JUDGMENT Bennet, J.
1. By this appeal Khushal Singh and others are claiming a large sum of money as compensation over and above what has been allowed to them by the learned District Judge.
2. It appears that an area of 7 bighas 15 biswas, which is equivalent to 484 acres of land belonging to the appellants, was acquired by the Government. Out of this area 4 bighas 13 biswas were under cultivation, being the sir land of the appellants. The remaining area of 3 bighas 2 biswas were fallow or banjar land. In this appeal we are concerned, among other matters, with the amount of compensation to be awarded for the area under cultivation. The appellants are satisfied with the amount they have got from the learned District Judge as compensation for the fallow land.
3. The District Judge has allowed to the appellants Rs. 600 per bigha compensation for the land under cultivation. The appellants want Rs. 1,000 a bigha.
4. We have been taken through five exemplars cited on behalf of the appellants. They are five sale deeds, one dated 8th July 1922, three are dated 5th September 1924. and the fifth one is dated 28th August 1925. It appears that one Risal Singh made the first and the fifth purchase and the purchasers by the three sale deeds of the same date, namely 5th September 1924, sold what they had purchased to Risal Singh on 22nd August 1925. The result is that virtually there are only four exemplars and not five. These exemplars all come from the village of Sultanpur, and according to the appellants' own witness the lands of the examplars are situated at a distance of not less than three-fourths of a mile from the land of the appellants. The appellants have not cited a single exemplar from their own village. "It was not stated, and it could not be stated, that there have been no sales in the village Khurrampur itself. The kanungo who was cited as a witness on behalf of the Crown, prepared an extract from the register of proprietors, and this document shows that there had been no less than ten transfers of the proprietary rights between 1921 and 1925. We have not looked into the figures of the kanungo, because we consider that the extract filed by him cannot be treated as relevant evidence; but none the less the fact remains that there have been transfers in the village of Khurrampur.
5. It was for the appellants to establish to our satisfaction that they are entitled to a larger compensation than they have received. We are of opinion that they have entirely failed to do so. We may point out that one of the appellants in his statement, recorded at p. 3 of the paper book, stated that he let 'out 2-1/2 bighas of land for Rs. 54. This would mean that he got only Rs. 20 per bigha for his land from a sub-tenant. The compensation of Rs. 600 per bigha means 30 years purchase. We cannot say that this is by any means too small. Accordingly we do not see any reason to interfere with this portion of the learned District Judge's judgment.
6. The next question which was argued before us on appeal was in regard to issue 1 of the lower Court. That issue was whether the appellants are not entitled to the price of the kankar. It was argued before us that the kankar belonged to the appellants as zamindars and that the value of the kankar 'extracted should be paid by Government to the appellants. The appellants claimed a sum of Rs. 23,250 as compensation for the kankar in ground 3 of their petition of reference to the District Judge. The question is of considerable importance in these provinces because kankar is extracted every year for the construction and maintenance of roads in practically all districts of the province.
7. Now the first point to be mentioned in this regard is that a form of agreement was entered into by these zamindars at settlement and a translation of this form is printed at p. 27 of the paper book. This form states:
We admit that only the Government have all rights and interests in respect of the mines.
8. Some discussion was made in regard to the exact vernacular words used in the form signed by zamindars in this particular village of Khurrampur. The Urdu form used the word "madaniat" and this form was signed by the zamindars and the Hindi form used the word "dhathu." There seems no doubt that these words conveyed the idea of minerals and the form is actually taken from the Board Circulars. The Board Circular 1-1, Rule 45 of the edition of 1918 states as follows:
An agreement shall be taken from the persons with whom the settlement is made in the following form: We the lambardars proprietors of mohalla...pargaua...agree to pay the following revenue on condition of Government sanction from...to...and thereafter till the next settlement is made. We admit that the State has reserved to itself all rights in minerals.
9. The printed form on p. 27 is therefore the translation from the vernacular rendering of this statement:
We admit that the State has reserved to itself all rights in minerals.
10. Some argument is made as to whether the word "minerals" would cover kankar. In the Board Circular 1-1, para. 27 it is stated:
The Settlement Officer may take into consideration the average receipts (sayar or sawai) derived from natural products such as fruit or fish (but excluding stone and kankar quarries and fruits of groves and timber of trees), and add them to the rental of cultivated area.
11. This reference clearly shows that kankar and stone are to be excluded from the calculation of the Settlement Officer in ascertaining the assets of the village and therefore we consider that the reference to minerals in the agreement entered into under Rule 45 includes kankar.
12. We may also note that at p. 23, para. 12 of the Wajibularz of Mouza Khurrampur shows that the only sawai in this village was from water-nuts. It is therefore clear that in this particular village kankar was not treated as producing any income and was not entered in the assets of the village at settlement. As regards the question of what is meant by mineral we have consulted a standard work on the World's Minerals by Leonard, J. Spencer, published by Messrs. Chambers in 1911 and it states that the mineral kingdom includes all inorganic bodies that have not been produced by the agency of life.
13. Kankar is concretionary limestone and at p. 108 of this book it is stated that rooks of the limestone class consist entirely, or almost entirely of the mineral calcite class. Calcite is a mineral and therefore there is no doubt that kankar will come under the definition of mineral. Now this question should be regarded in our opinion from the historical point of view in the Province of Agra and it is necessary to sea how Government has dealt with the mineral rights in these provinces.
14. The question arises how far the attitude of Government shown in the Circulars of the Board of Revenue of 1904 and 1927 in regard to minerals including kankar has been asserted in the past. Baden-Powell in Land System of British India, 1892, Vol. 1, p. 234 under the heading of how far claims of previous Governments had been adopted by the British Government says:
I think, on the whole, what was meant by the various declarations in the regulations and elsewhere was this that the Government claimed to succeed to the de facto position of the preceding ruler, only so far as to use the position (not to its full logical extent but) as a locus standi for re-distributing, conferring and recognizing rights on a new basis. And the outcome of the action taken by the Government was this that it at once recognized certain rights in private individuals and only retained such rights for itself as were necessary. The power to make this distribution was no doubt based on the de facto power of the Government to dispose of all land. I may exhibit the main feature of the disposition of landed rights made by Government under five heads:
... (3) It retained useful subsidiary rights such as minerals, or the right to water in lakes and streams. In some cases it has granted these away, but all later laws reserve such rights.
15. In Vol. 11, p. 3 and 4 Baden-Powell classifies the origin of the districts of the present province of Agra as follows.
(1) The old "Benares province" permanently settled by an extension of the Bengal Permanent Settlement Regulations.
(2) The Ceded Districts, ceded by the Nawab of Oudh in 1801.
(3) The conquered districts obtained by the victories of Lord Lake in 1803. These include the district of Meerut where the land in suit is situated.
(4) Dehra Dun ceded in 1815, and Garhwal and Kumaon.
(5) Bundelkhand Districts acquired between 1803 and 1840.
16. The Permanent Settlement of Bengal was effected by Regn. 1 of 1793 which stated in Section 4:
the zamindars independent Talukdars, and other actual proprietors of land, and their heirs and lawful successors, will be allowed to hold their estates at such assessment for ever.
17. In Durga Prasad Singh v. Broja Nath Bose [1912] 39 Cal. 696, their Lordships of the Privy Council stated at p. 472:
Apparently the Government does not claim the minerals under permanently settled estates. However that may be the Government has never claimed the minerals under the two mouzas or either of them, or put forward any claim inconsistent with the rights now asserted by the zamindars. The rights of the Government, whatever they are, will not be prejudiced or affected by the result of suit to which it is not a party.
18. In Debi Singh v. E.F. Christian A.I.R. 1924 Fat 776 the Patna High Court held that a tenure holder called a Tekait with whom the permanent settlement had been made in F. 1197 and who was entered in the record of revenue-paying estates could claim the right to the minerals as against trespassers, even though:
it may well be that the Government did not give any right to the minerals to the Tekait." (p. 432, Col. 2.)
19. Now as already quoted Board of Revenue Circular 1 of edition of 1918 para. 27, following previous circulars states:
The settlement officer may take into consideration the average receipts (sayar or sawai) derived from natural products, such as fruit or fish (but excluding stone and kankar quarries and the fruit of groves of timber trees) and add them to the rental of the cultivated area.
20. The treatment of this question of Sayar in early regulations is of importance. It was similar in the ceded and "conquered districts, and there was a proclamation embodied in Regn. 9 of 1805 which stated in Section 111:
At the commencement of the year 1213, Fasli the sayar of every denomination will be separated from the mal, or land revenue and a settlement will be concluded for the land revenue only, in all practicable cases with the zamindars of "other actual proprietors of the soil . . . for a period of three years, viz. for the years 1213, 1214, and 1215, F . . . The kabuliyats executed by zamindars and other actual proprietors of land, or farmers of land, shall contain a clause restricting them from collecting sayar duties or any duties whatever in their respective estates or farms.
21. Section 4 of this Regn. 9 of 1805 provided for a further settlement for Fs. 1216, 1217, 1218 calculated on "the actual yearly produce of the land."
22. Section 5 provided for a further settlement for Fs. 1219, 1220, 1221 and 1222. Section 7 provided for a permanent settlement from Fs. 1322:
for such lands as may be in a sufficiently improved state of cultivation to warrant the measure.
23. Section 8 provided that zamindars note agreeing to the present settlement should receive an allowance not exceeding 10 per cent of the jama of the estate as nankar.
24. Regulation 10 of 1812 states in Section 1 that the Court of Directors had not confirmed the proposal to make, a permanent. settlement. Section 2 rescinded part of Regn. 10 of 1807. Regn. 9 of 1818 and 9 of 1824 provided for settlements for five years. Act 8 of 1846 fixed the duration of the settlement for Meerut District up to 1st July 1865. With the exception of the Benares division therefore the whole province of the N. W. P. now Agra, became subject to temporary settlements.
25. The principles on which these temporary settlements were made was first laid down in Regn. 7 of 1822, where Section 6, first part, provided for revision of the settlement by ascertaining and determining the extent and produce of the lands, and the amount of jama properly demandable therefrom.
25. Section 9, first part, prescribed that the revenue officers should form as full as practicable a specification of all persons enjoying the possession and property of the soil.
26. Regulation 9 of 1833, Section 2, rescinded so much of Regn. 7 of 1822 as prescribed that the jama was to be calculated on the quantity and value of produce. Settlements were from 1833 prepared on the basis of the Record-of-rights and Records of Assets (Moreland, Revenue Administration of the United Provinces 1911 p. 34.)
27. These regulations show that the settlement jama was based on the agricultural value of the land, and not on the value of any minerals which might be in the land.
28. Similarly Regn. 11 of 1795, Section 3, recites method of 1788 for the valuation of crops in the Benares Province before the settlement was made permanent. This shows that the revenue was based on the agricultural value of the land and not on other assets.
29. Now in the Province of Agra there are no coal mines or other minerals of considerable commercial value comparable to the coal mines of Bengal and Bihar. There is kankar in all districts, and in some districts, chiefly Mirzapur, there are sand stone quarries. Although Mirzapur is in the permanently settled division of Benares, the zamindars have no rights in the stone quarries. This is a great distinction from the zamindars under the permanent settlement in Bengal, where numerous cases show that the zamindars have asserted right to mines, although, as in Durga Prasad Singh v. Broj Nath Boss, the Courts have been careful to point out that no decision has been made as to whether the zamindars or Government possess the mining rights. In the province of Agra the question of stone quarries was settled by Regn. 11 of 1800 which stated in Section 1:
The stone quarries at Chunar, Ghazipur and Mirzapur in the province of Benares have been hitherto worked for the exclusive use of Government, and either let in farm....or managed by an agent.
30. The regulation proceeded to lay down that the public might quarry stone subject to payment of certain duties to the Collector. This system still prevails, and the payments are credited to the " stone mahal." The " hill people" are allowed to quarry stone for their own use without payment of duty (Section 15). But the regulation shows that zamindars did not have any rights in the stone quarries.
31. These regulations show:(1) that Government made settlements in the Province 'of Agra, both permanent and temporary, as settlements of rights in the soil only, (2) that the siwai rights were reserved for Government, (3) that stone quarries were treated as a monopoly of Government and that no rights of the zamindars were recognized in stone quarries.
32. The learned Counsel has not been able to refer to any ruling of this Court in which any claim has been advanced by any zamindar in these provinces to receive compensation for kankar, or any case in which a zamindar has claimed against third parties that he owns kankar. Certain rulings were referred to by counsel. One of these is Daya Kushun v. Assistant Collector, Surat [1914] 38 Bom. 37. In that case compensation was under consideration for stone for the B. B. & C. I. Railway, and it was held in regard to certain quarries from which stone had been previously extracted by the owner without permission, that under the Bombay Land Revenue Code the Collector could grant permission for the working of these quarries and that therefore this use should be a matter to be taken into account in the award of compensation. That rulings follow In the matter of the Land Acquisition Act 10 of 1870 v. Munji Khetsey [1891] 15 Bom. 279. These rulings however differ from the present case, because in the present case it is not open to the Collector or to anyone else to sanction the use of the kankar by the zamindar.
33. The next ruling to which reference was made was Mohini Mohan Banerji v. Secy. of State A.I.R. 1921 Cal. 193. This was a case of compensation for the use of land for brickfields and it was held that the potential value of land for this purpose should be taken into account for compensation. The Court however was only following the principle laid down by their Lordships of the Privy Council in Narsingh Das v. Secy. of State A.I.R. 1925 P.C. 91, that the actual condition of the land at the time of expropriation together with all the existing conditions and its possibilities should be taken into account. But it is always open to the zamindar to make a brick-field on his land whereas in these provinces at any rate it is not open to a zamindar to quarry kankar from his land for the purposes of sale. Reference was also made to Raghunath Row v. Secy. of State A.I.R. 1921 Mad. 324 in which there was the question of compensation for a gravel quarry and it was held that the special adaptability of the land for the purpose of a gravel quarry should be taken into account. There was no question in that case whether the Secretary of State owned the gravel and apparently the gravel formed the surface of the ground.
34. Similarly, in Secy. of State v. Shanmugaraya [1893] 16 Mad. 369 there was the question of a gravel quarry, but there was no question raised as to the rights of zamindars to make this quarry. In Vallabdas Naranji v. The Collector A.I.R. 1929 P.C. 112 there was a case from Bombay before their Lordships of the Privy Council where a piece of waste land on the seashore was acquired, and it was held that the potentiality of the piece of land for salt work should not be taken into consideration and the sum of Rs. 14 per acre a warded by the Collector was not an unreasonable amount. In this ruling the Privy Council did not consider that compensation should be awarded for the potential use of the land for a salt factory, because the possibility was too remote. In this present case the zamindar claims compensation for kankar which is essentially the property of Government.
35. The appellant relied on these cases for the proposition that even if kankar was the property of Government, still the zamindar could make a profit out of it 'by selling the kankar and therefore he was entitled to some compensation. But we consider that the rulings do not support him on this point, because kankar being the property of Government, the appellant is not entitled to any compensation when Government takes its own property.
36. We consider therefore that the appellant has no right to any claim for compensation in regard to the kankar and that the kankar in this province is the 'property of Government.
37. The next point raised by the appellant was in regard to interest. Under Section 28, Land Acquisition Act, Act 1 of 1894, it is within the discretion of a Court to decree interest where a larger amount of [compensation has been given than was awarded by the Collector. We do not consider that under the circumstances of the present case there should be any amount of interest given.
38. The remaining point was in regard to costs. The order of the lower Court was that the parties should receive and pay costs in proportion to their success and failure. It is claimed for the appellant that no proportionate costs should have been awarded to Government. But the appellant had claimed a very large amount of compensation and as we have held, the appellant was not entitled to the Rs. 23,250 compensation for the value of the kankar. We do not see any reason to interfere with the order of the lower Court. Accordingly we dismiss the present appeal with costs.