K. S. Nanji And Company vs Jatashankar Dossa And Others

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 52 of 1957

Decision Date: 22 March 1961

Coram: Subba Rao

In this case the Supreme Court recorded that the petition was filed by K. S. Nanji and Company against Jatashankar Dossa and others. The judgment was delivered on 22 March 1961. The bench was composed of Justice Raghubar Dayal, and the case was cited as 1961 AIR 1474 and 1962 SCR (1) 492. The matter concerned a dispute between owners of adjoining collieries. The respondents had instituted a suit alleging that the appellants had encroached upon the respondents’ coal mines, had removed coal from the encroached portion, and had become aware of the alleged encroachment after receiving a letter dated 18 August 1941 from the Inspector of Mines. The appellants denied any encroachment and contended that the suit was barred by limitation because the respondents had knowledge of the alleged intrusion as early as 1932, when a survey by the Department of Mines was conducted. The trial judge, after evaluating the evidence, concluded that the 1932 survey was unrelated to the present controversy, applied article 48 of the Indian Limitation Act, 1908 (9 of 1908), and found that the appellants had not established that the respondents possessed knowledge of the sinking of the quarries and pits in the disputed land within the prescribed period. Consequently, the trial court decreed in favour of the respondents. The High Court, on appeal, affirmed the trial judge’s finding, observing that while the burden of proving knowledge beyond the limitation period rested on the appellants, the initial burden to demonstrate that the respondents had knowledge of the alleged encroachment within the limitation period lay with the respondents. The High Court therefore affirmed the decree of the trial court.

The Supreme Court held that the allocation of the burden of proof had not been misplaced. Under article 48 of the Indian Limitation Act, a three‑year limitation period commences from the date of knowledge, and the plaintiff bears the initial onus of proving that date because it pertains to the plaintiff’s special knowledge. Moreover, section 3 of the Act obliges the court to dismiss a suit that is barred by limitation, even if the defence of limitation is not expressly pleaded; thus the plaintiff must demonstrate that the suit is not barred. The Court referred to the authorities in Lalchand Marwari v. Mahant Rampur Gir, (1925) I.L.R. 5 pat. (P.C.) 312 and Rajah Sahib Perhalad Seim v. Maharajah Rajender Kishore Singh, (1869) 12 M.I.A. 292. It also noted the distinction under the Indian Evidence Act, 1872 (1 of 1872) between the burden of proof as a matter of law and pleading, governed by section 101, which always remains on the plaintiff and never shifts, whereas the evidential burden may shift according to the evidence and presumptions raised by the parties. The Court cited Sundarji Shivji v. Secretary of State for India, (1934) I.L.R. 13 Pat. 752 as disapproved, and approved the authorities in Kalyani Prasad Singh v. Borrea Coal Co. Ltd., A.I.R. 1946 Cal. 123; Bank of Bombay v. Fazulbhoy Ebrahim, (1922) 24 Bom. L.R. 513; and Talyarkhan v. Gangadas, (1935) I.L.R. 60 Bom. 848. Finally, the Court reiterated the principle that a map referenced in a lease is integral to that lease, and when the map is drawn to scale and clearly marks the boundary, it cannot be ignored in favour of reconstructing the boundary solely on the basis of revenue records, referring to Darapali Sadagar v. jajir Ahmad, (1923) I.L.R. 50 Cal. 394.

The Court explained that a distinction exists between the legal burden of proof and the evidential burden of producing material. Under section 101 of the Evidence Act, the legal burden in the former sense always rests on the plaintiff and never shifts to the defendant. By contrast, the evidential burden in the latter sense may move according to the evidence that each party introduces and the presumptions of law or fact that favor one side. The Court referred to the decision in Sundarji Shivji v. Secretary of State for India, 1934 ILR 13 Pat 752, which it disapproved. It then cited and approved the authorities Kalyani Prasad Singh v. Borrea Coal Co. Ltd., AIR 1946 Cal 123; Bank of Bombay v. Fazulbhoy Ebrahim, 1922 24 Bom LR 513; and Talyarkhan v. Gangadas, 1935 ILR 60 Bom 848. The Court further held that it is well settled that a map annexed to a lease forms an integral part of that lease, and when such a map is drawn to scale and clearly marks the boundary, the boundary may not be ignored or reconstructed by resorting to revenue records. This principle was supported by reference to Darapali Sadagar v. Jajir Ahmad, 1923 ILR 50 Cal 394.

The appeal arose under civil appellate jurisdiction, identified as Civil Appeal No. 52 of 1957, challenging the judgment and decree dated 22 April 1953 of the Patna High Court, which in turn affirmed the decree of the Subordinate Judge, Dhanbad, dated 30 November 1946. The appellants were represented by counsel K.N. Bhattacharya and P.K. Chatterjee, while the respondents numbered 2 to 6 were represented by counsel N.C. Chatterjee, A.V. Viswanatha Sastri, R.S. Chatterji and D.N. Mukherjee. The judgment was delivered on 22 March 1961 by Justice Subba Rao. The factual backdrop involved two adjoining colliery owners at Kujama, with the plaintiffs’ land situated immediately to the south of the defendants’ land. On 2 August 1894, the Raja of Jharia granted a mukarrari lease of coal and coal‑mining rights over 300 bighas in the village of Kujama to Satya Karan Banerjee and Girish Chandra Samanta. Subsequently, on 15 June 1900, his son Raja Durga Prasad Singh granted coal‑mining rights over 400 bighas out of a total of 592 bighas to Jugal Kishore Lal. Samanta later purchased Banerjee’s leasehold interest and, on 23 November 1900, surrendered his earlier rights in favour of the Raja and obtained a fresh lease for the same 300 bighas on reduced rent. On 10 June 1901, Jugal Kishore Lal leased 96 bighas of his 400 bighas to D.M. Mathews, who on the same day granted a sub‑lease of the same 96 bighas to Walji Kheta. Walji Kheta executed a kabuliat in favour of M. Mathews on 11 October 1901 and acted as the representative of the defendants. Through a series of transfers, Samanta’s interest eventually vested in Bagdigi Kujama Collieries Limited. The plaintiffs’ case was premised on a letter dated 18 August 1941 from the Inspector of Mines, which they claimed disclosed that the defendants had encroached upon the plaintiffs’ coal mines on the northern side, removed coal from the encroached portion, and rendered the remaining coal there unworkable.

The plaintiffs carried out an inquiry and learned that the defendants had intruded upon the plaintiffs’ coal mines on the northern side, had taken coal from the portion that was encroached, and had caused the remaining coal in that portion to become unworkable. On the basis of these allegations the plaintiffs sought several orders. First, they asked that the intermediate boundary line separating the plaintiffs’ coal‑land from the defendants’ coal‑land be ascertained and formally fixed. Second, they requested that the exact area which had been encroached by the defendants be determined and that the defendants be directed to vacate that area. Third, they sought a permanent injunction restraining the defendants from any further encroachment on the plaintiffs’ coal‑land and from cutting or removing coal therefrom. Fourth, they asked that an enquiry be conducted to find out how much coal the defendants had cut and removed from the plaintiffs’ coal‑land and how much coal had been rendered unworkable, and that a decree be passed for the monetary value of that coal as damages against the defendants. The defendants denied that any encroachment on the plaintiffs’ coal‑land had occurred and contended that the suit was barred by limitation. They further pleaded that the plaintiffs were not entitled to any damages. The learned Subordinate Judge held that the defendants had indeed encroached upon the plaintiffs’ coal‑land, that the suit was not barred by limitation, and that the plaintiffs were entitled to the reliefs they had prayed for. On appeal, the High Court of Patna adopted all the findings of the learned Subordinate Judge and dismissed the appeal, leading to the present appeal. The first question for determination is whether the defendants had encroached upon the plaintiffs’ coal‑land. The answer depends on the accurate delineation of the boundary line between the plaintiffs’ leasehold and the defendants’ leasehold. It is commonly accepted that the southern boundary of the appellants’ leasehold abuts the northern boundary of the respondents’ leasehold. Counsel for the appellant argued that this boundary should be fixed solely by reference to the boundaries described in the lease executed in 1894. Counsel for the respondents argued that, because no plan was annexed to that 1894 lease, the boundary could be more satisfactorily and definitively fixed by reference to the plans annexed to the later lease deeds executed in favour of the successors‑in‑interest of both parties. To understand the rival positions it is necessary to examine the various lease deeds in detail. On 2 August 1894 Raja Jaimangal Singh executed a lease deed (Exhibit 1) granting 300 bighas to the predecessor‑in‑interest of the respondents. In that lease deed the northern boundary is described as the remaining portion of Mauza Kujama and the western boundary as Chatkari Jorh. The footnote to the lease states, “measuring 1101 feet in length running north and south by the side of the said Chatkari Jorh and area being 300 bighas by such measurement”. No plan was attached to this lease deed. On 15 June 1900 Jugal Kishore Lal,

In this case, the predecessor‑in‑interest of the appellant had obtained a lease described as Exhibit C for a parcel of 400 bighas from Raja Durga Prasad Singh, who was the son of the former Raja. The lease deed set the southern limit of the leased land as the northern boundary of the leasehold belonging to Girish Chandra Samanta and others, and it identified the western limit as the eastern edge of Chatkari Jorh, consistent with the map that was annexed to the deed. The document therefore demonstrated that the southern line of the appellant’s parcel matched exactly the northern line of Samanta’s leasehold. It was also observed that the appellant had not filed the map that was annexed to this lease deed. Subsequent investigation showed that Samanta had purchased the interest of Banerji in the 1894 leasehold, and that, at Samanta’s request, Raja Durga Prasad Singh executed a fresh lease of the same estate to Samanta on 23 November 1900, attaching a map identified as Exhibit 3(b). In that later lease the northern boundary of Samanta’s leasehold was described as the leasehold of Rajkumar Jugal Kishore Lal Singh Bahadur. The map in Exhibit 3(b) depicted the boundary line separating the two leaseholds, drawing a line between a point marked “A” and a point marked “B”. Because the map formed part of the lease, the plan clearly indicated that the line AB constituted the northern limit of Samanta’s lease. On 10 June 1901, Jugal Kishore Lal, the appellant’s predecessor‑in‑interest, granted a sub‑lease of 96 bighas carved out from his leasehold to a person named Mathews, recorded as Exhibit C(1). Mathews subsequently conveyed the same 96 bighas to Walji Khetan, who represented the appellant, under Exhibit D. Both of these subsequent documents also described the southern boundary of the conveyed land as the northern boundary of Samanta’s leasehold. Each of these instruments referred to a map, and each map displayed the same line from point A to point B as the boundary between the two leaseholds. The line AB shown in the later documents corresponds exactly to the line shown in Exhibit 3(b). Consequently, the documents, to which the defendants’ predecessors were parties, contain an explicit acknowledgement that the boundary separating the appellant’s leasehold from that of the respondents is the line AB depicted in Exhibit 3(b). The court concluded that, had the appellant produced the map annexed to Exhibit C, it would have confirmed the same boundary line as shown in Exhibit 3(b). The court therefore inferred that the appellant had suppressed the map, and, on that basis, drew the inference that the undisclosed plan would be adverse to the appellant’s position. Relying on this documentary evidence, the court held, in agreement with the lower courts, that the southern boundary of the appellant’s holding, which aligns with the northern boundary of the respondents’ holding, is the line between points A and B shown in Exhibit 3(b).

In this case the lower courts found that the southern boundary of the appellant’s leasehold, which was contiguous with the northern boundary of the respondents’ leasehold, was the line joining points A and B shown in Exhibit 3(b). The next issue addressed by the lower courts was the method for ascertaining the exact location of point A. Counsel for the appellant argued that when the description of the map was translated into words, the correct boundary should be a line drawn from the true meeting point of the four villages—Pandebera, Jharia Khas, Lodhna and Kujama—at a bearing of 82 degrees 15 minutes. The respondents maintained that the line actually drawn on the lease map correctly laid down the northern boundary of the respondents’ leasehold. It was settled law that a map referred to in a lease was to be treated as incorporated in the lease and as forming part of the instrument, as held in Darapali Sadagar v. Najir Ahamed. Because the map in the present case was drawn to scale and expressly incorporated into the lease deed, the courts held that it was not permissible to disregard the starting point shown on the map and to substitute any scientific point based on a fresh survey. The commissioner appointed by the court examined the positions of the six trijunction pillars shown on the lease map dated 23 November 1900 and found that two of those pillars were correctly placed. Relying on those two correctly positioned pillars, the commissioner, by the process of superimposition, re‑laid the northern boundary line of the leasehold property. The point A on the re‑laid map did not correspond with the point where the four villages actually met. The commissioner observed that the true meeting point of the villages would be 1,680 feet from the trijunction pillar of Lodhna, Kujama and Madhuban, whereas point A was situated 1,750 feet from that pillar. Counsel for the appellant contended that, according to Exhibit 3, the western boundary should be fixed according to the revenue plan and therefore point A should be placed at a distance of 1,680 feet from the trijunction pillar, as that distance was shown in the revenue records. However, a perusal of Exhibit I showed that the revenue plan made no reference to the western boundary. Moreover, even if the distance of 1,680 feet were accepted as the correct measurement between the pillar and point A on the map, it would demonstrate that the measurement given in Exhibit 3 was incorrect, because Exhibit 3 recorded the distance as only 1,101 feet. A more serious objection to the appellant’s argument was that a court could not reconstruct a self‑contained, to‑scale plan by referring to revenue records when the plan itself was complete and drawn to scale. In summary, the essential question was whether the disputed extent formed part of the respondents’ holding or the appellant’s holding. The map shown in Exhibit 3(b), annexed to the lease deed executed in favour of the respondents’ predecessor‑in‑interest, clearly demarcated the boundary line between the holdings of the appellant and the respondents, and according to that plan the disputed extent fell within the boundary of the respondents’ holding.

In favour of the respondents’ predecessor‑in‑interest, the map clearly demarcated the boundary line separating the holdings of the appellant and the respondents, and, according to that plan, the disputed portion of land fell within the respondents’ boundary. The lease of the appellant’s predecessor, identified as Exhibit C, also referred to a map, but the appellant did not produce that document. By contrast, the sub‑leases prepared by the appellant each contained annexed maps, and the boundaries shown on those maps corresponded with the boundaries shown on Exhibit 3(b). Those annexed documents contain explicit admissions that support the respondents’ case. The recitals contained in Exhibit 1 could not be relied upon, because it was shown that the description of the western boundary in that exhibit was inaccurate. On the basis of these materials, both the trial court and the appellate court concluded that the disputed tract formed part of the respondents’ holding. It is well settled that a map referred to in a lease is incorporated into that lease and forms part of the contractual document. In the present matter, the maps that were accepted by the courts were drawn to scale and displayed a clear demarcation of the boundary. Consequently, the courts were correct in accepting the plan’s boundaries without attempting to revise them by reference to revenue records. The issue of the boundary therefore rested on fact, and the courts’ factual finding was accepted.

The subsequent issue was whether the suit was barred by limitation. The appellant was alleged to have encroached upon the respondents’ colliery and removed coal from the disputed area around the year 1932. The plaintiffs asserted that they became aware of the alleged encroachment and coal removal only after receiving a letter dated 18 August 1941 from the Inspector of Mines, and that prior to that date they possessed no knowledge or information of any such intrusion. The appellant denied this allegation, maintaining that the respondents had always known that the portion of coal‑land in question belonged to, and was the property of, the appellant. The appellant further argued that the respondents must have been aware of the encroachment as early as 1932, when a survey was conducted by the Department of Mines. On the pleadings, issue 3 was framed: “Is the suit barred by limitation?” The learned Subordinate Judge, after examining the evidence, held that the proceedings of 1932 were unrelated to the determination of the boundary line between the two holdings. He applied Article 48 of the Limitation Act to the suit and found that the appellant had failed to prove that the respondents possessed knowledge of the sinking of quarries and pits on the encroached land. On appeal, the High Court affirmed this finding. Although the High Court held that the burden of proving the respondents’ knowledge beyond the prescribed period rested on the appellant, it rendered its decision on the assumption that the initial burden of proof lay with the respondents.

The Court observed that the High Court had placed upon the respondents the burden to demonstrate that they possessed knowledge of the alleged encroachment only within three years of its occurrence. Consequently, there were concurrent findings of fact concerning the question of knowledge. The counsel for the appellant argued that this finding was flawed because the burden of proof had been incorrectly shifted onto the appellant. The Court rejected this submission, stating that, as previously noted, the High Court’s factual finding was based on the assumption that the initial burden of proof rested on the respondents.

The Court then noted that it is well settled that Article 48 of the Limitation Act governs the limitation period for the present suit. The provision provides that the limitation period commences from the date when the person having the right to possession of the property first learns of the fact as to whose possession the property is. In other words, a suit for recovery of specific movable property acquired by conversion, or for compensation for wrongful taking or detaining of such property, must be filed within three years from the date the rightful possessor first becomes aware of the identity of the possessor.

From this wording, the Court explained that the burden to prove knowledge of the relevant fact lies with the person who claims a right to sue within the three‑year period. It is that person’s responsibility to establish, on the date he alleges, that he had actual knowledge of the pertinent fact, because the limitation period is measured from the moment the plaintiff acquires such knowledge. The Court further referred to Section 3 of the Limitation Act, which obliges a court to dismiss a suit that is time‑barred, even where limitation has not been pleaded as a defence. This provision underscores the plaintiff’s duty, at the very least on a prima facie basis, to demonstrate that the suit is filed within the prescribed time. The Court cited the decisions in Lalchand Marwari v. Mahanth Rampur Gir and Rajah Sahib Perhlad Sein v. Maharajah Rajender Kishore Sing to illustrate that the plaintiff must satisfy the court that the cause of action is not barred by lapse of time.

Finally, the Court turned to the Evidence Act, noting that it makes a clear distinction between the “burden of proof” as a legal and pleading requirement and the “burden of proof” as an evidential duty. Under Section 101 of the Evidence Act, the legal burden remains throughout the trial on the party who seeks a declaration of fact, while the evidential burden may shift depending on the evidence presented and any presumptions that arise. In the present matter, the Court affirmed that the legal burden of proof regarding knowledge remains on the respondents, but it examined whether the respondents had produced evidence that would shift the evidential burden to the appellant.

Under the Evidence Act, the court distinguished two concepts of burden of proof. The first concept, described as the legal burden, remained permanently with the party who sought a judicial decision on the existence of certain facts that he asserted. This legal burden persisted throughout the trial regardless of any evidence presented. The second concept, referred to as the evidential burden, could shift from one party to the other depending on the nature of the evidence adduced, the existence of any presumption of fact, or any presumption of law that favored one side. In the matter before the Court, the legal burden of proof lay with the respondents because they were defending the allegation of encroachment. However, the Court needed to determine whether the respondents had produced evidence that would cause the evidential burden to shift to the appellant.

The respondents called their Colliery Manager as witness P.W. 2. In his testimony, the witness asserted that the appellant had encroached upon the South Kujamal Colliery in Seam Numbers 10, 11 and 12 as well as a special seam known as the four‑feet seam. He further declared that he first became aware of this encroachment in August 1941 when the Mines Department sent a plan showing the joint workings of the two collieries. The witness insisted that he possessed no knowledge of the alleged encroachment before that date. During cross‑examination, counsel suggested two additional facts: that in 1932 the Mines Department had conducted a survey of the coal‑land belonging to both the plaintiffs and the defendants, and that Seam Numbers 11 and 12 had been worked by the appellant using an open quarry system. The witness denied knowledge of both of those matters. Both the learned Subordinate Judge and the High Court accepted the witness’s testimony, although the High Court remarked that it was not entirely satisfactory. On the face of the evidence, the Court concluded that the respondents’ knowledge of the encroachment began only in 1941.

The Court then examined the authority cited by counsel. In the Patna High Court decision Sundarji Shivji v. Secretary of State for India, a division bench held that when a defendant in a tort action seeks to rely on the limitation period as a defence, the burden of proving the requisite facts rests upon the defendant. That case involved a suit for conversion of property, and the judges applied Article 48 of the Limitation Act. They observed that the limitation period for conversion commenced on the date when the person entitled to possession first learned of the conversion. The judges further noted that the pleadings did not specify the exact date on which the plaintiff or the plaintiff’s agent became aware of the conversion. Because the defendant could not produce any material to fix that date, the judges concluded that the defendant’s limitation defence failed.

After reviewing the Patna High Court precedent, the Court expressed respect for the earlier decision but disagreed with its conclusion. The Court reiterated that the legal burden of proof lies with the plaintiff who asserts a right, and that, depending on the circumstances, the evidential burden may shift to the defendant. Nevertheless, the Court emphasized that the plaintiff must still allege, in his pleadings, the date on which he learned of the defendant’s wrongful possession. To place the entire burden on the defendant, without requiring the plaintiff to identify the date of his knowledge, would contradict both the language of the Limitation Act and the established rules of evidence.

The Court observed that the plaintiff had not identified the date on which they became aware of the sale and its wrongfulness, that is, the fact of conversion. It further noted that the defendant was unable to produce any material evidence establishing that date, and therefore the defendant’s defence based on limitation could not succeed because the defendant could not demonstrate a date falling outside the three‑year limitation period that would have entitled him to a defence. With due respect to the earlier judges, the Court held that the previous decision had not been correctly decided. The Court reiterated that, as explained earlier, the burden of proof ordinarily rests on the plaintiff who asserts a right, although, depending on the circumstances of each case, the onus of proof may shift to the defendant, as reflected in the cited authority (1) (1934) I.L.R. 13 Pat, 752, 760. The Court cautioned that to say that the plaintiff bears no duty even to allege the date when he first learned of the defendant’s possession of the converted property, and that the entire burden lies with the defendant, runs contrary to the language of the Limitation Act and to established rules of evidence. The Court then referred to a division bench of the Calcutta High Court in Kalyani Prasad Singh v. Borrea Coal Co. Ltd. (1), which rejected the Patna High Court’s view and followed the Bombay High Court’s approach in Bank of Bombay v. Fazulbhoy Ebrahim (2). In that context, the Calcutta High Court judges observed that “the burden of proof rests upon the party who substantially asserts the affirmative of the issue… We are of opinion that the onus is upon the plaintiff in these suits to prove that the knowledge of his claim arose within three years of the suit.” The Court also quoted the judgment in Talyarkhan v. Gangadas (3), wherein Justice Rangnekar explained that “the onus is on the plaintiff to prove that he first learned within three years of the suit that the property he seeks to recover was in the possession of the defendant. In other words, he must show that he obtained knowledge of the defendant’s possession of the property within three years of the suit, and that is all. If he proves this, then, to succeed on the defence of limitation, the defendant must prove that the plaintiff’s knowledge of the defendant’s possession arose more than three years before the suit.” The Court accepted these observations as correctly stating the law on the matter. Regarding the facts of the present case, the appellant presented evidence that the alleged encroachment occurred before 1932, but the Court found no admissible evidence establishing that the respondents became aware of the appellant’s removal of coal or of the appellant’s possession of the removed coal more than three years before the suit was filed. Counsel for the parties (1) A.I.R. 1946 Cal. 123,127‑ (2) (1922) 24 Bom. L.R. 513‑‑ (3) (1935) I.L.R. 60 Bom. 848, 860 had taken the Court through the correspondence exchanged between the parties and the Mining Department in 1932, which did not demonstrate the respondents’ knowledge of the appellant’s alleged encroachment.

The Court observed that the correspondence between the parties and the Mining Department in 1932 did not establish that the respondents knew the appellant had encroached upon any part of their coal mines. The parties emphasized that a quarry system of working existed in the mines and argued that because quarrying is carried out openly the respondents must have been aware of the appellant’s intrusion. However, the courts examined the Commissioner’s maps and found that the portion claimed to be encroached contained only underground workings, while the open quarries were situated largely outside that area. Accordingly, both the learned Subordinate Judge and the High Court refused to base any finding on mere probabilities, insisting that clear evidence was required to sustain such a conclusion. Consequently, the Court could not hold that the lower courts’ findings were affected by an error of law by shifting the burden of proof onto the appellant. The Court accepted the High Court’s finding that the respondents became aware of the appellant’s encroachment only in 1941, which fell within three years of the suit’s filing. The only remaining issue for consideration was Issue No. 7, which concerned the claim made in paragraph 11 of the plaint. In that paragraph the plaintiffs asserted that, under the Indian Mines Act and the Rules and Regulations made thereunder, they were required to maintain a barrier of twenty‑five feet to the south of the defendant’s working, rendering the coal remaining in the encroached area inaccessible and therefore wholly unworkable and permanently lost to the plaintiffs. The defendants, in their written statement, did not dispute that the coal left in the encroached area was lost to the plaintiffs; instead they contended that the loss was solely a matter of statutory obligation on the part of the plaintiff, a matter with which the defendant had no involvement. The learned Subordinate Judge accepted the plaintiffs’ position and held that the coal remaining in the encroached area was entirely lost because it had been rendered unworkable, and the High Court affirmed that finding. Counsel for the appellant argued that, according to the Rules, the respondents could have applied to the mining authorities for an exemption from the operation of rule 76 of the Indian Coal Mines Regulation, 1946, and that, if such exemption were granted, the respondents could have removed the coal left by the appellant in the encroached area. The Court noted that this possibility of obtaining an exemption had not been raised before either the Subordinate Judge or the High Court, and therefore it could not be allowed to influence the present decision in favour of the appellant. Accordingly, the Court accepted the concurrent factual findings of the lower courts on this issue. No other point was raised, and the appeal was dismissed with costs.