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Judgment
This first appeal under Section 96 CPC has been filed
against the judgment and decree dated 01.04.2009 passed by the
learned Additional District Judge (Fast Track), Parbatsar in Civil
Original Suit No.69/2004 (37/2000) by which the suit filed by the
respondents-plaintiffs was decreed and counter claim filed by the
appellants-defendants was rejected.
Briefly stated the facts of the case are that suit for
declaration and permanent injunction was filed on 07.11.2000
against the appellants-defendants and prior to that series of
litigation commenced between the parties and the first litigation
was filed by the respondent No.1-plaintiff in early 1997, which was
registered as Suit No.27/1997 in the court of the learned Civil
Judge (Junior Division), Makrana for permanent injunction and
declaration and the said suit is still pending before the competent
court. As such, it is clear lis between the parties were started in
the year 1997 on the basis of the alleged agreement to sale dated
02.06.1972 and registered sale-deed dated 15.03.1980.
It was pleaded by the respondent-plaintiff in the said
suit that the mine situated in Ulodi Range being Mine No.69,
measuring 75'' X 50'', which was allotted in favour of the
predecessors of the appellants by EX Ruler of Jodhpur State. As
such, the predecessor of the appellants having a Bapi Pattedar of
said mining lease as per relevant laws from time to time.
It was further pleaded in the said suit that the
appellants have executed unregistered agreement to sale on
02.06.1972 and possession of the mine was given to the
respondents-plaintiffs and thereafter a registered document was
executed in favour of the respondents-plaintiffs by one of the
appellant, i.e. late Shri Abdul Gafoor on 15.03.1980. It was also
alleged that the plaintiffs have developed the mine in question and
applied for quarry license. It was contended that it is relevant to
mention that the aforesaid allegations, made in the suit, are
contradictory. On the one hand, it is pleaded that the plaintiffs
have developed the mine in question, but on the other hand no
quarry license was issued in their favour. It was further pleaded
that the plaintiffs having all rights under the Rajasthan Mining
Mineral Concession Rules, 1986 for transfer of the aforesaid mine
without pleading specific provision, the said averment was made
in the suit. It was contended that Shri Abdul Shakoor lodged an
FIR at police station makrana and thereafter the dispute was
raised and proceedings under Sections 145 and 146 Cr.P.C. were
also initiated. It was further pleaded that the Mining Engineer has
issued a license in favour of the appellants whereas the
respondents-plaintiffs are entitled, as such, the suit was filed and
relief of permanent injunction was sought for Mine No.69,
measuring 75'' X 50'' against the appellants as well as other
defendants.
A written statement was filed by the appellants-
defendants and the allegations made in the plaint were
categorically denied and it was submitted that the suit was filed on
the basis of fabricated documents. The agreement dated
02.06.1972 was not executed nor late Shri Abdul Gafoor executed
the sale-deed dated 15.03.1980 and further the question of
possession was also denied. It was specifically stated that the land
in question was mutated in the name of the appellants-defendants
since 27.06.1964 and the alleged documents i.e. agreement to
sale dated 02.06.1972 and sale-deed dated 15.03.1980 were
denied and signature on the aforesaid documents were also
categorically denied. It was also pleaded that Bapi right was not
transferable and it was specifically pleaded that no Bapi right was
declared in favour of the appellants-defendants, as such, the
appellants-defendants could not have transferred any Bapi right in
favour of the respondents-plaintiffs. It was also pleaded that the
mining licese was issued in favour of the appellants and they are
excavating the mine in question and their license was challenged
by way of writ petition No.2875/1997 and the same was
withdrawn. The alleged agreement to sale was fabricated and
against the law and further the possession of mine in question was
with the appellants and they were having no vested right for
declaration of Bapi right and possession was taken and the suitw
as filed beyond the period of limitation. A counter claim was also
filed for declaration of the alleged documents as null and void and
against the law.
On the basis of the pleadings of the parties, the learned
trial court framed as many as six issues and examined witnesses
of both the parties. The trial court, after trial, decreed the suit.
Aggrieved by the judgment and decree, the appellants prefer this
appeal on the grounds that the Bapi patta issued in fabour of the
predecessors of the appellants is not transferable. The trial court,
while deciding issue No.1, relied on unregistered agreement to
sale dated 02.06.1972 and sale-deed dated 15.03.1980. So far as
agreement to sale dated 02.06.1972 (Ex.P/1), is concerned, the
same is unregistered and there was cutting on the said agreement
to sale and the same is against the law. It was also contended
that the findings of the trial court as regards Ex.P/1 is perverse
and the same is only on the basis of evidence of Moti Khan PW-9
and he is also not reliable witness for the reason that in his
witness he categorically states that their were three witnesses
signed on agreement though that is totally incorrect and contrary
to the documents itself and same was admitted by Moti Khan in
his cross-examination. As such, Moti Khan cannot be said to be
reliable witness, whereas the attesting witness Allahnoor DW-7
has denied his signature, as such, the learned trial court has erred
in law while giving finding about Ex.P/1. It was also argued that
none of the witness has stated that late Shri Abdul Gafoor and
Shri Abdul Shakoor signed in their presence and further they have
seen the signatures of late Shri Abdul Gafoor and Abdul Shakoor,
as such, it is clear that from any angle none of the witnesses have
proved the genuineness of Ex.P/1 as per law.
So far as Ex.P/2 is concerned, the said sale-deed was
drafted by deed writer and the same was witnessed by Rodu Ram
and Allahanoor, but neither deed writer Kripa Shanker was
examined nor Rodu Ram and his legal heirs were examined nor
signature of Rodu Ram was proved by any witness and only
witness Allahanoor was examined as DW-7 and he denied his
signature and none of the witness identified Late Shri Abdul
Gafoor and Allahanoor has categorically denied his signature and
identification of Late Shri Abdul Gafoor, as such, from none of the
angle, plaintiffs have proved the genuineness of Ex.P/2 sale-deed
dated 15.03.1980. The trial court has totally misread the Rules of
1922. It was also argued that Rule 64 of the Rules of 1986 read
with earlier Rules of 1977 and Act of 1957, misread and given
finding that declaratory decree in favour of the respondents-
plaintiffs can be granted without any declaration of Bapi rights in
favour of the appellants, as such, from all angle the finding
recorded by the learned trial court on the basis of the agreement
to sale dated 02.06.1972 and sale-deed dated 15.03.1990 is
perverse, contrary to law, illegal, null and void.
It was also contended that while considering the
genuineness of agreement to sale dated 02.06.1972, the learned
trial court has unnecessarily elaborately referred that document in
question is prior to 30 years, as such, there is presumption in
favour of the document while ignoring the fact that lis between the
parties was started in early 1997, i.e. prior to 30 years and suit
No.27/1997, Ex.A/2 has alerady on the record, which clearly
shows that lis between the parties has started much prior to 30 years. Hence, the finding of the learned trial court regarding
Ex.P/1 is totally perverse and he has totally ignored the material
available on record. In pursuance of the order of the Deputy
Secretary (Mines) dated 28.08.2004, a suit for declaration of their
Bapi rights was filed, which was regsitered as Suit No.34/2007
(Abdul Shakoor Vs. State and Ors), which is pending in the court
of the learned Additional District Judge (Fast Track), Parbatsar, in
which a misc. application under Order 39 Rules 1 and 2 CPC was
also filed and on 25.03.2009, injunction was issued in favour of
the appellants, as such, it is clear that still the issue regarding
declaration of appellants'' Bapi Rights is under adjudication and
without deciding the same in favour of the appellants, no
declaration of Bapi Rights in favour of the respondents-plaintiffs
can be issued. As such, the learned trial court has totally erred in
law while considering the effect of Rule 64 of the Rules of 1986
regarding declaration of Bapi rights. In fact, until and unless ni the
suit of appellants, Bapi rights are declared in favour of the
appellants, suit filed by the respondents-plaintiffs regarding
declaration of their Bapi rights is not at all maintainable.
It was also argued that on behalf of the appellants, an
application under Order 13 Rule 13(6) CPC was filed and the same
was dismissed by the learned trial court vide order dated
01.09.2008, with the observation that unless Bapi rights were not
declared by the competent court, no right of excavation can be
transferred because rights of mineral vest in the State
Government and the same can be transferred only by declaration
of Bapi rights in favour of the Bapidar.
It was also contended that it is admitted position that
Abdul Shakoor and late Shri Abdul Gafoor were living separately
and Shri Abdul Shakoor has not given any authority in favour of
Shri Abdul Gafoor, as such, he has no authority to execute any
deed on behalf of Shri Abdul Shakoor and the concept of Karta is
stranger in the Muslim Law, but in spite of that the learned trial
court has justified the sale-deed (Ex.P/2) contrary to Muslim Law.
The learned trial court has given perverse finding ignoring the
mauka report (Ex.A/25) regarding possession. The trial court has
not considered the relevant documents and the said license was
renewed in favour of the appellants up to 31.12.2007. Hence, it is
clear that the appellants were in possession of the mine in
question till the said license was set aside by the Deputy Secretary
in December, 2004. Therefore, the finding of the trial court is
perverse.
The respondents-plaintiffs themselves have applied for
license vide Ex.A/3 claiming their portion measuring 37.5'' X 50''
(Ex.A/14) and in the affidavit Ex.A/15, claimed possession since
15.03.1980. As such, the trial court has decreed the suit contrary
to the admissions made by the respondents-plaintiffs and hence
the same is liable to be quashed.
It was also contended that the trial court has
committed error of law in deciding issue No.1 contrary to evidence
and also against the mining law and Muslim Law. It was further
alleged that the trial court has totally erred in law in deciding issue
No.2. In fact, the Division Bench of this Court categorically
observed and protected the appellants'' right till the dispute is resolved by the competent court and the suit for declaration of
their Bapi right is pending in the same court, as such, the finding
given by the learned trial court on issue No.2 is perverse.
It was also argued that the trial court has further
committed error of law in deciding the issue No.3 on the basis of
Rule 64 of the Rules of 1986. In fact, Bapi right was claimed on
the basis of patta issued in favour of late Shri Habibullah and
unless and until any declaration is made in favour of his legal heirs
(appellants) regarding Bapi rights, Rule 64 of the Rules of 1986 is
not applicable and the finding given by the learned trial court on
issue No.3 is perverse and contrary to law.
From the perusal of material placed on record and oral
and documents it is clear that the suit was filed on the basis of the
agreement to sale dated 02.06.1972 and the sale-deed dated
15.03.1980 and the same is hopelessly barred by limitation.
So far as the contentions raised in respect of issue No.1
are concerned, perused the pleadings of the parties and oral and
documentary evidence placed on record. The issue No.1 was
framed with respect to the disputed Mine No.69, in respect of
which the respondents-plaintiffs claimed declaration of their Bapi
rights on the basis of unregistered agreement to sale dated
02.06.1972 and registered sale-deed dated 15.03.1980 on the
basis of which possession was handed over. It is admitted position
that Bapi patta was issued in favour of the predecessor of the
appellant, Habibullah. It is also admitted position that
unregistered agreement to sale dated 02.06.1972 was executed and thereafter a sale-deed dated 15.03.1980 was executed. The
appellants-defendants, in their written statements, denied the
contentions of the suit and pleaded that no such agreement to
sale dated 02.06.1972 and sale-deed dated 15.03.1980 was
executed. Both the documents are forged and fabricated. It was
also averred that from the perusal of agreement to sale dated
02.06.1972, it is clear that ther is a cutting on the word "crane"
converted the words into "mines" and from the total consideration
amount, which was fixed for Rs.10,000/- but only Rs.3,500/- were
paid and the validity of the agreement was fixed for six months
and the agreement was witnessed by Allahanoor and Allahanoor,
in his statement, denied the execution of the agreement. So far as
execution of the sale-deed dated 15.03.1980 is concerned, the
appellant contended that the same is signed by Abdul Gafoor in
capacity of Karta, whereas under the Muslim Law neither there is
any concept of joint family nor there is concept of karta, as such,
sale-deed was void and contrary to Section 23 of the Indian
Contract Act and also the mine in question was not transferable as
per the Makrana Quarry License Rules, 1922 and after coming nito
force of Rajasthan Minor Mineral Concession Rules, 1955, 1958
and 1997. The transfer is permitted under Rule 15 of the said
Rules and there was no declaration in favour of the original
khatedar or his legal representatives, as such, the same cannot be
transferred or sold. On perusal of Bapi patta, it was found that the
patta was issued in in the year 1925 in favour of Natha S/o Noora.
For the transfer of such Bapi patta, provisions are made in Rule 7
Makrana Marble Rules, 1922, which reads as under:-
"7. Rights of Trasnfer. (1) Pattas issued at any time before the Samwat Year 1960 are transferable without restriction. (2) Pttas issued at any time after the Samwat Year 1959 are not transferable in any shape or form."
After coming into force the Mines and Minerals
Regulation Act, 1951, the State Government framed Rajasthan
Minor Mineral Concession Rules in 1955 and Rule 50 of the Rules
of 1959 prohibits transfer of any mines without the consent of the
lessor, i.e. the State Government. The said rules were amended in
the year 1977 and Rule 15 put a restriction on the transfer. Rule
15 of the Rules of 1977 reads as under:-
"15. Transfer of mining lease:- The lessee may, with the previous sanction of the Government and subject to the condition specified in Rule 11(2), transfer whole area of his lease to a person on payment to the Government a fee as specified below provided that there are no dues outstanding against the lessee or transferee in respect of the lease so to be transferred:- (a) for lease where dead-rent does not exceed Rs.400/- annually Rs.50/- (b) For leases where dead-rent exceed Rs.400/- annually Rs.250/-. Provided that transfer of mining leases granted to manual workers working in the mines, scheduled caste/Scheduled tribe persons, village artisans and landless labourers shall be made only to a person belonging to such one category: Provided further that transfer of mining leases shall not be considered as of right and Government may refuse for such transfer for the reasons to be recorded."
After coming into force the Mines and Minerals
(Regulation Development) Act, 1957, the Bapi rights are
extinguished and they are only governed as per the Rules framed
by the Government and in the State of Rajasthan, in exercise of
the power conferred under Section 15 of the said Act, Mineral
Concession Rules were framed and at the relevant time, Rajasthan
Minor Mineral Concession Rules, 1977 is applicable and under Rule
15, there is a bar of transfer of mine/lease. In the present case,
prior to execution of agreement, to sale and sale-deed, no
previous sanction of the Government was obtained.
Similarly, Rule 62 of the Rules of 1977 deals with Bapi
and Proprietary Rights, which reads as under:-
"62. Acquisition of Bapi and proprietary rights.- The Government shall not recognise any Bapi or proprietary right in or an any land wherein such a right is claimed by any person over any mineral bearing land, quarry or mine unless declared so by a court of law of competent jurisdiction. The Government may acquire such Bapi or proprietary right so declared after payment of reasonable compensation in accordance with the provisions of law for the time being in force."
In the present case, no such declaration was made by
the competent court in favour of Bapi holder. As such, Abdul
Gaffar and Abdul Shakoor were not having any Bapi and
proprietary rights, which can be transferred by way of agreement
to sale and sale-deed.
In support of their contention, the appellant placed
reliance upon the judgment of Supreme Court in State of
Rajasthan & Ors. Vs. Gotan Lime Stone Khanji Udyog Pvt.
Ltd. & Anr. [Civil Appeal No.434/2016, decided on
20.01.2016], wherein the Hon''ble Supreme court held that
mining rights belong to the State and not to the lessee and the
lessee has no right to profiteer by trading such rights. In fact the
lessee has also not claimed such a right. Lessee can either operate
the mine or surrender or transfer only with the permission of the
authority as legally required.
The finding on issue No.1 is further assailed on the
ground that the sale-deed dated 15.03.1980 was executed by
Abdul Gafoor only, whereas it is settled legal position of law under
the Muslim Law that neither there is any concept of undivided
family nor any concept of Karta. As such, the sale-deed of joint
property belonging to Abdul Gafoor and Abdul Shakoor was sold
only by Abdul Gafoor is contrary to the concept of Muslim Law. In
support of this argument, reliance was placed on the judgment
delivered by the Hon''ble Supreme Court in Ajambi Vs. Roshanbi
& Ors. [2016 (117) ALR 681]. In this case, it was held that
there is no concept of joint family in Muslims but it was open to
late Shri Shaikaji to give his property to his children in a particular
manner during his lifetime, which he rightly did, so as to avoid any
dispute which could have arisen after his death. The arrangement
so made was duly accepted by the family members and it was also
acted upon. Only thereafter, a formal record of the said fact was
made by late Shaikaji in the document.
Reliance was also placed on the judgment of this court
in Raj Gajendra Singh Vs. The Board of Revenue & Anr.
[2000 (4) WLC (Raj.) 689], wherein it was held that the
concept of joint family is totally foreign to the personal laws of
Muslims, Christians and other communities.
Reliance was further placed on the judgment of the
Karnataka High Court in the case of Usman Sab Vs. Dastagir
Sab [ILR 1996 KAR 48]. In this case it was held that it is well
settled principle of law that no such concept of Joint Hindu Family
or Joint Hindu Family Property, applicable to Hindu Law is
applicable to the parties who are Mohammedans.
It is admitted position that Abdul Shakoor and Late Shri
Abdul Gafoor were living separately and Shri Abdul Shakoor has
not given any authority in favour of Abdul Gafoor. As such, he has
no authority to execute any deed on behalf of Abdul Shakoor and
the stand of Karta is stranger in the Muslim Law. The trial court,
while considering the genuineness of the agreement to sale has
unnecessarily elaborately referred that document as prior to 30
years. As such, there is presumption in favour of the document.
The trial court has failed to consider that lis between the parties
started in the early 1997 when a suit for injunction was filed by
the Abdul Razak (Ex.A/2). This suit was filed by Abdul Razak when
vide Ex.A/7 and Ex.A/8, Mining Engineer issued notice to Abdul
Razak for submitting original Bapi patta in support of the
application for quarry license and thereafter vide Ex.A/9 dated
02.07.1997, Mining Engineer rejected the application of Abdul
Razak for quarry license and in view of the fact that license has already issued in favour of the legal representatives of the
Bapidars, i.e. Abdul Gafoor and Abdul Shakoor. In view of this, the
trial court, while ignoring all these facts, held that the documents
are 30 years old and presumption is to be granted. The trial court,
while dealing with the Rule 64 of the Rules of 1956, wrongly held
that the Bapi rights can be declared in favour of the respondents-
plaintiffs. The admitted position of the present case is that if Bapi
patta was granted in favour of late Shri Habibullah in the year
1941 under the Rules of 1922 and after the death of Shri
Habibullah, mutation was entered in favour of the appellants in
the year 1964, thereafter no Bapi rights were declared in favour of
the appellants by any of the competent court and litigation
regarding license was decided by the Division Bench of the Hon''ble
Court at Jaipur. Firstly, at Jaipur Bench, in S.B. Civil Writ Petition
No.6732/2004 (Abdul Shakoor & Ors. Vs. State of Raj. & Ors.)
decided on 01.09.2005 and thereafter a D.B. Civil Special Appeal
(W) No.916/2005 which was decided on 10.02.2006 and it was
observed as under:-
"Rule 64 of the Minor Mineral Concession Rules no doubt recognizes acquisition of Bapi and proprietary rights but at the same time provides that where there is bona fide dispute in respect of any mineral bearing land, quarry or mine, the Government shall not ''recognize'' such right unless declared by a competent court. That is what has been done by the Deputy Secretary (Mines) vide order dated 28.08.1984. The only protection which the appellants - as a matter of fact, the parties - can claim is that till the dispute is not resolved by the competent civil court, the Department will not operate the quarry and status quo will be maintained so that - depending on the outcome of the suit - the party or parties are able to enjoy their professed ''Bapi'' rights."
In pursuance of that, the appellants have already filed
a suit for declaration of their Bapi rights, i.e. Civil Suit No.34/2007
(Abdul Shakoor Vs. State & Ors.) pending in the court of learned
Additional District Judge (Fast Track), Parbatsar, in which a Misc.
Application under Order 39 Rules 1 and 2 CPC was also filed and
on 25.03.2009, injunction was issued in favour of the appellants.
Hence, it is very much clear that still the issue regarding
declaration of appellants'' Bapi rights is under adjudication and
without deciding the same in favour of the appellants, no
declaration of Bapi rights in favour of the respondents-plaintiffs
can be issued. The trial court has totally erred in law while
considering the effect of Rule 64 of the Rules of 1986 regarding
declaration of Bapi rights. In fact, until and unless in the suit of
the appellants, Bapi rights are declared in favour of the appellants,
suit filed by the respondents-plaintiffs regarding declaration of
their Bapi rights is not at all maintainable.
So far as the finding regarding possession given by the
trial court is concerned, the trial court has not considered the
mauka report (Ex.A/25) of Shri Ram Lal, Surveyor, which clearly
shows that the appelalnts were in possession and the appellants''
application for grant of mining lease Ex.A/23 was considered and
thereafter, a notice inviting objection issued and when the license
Ex.A/39 dated 21.06.1997 was issued in favour of the appellants.
The trial court has also not considered the fact that the said
license was renewed in favour of the appellants up to 31.12.2007.
From the documentary evidence, it is clear that the
appellants were in possession of the land in question though the
said license was set aside by the Deputy Secretary in December,
2004.
In view of this the findings on issue No.1 of the trial
court is not sustainable in the eye of law and deserve to be
quashed and set aide.
In the result, the appeal is allowed and the impugned
judgment and decree dated 01.04.2009 passed by the learned
trial court in Civil Original Case No.69/2004 (37/2000) are set
aside. No order as to the costs.