the river Subarnarekha was also sought to be acquired, & unless there is a presumption that half the bed went with the land, the land acquired must be within the four corners of the boundaries given and as marked out, measured and planned in the map prepared under Section 8 of the Act. My view is that there is no room for the application of a presumption, such as is referred to in --'(1886) 33 Ch D 133 (C) and other cases, in the matter of compulsory acquisition of land abutting on a river under the Land Acquisition Act, 1894. The learned Judge has said that the appellant did not prove that he got no compensation for half the bed of the river. I do not think that it was for the appellant to prove what compensation he got. The respondent Corporation could not get more than what Government had acquired for them. If Government had not acquired half the bed of the river, the respondent Corporation could not get what Government had not acquired. It would be a case where the grantor had not the bed of the river to convey. My conclusion, therefore, is that the learned Subordinate Judge-wrongly found that Government did intend to acquire, or in fact acquired, half the bed of river Subarnarekha.
14. The second question is if the respondent Corporation, as a riparian owner has a natural right to take sand from the bed of river Subarnarekha abutting on their property. It is to be observed that the natural right of a riparian owner is independent of the ownership of the bed of the river, and a right to the use of flowing water does not necessarily depend upon the ownership of the soil covered by such water. In -- 'Secy. of State v. Sannidiraju Subbarayudu', A. I. R. 1932 P. C. 46 (H) Viscount Dunedin observed:
"Running water at common law, though many people may have the right to take and use it, belongs in a river to no one. It passes on and successive people have rights in regard to it".
15. In Gale on Easements (twelfth edition, page 231) the learned author has said that the natural rights of a riparian owner may be shortly defined as threefold: first, he has a right of user. He can use the water for certain purposes. Secondly, he has a right of flow. He is entitled to have the water come to him and go from him without obstruction. Thirdly, he has a right of purity. He is entitled to have the water come to him unpolluted. A distinction has sometimes been drawn between ordinary user and extraordinary user, the test in the latter case being one of reasonableness. But no decision has been brought to our notice in which it has been held that a riparian owner has the natural right to take away sand deposited on the bed of the river abutting on his property. In -- 'William Lyon v Wardens, &c. of the Fishmongers' Co.', (1876) 1 A. C. 662 (I) Lord Selbome said:
"With respect to the ownership of the bed of the river, this cannot be the natural foundation of riparian rights properly so called, because the word 'riparian' is relative to the bank, and not the bed, of the stream; and the connection, when it exists, of property on the bank with property in the bed of the stream depends, not upon nature, but on grant or presumption of law".
He further said that the title to the soil constituting the bed of a river did not carry with it any exclusive right of property in the running water of the stream which can only be appropriated by severance, and which may be lawfully so appropriated by everyone having a right of access to it. The ordinary and regular course of nature which is the foundation for a natural riparian right cannot be said to extend to firm sand deposited on the bed of the river; that, in my opinion, will be an unwarranted extension of a natural riparian right. The learned Subordinate Judge wrongly held that the respondent Corporation had a natural, right to take sand from the bed of river Subarnarekha abutting on their property.
16. Lastly, there is the question of limitation. Mr. Das has contended that it was a case of continuing wrong, independent of contract, and a fresh period of limitation ran at every moment of the time during which the wrong continued. There may be some doubt whether the removal of sand on different, isolated occasions can be said to be a continuing wrong within the meaning of Section 23, Limitation Act. The suit which the appellant brought was a suit for a declaration that the sand on the bed of river Subarnarekha adjoining Moubhandar was the property of the appellant, and the respondents had no right to take away the sand; the appellant further claimed compensation for removal of sand in January 1940, and January 1942 to June 1942. Mr. Das has contended that it was unnecessary to ask for a declaration in specific terms and it was open to the appellant to claim compensation for the removal of specific moveable property. Mr. B. N. Mitter, appearing for the respondent Corporation, referred us to Articles 48 and 49, Limitation Act. If it be held that those Articles apply, the appellant is clearly within time, as he has brought the suit within, three years of the wrongful taking or wrongful possession of the specific property removed. Even if Article 120 applies by reason of the declaration asked for by the appellant, it seems to me that the right to sue will accrue on every fresh invasion by the respondent Corporation on the property of the appellant. In -- 'Pramatha Nath v. A. J. Meik', AIR 1920 Pat 542 Dawson Miller C. J. said as follows :
"In regard to the first prayer it was contended by the appellant that a suit for a declaration is barred after six years from the time when the right to sue accrued, under Article 120, Limitation Act, and that the right to sue accrued more than six years before the institution of the suit. In our opinion this contention cannot prevail as the appellant acquired no prescriptive right to the minerals beyond the quantity actually removed at any particular time. It follows that a fresh cause of action arose when any particular portion of the coal was removed".
In my opinion, the same principle will apply and a fresh cause of action arose when a particular portion of the sand was removed by the respondent Corporation. The appellant asked for compensation for such removal as took place within three years, and I do not think that the claim of the appellant was barred by time.
17. The last question, is the quantum of compensation. Unfortunately, the learned Subordinate Judge did not give any finding on this question. He said that in view of his findings on the other two issues, he would find the issue in the negative. As the decision of the learned Subordinate Judge was subject to an appeal, it was necessary for the learned Subordinate Judge to give his finding on all the issues involved in the suit. We have examined the evidence in the record on this question. Witness 1 for the plaintiff-appellant said that the royalty for a hundred cubic feet of sand was Re. 1. Another witness, namely, witness 5, said that he used to take sand from the river Subarnarekha and that he got permits from the plaintiff-appellant at the rate of Re. 1 per hundred cubic feet of sand. One witness was examined on behalf of the respondent Corporation who said that in the Kolhan estate, which is a Government Khas Mahal, the royalty for sand was 2 annas per hundred cubic feet up to July 1944, and thereafter 4 annas per hundred cubic feet. In cross-examination this witness admitted that he did not know about the rate of royalty for sand in the Dhalbhum estate. On the evidence in the record there is no doubt that the respondent Corporation did remove the quantity of sand in January 1940, and January to June 1942. This was not seriously disputed before us. The evidence further establishes that the royalty for sand per hundred cubic feet was as claimed by the appellant.
17a. The result, therefore, is that the appeal succeeds. The decision of the learned Subordinate Judge dismissing the claim of the appellant is set aside. The appellant will now get a decree for compensation for Rs. 1000/- on account of the sand removed, and will also get costs throughout against the respondent Corporation.
Sinha, J.
18. I entirely agree and hare nothing to add.