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2016 DIGILAW 1027 (RAJ)

Indra Devi v. Nathi Devi

2016-07-20

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. This appeal is directed against the order dated 9.2.2016 sassed by the Trial Court, whereby, the Trial Court has partly allowed the application filed by the appellants under Order 39, Rule 1 and 2 C.P.C. 2. The appellants and respondent Nos. 1, 2 and 3 are real sisters. The present suit was filed seeking cancellation of sale deeds and permanent injunction, regarding the sale deeds executed by Smt. Umi Devi in favour of respondent Nos. 4 and 5 and further transfers in favour of respondent Nos. 6 and 7. Several allegations were made in the plaint against Smt. Nathi Devi and her husband and it was claimed that the transfers took place without consideration and the appellants became aware of such transfers only after the death of their mother on 23.1.2014. Along with the suit, an application was filed seeking injunction against mutation of agricultural land and seeking injunction regarding mining activities in Khasra No. 193. 3. The application was resisted by the respondents by filing reply. It was submitted that the entire land was owned by Umi Devi and she was entitled to transfer the land, Jai Prakash S/o Nathi Devi was adopted by Umi Devi and the transfers took place way back in the year 2005 onwards and, therefore, there is no reason for the plaintiffs to now challenge the said transfers, qua the mining activities in Khasra No. 193, it was submitted that Purnaram purchased the land ad measuring 7 Bigha on 20.7.2005 and out of 7 Bigha land, 10,000 sq. mtrs. land has been applied for mining purposes and mining rights were obtained, regarding which M.L. No. 561 dated 1.8.2005 is in favour of Purnaram and the mine is being worked, which is in the knowledge of plaintiffs. Submissions were made regarding rest of the land and denying the right of the plaintiffs in seeking injunction. 4. The Trial Court after hearing the parties, came to the conclusion that during the pendency of the suit if the disputed land indicated in para Nos. Submissions were made regarding rest of the land and denying the right of the plaintiffs in seeking injunction. 4. The Trial Court after hearing the parties, came to the conclusion that during the pendency of the suit if the disputed land indicated in para Nos. 8, 10 and 12 of the plaint based on the registered sale deeds are dealt with, the same would result in multiplicity of proceedings and would result in irreparable injury to the plaintiffs, however, while dealing with the prayer regarding Khasra No. 193, it came to the conclusion that mining lease has been allotted after undertaking due procedure, which was transferred by registered sale deed at this 26.7.2005 in favour of Purnaram and without cancelling the sale deed, at this stage he cannot be prevented from working the mine and consequently directed the parties not to transfer the land comprised in sale deed as indicated in paras 8, 10 and 12 of the plaint and the prayer regarding injunction on mining activities in Khasra No. 193 was rejected. 5. It is submitted by learned Counsel for the appellants that the Trial Court committed an error in dismissing the prayer qua the mining activities being undertaken by the respondent No. 4. It was submitted that there was no reason to make distinction between the other agricultural lands and the land where mining activities are being undertaken, the suit is likely to take time and in the meanwhile, the respondent No. 4 would finish the entire mining area, which cannot be permitted and, therefore, the order impugned deserves to be set aside to the extent of refusing injunction. 6. Learned Counsel for the respondents submitted that even if the appellants would succeed, they cannot have claim on the entire land inasmuch as they can only claim share to the extent of 2/7 and, therefore, the prayer made is beyond their share. It was submitted that the transfer of land comprised in Khasra No. 193 took place way back in the year 2005, mining lease was allotted to Purnarau in 2005 itself and mining activities are being undertaken and there is no reason for stopping the mining activities which are being undertaken since long and, therefore, the appeal deserves to be dismissed. 7. I have considered the submissions made by the parties and have perused the material available on record. 8. 7. I have considered the submissions made by the parties and have perused the material available on record. 8. The present dispute has been raised by two sisters while contesting against their three sisters and essentially questioning the transfers of land by their mother, after her death. It appears that the transfers have taken place from the period 2005 onwards and Smt. Umi Devi, mother of respondents No. 1, 2 and 3 died in the year 2014. Basis of questioning the transfers has been that the property was owned by Jetha Ram, their father, and he died intestate and, therefore, they have share in the property. The Trial Court finding a prima facie case and triable issues, directed the parties to maintain status quo regarding the transfers of land as indicated in paras 8, 10 and 12 of the plaint. 9. So far as the mining activities undertaken by respondent No. 4 were concerned, the injunction was rightly refused. The very fact that the transfer of the land comprised in Khasra No. 193 took place in the year 2005, mining lease was granted to respondent No. 4 Purnaram in the year 2005 itself and it is claimed that mine was being worked since grant of mining lease, it would not be appropriate to injuct the working of mine only at the instance of plaintiffs, who have at best 2/7 share in the property owned by Jetha Ram and admittedly the part of land still remains in the family i.e. the land which was not transferred by Smt. Umi Devi. 10. Further, stopping of mining activities would not enure to any body's benefit as the lease is granted for a specified period and in any case the respondent No. 4, who is already working the mine would be required to discharge obligations towards Mining Department, workmen and the parties with whom he is dealing qua his business and, therefore, by any stretch of (sic)nation it cannot be said that the balance of convenience lies in stepping the respondent No. 4 from undertaking the mining activities. 11. 11. However, interest of appellants can be safeguarded by directing the respondent No. 4 to faithfully maintain the records regarding the mining activities i.e. the excavation, sale and other related activities in connection with the mining being undertaken by him in Khasra No. 193 and to produce such accounts every six months before the Trial Court during the pendency of the suit. The production of accounts by the respondent No. 4 would be subject to scrutiny by the Trial Court and further directions in this regard can be issued by the Trial Court. 12. In view of the above discussion, the appeal filed by the appellants is disposed of with minor modification in the order passed by the Trial Court i.e. that respondent No. 4 would be free to undertake the mining activities, however, would be required of him to faithfully maintain the records regarding the mining activities i.e. the excavation, sale and other related activities in connection with the mining being undertaken by him in Khasra No. 193 and to produce such accounts every six months before the Trial Court during the pendency of the suit. The production of accounts by the respondent No. 4 would be subject to scrutiny by the Trial Court and further directions in this regard can be issued by the Trial Court. Appeal disposed of.