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2011 DIGILAW 1003 (RAJ)

Santosh Kanwar v. Rawat Singh

2011-05-11

SANGEET LODHA

body2011
JUDGMENT : Sangeet Lodha, J. This miscellaneous appeal is directed against order dated 14.01.2011 of Additional District Judge, Parhatsar passed in Civil Misc. Case No. 91/10 allowing the application preferred by the respondent; plaintiff under Order 39 Rule 1&2 of C.P.C. 2. The brief facts in nutshell are that late Shri Udai Singh was holding 56 bighas & 17 biswas agriculture land comprising khasra No.657, 657/1, 663, 682 and 695 in revenue village Makarana as 'jagir khudkast land'. After death of Shri Udai Singh, said land devolved upon his two sons Bheru Singh and Rawat Singh (the respondent No.1 herein). After resumption of the jagir, on 01.07.1958 late Shri Bheru Singh and the respondent- Rawat Singh acquired khatedari rights in the said land, who surrendered the land ad measuring 100 x 100 sq. meter (6 bighas & 5 biswas) to the State Government and acquired the license dated 02.03.1989 for mining operation therein. Bheru Singh expired on 19.03.1999 and thereafter, the respondent-Rawat Singh alone is operating the mine on the strength of the license issued as aforesaid. 3. Bheru Singh is survived by a daughter Smt. Santosh Kanwar, the appellant herein. It is alleged that after the death of Bheru Singh, the appellant relinquished her share in all properties jointly owned by late Bheru Singh and the respondent-Rawat Singh, for a consideration of Rs. 11,50,000/- vide agreement dated 08.06.1999. It is alleged that on 03.06.1999, the appellant submitted an application before the concerned authority of Department of Mines for transfer of the license of the disputed mining area in favour of the respondent-Rawat Singh alone. However, later the appellant filed an application before the court of Additional District Judge, Parbatsar to obtain the succession certificate in respect of the properties owned by her deceased father Bheru Singh. After due consideration, the court granted the succession certificate in favour of the appellant. Aggrieved thereby, the respondent-Rawat Singh preferred an appeal before the court which also failed. The appellant also made application before the Mining Engineer, Department of Mines for substitution of the name in place of late Shri Bheru Singh in the mining license which was allowed vide order dated 21.06.2003 and the name of the appellant was entered in the existing license alongwith the respondent-Rawat Singh. The appellant also made application before the Mining Engineer, Department of Mines for substitution of the name in place of late Shri Bheru Singh in the mining license which was allowed vide order dated 21.06.2003 and the name of the appellant was entered in the existing license alongwith the respondent-Rawat Singh. Later, on the basis of the alleged agreement entered into between the parties, order dated 21.06.2003 allowing the application of the appellant herein was set aside and thus, the respondent-Rawat Singh became the sole licensee of the mining area in question. However. the appellant preferred a revision petition u/s.47 of Rajasthan Minor Mineral Concession Rules, 1986 against the order dated 11.02.2008 passed by the Mining Engineer, which was allowed by the revisional authority vide order dated 08.06.2010. 4. After passing of the order by the revisional authority as aforesaid, the Mining Engineer, Makrana vide order 20.07.2010 directed the Senior Mining Foremen to hand over the appellant herein, the possession of the portion of the mining area falling in her share. Accordingly, the possession of half of the mining area in the northern side of the mine was handed over by the Senior Foremen to the appellant and a site report dated 31.08.2010 recording the factum of delivery of possession was prepared. 5. In these circumstances, the respondent-Rawat Singh filed a suit for declaration and permanent injunction regarding the disputed mining area, accompanied by an application seeking temporary injunction in terms that the defendants (the appellant & respondent No.2 to 4 herein) may not interfere with his mining operation in the mining area in question. 6. On behalf of the respondent; plaintiff, it was contended before the court below that the land in question was jagir khudkasi land of late Shri Udai Singh and, therefore, the succession rights therein shall he governed by the provisions of Marwar Land Revenue Act. 1949 and since the brother of the respondent/plaintiff-Bheru Singh was not survived by any son, therefore, being sole successor, the entire land shall devolve upon him. The respondent/plaintiff further contended that the appellant herein has already relinquished her all rights in the share of late Shri Bheru Singh in the properties in question by accepting an amount of Rs. 11,50,000/- and executing an agreement dated 08.06.10. It was contended that an application in this regard was filed before the Mining Department as well. The respondent/plaintiff further contended that the appellant herein has already relinquished her all rights in the share of late Shri Bheru Singh in the properties in question by accepting an amount of Rs. 11,50,000/- and executing an agreement dated 08.06.10. It was contended that an application in this regard was filed before the Mining Department as well. The respondent/plaintiff while questioning the validity of order dated 08.06.2010 submitted that in view of the agreement arrived at between the parties, the said order could not have been passed by the revisional authority and therefore, the order passed by the Mining Engineer holding the appellant as joint licensee is bad in law. Learned counsel submitted that the division of the mining by the Mines Senior Foremen and the site report dated 31.08.2010 prepared after giving possession to the appellant herein of the northern part of the mine is ex facie without jurisdiction. 7. It is pertinent to note that earlier a suit being No.36/04 was preferred by the appellant which was dismissed as withdrawn with liberty to file fresh. The respondent/ plaintiff submitted that in view of the order dated 08.06.2010 passed by the revisional authority and proceedings taken by the Senior Mines Foremen in pursuance thereof, it became necessary to file fresh suit. 8. The application was contested by the appellant/defendant by filing a counter thereto. The appellant/defendant contended that the stand taken by the respondent/plaintiff that success/on rights in inter alia the property in question shall be governed by the provisions of Marwar Land Revenue Act, 1949 is contrary to “v”; stand taken by him in his written statement in the suit No.3/04 preferred by the appellant/defendant which was dismissed for default in appearance on 23.09.2009 and application for restoration thereof is pending consideration before the court concerned. It was contended that order dated 11.02.2008 passed by the Mining Engineer cancelling the order dated 21.06.2003 directing the entry of appellant's name in the mining lease, stands set aside vide order dated 08.06.2010 passed by the revisional authority and, therefore, the appellant has become joint licensee of the mining area in question. It was contended that order dated 11.02.2008 passed by the Mining Engineer cancelling the order dated 21.06.2003 directing the entry of appellant's name in the mining lease, stands set aside vide order dated 08.06.2010 passed by the revisional authority and, therefore, the appellant has become joint licensee of the mining area in question. It was contended that the suit as framed is barred by principle of res judicata inasmuch as in yet another suit, 2/07 (11/02) preferred by the appellant against the respondent/plaintiff for settlement of the accounts, permanent injunction and partition which is being defended by the respondent/ plaintiff on the basis of the self same documents, the trial court while deciding the issue No.6 therein held that the basis on which the respondent/plaintiff is claiming right in the properties of his deceased brother Bheru Singh is not tenable, it was further contended that the payment of Rs. 11,50,000/- in lieu of the share in the property alleged to have been paid by the respondent to the appellant herein has also not been found proved by the court. It was contended that even if the principle of res judicata does not apply then too, in view of the provisions of Section 10 of C.P.C. the subsequent suit cannot proceed. It was contended that the order dated 08.06.2010 passed by the revisional authority has attained finality and therefore, the appellant being joint licensee, no injunction can be issued against her. It was further contended that the validity of order dated 08.06.2010 cannot be assailed before the civil court and further since, the respondent/plaintiff is admittedly not in possession of entire land, in absence of relief for possession, no injunction prayed for can be granted in his favour. 9. After due consideration of the rival submissions, the court below arrived at the finding that the succession certificate issued in terms of the provisions of Section 372 of the Indian Succession Act, 1925 in no manner determines the civil rights of the persons and therefore, the suit filed cannot be treated to he barred by law. The court observed that earlier suit filed by the respondent/plaintiff was withdrawn with liberty to file a fresh therefore, in view of the subsequent event of passing of order dated 08.06.2010 passed by the revisional authority, the fresh suit filed cannot be considered to be barred by law. The court observed that earlier suit filed by the respondent/plaintiff was withdrawn with liberty to file a fresh therefore, in view of the subsequent event of passing of order dated 08.06.2010 passed by the revisional authority, the fresh suit filed cannot be considered to be barred by law. The court opined that the suit involves contentious issue and no conclusion can be drawn at this stage regarding the validity of order dated 08.06.2010 passed by the revisional authority. Relying upon the alleged consent letter dated 12.06.1999, the application dated 29.06.1999 alleged to have been filed by the appellant herein before the Mining Engineer, Makrana and the affidavits of the appellant herein sworn before the notary and presented before the Sub Divisional Magistrate, Parbatsar, the court found that the respondent/plaintiff has strong prima facie case in his favour. Accordingly, the court below observed that it will be appropriate that the status quo is maintained regarding the disputed mine till the disposal of the suit. The court below further opined that if the mining operation is interfered with and the respondent/plaintiff is forcibly dispossessed then he will suffer more inconvenience than the appellant herein and the loss caused cannot be compensated. Accordingly, vide order impugned the court has directed that the defendants including the appellant herein shall maintain status quo in respect of mine No. 15/C-9 Gulabi Range, Makrana in accordance with the site report dated 22.11.2010 prepared by the Mining Engineer. Hence, this appeal. 10. Learned counsel for the appellant contended that the order impugned passed by the court below is ex facie against the settled principles of law. Learned counsel submitted that the respondent/plaintiff had no prima facie case in his favour against the appellant herein inasmuch as. the respondent/plaintiff is not entitled to any temporary injunction against the appellant/defendant, a joint licensee. Learned counsel submitted that as a matter of fact by issuing temporary injunction in the terms referred supra, the court below has stayed the effect and operation of the license qua the appellant which is not permissible under the law. Learned counsel submitted that the court below has proceeded in perfunctory manner inasmuch as, it has heavily relied upon the site inspection report dated 22.11.2010 and has ignored the site report dated 31.08.2010 which shows that after division of the mining area, possession of the northern part of the mine was handed over to the appellant herein. Learned counsel submitted that the court below has proceeded in perfunctory manner inasmuch as, it has heavily relied upon the site inspection report dated 22.11.2010 and has ignored the site report dated 31.08.2010 which shows that after division of the mining area, possession of the northern part of the mine was handed over to the appellant herein. Learned counsel submitted that the respondent was not able to make out any prima facie case in his favour and, therefore, other relevant aspects of the matter i.e. the balance of convenience and irreparable loss were not required to he gone into. Learned counsel submitted that as on the date the respondent/plaintiff and the appellant/defendant the joint licensees and if the respondent/ plaintiff is permitted to operate the entire mining area in question, presuming everything in his favour then the position will become irreversible and, therefore, by no stretch of imagination it can be said that the points of balance of convenience and irreparable loss were in favour of the respondent/plaintiff. Learned counsel submitted that order dated 08.06.2010 has attained finality and the same cannot be challenged by way of civil suit and, therefore, the suit as framed was barred by law and no injunction as prayed for could have been granted in favour of the respondent/plaintiff. Learned counsel submitted that the documents on which the respondent/plaintiff heavily relied upon to make out a prima facie case in his favour were not believed by the court in yet another suit while deciding the issue No.6 therein and therefore, there was no occasion for the court below to arrive at the conclusion on the basis of self same documents that the respondent has strong prima facie case in his favour. Accordingly, it is submitted that the findings arrived at by the court below are ex facie capricious and perverse and therefore, the order impugned granting temporary injunction in favour of the respondent/plaintiff deserves to be set aside. 11. On the other hand, learned counsel for the respondent submitted that the suit filed is based on continuous possession of the respondent/plaintiff since 1989 over the mining area in question. 11. On the other hand, learned counsel for the respondent submitted that the suit filed is based on continuous possession of the respondent/plaintiff since 1989 over the mining area in question. Learned counsel submitted that the inspection report alleged to have been prepared on 08.06.2010 by the Senior Foremen Mining is ex facie without jurisdiction, inasmuch as, he had no authority to effect the division of the mining area and hand over the possession of northern portion of the mining area to the appellant/ defendant. Learned counsel submitted that in view of the (subsequent report dated 22.11.2010 the injunction granted by the court below cannot be faulted with. However, on being asked by the court, learned counsel fairly admitted that the said report was prepared by the Mining Engineer without issuing any notice to the appellant heroin. Learned counsel submitted that in view of the documents executed by the appellant/ defendant relinquishing her share all other proceedings taken are total farce and no right is created on that basis in favour of the appellant/defendant. Accordingly, it is submitted that after due consideration of the material on record, the findings arrived at by the court below cannot be said to be capricious or perverse so as to warrant interference by this court in exercise of its appellate jurisdiction. 12. I have considered the rival submissions and perused the material on record. 13. Admittedly, the disputed agriculture land stands entered in the revenue record w.e.f. 01.07.1958 after resumption of the jagir in the name of the respondent No. 1 and his brother late Shri Bheru Singh. Thus, being a class first heir, prima facie the right of the appellant/defendant to inherit the property of his father cannot be doubted. Moreover, after taking the legal proceedings, the name of the appellant already stands substituted in place of her deceased father, in the license issued by the Department of Minings to operate the mining area in question. In these circumstances, prima facie the respondent/plaintiff cannot claim exclusive right to operate the mine. Moreover, after taking the legal proceedings, the name of the appellant already stands substituted in place of her deceased father, in the license issued by the Department of Minings to operate the mining area in question. In these circumstances, prima facie the respondent/plaintiff cannot claim exclusive right to operate the mine. It is true that the contentious claim of the parties has to be decided at the time of final decision of the suit but then, while considering the application for temporary injunction, it is obligatory upon the trial court to consider the entire material on record so as to arrive at the conclusion that the party praying for the relief of temporary injunction, has strong prima facie case in his favour, indisputably, vide order dated 08.06.2010 passed by the revisional authority, the order passed by the Mining Engineer directing entry of the name of the appellant in the license stand restored and the same has not been assailed by the appellant by way of any appropriate proceedings though in the suit filed he has claimed that the order dated 08.06.2010 passed by the Mining Engineer is void ab initio in view of the documents alleged to have been executed by the appellant herein relinquishing her share inter alia in the mining area in question. It is also not in dispute that the Senior Foremen Mining, divided the mining area in question and put the appellant/defendant in possession of halt portion of the mining area in the northern side, vide site report dated 31.08.2010. It appears that after the proceedings being taken by the Senior Foremen Mines, as aforesaid, the appellant got prepared yet another report dated 22.11.2010, in absence of the appellant herein and filed the suit as aforesaid on 24.11.2010. It is pertinent to note that while considering the matter with regard to prima facie case in favour of the respondent/ plaintiff, the court below has simply not considered the effect and validity of the report dated 22.11.2010 prepared by the Mining Engineer at the instance of the respondent/ plaintiff and admittedly, in absence of the appellant/defendant. It is pertinent to note that while considering the matter with regard to prima facie case in favour of the respondent/ plaintiff, the court below has simply not considered the effect and validity of the report dated 22.11.2010 prepared by the Mining Engineer at the instance of the respondent/ plaintiff and admittedly, in absence of the appellant/defendant. As a matter of fact, the court below has proceeded with the presumption that the site report dated 22.11.2010 prepared by the Mining Engineer is in accordance with law and since as per the said report, the respondent/ plaintiff is operating the mine by installing crane and, therefore, he has strong prima facie case in his favour. The court below has not recorded any reason worth the name as to why the report submitted by the Mining Engineer dated 22.11.2010 is being preferred vis-a-vis a report dated 31.08.2010, whereby after division of the mining area, the possession of northern side of the mine was handed over to the appellant herein. Thus, in considered opinion of this court, the findings arrived at by the court below regarding prima facie case in favour of the appellant without considering all the relevant aspects and material on record in their entirety and objectivity cannot but deemed to be capricious or perverse and therefore, the order impugned deserved to be set aside on this count alone. 14. It is to he noticed that as on the date, prima facie, the right of the inheritance of the appellant/defendant in the property of her deceased father cannot be doubted and the appellant/defendant being a joint licensee of the mine, the respondent/plaintiff cannot claim exclusive right to operate the mining area. Admittedly, vide site report dated 31.08.2010, the appellant was put into possession of half portion of the mining area in northern side, therefore, respondent/plaintiff cannot claim that he is in possession of the entire mining area. Thus, in considered opinion of this court, there is no prima facie case in favour of the respondent/plaintiff so as to make him entitled for temporary injunction prayed for against the joint licensee so as to create an exclusive right in his favour to operate the mining area on the basis of alleged site inspection report dated 22.11.2010, which prima facie appears to have been prepared at the instance of respondent/plaintiff. Further, if the respondent/plaintiff is permitted to operate the entire mining area, ignoring the prima facie entitlement of the appellant/defendant for half share therein then, the position will become irreversible and the appellant/defendant is bound to suffer irreparable loss. 15. In view of discussion above, order impugned passed by the court below is not sustainable in eye of law. 16. In the result, the appeal succeeds. it is hereby allowed. The order dated 14.01.2011 passed by the court below granting temporary injunction in favour of the respondent/plaintiff is set aside. The application preferred by the respondent/plaintiff under Order 39 Rule 1 and 2 C.P.C. seeking temporary injunction is dismissed. No order as to costs. Appeal allowed.