Shreemati Kashi Bai vs Sudha Rani Ghose And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 118-119 of 1956

Decision Date: 25 February 1958

Coram: J.L. Kapur, Natwarlal H. Bhagwati, P.B. Gajendragadkar

In the matter titled Shreemati Kashi Bai versus Sudha Rani Ghose and Others, the Supreme Court of India rendered its judgment on 25 February 1958. The judgment was authored by Justice J. L. Kapur, who was joined by Justices Natwarlal H. Bhagwati and P. B. Gajendragadkar. The petition was presented by Shreemati Kashi Bai as the petitioner and the respondents were Sudha Rani Ghose together with several other parties. The case was reported in the law reports as 1958 AIR 434 and 1958 SCR 1402. The legal issue addressed in the judgment concerned the doctrine of adverse possession as it applied to coal mining rights, specifically whether a trespass and intermittent working of a coal mine could amount to adverse possession.

The headnote of the judgment records that the appellants and the respondents were both lessees of coal‑mining rights in adjoining plots of land. In 1917 the predecessors in interest of the appellants entered, without permission, into a portion of the land that had been leased to the predecessors in interest of the respondents. They then sank two inclines and two air shafts and removed coal from that portion. After this initial intrusion, no mining activity was carried out on the disputed area until 1923, when the mining operations were resumed and continued uninterrupted until 1926. The mining was again resumed in 1931 and persisted until 1933. A brief period of work occurred in 1939, and the appellants restarted operations once more in 1944. In 1945 the respondents instituted a suit seeking fixation of the intermediate boundary, possession of the area that had been trespassed upon, and compensation for the coal that had been taken illegally by the appellants. The appellants contended, inter alia, that they had remained in sole, exclusive, and uninterrupted possession of the disputed area, that their possession was open to the knowledge of the respondents, and that they had thereby acquired title by adverse possession. The Court held that the intermittent nature of the mining work, both in its manner and in the periods during which it was carried out by the appellants or their predecessors, was wholly insufficient to satisfy the requirement of possession that could give rise to adverse possession. The Court further observed that during the intervals when no mining operations were undertaken, the appellants failed to prove any kind of possession, and the presumption that possession reverted to the true owner during those gaps was not rebutted. In reaching this conclusion the Court distinguished the earlier authorities of 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.

The judgment falls under the civil appellate jurisdiction of the Supreme Court and concerns Civil Appeals Nos. 118‑119 of 1956. These appeals were filed by special leave from the Patna High Court against its judgment and two decrees dated 27 September 1951. The High Court judgment itself arose from appeals against Original Decrees Nos. 252 and 254 of 1948, which were based on the judgments and decrees of the Court of Subordinate Judge, Dhanbad, dated 11 May 1948 in Title Suits Nos. 16 and 50 of 1945 respectively. For the appellant, the Attorney‑General for India, M. C. Setalvad, appeared along with counsel Kshitindra Nath Bhattacharya, S. N. Andley, J. B. Dadachanji and Rameshwar Nath. For respondents numbered 7 to 13, counsel N. C. Chatterjee, S. C. Bannerjee and P. R. Chatterjee appeared, while P. K. Chatterjee represented respondents numbered 2 to 4 and 6, who were minors. Gauri Dayal appeared for respondent 5. The judgment, delivered on 25 February 1958, was read out by Justice Kapur, who noted that the two appeals, taken by special leave from the Patna High Court, presented a single common question for determination—the question of whether the intermittent mining activities could constitute adverse possession.

The matter that the Court was required to decide concerned the doctrine of adverse possession. Two cross‑suits had been instituted in the Court of the Subordinate Judge, Dhanbad, and both of those suits raised identical questions of fact and of law. In the first of those suits, identified as Suit No. 16 of 1945, the appellant and respondent Manilal Becharlal Sangvi appeared as defendants, whereas in the second suit, Suit No. 50 of 1945, the same person stood as plaintiff. The parties identified as Respondents Nos. 1‑3 were plaintiffs in the former suit and defendants in the latter. All other respondents were defendants in Suit No. 50 of 1945, but they were subsequently added as plaintiffs at the appellate stage pursuant to Order 1, Rule 10 of the Code of Civil Procedure when an appeal was taken against the decision in Suit No. 16 of 1945. Both suits culminated in decrees against the appellant and respondent Manilal Bacharlal Sangvi, who then preferred two separate appeals before the Patna High Court. The High Court dismissed both appeals by a single judgment dated 27 September 1951, yet it issued two separate decrees. Dissatisfied with that judgment and the consequent decrees, the appellant filed two appeals before this Court; the two appeals were consolidated and are to be disposed of by this single judgment. The factual background essential for resolving the appeals is as follows: on 26 November 1894, Gang Narayan Singh, a zamindar and proprietor of the pargana of Katras, granted a lease of “the coal and coal mining rights” to Ram Dayal Mazumdar covering two parcels, one situated in the mouza of Katras and the other in the mouza of Bhupatdih. Subsequently, on 6 November 1894, the same zamindar executed a similar lease in adjoining parcels to Bhudar Nath Roy. In Suit No. 32 of 1896, the boundaries between these two sets of parcels were formally fixed, and the demarcation was illustrated on a map that was incorporated into the decree rendered in that suit. Upon the death of Ram Dayal, his sons Prafulla, Kumud, Sarat, Sirish and Girish succeeded to the leasehold rights, and on 19 October 1918 they conveyed those rights by way of a registered patta and kabulliat to Lalit Mohan Bose for a term of nine hundred and ninety‑nine years. Subsequently, a person identified as Bennett, together with Bellwood, obtained a coal‑mining lease from Raja Sakti Narayan Singh of Katrasgarh on 5 September 1917; Bennett and Bellwood then entered upon the northern portion of the land that formed part of the area leased to Lalit Mohan Bose, sinking two inclines and two air‑shafts and extracting coal from that portion. This intrusion gave rise to a dispute between the parties, which was eventually settled amicably, and the encroached area was restored to the possession of Lalit Mohan Bose. The appellant and Manilal Becharlal Sengvi, the respondent, denied the occurrence of that settlement in both their written statement and in their plaint. Lalit Mohan Bose died in 1933, leaving a will that named his widow, Radha Rani, and his brother, Nagendra Nath Bose, as executors. In 1933 the executors leased seventeen bighas of the land previously possessed by Lalit Mohan Bose to Keshabji Lalji. The balance of the area that had been under Lalit Mohan Bose’s lease was subsequently granted on 15 March 1938 on lease to Brojendra Nath Ghose and Vishwa Nath Prasad, who were respondents, and to

Ram Chand Dubey, together with Brojendra Nath Ghose and Vishwa Nath Prasad, were given possession of the northern portion of the Katras coalfield in July 1937, and the three of them carried on the colliery business under the name and style of West Katras Colliery. After Ram Chand Dubey died, his estate passed to his sons and his widow, and on 25 June 1944 those heirs sold all of their right, title and interest in the colliery to Nagendra Nath Bose. Accordingly, Brojendra Nath Ghose, Vishwa Nath Prasad and Nagendra Nath Bose became the plaintiffs in Suit No. 16 of 1945. The original lease of the area, amounting to 256 bighas, had been granted by Raja Sakti Narayan Singh to Bennett and Bellwood on 5 September 1917; Bennett and Bellwood subsequently assigned their rights to the New Katras Coal Company Limited. That company operated the mine for a period before going into liquidation, and in Execution Case No. 293 of 1922 the liquidated company's right, title and interest were sold to Nanji Khengarji, who was the father‑in‑law of the appellant Shreemati Kashi Bai, together with a person identified as Lira Raja. In August 1923 Nanji Khengarji and Lira Raja effected a partition of the leased field: the western portion fell to Nanji Khengarji and the eastern portion to Lira Raja. Nanji Khengarji then carried on the mining business under the name Khengarji Trikoo & Co., and the operation became known as Katras New Colliery. Nanji Khengarji died in 1928 and his son Ratilal Nanji succeeded to the estate. Upon Ratilal’s death in September 1933 the estate passed to his widow, Sreemati Kashi Bai, who is the present appellant. In December 1944 Sreemati Kashi Bai entered into a partnership with Manilal Becharlal Sengvi, who is later identified as respondent No. 10.

On 24 March 1945 the three respondents – Brojendra Nath Ghose, Vishwa Nath Prasad and Nagendra Nath Bose – instituted Suit No. 16 of 1945 against Shreemati Kashi Bai, designated as defendant No. 1, and against Manilal Becharlal Sengvi, designated as defendant No. 2. The suit sought fixation of the intermediate boundary, possession of the portion of land alleged to have been trespassed upon, compensation for the coal that the plaintiffs claimed had been illegally removed, and an injunction to restrain further intrusion. The plaint was accompanied by a map showing the disputed area, and the plaintiffs alleged that the defendants had entered into possession of that area without authority and had extracted coal from the mine in contravention of the plaintiff’s rights. The defendants filed a written statement on 29 June 1945 in which they denied each of the plaintiffs’ allegations. They contended that the disputed area had been acquired by Nanji Khengarji and Lira Raja and that they had continuously and openly worked the land in exclusive and uninterrupted possession, a circumstance that, they argued, gave rise to title by adverse possession. The defendants further asserted that any claim to ownership based on the original allocation from Bennett and Bellwood had already been rejected by the lower courts, and therefore the only issue that remained before this Court was the question of title by adverse possession.

In this case, the Court explained that a cross‑suit identified as Suit No 50 of 1945 had been instituted by the parties who were defendants in the earlier Suit No 16 of 1945. The cross‑suit was brought by Shrimati Kashi Bai, who was the appellant, and by Manilal Becharlal Sengvi, who was the respondent, against the three original plaintiffs of Suit No 16 of 1945, designated as respondents Nos I to III, and also against the heirs of Lalit Mohan Bose and against Purnendu Narayan Singh, the son of the original grantor Raja Sakti Narayan Singh. The plaintiff in Suit No 50 asserted the same facts and pleaded the same defenses that the same parties had asserted when they were defendants in Suit No 16. Because both suits raised identical questions of fact and law, the two actions were tried together and the issues were decided jointly. The Subordinate Judge concluded that Suit No 16 of 1945 should be decreed in favour of respondents Nos I to III and that Suit No 50 of 1945 should be dismissed, thereby granting relief to the same three respondents in both matters. The Judge held that the land that was the subject of the suit formed part of the area that had been lawfully leased to respondents Nos I to III—namely Brojendra Nath, Vishwa Nath Prasad and Nagendra Nath Bose. Accordingly, the two inclines that lay in seam No 9 were situated within that leased area, and the Judge found that the appellant and Manilal Becharlal Sengvi had indeed encroached upon the disputed land. Regarding the claim of adverse possession, the Judge observed that the two inclines and the associated airshafts had been sunk in 1917 by the company Bennett in seam No 9. He further noted that the seam had not been worked continuously by Khengarji Trikoo & Co.; work had only occurred during the periods 1923‑1926 and 1931‑1933, with another period of operation beginning in 1939, the duration of which was not proven, and a further restart of work in 1944. The Judge also determined that the dispute was limited to seam No 9. From these facts, he concluded that there was no dispossession of respondents Nos I to III and that no adverse possession had been established against them. He added that even if a portion of seam 9 had been worked continuously, such partial work would not confer title over the entire seam to the trespasser. Concerning compensation, the Judge held that respondents Nos I to III were entitled to compensation from December 1944, and that the quantum of such compensation would be fixed by a Commissioner appointed for a later proceeding. On appeal, the High Court affirmed all findings of the trial court. The High Court reiterated that the disputed land formed part of the lease held by respondents Nos I to III, that the appellant and Manilal Becharlal Sengvi had encroached upon it, and that the seam had not been worked continuously, only during the periods previously mentioned. Moreover, the High Court held that even assuming continuous possession and working of the mine, title by adverse possession could not be acquired over the entire mine. The High Court also addressed the validity of the lease in the context of these findings.

The validity of the lease granted to respondents Nos I to 3 was challenged on the basis of section 107 of the Transfer of Property Act; however, because that issue had neither been raised nor contested in the trial Court, the High Court permitted the addition of defendants 4 to 10 from Suit No 50 of 1945 to the appeal that arose out of Suit No 16 of 1945, stating that such inclusion was necessary “for complete adjudication of the issues and to avoid multiplicity of proceedings.” That particular point is no longer in dispute before this Court. The appellant has filed two separate appeals against the judgment and two decrees issued by the High Court of Patna. Since both lower courts have already decided that ownership of the land in dispute belongs to the respondents, the question of title has not been re‑raised here; consequently, the only remaining controversy between the parties concerns the claim of adverse possession. Counsel for the appellant, the learned Attorney‑General, argued that even though the mining activities in the contested area were intermittent, as established by the lower courts, such facts inevitably lead to the inference that the appellant possessed both the area and the mine. He further contended that because the appellant had exercised possession for the statutory period of twelve years, that possession had ripened into ownership by virtue of adverse possession. The Court, however, observed that the appellant’s mining operations were not consistent with the requirements of continuous, open, and hostile possession, nor did they demonstrate an assertion of hostile title for the full twelve‑year period required to establish adverse possession. It was submitted that, in the context of a coal mine, it was unnecessary for the mine to be worked continuously for twelve years; rather, it would suffice if the appellant had conducted mining operations for a total of twelve years, even if there were long interruptions, as was the case here. The Court could not accept that proposition. While it may not be essential to carry out mining operations without interruption for the entire twelve‑year span to prove adverse possession over a coal‑mining area, the Court held that continuous possession of the mining area and of the mine itself is a necessary element in establishing such a claim. The record shows that the two inclines originally opened by Bennett were worked in 1917 or 1918 by the appellant’s predecessor in interest. No mining took place thereafter until 1923, when operations were revived and continued until 1926. Activities then stopped in 1926, resumed in 1931, and persisted until 1933, after which they ceased again until sometime in 1939; the precise status of operations in 1939 remains unclear. Regardless, there were no mining activities from 1939 to 1944, at which point the appellant resumed work. During every interval when mining operations were absent, the appellant failed to demonstrate any form of possession, and therefore the legal presumption in favour of adverse possession could not arise.

The learned Attorney‑General argued that when mining operations ceased, possession of the land would automatically revert to the true owner. He relied on the decision in Nageshuar Bux Roy v. Bengal Coal Co. (1) to support this proposition. However, the Court found that the cited authority did not sustain his contention. In that case the company asserting adverse possession had presented facts that were consistent with a claim to the mineral rights throughout the entire village. The company openly sank pits at three separate locations, two of which were situated a half‑mile from the third, and it selected the sites for the pits at its own discretion. It brought its plant and machinery onto the site and constructed bungalows for its employees, thereby acting openly and without concealment as the possessor of not merely a single pit but of all the mineral fields underlying the whole village. Throughout the litigation the company maintained that it was entitled, under its lease, to work the minerals anywhere in the area. Acting under this bona‑fide belief, the Privy Council held that the suit was barred by Article 144 of the Limitation Act because the company had been in adverse possession of the minerals of the entire village for more than twelve years. Lord Macmillan observed at page 35 that “possession is a question of fact and the extent of possession may be an inference of fact,” and at page 37 added that “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.” The Court emphasized that this principle must be applied according to the facts of each particular case, and therefore the finding of adverse possession in Nageshuar Bux Roy was confined to its unique circumstances. The Attorney‑General also cited Secretary of State for India v. Debendra Lal Khan (1). In that case a zamindar claimed title to a fishery in a navigable river by adverse possession against the Crown, and the Court held that possession could be deemed continuous and adverse even though the acts of possession did not occur at every moment within the period. While acknowledging that the nature of possession may vary in different contexts, the Court observed that the present case involved a mine, not a fishery, and that no evidence of possession sufficient to infer adverse possession had been produced. Considering the intermittent nature of the mining activities and the periods of non‑operation described, the Court concluded that the appellant had not perfected title by adverse possession, and that the sparse and irregular working of the mine could not be regarded as possession sufficient to give rise to an inference of adverse possession.

The Court found that the material presented was completely insufficient to demonstrate possession that could be characterised as adverse possession, nor did it give rise to any inference of such possession. The Court concurred with the view expressed by the High Court on this point and consequently ordered the dismissal of the appeals, directing that costs be awarded. The Court further directed that a single costs order should apply to both appeals, except that each party would bear its own court fees. The appeals were therefore dismissed.