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PETITIONER: SUKHDEV SINGH

       Vs.

RESPONDENT: MAHARAJA BAHADUR OF GIDHAUR

DATE OF JUDGMENT: 02/05/1951

BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID MUKHERJEA, B.K. AIYAR, N. CHANDRASEKHARA

CITATION:  1951 AIR  288            1951 SCR  534

ACT: Ghawali tenures--Nature and incidents--Government  ghatwalis and  Zemindary  ghatwalis--Difference--Zemindar’s  right  to sub-soil minerals--District Gazetteers--Evidentiary value.

HEADNOTE:     Though  there are several instances in which  Government ghatwalls  were included in the zemindary of other  persons, yet  where no clear evidence is forthcoming as to  the  true character of a ghatwali, the fact that the tenure is includ- ed  within a zemindary and is covered by the  jama  assessed upon  it  should turn the scale in favour of the  party  who alleges  that  it is a tenure which is  dependent  upon  the zemindary.    The  mere fact that the ghatwali was shown to  be  under the  Collector cannot alter the character of  the  ghatwali, i.e., if it was a zemindary ghatwali, it could not become  a Government ghatwali merely because it was stated to be under the Collector.     A  zemindar is presumed to be the owner  of  underground rights  in  the tenancies created by him in the  absence  of evidence that he ever parted with them.     A statement in the District Gazetteer is not necessarily conclusive,  but  the Gazetteer is an official  document  of some value, as it is compiled by experienced officials  with great care after obtaining the facts from official records. (History and incidents of ghatwali tenures discussed).

JUDGMENT: CIVIL APPELLATE JURISDICTION. Civil Appeal No. 29 of 1950.    Appeal  against  the Judgment and Decree dated  the  10th October,  1945,  of the High Court of  Judicature  at  Patna (Manohar  Lal and Das JJ.) in Appeal No. 64 of 1942  arising out of decree dated the 28th February, 1942, of the Subordi- nate Judge at Monghyr in Suit No. 10 of 1941.     Amarendra  Nath  Sinha (Samrendra Nath  Mukherjee,  with him) for the appellants.     Lal  Narain  Sinha (R.C. Prasad, with him) for  the  re- spondent,

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535     1951. May 2. The judgment of the Court was delivered by     FAZAL  ALI  J.--This is an appeal from  a  judgment  and decree of the High Court of Judicature at Patna, affirming a judgment and decree of the Subordinate Judge of Monghyr in a title suit brought by the plaintiff-respondent.     The plaintiff, the Maharaja of Gidhaur, who has succeed- ed  in  both  the  courts below, is  the  proprietor  of  an impartable  estate known as Gidhaur raj in the  district  of Monghyr.    The  ancestors  of  the  defendants  1st   party originally  held a 4 annas share in a ghatwali tenure  known as Mahal Dumri Nisf Katauna T. No. 325, and subsequently  by private partition they were allotted mouza Dumri with its 47 tolas  which are detailed in schedule I of the  plaint.   In execution  of a mortgage decree obtained by one Chethru  Rai against  the  ancestors  of  defendants  1st  party,   their interest, to which reference has been made, was purchased by the  Maharaja   of   Gidhaur  in the  name  of  one  of  his employees, and the latter took delivery of possession of the property on the 19th April, 1904.  On the 13th August, 1903, the   ancestors  of  the  defendants  1st  party  filed   an application  for setting aside the sale which was  dismissed by the executing court and the appeal from the order of  the executing  court was dismissed by the High Court as well  as by  the  Privy  Council.   After  certain  disputes  in  the criminal  courts,  the  defendants  second  party   alleging themselves to be the lessees of the defendants first  party, obtained  a mining license in 1937 from  the  sub-divisional officer of Jamui, and the District Magistrate apprehending a breach  of the peace, started proceedings under section  144 of the Criminal Procedure Code, which ended in favour of the defendants   first  and  second  parties  and  against   the plaintiff.     The plaintiff’s case is that, emboldened by the order in the  proceedings under section 144, the  defendants  started working  mines in the tolas mentioned in schedule II of  the plaint and extracted a considerable   536   quantity of mica and hence he was compelled to   institute the present suit.  In this suit, after reciting   the  facts to  which reference has been made he prayed  for a  declara- tion of the subsoil rights with regard to  the entire  Mahal Dumri and for recovery of possession  of the mortgage  lands situated  in  the  tolas specified in  schedule  11  of  the plaint.  He also prayed for mesne  profits and  a  permanent injunction  restraining  the  defendants  first  and  second parties from extracting  mica or other underground  minerals from the lands  mentioned in schedule II of the plaint.  The grounds  on which these reliefs were claimed are  summarized in  paragraph 12 of the plaint in these words :-    "That  the plaintiff submits that he being the 16   annas proprietor  of Dumri Nisf Katauna has got  an   indefeasible right  and title to all the underground  minerals  including mica situate within the said talukas.  The plaintiff further submits  that  all the titles and  interest in  the  said  4 annas mokrari shares of the  ancestors of the defendant  1st party  having  been   acquired by  plaintiff’s  ancestor  by auction  purchase in  1903, the defendant 1st party have  no sort  of right  and interests in the mica and other   under- ground   minerals nor the defendant 2nd party  have  derived any lawful right under leases alleged to have been   granted in  their favour by defendant 1st party, the   plaintiff  in law  is  entitled  to get a declaration of  his   title  and possession with respect to all the underground right includ- ing mica  ........."

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   The  suit  was  contested by defendants  Nos.  1  to  11 (defendants 1st party), but, as the trial judge has  pointed out,  the real defendant was defendant No. 1, father of  the appellant.   The  case of this defendant was that  the  four annas interest in village Dumri was a ghatwali tenure grant- ed to the ancestors of the defendants first party by  Muham- madan rulers to guard the hill passes in the taluka, and the grant  under  which they held was affirmed  subsequently  by Captain Browne, a representative of the East India  Company. The  defendant No. 1 further contended that the mineral  and subsoil rights were vested in him as the holder of 537 the ghatwali tenure, and that the plaintiff had acquired  no right  by  his  auction-purchase in  1903  inasmuch  as  the property in suit being Government ghatwali tenure was inali- enable  and consequently the auction-purchase  was  invalid. Lastly, it was  contended that this defendant and his ances- tors had been exercising rights of possession over the mines and  minerals  for more than 12 years prior to the  suit  in assertion  of their ghatwali right and to the  knowledge  of The  plaintiff  and his ancestors and had thus  acquired  an indefeasible  right by adverse possession to the  mines  and minerals in suit, especially those in the lands specified in schedule II of the plaint.     The  Subordinate Judge decreed the suit,  holding  among other things that the disputed tenure was a zamindary  ghat- wali tenure that it was not inalienable, that the  plaintiff had been in possession of the property since he purchased it in  1903 until the order of the District Magistrate made  in 1038, that the plaintiff as the proprietor of the Mahal  was entitled  to the mineral and subsoil rights and  that  under the  mortgage-sale only the surface right had passed to  the plaintiff.  The findings of the Subordinate Judge were  sub- stantially  upheld  on appeal by the High Court,  with  this modification that, while agreeing with the Subordinate Judge that  the subsoil rights remained with the  proprietor,  the High  Court also held that even if the defendant No.  1  was assumed to have had the subsoil rights, those rights  passed at the mortgage-sale of 1903 and therefore in any event  the plaintiff was the real owner of the subsoil.  On the plea of adverse  possession  raised in defence, the finding  of  the High  Court  was that there was no clear evidence  that  any mine was worked on behalf of the lessees of defendant No.  1 and  that  at the utmost the evidence adduced  in  the  case showed that there had been some isolated acts of  possession during recent years, probably since 1935 onwards, and there- fore the plea could not be upheld.     The two main points urged on behalf of the appellant  in this appeal are :-- 538     (1) that the finding of the courts below that the  ghat- wali tenure held by the defendants first party was a zamind- ary  ghatwali  and not a Government ghatwali, could  not  be sustained and that in fact it was a Government ghatwali  and therefore  the property was inalienable and no title  passed to the plaintiff; and     (2)  that in any event, the plaintiff’s suit was  barred by  limitation under articles 142 and 144 of the  Limitation Act.     The  first point does not appear to us to be  free  from difficulty,  and  since its determination depends  upon  the proper  construction of several old documents, we heard  the parties  at  considerable length, notwithstanding  the  fact that  the  courts  below have concurrently  found  that  the tenure  in  question is not a  government  ghatwali.  Before

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dealing  with  the  merits of the  controversy  between  the parties,  it is necessary to understand what is meant  by  a "ghatwal" and what is a ghatwali tenure, and for the purpose of correctly apprehending what these expressions stand  for, it  is  sufficient  in our opinion to  quote  the  following passage  from the decision of the Patna High Court  in  Rani Sonabati  Kumari v. Raja Kirtyanand Singh (1), in which  the subject  of ghatwali tenures has been very elaborately  dis- cussed :--     "Literally a ghatwal means a guard of the passes and the term  ’ghatwali tenure’ was applied by the Moghuls to  lands assigned  at  a low rent or free of rent  for  guarding  the mountain  passes and protecting the villages near the  hills from the depredations of lawless hill tribes.  These ghatwa- li tenures are to be found for the most part on the  western frontier  of Bengal and particularly in the areas  known  as Kharagdiha, Gidhaur, Birbhum, Kharagpur, Bhagalpur, and  the Santal Parganas.  The ghatwals varied in rank and the  inci- dents  of their tenure varied in different places.  In  some cases  they  were owners of large estates,  some   of  these estates  being more or less of the nature of   semi-military colonies  .........  In some cases the (1) I.L,R. 14 Patna 70. 539 ghatwalis  were created directly by the ruling power,  while in other cases they were created by  the landlords or zamin- dars  for  the  purpose of protecting  their  zamindary  and tenantry  and to enable them to have a small force at  their command  and  to discharge the obligations they owed to  the ruling  power.    Sometimes  the  owners-of  large  ghatwali estates subdivided and re-granted the lands to other tenants who besides paying small rents held their lands on condition of rendering certain quasi police and military services  and providing  a  specified number of armed men  to  fulfil  the requirements  of  the Government or of the zamindar  as  the case might be."     A  Government ghatwali is thus a tenure created  by  the ruling power in favour of a person who is required to render ghatwali  services to it, whereas a zamindary ghatwali is  a tenure  created  by a zamindar for ghatwali services  to  be rendered  to him. It is quite plain that the reason why  the appellant  is  anxious to establish that the  tenancy  is  a Government  ghatwali is that a Government ghatwali has  been uniformly  held  to be inalienable.  On the  other  hand,  a zamindary ghatwali may be alienated with the consent of  the zamindar, and, where local custom permits, even without  his consent.   From the reports of cases relating  to  zamindary ghatwalis,  it appears that by the passage of time the  con- sent  of  the  zamindar has ceased to be a  matter  of  much significance,  and  is generally presumed when it  is  found that the alienation has been made without any objection from the zamindar.  As to the extent of the power of  alienation, the  following  observations of the Privy  Council  in  Kali Prasad v. Ananda Rai (1) are pertinent :--     "When  once it is established that the ghatwal  had  the power  of alienation, as before stated, that power forms  an integral portion of his right and interest in the  ghatwali, and there is no evidence whatever to limit it to an  aliena- tion for his own life and ’no longer." (1) 15 I.A. 18, 540     In  order to determine the true character of a  ghatwali tenure,  it  is usually necessary to refer to the  grant  by which  the  tenure was created.  It the  present  case,  the appellant  relies  upon exhibit C (1), which is  a  ghatwali

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sanad granted in 1776 to the ancestors of the appellant  and which runs as follows :--     "Know  ye  the  Chaudhuris,  kanungoes,  zamindars   and mutasaddis of mauza Dumri Ghat (illegible) pargana  Gidhaur, Sarkar Monghyr comprised in the province of Bihar.     The perquisites of ghatwari in all the rahdaris in mauza aforesaid,  have  now been granted to  Kunji  Singh,  Jangal Singh, Ragho Singh and Manorath Singh, ghatwars of the  said mauza,  in accordance with what has been in vogue  from  old time,  with effect from the commencement of 1184 fasli.   It is desired that they should allow the said ghatwars to enjoy the perquisites of the ghatwari in all the rahdaris  accord- ing to old custom. It will be the duty of the said  ghatwars to  be ever ready in discharging the duties of the post  and guarding  the  ghats and chaukis of their  elaqa  by  making rounds  day and night. If murder, mischief,  theft,  highway robbery and sudden night attack be committed in their elaqa, they will be held liable therefor and will be dismissed from their  post.  Treat this as peremptory and act according  to what is written.     Dated  the  5th Ziqada of the 18th year  of  the  August reign corresponding to 1184 Fasli."     This sanad was granted by Captain Browne, who was deput- ed  by  the East India Company to restore order in  a  tract known as Jungle Terai, a vast waste and hilly country as its name signifies, lying to the south of Bhagalpur and west  of Rajamahal  Hills. This document was construed by a Bench  of the  Patna  High  Court  in  Fulbati  Kumari  v.  Maheshwari Prasad(1),  and,  as has been pointed out by  Dawson  Miller C.J. in that case,-      "  It is not a grant of land but an authority  to  the persons named to collect as formerly ghatwari of  (1) A.I.R. 1923 Patna 453. 541 ghatwali fees or tolls from those using the roads and passes which the ghatwals undertook to protect."     When  we compare this sanad with other  ghatwali  sanads granted by Captain Browne, some of which are found discussed in reported cases, the contrast becomes very marked. In some of  the other documents-- for example in the document  which was  the  subject of the decision of the  Privy  Council  in Narayan Singh v. Niranjan Chakravarti (1), and of the  Patna High  Court  in  Rani Songbati Kumari  v.  Raja   Kirtyanand Singh(2)  the grant was in respect of a very extensive  area of land and there were also words used to indicate that  the services  were to be rendered directly to the ruling  power. The  mere fact, therefore, that the sanad in this  case  was granted  by Captain Browne cannot be held to be decisive  of the nature of the tenure, because it seems to have been part of  the duties assigned to him to confirm and recognise  old titles. As was pointed out by Dawson Miller C.J., the  sanad should be  read along with the record of certain proceedings before  the  Dewani  Adalat of Ramgarh, which  show  that  a tenancy comprising 8 annas in mauza Dumri was granted by the zamindar of Gidhaur to 2 persons, one of whom was the  ghat- wal  mentioned in Captain Browne’s sanad, with the  sanction of Captain Browne. In the present case, a document of  1708, which was the proceeding of the original court and which was before the learned judges who decided Fulbati’s case(3)  has not  been produced, but we have before us a  judgment  dated the  18th  March, 1799, of the appellate court in  the  same proceeding.   This  judgment recites that the  case  of  the ghatwals was that they had been for 3 generations in posses- sion  of half of village Dumri, but in the year  1187  fasli (1780  A.D.) the zamindar of Gidhaur wanted to raise  "reve-

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nue"  or  rent  but they refused to accept a  new  patta  or kabuliyat  at  an  enhanced rent.  Subsequently,  the  court ordered the zamindar to grant a patta, but the zamindar  did not  do  so  and forcibly dispossessed  the  ghatwals.  They thereupon prayed that (1)  51 I.A. 37.       (3) A.I.R. 1923 Patna 453, (2)I.L.R. 14 Patna 70. 70 542 the  zamindar may be ordered to grant them a patta  and  re- ceive  the kabuliyat at the old rent.  The appellate  court, to which the zamindar had appealed, upheld the decree of the first court ordering the patta to be granted.  This document shows firstly that the ghatwali tenure in respect of half of Dumri had been in existence for a generations prior to 1780, i.e.,  it must have come into existence long before  Captain Browne’s  sanad,  and secondly that it was  held  under  the zamindar; otherwise, it was not necessary that the  zamindar should  grant a patta and the ghatwal should execute  a  ka- buliyat in his favour.     We have also before us a document (exhibit 1) which as a report  of one Khadim Muhammad Ataullah, an employee of  the East India Company, incorporating certain statements made by the then zamindars of Gidhaur showing that they had been  in possession,of  the zamindary for nearly 700 years  and  that "the  milkiat  zamindari,  Chaudhri  and  Kanungoi  of   the pargana  .....   had all along been  in  their  possession." This  document shows that Gidhaur was an  ancient  zamindary and  the zamindar also performed the functions chaudhri  and kanungoi. The last mentioned point is of some  significance, because the sanad of Captain Browne was addressed to chaudh- ris, kanungos, etc.    In the case of Fulbati Kumari (1), to which reference has been  made,  there  was an extract quoted  from  the  Bengal District Gazetteer, volume XVII, at page 168, which runs  as follows :--      "About  1774  the lawless state of this tract  led  the British  to place it in charge of Captain James Browne,  who settled  the estates with the ghatwals with two  exceptions. These  two  exceptions  were Dumri and  Mahesri  which  were settled directly with the proprietors, the story being  that the  ghatwal tenure holders fled at the approach of  Captain Browne  their reputation as dacoits and brigands  being  too strong for them to face a Government officer without fear of the  consequences.   In the case of Dumri however,  the (1) A.I,R. 1923 Patna 453., 543 ghatwals finding that in their absence a settlement had been made of their tenure, returned and obtained a sanad settling it  with  them under the Raja of Gidhaur.   Of  the  estates settled  with  ghatwals only two are now held by  their  de- scendants,  viz.  Tilwa and Kewal.  The others  have  passed into  the  hands  of the Maharaja of  Gidhaur,  Chetru  Rai, Akleswar Prasad and others of Rohini."     The  statement in the District Gazetteer is  not  neces- sarily conclusive, but the Gazetteer is an official document of  some value, as it is compiled by  experienced  officials with  great  care after obtaining the  facts  from  official records. As Dawson Miller C.J. has pointed out in  Fulbati’s case (1), there are a few inaccuracies in the latter part of the  statement quoted above, but so far as the earlier  part of it is concerned, it seems to derive considerable  support from the documents to which reference has been made.     The counsel for the appellant greatly relied on the fact that Dumri ghatwali is mentioned in Captain ’Browne’s "India

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Tracts"  as one of the ghatwalis placed under the  Collector of  Jungle Terrai districts. It appears that this point  was not  raised before any of the courts below, nor was  Captain Browne’s treatise placed before them.  There is thus consid- erable  force in the objection raised on behalf of  the  re- spondent that he has not had sufficient opportunity to study the matter and place relevant materials before this court to enable  it  to determine what meaning and  value  should  be attached to Captain Browne’s statement. But apart from  this objection, it seems to us on the evidence as it stands, that the  inference  sought  to be drawn  from  Captain  Browne’s statement  is not fully justified for the following  reasons :--     1. The mere fact that the ghatwali was shown to be under the  Collector cannot alter the character of  the  ghatwali, i.e., if it was a zamindary ghatwali, it could not become  a Government ghatwali merely because it was stated to be under the Collector. (1) A I.R. 1923 Patna 453. 544     2.  As  Collector of Jungle  Terrai  districts,  Captain Browne  appears to have had control not only over the  ghat- wals  but also over the zamindars within the  area  adminis- tered by him.     3.  The observations made by Captain Browne with  regard to  the  Jungle Terrai ghatwals and their  relation  to  the zamindar  hardly  support the view urged on  behalf  of  the appellant.     Referring to the Jungle Terrai ghatwalis, Captain Browne states in his book as follows :--     "All the Jungle Terry gautwalls were formerly subject to the  several Rajahs, to whose territories their  Gautwallies belonged;  they  paid a slight tribute in  token  of  feodal obedience,  and were bound to oppose all invasions  (princi- pally from the south) to attend their Rajahs when  summoned, with all their followers in arms, and to be responsible  for every  violence and irregularity committed in their  respec- tive boundaries:their followers are still bound by the  same feodal  ties  to them, and have lands for  feodal  services; nothing can be conceived more absolute than the authority of these  chiefs  over their vassals; the fear of  death  even, when seized on in war, is not sufficient to force from  them the  discovery  of any secret respecting  their  chief,  his family, or property."     Again,  Captain Browne’s description of the zamindar  of Gidhaur is to the following effect :--     "The  Raja of Guidore was formerly of great extent,  but the  conquests  made from it by the Rajah  of  Bierboom  and Comgar Cawn, and the independency which these wars gave  the Gautwalls  an  opportunity  of assuming,  have  reduced  the present  Rajahs Gopal Singh, and Durrup Singh, to follow  an ebb,  that they can scarcely recover sufficient  consequence to be of any political weight whatever."     On the whole, it appears that the ghatwals of Dumri were hardly  men  of such consequence as to break  off  from  the zamindar and set themselves up as independent chiefs. 545     There are two other items of evidence which seem to have an  important bearing on the question.  In the first  place, the  appellant’s  tenure  was included  within  the  Gidhaur zamindary  in the Permanent Settlement, and secondly, it  is shown  in the Record of Rights as istemrari  mokrari  tenure under  the zamindar of Gidhaur. In the case of Raja Lelanund Singh  Bahadoor v. The Bengal Government (1) where the  Gov- ernment set up a claim to resume the ghatwali in the zamind-

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ary  of Khuruckpore for the purpose of  revenue  assessment, the claim was negatived by the Privy Council, and one of the grounds  upon  which  the decision was based  was  that  the ghatwali lands were part of the zamindary and were  included in the Permanent Settlement of the zamindar and were covered by  the  jama assessed on that zamindary.  There can  be  no doubt that prima facie the fact that the tenure was included in  the Permanent Settlement of the zamindar and under  that Settlement  the  ghatwal  had to pay rent  to  the  zamindar raises  a  presumption  that the ghatwali was  in  some  way connected with the zamindar, but it must be recognized  that the  permanent settlement of the land "would not affect  the nature  of the tenancy upon which the lands were  held,  nor can  it convert the services which were public into  private services  under the zamindar": [vide Raja Nilmoni  Singh  v. Bakranath Singh(2)].  There are several reported cases which furnish  instances  in which the properties of  persons  who were  Government ghatwals were included in the zamindary  of other  persons, but  where no clear evidence is  forthcoming as to the true character of the ghatwali, the fact that  the tenure is included within a zamindary and is covered by  the jama assessed upon it should turn the scale in favour of the party  who  alleges that it is a tenure which  is  dependent upon  the zamindary. In this case, the  presumption  arising under the Permanent Settlement is reinforced by the entry in the Record of Rights which shows that the tenure in question is istemrari mokrari held  under the zamindar. (1) 6 Moore’s I.A. 101.             (2) 9 I.A. 104. 546     The learned counsel for the appellant relied upon exhib- its  N  and  N-1 and certain rent receipts  granted  by  the zamindar to show the appellant’s independent title, but,  in our opinion, these documents do not help him much. Exhibit N is  a notice issued to an ancestor of the appellant in  1859 by an official whose signature on the document is not  legi- ble.   It  refers  to a report the  sub-inspector  of  thana Chakai  stating  that "the sautars (bad characters)  are  in their  places of residence and no riots or disturbances  are taking  place ", and directs the ghatwali to prepare a  list of the sautars of his ilaqa and file it before the  officer- in-charge of the thana. Exhibit N-1 is a similar notice, but it  is incomplete and bears no indication as to  who  issued it.   It recites a report of a police sub-inspector  stating that  owing  to failure of crops there were  burglaries  and thefts and recommends that the zamindars of the ilaqa should be  directed  to "look after the occurrences and  keep  eyes over  the bad characters and mischief makers so that  occur- rences  may be stopped." These documents do not  necessarily show that the appellant is a Government ghatwal.  It was not unusual in old days to issue notices like those referred to, to the zamindars of the ilaqa, as exhibit N-1 itself  shows, and  the  mere fact that the person to whom the  notice  was issued was described as a ghatwal does not show that he  was addressed in the capacity of a Government ghatwal and not as a zamindari ghatwal.     The next item of evidence upon which the appellant tried to  rely  consists of certain rent receipts  and  road  cess receipts,  but these also do not help him, seeing that  they contain,  among  other things, a statement that  the  tenure with regard to which the receipts were granted,  appertained to the proprietary zamindary of Gidhaur. This brief review of the evidence is sufficient to show that the  appellant  has not been able by  clear  and  conclusive evidence to rebut the presumption arising from the Record of Rights  and the record of the Permanent Settlement,  and  he

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has  failed to establish his claim that the tenure in  ques- tion is Government ghatwali. It 547 may  be  incidentally mentioned that in  the  mortgage  suit which  preceded this litigation, there was no allegation  by way  of  defence that the ghatwali was  not  alienable,  and though the point was raised in the execution proceedings  it was  decided  against the appellant by the  court  of  first instance  and  was  abandoned on appeal.  In  these  circum- stances, we see no reason to disturb the concurrent  finding of  the courts below which have dealt with the  matter  with great care.     Passing  now to the second point raised in this  appeal, we  find  that  there are concurrent findings  of  both  the courts  below against the defendants on the plea of  adverse possession.  In arriving at this finding, the  courts  below have  fully discussed the evidence and given cogent  reasons in  support  of  their conclusions. This  court  is  usually reluctant  to  reinvestigate matters which have  been  fully investigated  by  the courts below and on  which  there  are concurrent findings.  In the present case, the appellant has failed to show to us any exceptional circumstances to induce us  to depart from the sound and well established  practice, and  in  this view the findings of the court below  must  be accepted.     It  was however contended that in any event  the  plain- tiff’s  suit is barred under article 142 of  the  Limitation Act  inasmuch as it was incumbent on the plaintiff to  prove that he had been in possession of the disputed lands,  espe- cially those mentioned in schedule II of the plaint,  within 12  years of the suit, but he had failed to do so.   In  our opinion,  this plea must be negatived.  The trial  judge  in his judgment came to a very clear finding in these words     "The story of possession and dispossession as put  forth in  the plaint must be believed, because, as I have  already said  there is overwhelming evidence in this case  to  prove the possession of the plaintiff over the surface as well  as the subsoil."     The finding of the Subordinate Judge does not appear  to have  been challenged before the High Court, and  though  no less than 16 reasons have been given in 548 the  statement of case filed in this court on behalf of  the appellant, it has not been stated that there is no  evidence to show that the plaintiff was in possession of the disputed land or the land mentioned in schedule II within 12 years of the suit.     Thus  both the points urged in this appeal  fail.  There can  be  no doubt that the entire tenure has passed  to  the plaintiff  by  the sale, but, apart from this  fact,  it  is well-settled that a zamindar is presumed to be the owner  of the  underground rights in the tenancies created by  him  in the absence of evidence that he ever parted with them:  [See Hari  Narayan  Singh v. Sriram Chakravarthi  (1)  and  Durga Prasad Singh v. Braja Nath Bose(2)].     The  result  is that this appeal fails, and it  is  dis- missed with costs.                                 Appeal dismissed. Agent for the appellant: R.R. Biswas. Agent for the respondent: R.C. Prasad.