JUDGMENT Mr. Paramjeet Singh, J.:- This regular second appeal arises out of the suit for permanent injunction filed by respondent/plaintiff against the State of Punjab. The Court of first instance vide judgment and decree dated 10.06.1985 decreed the suit of the plaintiff. Against the judgment and decree passed by the Court of first instance, appeal preferred by appellants/defendants has been dismissed vide judgment and decree dated 28.03.1987. 2. The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced in detail. However, the facts relevant for disposal of this second appeal are to the effect that respondent/plaintiff filed a suit for permanent injunction restraining the appellants/defendants from recovering any royalty from the plaintiff for having excavated brick earth from the land measuring 155 kanals 3 marlas fully described in the headnote of the plaint situated in village Natt, Had Bast No.247, Tehsil and District Ludhiana. It is averred that plaintiff firm is a licencee under the Punjab Control of Brick Supply Order, 1956 and carries on the business of manufacturing the bricks and sale thereof at village Natt. The plaintiff firm took on lease the suit land for excavating the brick earth on 24.06.1975. Defendant No.2 issued demand notice dated 16.05.1980 for the recovery of royalty from the plaintiff firm for excavating the brick earth. The demand notice dated 16.05.1980 is illegal and ultra vires. It is further averred that defendants No.1 and 2 are not entitled to recover any royalty as they have got no right to do so. Defendants No.1 and 2 are not the owners of the brick earth. According to Sharayat wajib-ul-arz pertaining to village Natt prepared in settlement of 1909-1910, defendants No.1 and 2 have no right to brick earth. The brick earth clearly vests in the land owner and not in the State Government. The brick earth is not a minor mineral within the purview of the Punjab Minor Mineral Concession Rules, 1964. The plaintiff prayed that defendants No.1 and 2 be restrained from recovering the royalty from plaintiff firm for excavating the brick earth from the suit land. 3. Upon notice, appellants/defendants No.1 and 2 resisted the suit and raised various preliminary objections. The brick earth is not a minor mineral within the purview of the Punjab Minor Mineral Concession Rules, 1964. The plaintiff prayed that defendants No.1 and 2 be restrained from recovering the royalty from plaintiff firm for excavating the brick earth from the suit land. 3. Upon notice, appellants/defendants No.1 and 2 resisted the suit and raised various preliminary objections. It is averred that demand notice has been issued by the Mining Officer, Ludhiana, under the provisions of Punjab Minor Mineral Concession Rules, 1964 as the plaintiff was found engaged in illegal extraction of the brick earth at village Natt. The plaintiff is liable to pay the sum of Rs.10,884/- on account of the royalty on brick earth excavated and dug by the plaintiff firm from the land in suit from 14.09.1977 to 31.03.1979. The amount is recoverable from the plaintiff as arrears of land revenue as the plaintiff has not deposited the same. Remaining allegations of the plaint were denied and prayer for dismissal of suit was made. 4. On the pleadings of the parties, the Court of first instance framed the following issues: - “1. Whether the plaintiff firm is not liable to pay royalty assessed by the defendants? OPP 2. Whether the suit in the present form is not maintainable? OPP 3. Whether the jurisdiction of the civil court is barred under Section 158 of the Punjab Land Revenue Act? OPD 4. Whether the suit is bad for non-joinder of necessary parties? OPP 5. Relief.” 5. The Court of first instance, after appreciating evidence on record decreed the suit of the plaintiff. Against the judgment and decree of the Court of first instance, appeal preferred by the appellants has been dismissed and the judgment and decree of the Court of first instance has been affirmed. Hence, this regular second appeal. 6. I have heard learned counsel for the appellants and perused the record. 7. When the appeal was admitted no substantial question of law was framed nor the same was placed on record during the pendency of appeal. However, during the course of arguments, learned State counsel raised following substantial questions of law: - “1. Whether the State is entitled to claim royalty on the brick earth extracted by brick kiln owner? 2. Whether the brick earth is covered under the provisions of Section 42 of the Punjab Land Revenue Act, 1887?” 8. However, during the course of arguments, learned State counsel raised following substantial questions of law: - “1. Whether the State is entitled to claim royalty on the brick earth extracted by brick kiln owner? 2. Whether the brick earth is covered under the provisions of Section 42 of the Punjab Land Revenue Act, 1887?” 8. Learned State counsel contended that vide notification dated 01.06.1958 issued under Section 3 of the Mines and Minerals (Regulation & Development) Act, 1957 brick earth has been declared as minor mineral. She further contended that entries in wajib-ul-arz clearly provide that all types of minerals discovered in future vest in the State. Learned State counsel further contended that presumption under Section 42(2) of the Punjab Land Revenue Act, which provides that interest in land shall belong to landowner unless expressly provided in revenue record prepared after 18.11.1871 to be belonging to State, will not be applicable in instant case as concerned entry in wajib-ul-arz was made after 18.11.1871 and it specifically provided that all types of minerals will vest in State. The learned trial Court wrongly decreed the suit of plaintiff/respondents. 9. Admittedly, brick earth has been declared as minor mineral vide notification dated 01.06.1958. It is also admitted that land from which brick earth has been excavated belongs to private owner and respondent is lessee thereon. Also there is an entry in wajib-ul-arz which provides that all the minerals discovered in future will vest in State, however, ‘brick earth’ has not been expressly provided for in the said entry. In such circumstances provisions of Section 42 of the Land Revenue Act become relevant to determine whether ‘brick earth’ vests in State or landowner. Section 42 of the Punjab Land Revenue Act is reproduced below: “42. Presumption as to ownership of forests, quarries and waste lands. — (1) When in any record-of-rights completed before the eighteenth day of November, 1871, it is not expressly provided that any forest, quarry, unclaimed, unoccupied, deserted or waste land, spontaneous produce or other accessory interest in land belongs to the land-owners, it shall be presumed to belong to the Government. (2) When in any record-of-rights completed after that date it is not expressly provided that any forest or quarry or any such land or interest belongs to the Government, it shall be presumed to belong to the land-owners. (2) When in any record-of-rights completed after that date it is not expressly provided that any forest or quarry or any such land or interest belongs to the Government, it shall be presumed to belong to the land-owners. (3) The presumption created by sub-section (1) may be rebutted by showing – (a) from the records or report made by the assessing officer at the time of assessment; or (b) if the record or report, is silent, then from a comparison between the assessment of villages in which there existed, and the assessment of village of similar character in which there did not exist, any forest or quarry, or any such land or interest. that the forest, quarry, land or interest was taken into account in the assessment of the land-revenue. (4) Until the presumption is so rebutted, the forest, quarry, land or interest shall be held to belong to the Government.” 10. The issue of payment of royalty on excavation of brick earth from private land was considered by three Judges’ Bench of the Hon’ble Supreme Court in State of Punjab vs. M/s Vishkarma and Co., 1993(2) R.R.R. 38, wherein the Hon’ble Supreme Court held as under: - “7. Brick-earth with which we are concerned in the present appeals, is a minor mineral was not disputed, although it is not any of the mines or minerals covered by section 41 of the Revenue Act as would make it become the property of the State. if the owner of such brick-earth is the State of Punjab, liability to pay royalty for removal of such brick earth and to obtain permit or licence for such removal necessarily arises because of the operation of the Act and the Rules. But the courts below have concurrently found that the brick-earth concerned in the suits out of which the present appeals have arisen was in lands which formed the estates of the private owners and as such the same belonged to such landowners. It is so found on their reading of the entries in Wajib-ul-arz pertaining to the concerned estates. Wajib-ul-arz is a document included in the record-of-rights cannot be disputed since it contains the statements on matters envisaged under clauses (a) and (b) of Sub-section (2) of section 31 of the Act. It is so found on their reading of the entries in Wajib-ul-arz pertaining to the concerned estates. Wajib-ul-arz is a document included in the record-of-rights cannot be disputed since it contains the statements on matters envisaged under clauses (a) and (b) of Sub-section (2) of section 31 of the Act. According to the courts below Wajib-ul-arz document being record-of-rights of estates completed after 18th day of November, 1871, and there being nothing expressly stated in them that the forest or quarry or land or interest in the estates belong to the Government, the lands in such estates including brick-earth in them shall be presumed to belong to the concerned land-owners as is declared in sub-section (2) of section 42 of the Revenue Act. 8.Again, it is pointed out by the courts that there being no provision similar to the provision in sub-section (3) which permits adducing of rebuttal evidence against the presumption that the lands belong to the State under subsection (1) of section 42 of the Revenue Act, the presumption which arises under sub-section (2) of section 42 of the Revenue Act that the forest or quarry or land or interest belong to land-owner, cannot at all be rebutted by the State by adducing any contrary evidence. Even otherwise, according to them, when the State has not chosen to adduce any evidence to rebut the presumption arising from the entries in Wajib-ul-arz document record-of-rights relating to the estates of lands whose brick-earth is allowed by the land-owners to be removed by the brick-manufacturers who are the plaintiffs in the suits out of which the present Civil Appeals have arisen, there can be no valid reason for them to hold that the brickearth in the lands of the estates concerned has become the , property of the State, so as to require the brick-manufacturers to pay royalty for removal of such brick-earth and obtain permits or licences under the Rules. 9. In our view, when all the courts below have concurrently recorded findings to the effect that the ownership of the brickearth belong to land-owners and not to the State on a correct appreciation of all evidence adduced in the case and on a proper application of the law governing the same, there could be no justification to interfere with such findings in these appeals. We are also not shown any valid reason as to why we should set aside the lower courts’ judgments and decrees and send the matters to the Courts of first instance with a direction to permit the State to adduce rebuttal evidence as regards entries in record-of-rights.” 11. The observations made by Division Bench of this Court in State of Punjab vs. M/s Subhash Chander, AIR 1991 Punjab 134 are also relevant in this context, which read as under: - “7. We will take up first the Letters Patent Appeals filed by the State Government. It is a conceded position that in these cases, there is no record-of-rights prior to 18th November, 1871, but there is record-of-rights, only after this date. That being so, we are to see whether in the Sharait-Wajib-ul-arz, it has been expressly provided under Section 42(2) of the Act. It shall be presumed to be belonging to the landowners and as stated above this presumption is not rebuttable. There is catena of authorities of this Court, wherein it has been held that unless there is a specific mention to the contrary in the record-of-rights completed after 18th November, 1871, the brick-earth belongs to the landowners. These are M/s. Amar Singh Modi Lal v. State of Haryana and others, AIR 1972 Punjab and Haryana 356; Punjab State vs. Shadi Lal and others, 1985 (1) Land Law Reports 265; Punjab State v. Jagdish Chander and another, 1983 PLR 695 ; (M/s Nanak Chand Ghasi Ram v. State of Punjab etc), R.S.A. 581 of 1983 decided on 3rd November, 1983 and Punjab State v. M/s Vishkarama and Co. and others, R.S.A. No.902 of 1973 decided on 16th September, 1982. The Sharait-Wajib-ul-arz, in all these cases are almost similar. The one in C.W.P. No.894 of 1981, which was as Annexure R-1 with the written statement, is reproduced below: “In our village there exists no mines of stone or Kankar etc. and if in future it is found it shall be the property of the Government. In case any mine of lime, or Kankar, coal or stone etc. appear, it will be the property of the Government.” 8. It would be evident from the above mentioned Sharait- Wajib-ul-arz that there is no specific mention that the brickearth would vest in the Government. In case any mine of lime, or Kankar, coal or stone etc. appear, it will be the property of the Government.” 8. It would be evident from the above mentioned Sharait- Wajib-ul-arz that there is no specific mention that the brickearth would vest in the Government. In view of sub-section (2) of Section 42 of the Act, the presumption is that it vests in the proprietors of the land. This presumption is not rebuttable under Section 42(3) of the Act.” 12. Further in The State of Punjab and others vs. M/s Ram Dass Bhagwan Dass, [2012(1) Law Herald (P&H) 222] : 2012(5) RCR (Civil) 280 while referring to the notification dated 01.06.1958, this Court has categorically held that mere declaration of brick earth as minor mineral by way of notification in itself will not vest any right in State Government to claim royalty because of the reason that ownership of the same will still continue to be vested in the landowners if there was no entry in the sharait-wajib-ul-arz to the contrary. 13. The law laid down in aforesaid pronouncements is that brickearth excavated from private land would not vest in State by virtue of notification dated 01.06.1958 in absence of express entry in wazib-ularz. 14. In the instant case the entry in wajib-ul-arz is to the effect that the rights to all minerals without exception vest with the Government. Such a vague entry cannot be used to defeat the non-rebuttable presumption of law created in favour of landowner under Section 42(2) of the Punjab Land Revenue Act, 1887. After examining the record and concerned entry in wajib-ul-arz, learned lower appellate Court has recorded a categorical finding that on the basis of entries in wajib-ul-arz, State has no right to demand royalty on excavation of concerned land. These findings are based on settled proposition of law as discussed hereinabove. 15. In view of above, no question of law, muchless substantial question of law arises for consideration in this appeal. 16. Dismissed. 17. No order as to costs. ---------0.B.S.0------------