# SHREEMATI KASHI BAI v. SUDHA RANI GROSE AND OTHERS

- **Citation:** [1958] 1 S.C.R. 1402
- **Court:** Supreme Court of India
- **Decided:** 1958
- **Case number:** Civil Appeals Nos. 118-119 of 1956
- **Bench:** Bhagwa T, L. Kapur, Gajendragadkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shreemati-kashi-bai-v-sudha-rani-grose-and-others-1428
- **Pages:** 9

## Headnote

Adverse possession-Coal mine-Trespass and intermittent
working-Whether can constitute adverse possession.
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 of the lands
leased to the predecessors in interest of the respondents, sank two
inclines and two airshafts and dug out coal therefrom.
There
were no mining operations till 1923 when they were restarted and
continued till 1926, and were re-commenced in 1931 and carried
on till 1933. In 1939 the mine was worked for a short time.
lu
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, inter alia, that they had been in sole, ex,
elusive, 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 appella.'lts 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.

## Text

1958
Febr11ary 25•
1402
SUPREME COURT REPORTS
SHREEMATI KASH! BAI
v.
SUDHA RANI GROSE AND OTHERS
[1958]
(BHAGWA T,
L. KAPUR and GAJENDRAGADKAR JJ.)
Adverse possession-Coal mine-Trespass and intermittent
working-Whether can constitute adverse possession.
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 of the lands
leased to the predecessors in interest of the respondents, sank two
inclines and two airshafts and dug out coal therefrom.
There
were no mining operations till 1923 when they were restarted and
continued till 1926, and were re-commenced in 1931 and carried
on till 1933. In 1939 the mine was worked for a short time.
lu
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, inter alia, that they had been in sole, ex,
elusive, 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 appella.'lts 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.
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos.
118-119 of 1956.
Appeal from the judgment and decrees dated
September 27, 1951, of the Patna High Court in
Appeal from Original 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.
I
S.C.R.
SUPREME COURT REPORTS
1403
1958
. . M. C. Setalvad, Attorney-General for India, K.shitindra Nath Bhattacharya, S. N. Andley, J.B. Dadachan.ifi and Rameshwar Nath, for the appellant.
Shreematl
Kami Bal
N. C. Chatterjee, S. C; Bannerjee and P. R. Chatterjee,
v.
for respondents ·Nos. 7 to 1.3.
Sudha Rani Ghose
and Others.·
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 Sengvi 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 i:tt the appellate stage
under O. l,r.10, CodeofCivilProcedurein the appeal
taken against the decision in the former suit. Both
the suits were decreed against the appellant and respondent Manilal. Becharlal Sengvi 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 Ganga 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
moua Katras and the other in mouza Bhupatdih. On
November 6, 1894 he granted a similar lease in plots
KapurJ.
1404
SUPREME COURT REPORTS
[1958
1958
contiguous to the plots in the lease mentioned above
to Bhudar Nath Roy. In Suit No. 32of1896 boundas~,·~~;;.
ries between these two sets of plots were fixed and
"'v'.
0
'
this was shown in. a map which was incorporated in
sudlra Rani Gho,. the decree passed m that suit. On the death of Ram .
and Others
Dayal, his sons Prafulla, Kumud, Sarat, Sirish and
Girish inherited the leasehold rights which they on
Kapur J.
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 Manila! 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 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
1938 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
S.C.R.
SUPREME COURT REPORTS
1405
the New Katras Coal Company Limited. This Com1958
pany worked the coal mine for some time but went
into liquidation and in Execution Case No. 293 of
'i!;~";';
1922 the right, title and interest of the company were
,, v . a
sold and purchased by Nanji Khengarji father-in-law sudha &,,1 Ghose
of Shrimati Kashi Bai appellant and by one Lira
and Others
Raja. In August 1923 Nanji Khengarji and Lira Raja
·effected a partition, the western portion of the leased
'Kapur J.
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 Sreemati Kashi Bai, widow of Ratilal.
In December 1944 she (Sreemati Kashi Bai) entered
into a partnership with Manilal Becharlal Sengvi
respondent.
On March 24, 1945 Brojendra Nath Ghose, Vishwa
Nath Prasad and Nagendra Nath Bose respond~nts
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 allegaticns 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
1958
Slzree111ati
Kashi Bai
v.
Sudha Rani Ghose
and Others
Kapur J.
1406
SUPREME COURT REPORTS
[1958]
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 Manila! Becharlal Sengvi
(respondent) against the three plaintiffs of Suit No. 16
of 1945 (respondents Nos. 1 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 ofl945. The two suits were
tried together with 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. 1 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 Manila!
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.
I 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
S.C.R.
SUPREME COURT REPORTS
1407
respondents Nos. 1 to 3 were entitled to it as from
19ss
December 1944 and the amount would be determined
by the appointment of a Commissioner in a subsequent
Sllret'!'IJ''.
proceeding.
Xaahi Bai
The High Court on appeal confirmed the findings of su& J:ini Ghose
the trial Court and held that the land in dispute was
and Others
part of the land leased to. respondents Nos. 1 to 3;
that the appellant and Manilal Becharlal
Sengvi
Kapur J.
respondent had encroached upon the land in dispute;
that the working of the seam had not been continuotls
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 possessi@n could be acquired to the
whole of the mine.. In the High Court the validity of
the lease in favour of the respondents Nos. 1 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. 16of1945 "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
SUPREME COURT REPORTS
[1958]
1958
hostile title for the prescribed
period of 12
years
necessary to constitute adverse Pf>SSession. It was
~re,:~;
1
;
contended that for the purpose of adverse possession
as~. a
in regard to a coal mine it was not necessary that it
sudha Rani Ghose should have been worked for 12 years continuously
and Others
and it was sufficient if the appellant had carried on
mining operations for a period of 12 years even with
Kapur J.
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.
Nageshwar Bux Roy v. Bengal Coal Co. (') 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 l /2 mile distant from
the 3rd. The company selected the places where they
were to dig up the pits at their own discretion,
(I) [1930] L.R. 58 I.A. 29.
" '
' /
S.C.R.
SUPREME COURT REPORTS
1409
brought their plant or machinery on the ground
1958
and erected bungalows for their employees. There
was no concealment on the part of the company and
s;;;;;m;~:
they behaved openly as persons in possession of not
v.
one pit but all. mineral fields underlying the whole Sudha Rani Ghose
village and . they throughout claimed to be entitled to
and Others
sink pits any where in the village they chose. The
company was under a bona fide belief that under their
Kapur 1·
lease they were entitled to work the minerals any where
in the area. In these circumstances the· P_rivy 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 whtch 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. If was held that possession may
be adequate in continuity so as to be adverse 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] LR. 61 J.A. 78.
1410
SUPREME COURT REPORTS
[1958)
1958
title ~y a~verse possession. Intermittent working of
Silmmatl
the Illlfi:e m the m!lnner ~nd for the period described
K"'"' Bat
ab~ve is wholly u.1suffic1ent to establish possession
v.
which would constitute adverse possession or would
sodila Rani Ghos• lead to an inference of adverse possession and we are
and 011wr.r
in agreement with the view expressed by the High
Kap11r J.
1958
March 10 ..
Court and would therefore dismiss these appeals with
costs. . One set of costs between the two appeals
except as to Court-fees.
•
Appeals dismissed .
EARNEST JOHN WHITE
v.
MRS. KATHLEEN OLIVE WHITE AND OTHERS
(BHAGWATI, J. L. KAPUR and GAJENDRAGADKAR JJ.)
Divorce-Adultery-Standard of proof-Principle-Direct
evidence if imperative-Finding of fact when can be interferred
with-Divorce Act (IV of 1869), u. 14 and 1.
The appellant sued his wife for dissolution of marriage on the
ground of adultery.
·
On the evidence the trial coun found that it wa5 not possible
to bold that adultery had been committed, though it found that
one of the letters contained "a large substratum of truth". The
High Coun in appeal concurred with the decision.
On appeal to
the Supreme Coun it was contended for the appellant that the
finding of the courts below was vitiated because certain pieces of
evidence had been Misread, and some others ignored. As a matter
of legitimate and proper inference the Coun should not have
arrived at any other conclusion, but that the wife was guilty of
adultery with respondent No. 2. The evidence showed that the
wife went to Patna and stayed in a hotel with respondent No. 2
under an assumed name, that they occupied the same room in the
hotel, that the conduct of the respondent indicated a guilty inclination, and that so far as the wife was concerned, her conduct wa!
entirely consistent with her guilt:
Held, that, the nature of the evidence adduced was such a.s
would satisfy the requirements of s. 14 of the Divorce Act, and
that the finding of the Couns below that an inference of adultery
could not be drawn therefrom must. be set aside.
Although it is not usual for the Supreme Coun to interfere