http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: SHREEMATI KASHI BAI

       Vs.

RESPONDENT: SUDHA RANI GHOSE AND OTHERS

DATE OF JUDGMENT: 25/02/1958

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. BHAGWATI, NATWARLAL H. GAJENDRAGADKAR, P.B.

CITATION:  1958 AIR  434            1958 SCR 1402

ACT: Adverse  possession--Coal  mine--Trespass  and  intermittent Working --Whether can constitute adverse possession.

HEADNOTE: The  appellants  and the respondents were  lessees  of  coal mining rights in adjoining areas.  In 1917 the  predecessors in  interest of the appellants trespassed into a portion  Df the  lands  leased to the predecessors in  interest  of  the respondents,  sank two inclines and two air shafts and  (lug out  coal therefrom.  There were no mining  operations  till 1023  when they were restarted and continued till 1926,  and were recommenced in 1931 and carried on till 1933.  In  1939 the  mine  was  worked  for  a  short  time.   In  1944  the operations were recommenced by the appellants.  In 1945  the respondents brought a suit for fixation of the  intermediate boundary, for possession of the area trespassed upon and for compensation  for coal illegally removed by the  appellants. The  appellants contended, inte alia, that they had been  in sole,  exclusive,  uninterrupted possession of the  area  in dispute  openly to the knowledge of the respondents and  had acquired title by adverse possession: Held,  that  the  intermittent working of the  mine  in  the manner  and for the period carried out by the appellants  or their  predecessors in interest was wholly  insufficient  to establish   possession   which  could   constitute   adverse possession.   During  the period when there were  no  mining operations  no,  kind of possession of  the  appellants  was proved   and  the  presumption  that  during  such   periods possession reverted to the true owner was not rebutted. Nageshwar Bux Roy v. Bengal Coal CO-, [1930] L.R. 58 I.A. 29 and  Secretary  of  State for India v.  Debendra  Lal  Khan, [1933] L.R. 61 I.A. 78, distinguished.

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos.  118-119of 1956. Appeal  from  the judgment and decrees dated  September  27, 1951,  of  the  Patna High Court  in  Appeal  from  Original

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

Decrees  Nos.  252  and  254 of 1948,  arising  out  of  the judgment  and  decrees dated May 11, 1948, of the  Court  of Subordinate  Judge Dhanbad in Title Suits Nos. 16 and 50  of 1945 respectively. 1403 M.   C.  Setalvad,  Attorney-General for  India,  Kshitindra Nath  Bhattacharya,  S.  N. Andley, J.  B.  Dadachanji   and Rameshwar Nath, for the appellant. N.   C.  Chatterjee, S. C. Bannerjee and P.  R.  Chatterjee, for respondents Nos. 7 to 13. P.   K. Chatterjee, for respondents Nos. 2-4 and 6 (Minors). Gauri Dayal, for respondent No. 5. 1958.  February 25.  The following Judgment of the Court was delivered by KAPUR J.-In these two appeals brought by leave of the  Patna High Court against a judgment and two decrees of that  court a  common  and  the sole question for  decision  is  one  of adverse  possession.  Two cross suits were’ brought  in  the Court  of  the Subordinate Judge,  Dhanbad,  raising  common questions  of  fact and law.  The appellant  and  respondent Manilal Becharlal Sangvi were defendants in one (Suit No. 16 of 1945) and plaintiffs in the other (Suit No. 50 of  1945). Respondents Nos. 1-3 were the plaintiffs in the former  suit and  defendants in the latter.  The other  respondents  were defendants  in the latter suit and were added as  plaintiffs at  the  appellate stage under 0. 1, r. 10,  Code  of  Civil Procedure  in the appeal taken against the decision  in  the former  suit.   Both  the suits  were  decreed  against  the appellant  and respondent Manilal Bacharlal Sangvi who  took two appeals to the High Court at Patna.  Both these  appeals were dismissed by one judgment dated September 27, 1951, but two decrees were drawn up.  Against this judgment and  these decrees the appellant has brought two appeals to this  Court which  were  consolidated and will be disposed  of  by  this judgment. The  facts necessary for the decision of these  two  appeals are  that  on  November  26, 1894  Gang,  Narayan  Singh,  a zamindar  and  proprietor of pargana Katras granted  to  Ram Dayal Mazumdar a lease of "the coal and coal mining  rights" in  two plots of land, one in mouza Katras and the other  in mouza  Bhupatdih.  On November 6, 1894 he granted a  similar lease in plots 1404 contiguous  to  the plots in the lease  mentioned  above  to Bhudar Nath Roy.  In Suit No. 32 of 1896 boundaries  between these  two sets of plots were fixed and this was shown in  a map  which was incorporated in ,,the decree passed  in  that suit.  On the death of Ram Dayal, his sons Prafulla,  Kumud, Sarat,  Sirish  and Girish inherited  the  leasehold  rights which  they  on  October 19, 1918, granted  by  means  of  a registered  patta  and kabulliat to Lalit Mohan Bose  for  a term of 999 years.  One Bennett who along with one  Bellwood had  obtained  a coal mining lease from Raja  Sakti  Narayan Singh of Katrasgarh on September 5, 1917, trespassed on  the northern portion of the land within the area leased to Lalit Mohan  Bose and sank two inclines and two airshafts and  dug out  coal  from  this area.  This gave  rise  to  a  dispute between the parties which was amicably settled and the  area trespassed  was  returned to the possession of  Lalit  Mohan Bose.   This  fact was denied by the appellant  and  Manilal Becharlal  Sengvi respondent in their written statement  and in  their plaint.  Lalit Mohan Bose died in 1933  leaving  a will  of which the executors were his widow, Radha Rani  and his  brother Nagendra Nath Bose.  They leased out 17  bighas of land in possession of Lalit Mohan Bose to Keshabji  Lalji

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

in 1933.  The remaining portion of the area leased to  Lalit Mohan  Bose  was  given  on lease  on  March  15,  1938,  to Brojendra Nath Ghose and Vishwa Nath Prasad respondents  and to  -Ram  Chand Dubey but the possession  thereof  had  been given  to  them  in  July  1937  and  they  (the  above  two respondents)  and  Ram  Chandra Dubey  carried  on  colliery business in the name and style of West Katras Colliery.   On the  death of Ram Chandra Dubey his estate was inherited  by his  sons and widow who on June 25, 1944, sold their  right, title  and  interest to Nagendra Nath  Bose.   These  three, i.e., Brojendra Nath Ghose, Vishwa Nath Prasad and  Nagendra Nath Bose were the plaintiffs in Suit No. 16 of 1945. As  stated above Raja Sakti Narayan Singh leased an area  of 256 bighas to Bennett and Bellwood on September 5, 1917, and they assigned their rights to 1405 the  New Katras Coal Company Limited.  This  Company  worked the coal mine for some time but went into liquidation and in Execution Case No. 293 of 1922 the right, title and interest of  the company were sold and purchased by  Nanji  Khengarji father-in  law. of Shrimati Kashi Bai appellant and  by  one Lira  Raja.   In August 1923 Nanji Khengarji and  Lira  Raja effected a partition, the western portion of the leased coal field  fell to the share of Nanji Khengarji and the  eastern portion to Lira Raja.  The former carried on the business in the  name  and  style  of Khengarji Trikoo  &  Co.  and  the Colliery  came to be known as Katras New Colliery.   On  the death  of  Nanji  Khengarji in 1928 his  son  Ratilal  Nanji inherited the estate and on his death in September 1933  the estate  passed  to the appellant reemati  KashiBai,widow  of Ratilal.  In December 1944 she (Sreemati Kashi Bai)  entered into a partnership with Manilal Becharlal Sengvi respondent. On March 24, 1945 Brojendra Natb.  Ghose, Vishwa Nath Prasad and  Nagendra Nath Bose respondents Nos. 1-3  as  plaintiffs Nos.  1-3  brought  a suit (Suit No.  16  of  1945)  against Sreemati  Kashi  Bai,  defendant No. 1,  now  appellant  and against  Manilal  Becharlal  Sengvi  defendant  No.  2   now respondent No. 10 for fixation of the intermediate  boundary and  for  possession  of the area  trespassed  upon  by  the defendants  and for compensation for coal illegally  removed by the latter and also for an injunction. They alleged  that the  defendants had wrongfully taken possession of the  area in  dispute shown in the map attached to the plaint and  had illegally  removed coal from their mine.  The defendants  in their  written  statement  of  June  29,  1945,  denied  the allegations  made by the plaintiffs.  They pleaded that  the area  in  dispute was acquired by Nanji Khengarji  and  Lira Raja and had been worked by them and they had been in  sole, exclusive,  uninterrupted and undisturbed possession of  the area openly to the knowledge of the plaintiffs in that  suit and had therefore acquired title by adverse possession.  The claim of ownership which they had set up as a result 1406 of  acquisition from Bennett and Bellwood was  negatived  by the courts below and is no longer in dispute before us,  the sole point that survives being one of adverse possession. The cross suit No. 50 of 1945 was brought by the  defendants in Suit No. 16 of 1945, i.e., Shrimati Kashi Bai (appellant) and Manilal Becharlal Sengvi (respondent) against the  three plaintiffs of suit No. 16 of 1945 (respondents Nos.  I to 3) and  against heirs of Lalit Mohan Bose and against  Purnendu Narayan Singh son of the original grantor Raja Sakti Narayan Singh.  The allegations by the plaintiff in this suit (  No. 50  of 1945) were the same as their pleas as  defendants  in Suit No. 16 of 1945.  The two suits were tried together with

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

common  issues.  The learned Subordinate Judge decreed  Suit No. 16 of 1945 and dismissed Suit No. 50 of 1945 which  were thus both decided in favour of respondents Nos.  I to 3.  He held  that the land in suit was included in the area  leased to  respondents Nos.  I to 3, i.e., Brojendra  Nath,  Vishwa Nath Prasad and Nagendra Nath Bose and therefore the area in which two inclines of seam No. 9 were situate formed part of the  area  leased  to  them and  that  encroachment  by  the appellant  and  Manilal Becharlal Sengvi respondent  on  the land  in  dispute was proved.  As to adverse  possession  he held  that the two inclines and airshafts had been  sunk  in 1917  by  Bennett  in seam No. 9; that  there  had  been  no continuous  working of the seam by Khengarji Trikoo  &  Co., except  from  the year 1923 to 1926 and from 1931  to  1933, working  was  again  begun  in 1939  but  how  long  it  was continued  had not been proved and that the working of  this seam had restarted in 1944.  He also found that the disputed area was confined to seam No. 9. From these facts he was  of the   opinion  that  there  was  no  dispossession  of   the respondents  Nos. 1 to 3 and no adverse possession had  been established  as  against  them.  He further  held  that  the working  of  a part of seam (No. 9) would not  give  to  the trespasser  the right to the entire seam even if  continuous possession  was  proved.   In  regard  to  compensation  the learned Subordinate Judge held that 1407 respondents  Nos.   I  to  3 were entitled  to  it  as  from December  1944  and the amount would be  determined  by  the appointment of a Commissioner in a subsequent proceeding. The High Court on appeal confirmed the findings of the trial Court and held that the land in dispute was part of the land leased  to respondents Nos.  I to 3; that the appellant  and Manilal Becharlal Sangvi respondent had encroached upon  the land  in dispute; that the working of the seam had not  been continuous  and  it  had only been worked  for  the  periods mentioned  above.   The High Court also held  that  even  if there  was continuous possession and working of the mine  no title  by adverse possession could be acquired to the  whole of the mine.  In the High Court the validity of the lease in favour of the respondents Nos.  I to 3 was raised because of s.  107 of the Transfer of Property Act but as the  question had not been raised or agitated in the trial Court, the High Court  allowed defendants 4 to 10 of Suit No. 50 of 1945  to be added in the appeal arising out of Suit No. 16 of 1945  " for  complete  adjudication  of  the  issues  and  to  avoid multiplicity  of  proceedings ". This question  is  also  no longer in dispute before us.  The appellant has brought  two appeals  against  the judgment and two decrees of  the  High Court of Patna.  As the question of ownership of the land in dispute  has  been decided in favour of the  respondents  by both  the  courts below, that question has not  been  raised before  us  and  the  controversy  between  the  parties  is confined solely to the question of adverse possession. On  behalf  of  the appellant  the  learned  AttorneyGeneral submitted  that the carrying on of the mining operations  in the area in dispute even though intermittent as found by the courts  below  could  only lead to one  inference  that  the possession  of  the area as well as of the mine was  of  the appellant and as she had prescribed for the requisite period of  12 years, her possession had matured into  ownership  by adverse  possession.  In our opinion the operations  carried on  by the appellant were inconsistent with the  continuous, open and hostile possession or with the assertion of 1408 hostile  title  for  the  prescribed  period  of  12   years

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

necessary   to  constitute  adverse  possession.    It   was contended  that  for the purpose of  adverse  possession  in regard  to a coal mine it was not necessary that  it  should have  been  worked  for 12 years  continuously  and  it  was sufficient if the appellant had carried on mining operations for a period of 12 years even with long stoppages as in  the instant case.  But we are unable to accept this  contention. Even  though  it  may not be necessary for  the  purpose  of establishing  adverse possession over a coal mining area  to carry  on mining operation continuously for a period  of  12 years, continuous possession of the mining area and the mine would  be  a  necessary  ingredient  to  establish   adverse possession.   What has been proved by the appellant is  that the  two inclines opened by Bennett were worked in  1917  or 1918 by the predecessor in interest of the appellant,  there were no mining operations till 1923 when they were restarted and were continued till 1926.  The operations ceased in 1926 and  were recommenced in 1931 and carried on till 1933  when they ceased again till 1939 and whether they were carried on in  1939  or  not  is not quite  clear  but  there  were  no operations  from 1939 to 1944 when they were recommenced  by the  appellant, During the period when there were no  mining operations  no kind of possession of the appellant has  been proved and thus the presumption of law is not rebutted  that during  the  period  when the operations had  ceased  to  be carried on the possession would revert to the true owner. Nageshuar  Bux Roy v. Bengal Coal Co. (1) which  was  relied upon  by the learned Attorney-General does not  support  his contention.   In  that  case the  company  claiming  adverse possession  had placed facts which were consistent with  the assertion  of  rights to minerals in the  whole  village  to which  the company claimed adverse possession.  They  openly sank  pits at three different places, two of them being  1/2 mile distant from the 3rd.  The company selected the  places where they were to dig up the pits at their own discretion, (1)  [1930] L.R. 58 I.A. 29, 1409 brought  their plant or machinery on the ground and  erected bungalows for their employees.  There was no concealment  on the  part of the company and they behaved openly as  persons in  possession  of  not  one  pit  but  all  mineral  fields underlying the whole village and they throughout claimed  to be entitled to sink pits anywhere in the village they chose. The,  company was under a bona fide belief that under  their lease  they were entitled to work the minerals  anywhere  in the area.  In these circumstances the Privy Council held the suit  to be barred by Art. 144 of the Limitation Act as  the company had been in adverse possession of the minerals under the  whole village for more than 12 years.  It  was  pointed out by Lord Macmillan at p. 35, "possession is a question of fact  and  the extent of possession may be an  inference  of fact ". And at p.   37 it was observed: " Their Lordships are not at all disposed to negative or  to weaken  the principle that as a general rule where title  is founded  on an adverse possession the title will be  limited to  that area of which actual possession has  been  enjoyed. But  the application of this general rule must  depend  upon the facts of the particular case." The  finding  in favour of adverse possession in  that  case must be confined to the facts of that particular case. Another case relied upon by the learned AttorneyGeneral  was Secretary of State for India v. Debendra Lal Khan(1).  There a  zamindar claimed title to a fishery in a navigable  river by  adverse possession against the Crown.  It was held  that possession may be adequate in continuity so as to be adverse

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

even though the proved acts of possession do not cover every moment  of  the  period.   That  was  a  case  dealing  with fisheries.  It is true that to establish adverse  possession nature of possession may vary.  In the instant case no  such possession  has been proved which taking into  consideration the  nature  of  possession and the  nature  of  the  object possessed  would  lead  to  the  only  inference  that   the appellant had perfected her (1)  [1933] L.R. 61 I.A. 78. 1410 title  by adverse possession.  Intermittent working  of  the mine  in  the manner and for the period described  above  is wholly  insufficient  to establish  possession  which  would constitute adverse possession or would  lead to an inference of adverse possession and we are in agreement with the  view expressed  by  the High Court and  would  therefore  dismiss these  appeals with costs. One set of costs between the  two appeals except as to Court-fees. Appeals dismissed.