Yunus vs Sheikh Farid

Dr. Vineet Kothari, J.

The instant civil misc. appeal has been filed by the appellant/plaintiff, Yunus S/o Hussain, in this Court on 11.06.2012 aggrieved by the order dated 21.03.2012 whereby the application for Temporary Injunction in Civil Misc. Case No. 139/2011 has been rejected by the learned trial court of Additional District Judge, Parbatsar, District: Nagaur.

The appellant/plaintiff claimed that under the ''Bapi-Patta'' the mine in question being Mine No. 107 was given to the forefathers of the family of which the plaintiff is also a member and the quarry licence was issued in favour of defendant on 05.01.1988 after the said mine in question was declared as "Khasla" by the State Government on 24.08.1968 on an application filed by the defendant on 17.12.1987, the said quarry licence was issued in favour of defendants on 05.01.1988 under which the defendant is carrying on the mining operations in the said mine.

The present suit was filed by the plaintiff/appellant in the year 2011, after almost 24 years of the continued mining operation by the defendant/respondent claiming that without seeking a declaration of the mine on the basis of "Bapi-Patta" issued in favour of forefathers of the plaintiff by the erstwhile State, the defendant/respondent No. 1 could not be given the said quarry licence on 05.01.1988 and the plaintiff was not a party under the so-called family settlement, which was alleged to have taken place on 15.02.1973 and, therefore, he sought a relief of declaration that the mining operations carried out by the defendant under the quarry licence issued to him, he be restrained from carrying out the mining operations in the said mine, which the learned trial court after discussing, prima facie, the relevant evidence found that once "Bapi-Patta" was de-recognized by the State Government while declaring the mine in question to be "Khalsa" on 24.08.1968, and thereafter the mining lease/quarry licence was issued in favour of defendant/respondent on 05.01.1988 after following the due process of law, the plaintiff was not entitled to any temporary injunction against the defendant.

The present suit has been filed by the appellant/plaintiff after more than 20 years and the plaintiff was not entitled to temporary injunction against the defendants. The relevant findings of the learned trial court refusing to grant temporary injunction read as under: -

Mr. D.L.R. Vyas, learned counsel for the appellant/plaintiff submitted that the plaintiff had also share and right to carry on the mining operation and hitherto the plaintiff was jointly carrying out the mining operations in the mine in question but since in the year 2011, the defendants/respondents restrained the present appellant/plaintiff from carrying out the mining operation, he was required to file the present suit seeking a declaration in terms of Rule 64 of the M.M.C.R. for grant of mining lease on the basis of "Bapi-Patta" issued in favour of his forefathers. He further submitted that the defendants deserve to be restrained from doing mining operations during the pendency of the suit, which may take long time, and mining operations are allowed to be done the same would completely excavate the minerals and the very purpose of filing the suit will be frustrated. The learned court below thus has erred in refusing to grant temporary injunction and rejecting application under O. 39 R. 1 and 2 CPC.

On the other hand, Mr. Rajesh Joshi, learned counsel for the respondents/defendants vehemently opposed these submissions and supported the impugned order. He submitted that under the valid quarry licence was issued in favour of the defendants, they are carrying on the mining activities; and the plaintiff/appellant cannot claim any right on the basis of "Bapi-Patta" issued in favour of forefathers, once the land in question was declared as "Khalsa" by the State Government way back in the year 1968 (24.08.1968). It is only on an application filed by them on 17.12.1987 that after following the due procedure even inviting objections, the quarry licence for the mine in question was granted in favour of defendant on 05.01.1988, and no challenge was laid by the plaintiff for all these years and it was only in the year 2011, the plaintiff/appellant filed the present suit and the learned court below thus considering all the ingredients has rightly rejected the application under O. 39 R. 1 and 2 CPC.

Ms. Suman Porwal, learned Addl. Govt. Counsel, appearing on behalf of Mining Department, had also supported the impugned order and submitted that the quarry licence was issued in favour of defendants after following the due procedure and the suit has to be decided on its merits after allowing the parties the lead evidence to substantiate their claim in accordance with law.

Having heard the learned counsel for the parties at length and upon perusal of the order impugned, this Court is of the opinion that the learned court below has not erred in refusing the temporary injunction to the plaintiff/appellant. The suit prima facie not only appeared to be highly belated as the plaintiff/appellant has filed the suit, claiming share in the mine in question on the basis of "Bapi Patta" although the land has been declared as "Khalsa" by the State Government in the year 1968, however, the appellant/plaintiff, for the reasons best known to him, and filed the suit only in the year 2011. The jointness of the said "Bapi-Patta" is also disputed by the defendant in view of a partition which took place between the family members, which according to them, took place on 15.02.1973. The rights of the plaintiff/appellant can only be determined in the final decision of the suit, once the parties are allowed to lead their evidences. This Court is satisfied that the learned court below has rightly denied the temporary injunction to the plaintiff/appellant as the defendants are carrying on the mining operation under a validly granted quarry licence in their favour, which cannot be restrained while entertaining the application under Order 39 Rule 1 and 2, which has rightly been refused by the learned court below.

In this view of the matter, the impugned order calls for no interference by this Court and the present civil misc. appeal is found to be bereft of any force and the same is hereby dismissed. No costs. A copy of this order be sent to the concerned parties forthwith.