Sampat Kumar vs Chhitar Ram
2023 Latest Caselaw 6901 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 12558/2023

Sampat Kumar S/o Shri Kalyan Mal Toshniwal, Aged About 75 Years, Resident Of Near Pabu Ji Chabuta, Makrana, District Nagaur.

----Petitioner/Defendant No.1 Versus

1. Chhitar Ram S/o Late Shri Prema Ram, (So Called Mentally Infirm) Through Mentor Smt. Lichhma W/o Shri Chhitar Ram, Resident Of Palada Road, Opposite Muskan Marriage Garden, Makrana, District Nagaur.

(Plaintiff)

2. Amri Devi W/o Late Shri Prema Ram, Resident Of Palada Road, Opposite Muskan Marriage Garden, Makrana, District Nagaur.

3. State Of Rajasthan Through District Collector, Nagaur.

3A. Director, Mines And Geology Department, Udaipur. 3B. Mining Engineer, Mines And Geology Department, Makrana, District Nagaur.

For Petitioner(s)                 :     Mr. Narendra Thanvi
                                        Mr. Mahendra Thanvi
For Respondent(s)                 :     Mr. O.P. Mehta on VC.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 29/08/2023 Pronounced on 06/09/2023

1. This writ petition under Article 227 of the Constitution of

India has been preferred claiming the following reliefs:

"It is, therefore, respectfully prayed that this Hon'ble Court may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction:-

(i) quash the order impugned dated 01.08.2023 (Annexure-10) passed by the Learned Addl. District Judge, Makrana, District Nagaur in Civil Misc. Appeal No.23/2019 & order dated 16.05.2019 (Annexure-5)

(D.B. SAW/905/2023 has been filed in this matter. Please refer the same for further orders)

(2 of 7) [CW-12558/2023]

passed by learned Senior Civil Judge, Makrana, District Nagaur in Civil Misc. Case No.17/2017 may be restored back throughout;

(ii) the temporary injunction application filed by the respondent no.1/plaintiff may kindly be dismissed with costs in toto; and

(iii) any other appropriate relief which this Hon'ble Court deems fit necessary in the fact and circumstances of the present case be granted in favour of the petitioner; and

(iv) Cost of the writ petition kindly ordered to be awarded to the petitioner."

2. Brief facts of the case, as placed before this Court by learned

counsel for the petitioner, are that the respondent no.1 instituted

a suit for declaration of rights and permanent injunction along

with an application for temporary injunction under Order 39 Rule 1

& 2 CPC before the learned Senior Civil Judge, Makrana, stating

therein that Mine No.1 situated at Matabhar Range, Makrana, was

earlier belonging to one Mohammad Ismail, and later on, the same

was allotted to the father of the respondent no.1; the petitioner

was financier of the respondent's father, who was excavating

mines on contract basis. Thereafter, the petitioner gave Rs.9 lacs

per annum as share for the mine in question to the family of the

respondent no.1, and then the petitioner got the lease of the mine

in question transferred in his name. It was further stated that the

petitioner, while taking undue advantage of his terms and relations

with the respondent no.1's family, got the mine in question

transferred in his (petitioner's) name.

2.1. The learned Court below, after hearing the parties, vide

order dated 16.05.2019 dismissed the said temporary injunction

(D.B. SAW/905/2023 has been filed in this matter. Please refer the same for further orders)

(3 of 7) [CW-12558/2023]

application of the respondent no.1. Being aggrieved, the

respondent no.1 preferred an appeal under Order 41 Rule 5 read

with Section 151 CPC along with an application under Section 5 of

the Limitation Act, 1963 before the learned Additional District

Judge, Prabatsar.

2.2. The learned Appellate Court on 04.09.2019 passed an

interim order restraining the petitioner from doing illegal

excavation works in the mine in question, till the next date before

it. Thereafter, the petitioner filed an application for non-extension

of the said interim order. The learned Appellate Court vide the

impugned order dated 01.08.2023 allowed the appeal of the

respondent no.1, while quashing and setting aside the order dated

16.05.2019 passed by the learned Trial Court, and restrained the

petitioner from doing the excavation works in the mine in

question.

3. Learned counsel for the petitioner submitted that the

possession of the mine in question was indisputably settled, and

the petitioner is doing mining work for last almost 50 years.

Therefore, as per learned counsel, the impugned order passed by

the learned Appellate Court is not justified in law.

3.1. Learned counsel further submitted that the transfer of the

mine in question was made in favour of the petitioner on

25.05.1971 by the Competent Mining Authority. It was also

submitted that the petitioner is paying the rent, renewal fee and

all other expenses pertaining to the mine in question.

3.2. Learned counsel further submitted that the petitioner has

also applied for extension of area which was permitted to the

(D.B. SAW/905/2023 has been filed in this matter. Please refer the same for further orders)

(4 of 7) [CW-12558/2023]

petitioner on 31.03.1980, and therefore, the petitioner is rightly

holding the mine in question, and on that count also, the

impugned order deserves to be quashed and set aside.

3.3. Learned counsel also submitted that for challenging the

transfer of the mine in question, the appropriate remedy, at the

relevant time, was filing of revision as well as appeal under the

Rajasthan Minor Mineral Concession Rules, 1959, but the

respondent/plaintiff, rather than availing such appropriate remedy,

instituted the suit in question in the year 2017 before the learned

Trial Court.

3.4. Learned counsel further submitted that during the pendency

of the suit in question, the parties have entered into a compromise

on 01.07.2013, and upon the said compromise, the respondent

no.1's family have made their thumb impression and accepted the

said compromise, thereby accepting the fact that the mine in

question belonged to the petitioner.

4. On the other hand, learned counsel appearing on behalf of

the respondent nos.1 and 2, while opposing the aforesaid

submissions made on behalf of the petitioner, submitted that mine

in question was illegally encroached by the petitioner and after

death of Prema Ram (father of the respondent no.1 and husband

of the respondent no.2), the mine in question got transferred in

the name of the petitioner on the basis of furnishing false and

forged affidavit of the respondent no.2, i.e. without any consent of

the respondents.

4.1. It was further submitted that at the time of the transfer in

question, the respondent no.1 was a minor and as per Section 8 of

(D.B. SAW/905/2023 has been filed in this matter. Please refer the same for further orders)

(5 of 7) [CW-12558/2023]

the Hindu Minority and Guardianship Act, 1956, only a natural

guardian can make any transfer on behalf of the minor

(respondent no.1 in the present case); therefore, as per learned

counsel, the entire transfer regarding the mine in question was

illegal and against the provisions of law.

4.2. It was also submitted that the learned Appellate Court, has

duly considered all the relevant aspects of the case, and

thereafter, passed the impugned order, while observing that prima

facie case is made out in favour of the respondent, and thus,

rightly passed the injunction order in his favour, in regard to the

mine in question.

4.3 In support of such submissions, learned counsel relied upon

the following judgments:-

(a) Maharwal Khewaji Trust (Regd.) Faridkot Vs Baldev Dass (Civil

Appeal No.6792 of 2004, decided on 15.10.2004) by the Hon'ble

Apex Court.

(b) Dalpat Kumar & Anr. Vs Prahlad Singh & Ors., (1992) 1 SCC

719;

(c) Virendra Singh & Ors. Vs Kashiram (deceased) through LRs

(S.B. Civil Appeal No. 62 of 1992 decided on 06.04.1992) by a

Coordinate Bench of this Hon'ble Court at Jaipur Bench.

(d) Bhagwati Singh Vs Raja Laxman Singh (S.B. Civil Misc. Appeal

No. 3459 of 2008 decided on 11.12.2013) by a Coordinate Bench

of this Hon'ble Court at Jaipur Bench.

(e) M/s Toyal Bros Vs Gram Panchayat Chichorwari (S.B. Civil

Revision Petition No. 583 of 1983 decided on 19.07.1988) by a

Coordinate Bench of this Hon'ble Court at Jaipur Bench.

(D.B. SAW/905/2023 has been filed in this matter. Please refer the same for further orders)

(6 of 7) [CW-12558/2023]

5. Heard learned counsel for the parties as well as perused the

record of the case alongwith the judgments cited at the Bar.

6. This Court observes that the respondent no.1 instituted the

aforementioned suit and filed the temporary injunction application,

whereupon, the learned Trial Court vide order dated 16.05.2019

rejected the temporary injunction application. The respondent

no.1, against the said order of the learned Trial Court, preferred

an appeal before the Appellate Court, whereupon, vide the

impugned order dated 01.08.2023, the appeal was allowed, while

granting temporary injunction in favour of the respondent

no.1/plaintiff.

7. This Court further observes that the learned Trial Court in its

order dated 16.05.2019 observed that in the quarry license dated

01.02.1964 of the mine in question, the name of the petitioner

was shown, and that, it was also recorded that the petitioner also

submitted the documents to prove his rights over the mine in

question.

8. This Court also observes that the mine in question was

transferred by the Prema Ram (father of the respondent no.1 and

husband of the respondent no.2) in favour of the petitioner in the

year 1971, and thereafter, the petitioner paid all the expenses for

the mine in question.

9. This Court further observes that a compromise was arrived

at between the petitioner and the respondent, wherein the

respondent admitted the transfer of mine in question in the year

1971.

(D.B. SAW/905/2023 has been filed in this matter. Please refer the same for further orders)

(7 of 7) [CW-12558/2023]

10. This Court also observes that the respondent did not show

any document, which could disprove the entitlement of the

petitioner, in relation to the mine in question. This Court further

observes that the petitioner is running the mine in question since

the year 1971, and that, prima facie case was not made out in

favour of the respondent no.1

11. This Court also observes that the learned Appellate Court

granted the temporary injunction without considering the

irreparable loss of the petitioner, pertaining to the mine in

question. This Court further observes that no case was made out

for grant of temporary injunction in favour of the respondent, and

therefore the impugned order passed by the learned Appellant

Court is not justified in law.

12. The judgments cited on behalf of the respondents also do not

render any assistance to their case.

13. Consequently, the present petition is allowed, and

accordingly, the impugned order dated 01.08.2023 passed by the

Additional District Judge, Makrana, District Nagaur in Civil Appeal

No.23/2019 (C.I.S. No. 09/2019) is quashed and set aside. All

pending applications stand disposed of.

(DR. PUSHPENDRA SINGH BHATI), J.

SKant/-

(D.B. SAW/905/2023 has been filed in this matter. Please refer the same for further orders)

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