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TMI Blog1971 (3) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... as Nawab Salar Jung T. This jagir consisted of many villages in the district of Raichur one of them being Madlapur on the bank of the river Tungabhadra. In the year 1930 the successor of the original grantee of the jagir, Nawab Salar Jung III made a grant of an island in that village comprising S. Nos. 154, 312 and 313 with a hillock rising to a height of 250 ft. and measuring Ac. 290-00 in favour of one Swami Nijananda, the predecessor-in-interest of the respondent. In February 1946 the entire area covered by the grant to Swami Nijananda was proposed to be acquired for an irrigation and hydroelectric project known as the Tungabhadra Project which had been embarked upon by the Governments of Hyderabad and Madras States. The purpose of acquisition was the gathering of granite stone for the construction of a dam across the river Tungabhadra. The acquisition proceedings were completed pursuant to a final notification made on June 16, 1947 followed by an award by the Land Acquisition Officer on July 24, 1950. Before the Land Acquisition Officer two claims were put forward, one on behalf of the respondent Swami Satyananda and the other by Nawab Salar Jung III. But as all jagirs includin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he right to granite in the hillock. The High Court apparently fortified its conclusion placing reliance,on the fact that copies of all the grants of jagirs should have been available with the State authorities and as the original grant to Nawab Salar Jung or an authenticated copy thereof was not produced, the necessary inference would be that the same would not support the contention of the Advocate-General. The High Court further took the view that the granite in respect of which compensation was claimed in the case was not a mineral and that being so neither Section 63 of the Hyderabad Land Revenue Act nor the Farmans referred to in Exs. A-21 and A-22 were relevant to the issue before it and it would not be possible to hold that the minerals and mineral products in the hillock vested in the Government under Section 63 of the Hyderabad Land Revenue Act. In our view it is not necessary to consider the effect of the Farmans or of Section 63 of the Hyderabad Land Revenue Act. It was for the respondent to establish his claim to minerals or quarry rights by putting forward proof of the grant thereof by the Nizam to Salar Jung and to show that his rights in the land held by him were c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex. 50 is a copy of the proforma No. 8 (Takavi) statement of village Madlapur and is for Paramboke (patta) granted on 7th Mehar 1336 F. The remarks of the Tahsil office in this case read : "An assessment of ₹ 28-4-9 of the unsurveyed Paramboke No. 154 measuring 106 acres 20 guntas at the Bolguddi is approved as per the District Office Order. Nijanand Narasimha Bharati Swamy of Dolurguddi is granted the excess of 'Lawani' in accordance with ₹ 0-4- 0 agreement from 'Dhara' to 'Rev-Sharan'." Reference may also be made to the letter issued by the Superintendent, Settlement Department, Salar Jung Estate where the petition for grant of patta of land of Bolur Gedda by Narasimha Bharati Swamy mentioned as one for the purpose of grazing cattle. According to this letter : "The land once bearing survey No. 244 measuring 209 acres and known as Bolur Gedda has been lying as a waste since a long time. The land in the said survey number is not fit for cultivation. On all the occasions water of the stream will be surrounded on all the four sides. It would be useful only for grazing the cattle. Near about the said survey land there are two tamarind trees. But the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sor had conveyed some sort of interest in the village to a set of persons called Goswamis who were shebaits or priests of an idol. The Goswamis had purported to grant to the respondents two leases by virtue of which the latter claimed to have exercised rights with respect to minerals. There was no evidence whatever that the zamindar Raja had ever granted mineral rights to the Goswamis or any other person. The courts in India concurrently found that, no prescriptive rights had been proved by the respondents to any underground rights in the village. The High Court took the view that the Goswamis being tenure-holders had permanent heritable and transferable rights, from which it was inferred that the underground rights also belonged to them. The Subordinate Judge had however inferred from the smallness of the jumma (rent) that only the surface rights and not the underground rights were intended to be let out to the Goswamis. The Board held that (p. 146) : ". . . . the title of the zamindar raja to the village Pctena as part of his zamindari before the arrival of the Goswamis on the scene being established as it has been, he must be presumed to be the owner of the underground ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 'transferable, minerals will not be held to have formed part of the grant in the absence of express evidence to that effect." According to the Board "On the assumption that the expression (mai hak hakuk) means 'with all rights'. or may be properly amplified as 'with all right, title and interest', such expressions ... did not increase the actual corpus of the subject affected by the pottah. They only give expressly what might otherwise quite well be implied, namely, that that corpus being once ascertained, there will be carried with it all rights appurtenant thereto, including not only possession of the subject itself, but it may be of rights of passage, water or the like which enure to the subject of the potta and may even be derivable from outside properties. It must be borne in mind also that the essential characteristics of a lease is that the subject is one which is occupied and enjoyed and the corpus of which does not in the nature of things and by reason of the user disappear. In order to cause the latter specially to arise, minerals must be expressly denominated, so as thus to permit of the idea of partial consumption of the subject leased." Accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the grant in .1930 was the cultivation thereof or grazing cattle thereon. The grantor was even careful to reserve the right to fruit-baring trees. It would be a strange construction to hold that although the grantor expressly excluded such trees from his grant he must be taken to have parted with his sub-soil rights by implication. We may also note that in State of Andhra Pradesh v. Duvvuru Balarami Reddy ([1963] 1 S. C.) where the respondents had obtained mining leases for mining mica from the owners of a certain shortriem village it was held that shortriemdars had no rights in the minerals and the leases granted by them to the respondent had no legal effect. It is true that this Court was there dealing with rights of a different class of persons and it was claimed on behalf of the respondent that inasmuch as the grant included poramboke if followed that mere surface rights were not the subject matter of the grant. Rejecting this contention the Court observed (p. 183) : "So far as the sub-soil rights are concerned, they can only pass to the grantee if they are conferred as such by the grant or if it can be inferred from the grant that subsoil rights were also included ..... X X X X Extracts X X X X X X X X Extracts X X X X
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