Rajasthan High Court - Jodhpur
Mangoo @ Mangilal And Ors vs Abdul Ghani And Ors on 26 November, 2019
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. CIVIL SECOND APPEAL No. 208/1981
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Connected with
S.B. CIVIL SECOND APPEAL No. 61/1982
Appellants :
1. State of Rajasthan through the Secretary to the
Government, Mines Department, Rajasthan, Jaipur.
2. Director, Mines and Geology Department, Rajasthan
Udaipur.
Versus
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Respondents :
1. Legal Representatives of Abdul Gani :-
1/1. Abdul Hamid @ Hamid Mohammed, died on 30-06-2012
Legal Representatives of Abdul Hamid @ Hamid Mohammed
1/1/1. Mukhtiyar S/o late Abdul Hameed
1/1/2. Rafiq S/o late Abdul Hameed
1/1/3. Mohd. Haroon S/o late Abdul Hameed
1/1/4. Rukinya D/o late Abdul Hamid W/o Budh Gehlot R/o
Nadi Mohalla, Ward No. 17, Makrana
1/1/5. Abda D/o late Abdul Hameed W/o Faiyaz Sisodiya R/o
Dargah Gali, Makrana
1/1/6. Mumtaz D/o late Abdul Hameed W/o Anwar Ahmed
D/o Jeevan Sisodiya, R/o Near Minara Masjid, Makrana
1/1/7. Peeka D/o late Abdul Hameed W/o Saleem Bhati R/o
Karbala Chowk, Makrana
1/1/8. Khushida D/o late Abdul Hameed W/o Hasamu
Randad R/o Near Chamanpura Masjid, Makrana
1/1/9. Naseem @ Munni D/o late Abdul Hameed W/o Sabbir
Gaisawat R/o Abdul Saraya, Makrana
1/1/10. Fatama D/o late Abdul Hameed W/o Manzoor Tank
R/o Deshwaliya Ki Dhani, Makrana
1/2. Fakir Mohammed.
Both Sons of late Abdul Gani.
1/3. Wahidan S/o late Abdul Gani.
1/4. Legal Representatives of Mafi W/o Safi Mohd. And D/o late
Abdul Gani :-
1/4/1. Shri Nawab S/o Safi Mohd. Tak.
1/4/2. Shri Nosad S/o Safi Mohd. Tak.
1/4/3. Shri Salam S/o Safi Mohd. Tak.
All by caste Musalman, R/o Bamdiya Tiba, Makarana,
District Nagaur (Rajasthan).
1/4/4. Taslima D/o Safi Mohd. Tak, Wife of Rahim Bux Ji, by
caste Mohalla Guwad, Makarana, Distt. Nagaur.
1/4/5. Sufiyana D/o Safi Mohd. Tak, Wife of Faiyaz Khatri,
Musalman, R/o Near Two Mosque, Makarana, Distt Nagur (Raj.)
2. Legal Representatives of Abdul Karim :-
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2/1. Shakil S/o Late Abdul Karim, resident of Bagichi, Peer Ki
Dargah, Makarana, District Nagaur.
2/2. Mohammad S/o Late Abdul Karim, resident of Bagichi, Per
Ki Dargah, Makarana, District Nagaur.
Legal Representatives of Mohammad :-
2/2/1. Khurshida W/o Late Mohammad R/o Peer Ki Dargah,
Makarana, District Nagaur (Raj.)
2/2/2. Rubina D/o Late Mohammad Ali
2/2/3. Tofiq Ahmed S/o Late Mohammad Ali
2/2/4. Naeem Ahmed S/o Late Mohammad Ali
2/2/5. Mohsin S/o Late Mohammad Ali
2/2/6. Jatin Ahemd S/o Late Mohammad Ali
2/2/7. Sanowar Bano D/o Late Mohammad Ali
2/2/8. Nagma D/o Late Mohammad Ali
2/3. Bibu W/o Zaboor Khatri D/o Late Abdul Karim, resident of
Per Ki Dargah, Makarana, District Nagaur.
2/4. Khatoon W/o Jabbar D/o Late Abdul Karim, resident of
Purana Rawan Tiba, Makaran, District Nagaur.
2/5. Farookh Ahmad S/o Late Abdul Karim, resident of Peer Ki
Dargah, Bagichi, Makarana, District Nagaur.
2/6. Legal Representatives of Jahooran :-
2/6/1. Salim S/o Abdul Jabbar Chauhand R/o Chandji Ka
Kua, Purana Rawan Tiba, Makarana District Nagaur.
2/6/2. Sikander S/o Abdul Jabbar Chauhand R/o Chandji Ka
Kua, Purana Rawan Tiba, Makarana District Nagaur.
2/6/3. Skhabat S/o Abdul Jabbar Chauhan R/o Chandji Ka
Kua, Purana Rawan Tiba, Makarana District Nagaur.
2/6/4. Legal Representatives of Jannat :-
2/6/4/1. Khurshid S/o Yusuf Ji
2/6/4/2. Raju S/o Yusuf Ji
2/6/4/3. Haji S/o Yusuf Ji
2/6/4/4. Mujib S/o Yusuf Ji
2/6/4/5. Sadaam S/o Yusuf Ji
All by caste Bhati Musalman, R/o Kuchamaniya
Bamaniya Tiba Ward No. 24, Makarana, District Nagaur (Raj.)
2/6/4/6. Bilsaad Bano Daughter of Yusuf Ji wife of Iqbal Ji, B/c
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Musalman, R/o In front of Haji Disk Gobadaas, Makarana,
District Nagaur (Raj.)
2/6/4/7. Mem Bano Daughter of Yusuf Ji Wife of Iqbal Ji, By
cast Musalman, R/o Haji Dish Ke Samne, Godabas, Makarana
District Nagaur.
2/6/5. Sonia D/o Jabbar Chauhan, R/o Chandji Ka Kua,
Purana Rawan Tiba, Makarana District Nagaur.
2/6/6. Ruksana D/o Jabbar Chauhan, Chandji Ka Kua, Purana
Rawan Tiba, Makarana District Nagaur.
2/6/7. Farzana D/o Abdul Jabbar Chauhan R/o Chandji Ka
Kua, Purana Rawan Tiba, Makarana District Nagaur.
2/7. Fatma Dead on 27/07/2006
3. Legal Representatives of late Abdul Satta S/o Usman :-
3/1. Majid, S/o Late Abdul Sattar, Resident of Peer Ki Dargah,
Makrana, District Nagaur.
3/2. Khalif, S/o Late Abdul Sattar, Resident of Peer Ki Dargah,
Makrana, District Nagaur.
3/3. Legal Representative of Shahabat :-
Abdul Maxid S/o Abdul Sattar, Resident of Peer Ki Dargah,
Makrana, District Nagaur.
3/4. Noor Bano Wife of Late Abdul Sattar, Resident of Peer Ki
Dargah, Makrana, District Nagaur.
3/5. Mohd. Afzal S/o Late Abdul Sattar, Resident of Peer Ki
Dargah, Makrana, District Nagaur.
3/6. Abdul Aziz, S/o Late Abdul Sattar, Resident of Peer Ki
Dargah, Makrana, District Nagaur.
3/7. Jamila D/o Late Abdul Sattar, Wife of Qayum Ji Bandia, R/o
Bandia Ki Gali, Tiba Joshan Teli Ka Makaan Ke Pass, Makrana,
District Nagaur.
3/8. Raheesa D/o Late Abdul Sattar W/o khushid S/o Nandu Ji
Sidodiya, R/o Chamanpura, makrana, District Nagaur.
3/9. Rabiysa D/o Late Abdul Sattar W/o Hamid Khatri, R/o Sai
Ka Takiya, Hanif Ki gali, Amanpura, Makrana, District Nagaur.
3/10. Rahiman D/o Late Abdul Sattar W/o Fateh Mohd.
Gosawat, R/o Tiba, Mohalla, Shere Punjab Hotel, Makrana,
District Nagaur.
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4. Legal Representative of late Shri Mangu @ Mangi Lal :-
4/1. Shri Nathuram S/o Late Shri Mangilal Ji
5. Roopa S/o Moola.
6. Ram Karan S/o Mangi Lal
Respondents No. 4/1, 5 and 6 all by caste bawris, residents
of Makrana, Tehsil Parabatsar, District Nagaur.
.....Defendants
For Appellants(s) : Mr. Suresh Shrimali
Mr. Narendra Thanvi
Mr. Digvijay Singh Jasol
Mr. G.K. Rathore
Mr. Nitesh Mathur for
Mr. Manish Shishodia
For Respondent(s) : Mr. Satya Prakash Sharma
Mr. Manoj Bhandari
Mr. Ranjeet Joshi
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Judgment Reserved on 27.08.2019 Pronounced on 26/11/2019
1. With the consent of learned counsel for the parties, both the appeals have been heard together as the same are directed against the common judgment dated 30.11.1981 passed by the learned District Judge, Merta, whereby the learned District Judge allowed the appeal of the respondents-defendants and set aside the judgment passed by the learned Munsif & Judicial Magistrate First Class, Parbatsar, dated 24.05.1978 whereby the suit filed by the plaintiffs for declaration and permanent injunction and restoration of the possession was decreed and it was held that Mine No.50 is a Mine under the bapi patta and the action of declaring the said Mine as khalsa (vacant) by the Mines (Downloaded on 28/11/2019 at 08:34:13 PM) (9 of 34) [CSA 208/1981] Department of the State Government and including the said area in Mine No.50/1 was held to be illegal and the plaintiffs were declared entitled to get the Mine restored by evicting the appellants-defendants. The appellants-defendants were further restrained not to interfere with the possession of Mine No.50 and utilize the said Mine for stone excavation and cutting.
2. While admitting S.B. Civil Second Appeal No.208/1981 - Mangu @ Mangigal & Ors. Versus Abdul Ghani & Ors., on 15.12.1981, this Court framed the following substantial questions of law:-
"1. Whether the Rules of Bapidars and Gairbapidars are applicable to this case?
2. Whether on the facts and in the circumstances of the case, the learned District Judge was not right in granting declaration in regard to quarries in question on the basis of the 'Patta" Ex.1 particularly when it was not got renewed under r. 2 of the Makrana Marble Quarries Rules within the time limit under r. 3 of the Rules thereof."
3. In the second appeal preferred by the State of Rajasthan i.e. S.B. Civil Second Appeal No.61/1982: State of Rajasthan & Anr. Versus Abdul Gani & Ors., on 10.05.2012, this Court while admitting the appeal framed the following questions of law:
"1. Whether the first appellate Court erred in holding that 'Patta' Ex.1 relates to the disputed land in the absence of any evidence on record?
2. Whether the Bapi and Non-Bapi Rules of the erstwhile State of Marwar were applicable to the land in question and Makrana Marble Quarries Rules are not applicable and what is the effect of non-renewal of 'Patta' Ex.1?(Downloaded on 28/11/2019 at 08:34:13 PM)
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3. Whether the suit is not within limitation qua the appellant - State of Rajasthan and the Director of Mines and Geology Department, Rajasthan?
4. In the second appeal preferred by the appellants - Mangu & Ors., this Court vide order dated 13.06.1984 passed the interim order, which reads as under:
"Meanwhile, the operation of judgment dated November 30, 1981 of the District Judge, Merta under appeal is stayed on the condition that the appellants furnish a solvent security to the satisfaction of the District Judge, Merta for the payment of Rs.10,000/- per annum as compensation from December 15, 1981 until the decision of the appeal to respondents No.1, 2 and 3 in case the appeal is dismissed. The security shall be accepted by the District Judge after notice to respondents No.1, 2 and 3."
5. Brief facts of the case, which are required to be noticed, are that the plaintiffs - Abdul Ghani & Ors. filed a suit seeking permanent injunction on 15.04.1967 stating that they are residents of Makrana and were holding Mine No.50 situated at Jhoopawali Range, Makrana, as an ancestral property and claimed that bapi patta has been issued to them for the said Mine on 30.11.1904 and they were carrying out the mining activities. It was stated that the pattas have been issued in Samvat 1931 Chait Sudi Ekam, Samvat 1948 Chait Badi Nam and Samvat 1949 Baisakh Sudh Dasham. In 1961, all the three pattas were joint as one single patta, which has corresponding year as 30.11.1904. It was alleged that the State tried to forcefully dispossess them from the said Mine and accordingly, cause of action has arisen on (Downloaded on 28/11/2019 at 08:34:13 PM) (11 of 34) [CSA 208/1981] 10.04.1967 and a prayer was made to restrain the State and other persons from interfering in their peaceful possession.
6. The defendants (appellants herein) filed their written statement and stated that in fact, there was no Mine No.50 at the site and there was no possession of the plaintiffs and the possession was with the defendants. It is also stated that as no interim injunction was granted, an application was moved by the plaintiffs under Order 6 Rule 17 CPC on 05.08.1972 seeking amendment in the plaint, which was allowed on 30.05.1973 and the suit was converted for permanent injunction and restoration of the possession. It was prayed that the order dated 22.08.1967 declaring the Mine as khalsa (vacant) and allotting the said Mine to defendants on 20.01.1968 be also declared illegal. It was further prayed that extension allowed by the Assistant Mining Engineer, Makrana of Mine No.50/1 vide order dated 14.04.1967 be also declared unjustified. The defendants submitted that measurement of Mine No.50 was 185 x 38 feet, which was not being utilized and lying vacant for long. It was not a bapi allotted patta and the Mine area was included in Mine No.50/1 and the defendants had valid possession of the Mine. The application for appointment of the receiver moved by the plaintiffs was rejected by the trial Court vide order dated 07.04.1969.
7. The Mine was declared as khalsa (vacant) on 03.11.1961 and thereafter, allotted to one Shri R.C. Bhargava and at that time, the defendants were employees of said Shri R.C. Bhargava and Shri R.C. Bhargava surrendered the Mine to the State on 01.04.1963 and the same was handed-over in possession of one Habibur Rahman, owner of Mine No.50/1 by extending the existing Mine (Downloaded on 28/11/2019 at 08:34:13 PM) (12 of 34) [CSA 208/1981] No.50/1 upto 200 feet as Mine No.50 has been declared as khalsa (vacant). The sanction for extension was made vide order dated 23.11.1966.
8. A revision petition was filed by the plaintiffs against the order of the State Government, which was rejected on 17.04.1969 and the same attained finality as no further proceedings were undertaken by the plaintiffs as against the order of rejection of the revision petition.
9. The State Government submitted that the plaintiffs did not have any patta in their names nor they got the alleged bapi patta renewed under the Marwar Marble Makrana Quarry Rules. It was further submitted that after coming into force of the Rajasthan Minor Mineral Concession Rules, 1959 (hereinafter referred to as "the Rules of 1959"), the plaintiffs were required to move appropriate application, if they possessed any Mine prior to coming into the force of the Rules. It was also submitted that after coming into the force of the Rajasthan Land Reforms & Acquisition of Land Owners Estate Act, 1963 (hereinafter referred to as "the Act of 1963") and Rules framed thereunder, all the mining rights came to an end and all the Mines were vested with the State.
10. As the amendment was sought and allowed in 1973, it was also objected on 30.05.1973 that the suit was time-barred. The State also submitted that the patta did not have any legal sanctity and the State has rightly declared the Mine as khalsa (vacant).
11. Seven issues were framed by the trial Court in the amended suit and after recording the evidence and after considering the arguments vide judgment dated 24.05.1978, the learned Munsif and Judicial Magistrate, Prabatsar, District Nagaur, dismissed the (Downloaded on 28/11/2019 at 08:34:13 PM) (13 of 34) [CSA 208/1981] suit. The appeal was preferred by the plaintiffs, which came to be allowed vide order dated 30.11.1981. Thus, the present second appeal has been filed by the appellants, as noted above.
12. During the pendency of the second appeal, several applications were filed for bringing the legal representatives of both the appellants and the respondents on record and the same have been allowed.
13. Learned counsel appearing for the appellants - Mangu & Ors. submits that the possession of the land was handed-over after Shri R.C. Bhargava surrendered the same on 01.04.1963. The order declaring the land as khalsa (vacant) dated 22.08.1961 was challenged by the plaintiffs in appeal under the Rules, which was rejected on 08.04.1968 and the second appeal was rejected by the Government on 17.04.1969, which was not further challenged in any Court of law. He further submits that the suit was barred by limitation as the amendments, which have been made in the original suit, were allowed only on 30.05.1973 and thus, the order dated 22.08.1961 declaring the Mine as khalsa (vacant) was hit by limitation. It is further submitted that a suit for declaration was required to be filed within a period of three years and since the amendment application was filed on 05.08.1972, it was time- barred and the issue No.5 was wrongly decided by the trial Court and the first appellate Court that the suit is within the period of limitation.
14. Further, it is submitted that the Mine would not be governed by Bapidar Rules and the land used for the mining activities does not come within the ambit of Bapidar Rules. After coming into force the Rajasthan Land Reforms & Resumption of Jagirs Act, (Downloaded on 28/11/2019 at 08:34:13 PM) (14 of 34) [CSA 208/1981] 1962 (hereinafter referred to as "the Act of 1962"), the right, title and interest of Jagirdar and every other person claiming through him in his jagir land including mines and minerals would stand resumed to the Government free from all encumbrances and thus, he alternatively argued that even if, a right was created under the bapi patta after resumption of jagir, the land vests with the State Government and the holder of such bapi patta would not have any right.
15. He further submits that after coming into the force of Mines and Minerals Regulation Act, 1957 (hereinafter referred to as "the Act of 1957"), all the existing mine activities could be carried out only under the lease of the State Government. The plaintiff did not produce any document of having any lease from the State Government and thus, the suit was liable to be rejected.
16. Learned counsel further submits that Section 89 of the Rajasthan Land Revenue Act, 1956 provides for all the rights of minerals, mines and quarries to be vested with the State Government with effect from 13.01.1958 and the Appellate Court has therefore erred in law in allowing the appeal.
17. Contention of the plaintiffs having been dispossessed was also not found to be corrected. No receipt of dead rent was produced as alleged by the plaintiffs and the plaintiffs admitted in the cross-examination that the dead rent was never paid. In view thereof, the finding of the first Appellate Court with regard to the plaintiffs having possession of the Mine was perverse and a wrong reading of the evidence, which had come on record. It was further argued that Marwar Marble Makrana Quarries Rules provided for renewal of the bapi patta, but no document has been produced to (Downloaded on 28/11/2019 at 08:34:13 PM) (15 of 34) [CSA 208/1981] show that there has been any renewal of the bapi patta and the first Appellate Court has failed to take notice of the provisions of the Marwar Marble Makrana Quarries Rules.
18. An application was moved under Order 41 Rule 27 by the appellants placing on record certified copy of an application filed by the plaintiff - Sattar before the Mining Engineer under Rule 7 of the Rules of 1959 seeking issuance of the patta of Mine No.50 filed on 04.01.1961 with Inward No.1381.
19. Learned counsel also submits that aforesaid document is required to be taken on record as it is relevant to determine the real dispute and the fact that the admission of the plaintiffs of neither having any possession on Mine No.50 nor having any bapi patta and that the Mine was governed by the Rules of 1959.
20. Learned counsel submits that in terms of Section 74 of the Indian Evidence Act, the document being a public document would have relevance and is to be read accordingly as an admission on the part of the plaintiffs and would be as an estoppel for claiming existence of bapi right patta.
21. Learned counsel also relies on upon the judgments in the case of Mohd. Habib & Ors. Versus State of Rajasthan & Ors. reported in 1998 WLC (UC) 636, Hanuwant Ram Versus Kumbha Ram reported in 1971 RLW 603, Maqbul Ahmad & Ors. Versus Onkar Pratap Narain reported in AIR 1935 PC 85, Sheikh Makbul Versus Union of India reported in AIR 1960 Orissa 146, Kamlesh Babu & Ors. Versus Lajpat Rai Sharma & Ors. reported in AIR 2008 SCW 3241, Vishwambhar & Ors. Versus Laxminarayna through LRs reported in AIR 2001 SC 2607, Karedla (Downloaded on 28/11/2019 at 08:34:13 PM) (16 of 34) [CSA 208/1981] Parthasaradhi Versus Gangula Ramanamma (D) through LRs & Ors. reported in 2015 DNJ SC 28.
22. On the ground of limitation, learned counsel relies on the judgments delivered in the case of State of Rajasthan Versus Shiv Dayal in Civil Appeal No.7363/2000 decided by the Supreme Court on 14.08.2019 in respect of question regarding the suit being barred by limitation and Dinesh Kumar Versus Yusuf Ali reported in (2010) 4 SCC (Civ.) 740.
23. Learned counsel for the State Government has adopted the submissions of learned counsel, Mr. Suresh Srimali and in addition thereto, he also submits that as there was no evidence placed on record with regard to sites of Mine No.50, which had already been declared vacant and upheld upto second appellate court stage, there was no occasion for the first Appellate Court in holding that the 'Patta' Ex.1 relates to the disputed land. Learned counsel, while adopting the arguments of Mr. Suresh Srimali, Advocate, submits that Bapi & Non-Bapi Rules of erstwhile State Government were not applicable to the land and the Marwar Marble Makrana Quarries Rules were also not applicable after coming into force the Act of 1957 and the Rules framed thereunder and also coming into force of the Rajasthan Land Revenue Act as noted above.
24. On behalf of the respondents-plaintiffs, two different counsel have put in appearance. Shri Satya Prakash Sharma, Advocate appears on behalf of respondent Nos.2/1, 2/2 and 2/5 while Shri Manoj Bhandari, Advocate, appears for respondent Nos.2/1, 2/2, 2/5, 3/1, 3/2, 3/5 and 3/6 respectively. However, they have submitted their written submissions separately. While asserting the facts as mentioned in the plaint and supporting the impugned (Downloaded on 28/11/2019 at 08:34:13 PM) (17 of 34) [CSA 208/1981] judgment and decree passed by the Appellate Court dated 30.11.1981, Shri Satya Prakash Sharma, Advocate, submits that in the suit filed by the plaintiff, it was specifically averred that since the Mine was under bapi patta granted by the Erstwhile Marwar State Jodhpur, there was no need of seeking regularization or renewal under the Marwar Makrana Marble Quarries Rules. However, the defendant Nos.1 to 3 have only stressed in their written statement for mandatorily getting the renewal of the patta, for continuing possession. But the defendant-State has not raised any such plea, in their written statement. Therefore, no issue was framed by the learned trial Court that whether in absence of renewal, bapi patta lost its force or not.
25. Learned counsel for the respondents-plaintiffs submits that Rule 58 of the Rajasthan Minor Mineral Concession Rules, 1959, which were framed under the Act of 1957 acknowledged bapi rights. Similarly, Rule 64 of the Rules also acknowledged bapi rights. As such, the declaration for recognition of a bapi patta was not dependent on the condition of renewal and could be claimed in case of those bapi patta was an inheritable right under Rule 6 of the Makrana Marble Quarries Rules. The Marwar Marble Makrana Quarries Rules, no where speaks of termination of bapi rights over any Mine in question on the ground of non-renewal. Secondly, the Rules of 1959 or 1986 framed for minor minerals do not speak about the recognition of such bapi rights, if so declared by court of competent jurisdiction and it does not fix any time limit for seeking such declaration. If the time limit would have been dependent for seeking any such declaration under Article 58 of the Limitation Act, 1963, then no civil suit for seeking declaration of (Downloaded on 28/11/2019 at 08:34:13 PM) (18 of 34) [CSA 208/1981] bapi rights could have been ever maintained in Makrana, after year 1922, means after 3 years of framing of Makrana Marble Quarries Rules. Therefore, while dealing with the legal provisions, the learned Appellate Court below has rightly decided the issue No.1 in favour of the plaintiffs and against the defendants, which is evident from the clear findings recorded in the judgment under challenge. The finding of facts recorded on the basis of material available on record by the Appellate Court below could not be disturbed in second appeal as the second appeal could be heard and decided on pure substantial question of law and not on facts. Learned counsel relies on the judgments rendered by the Supreme Court in the cases of Damodar Lal Versus Sohan Devi & Ors. reported in AIR 2016 (SC) 262 and Ganeshi (D) through LRs & Ors. Versus Ashok & Anr. reported in AIR 2011 SC 1340 to submit that the finding of facts in relation to substantial question of law would not be examined at the second appellate stage.
26. Learned counsel also submits that another issue of limitation has been raised by the appellants-defendants, which issue was framed by the learned trial Court as issue No.5. The learned trial Court decided the said issue in favour of the respondents-plaintiffs and against the appellants based on the material available on record. The learned Appellate Court has also dealt with the said issue of limitation and found the suit within limitation. The findings on limitation recorded by both the Courts below are pure finding of facts, as such, the same cannot be interfered in second appeal. More-so, the appellants never filed any cross-objection or cross- appeal on the said issue against the judgment of the learned trial Court. Thus, the same cannot be permitted to be raised in the (Downloaded on 28/11/2019 at 08:34:13 PM) (19 of 34) [CSA 208/1981] second appeal. Secondly, it is very significant to mention here that Article 58 speaks about relief of declaration of any nature, but Article 64 speaks for possession and time limit is 12 years. Since no time limit has been prescribed in the Rules of 1959 and Rules of 1986 for speaking a declaration of bapi rights over babi patta, which is being special statute, the Article 58 would not apply for such declaration, else no suit would be sustainable in relation to seeking bapi rights in Makrana Marble Rules framed in the year 1923, and Rules of 1959 framed in the year 1959 came into effect in the year 1960, about seeking recognition of rights over bapi patta, no suit in Makrana could have been maintained because all the Mines in Makrana came into operation under bapi patta and there has been hundreds of dispute over such recognition of bapi right. Thirdly, the cause of action in this case relates back to the year 1967, when the plaintiffs felt disturbance in their possession from defendant Nos.1 to 3. Therefore, the suit for injunction was filed and sooner the plaintiffs came to know about declaration of their Mine as khalsa, which was never brought to the notice of the plaintiffs until year 1967 and thereafter, this Mine was allotted and extended to the defendants in the year 1968 during the pendency of the suit. Therefore, the suit/plaint was altered and amended with the permission of Court seeking a decree of declaration and possession and about possession, there is categorical findings of the first Appellate Court below, which is finding of facts. Hence, in any eventuality, due to continuing cause of action, the suit was very well maintainable within limitation as prescribed in the law. Therefore, none of the contention of the appellants would sustain. (Downloaded on 28/11/2019 at 08:34:13 PM)
(20 of 34) [CSA 208/1981] Learned counsel thus submits that there is no substantial question of law made out for interference in the present second appeals.
27. In support of his contentions, learned counsel relies on the judgments in the cases of Janta Dal Party Versus The Indian National Congress & Ors. reported in AIR 2014 SC 1062, Roop Singh (dead) through LRs Versus Ram Singh (Dead) through LRs reported in AIR 2000 SC 1485, Om Prakash Versus Shanti Devi reported in AIR 2015 SC 976, Biswanath Ghosh (Dead) by LRs Versus Gobinda Ghosh @ Gobindha Chandra Ghose & Ors. reported in AIR 2014 SC 1582, Abdul Shakoor Versus State of Rajasthan reported in (2006) 10 RDD 5035, S.B. Civil First Appeal No.388/2010: Shyam Singh Parihar Versus Smt. Manju Bala & Ors., decided on 08.08.2018, S.B. Civil Second Appeal No.372/2007: Legal Representatives of Late Rugla Ram @ Rugra Singh & Ors. Versus Legal Representatives of Late Swaroop Singh & Ors., decided on 05.09.2016.
28. Shri Manoj Bhandari, Advocate, while adopting submissions of Shri Satya Prakash Sharma, Advocate, as noted above, submits that the appellants have miserably failed to point out any substantial question of law involved in the appeal and relies on the judgment passed by the Supreme Court in the case of Randhir Kaur Versus Prithvi Pal Singh & Ors.: Civil Appeal No.5822/2019, decided on 24.07.2019. Reiterating the facts as have come on record, it is submitted that as the bapi right is an inheritable right, there is no occasion for renewal and further, on account of non- renewal for any good reason, the right cannot be said to have been extinguished. The present respondent being a grand-son of the original allottee had a right in terms of Makrana Marble (Downloaded on 28/11/2019 at 08:34:13 PM) (21 of 34) [CSA 208/1981] Quarries Rules. He also relies on the judgment delivered in the case of Abdul Shakoor Versus State of Rajasthan & Ors.: D.B. Civil Special Appeal No.916/2005, decided on 10.02.2006, in support of his submission relating to bapi right.
29. Learned counsel also submits that Rule 22(2) of the Makrana Marble Quarries Rules provides that such person would get his name included in a bapi patta, which already stood in existence. As the respondents were having possession of the Mine since 1904, the declaration of khalsa was wholly without any authority and was required to be ignored. No right would be created in favour of the plaintiffs or any other allottee(s) on the Mine on account of such order. Learned counsel has also taken the Court to Exhibit-P4, which is a note dated 27.03.1958, which mentions about the noting in the register on 08.04.1928 and also 27.03.1958 mentioning that quarry is being worked and thus, there was possession of the Mine as per the said document, which had been exhibited in the trial Court. Learned counsel also submits that so far as Mine No.50/1 is concerned, the same is different Mine to that of Mine No.51. Mine No.51 was given to Mangu and a finding in this regard has already been arrived at, which cannot be interfered at the appellate stage.
30. I have considered the submissions made by the learned counsel for the parties and carefully examined the record produced before the Court and the pleadings as well as written submissions filed by both the parties so also carefully gone through the judgments cited by both the parties.
31. Firstly, the application under Order 41 Rule 27 CPC filed by the appellants is being considered.
(Downloaded on 28/11/2019 at 08:34:13 PM)
(22 of 34) [CSA 208/1981] It has been stated that after filing of the appeal, the appellants came to know of the fact that the plaintiff - Sattar had moved an application under Rule 7 of the Rules of 1959 for Mine No.50 ad-measuring 70 square yards seeking a lease deed to be issued to him, requisite fee of Rs.1/- was also deposited by him and the said application was entered in the Inward Register on 04.01.1961 with Inward No.1381. The certified copy of the said application was obtained and as the same has a bearing to the case, the same may be considered and taken on record. No reply to the said application has been filed.
I have considered the submissions and find that question of the application of bapi right is one of the substantial question of law involved in the present case and therefore, the document would have relevance in terms of the Indian Evidence Act and is a certified copy of the record with the Government and therefore, would be treated as a public document in terms of Section 74(2) of the Indian Evidence Act as "public record kept in any state of private documents". Section 35 of the Indian Evidence Act reads as under:
"35. Relevancy of entry in public [record or an electronic record] made performance of duty :-
An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact."
In view of the above, since it is a public document, it would have relevance for determination of the present controversy (Downloaded on 28/11/2019 at 08:34:13 PM) (23 of 34) [CSA 208/1981] involved in the present case. Taking into consideration the contents of the application, the same is allowed. The document annexed with the application is taken on record accordingly.
32. Now, the first substantial question of law as framed in Mangu's appeal - "whether Rules of Bapidars and Gair-Bapidars are applicable to this case, is dealt with". The Appellate Court in its judgment dated 30.11.1981 has observed that the pattas are permanent pattas and are bapi pattas issued in accordance with the Bapidar Rules and therefore, Marwar Marble Makrana Quarry Rules did not require these pattas to be renewed. In the Bapidar Rules, the definition of 'land' has been provided that "land means all land which is or may be held for purposes of cultivation, the preservation of grass, the grazing of cattle or similar purposes, or as an easement attached to a holding, including land occupied by houses or enclosures situate on or contiguous to a holding, but does not include 'abadi'. Rule 4 of the Bapidar Rules provides that the Darbar reserves to itself the rights in all mines, minerals ores and finds that may it any time be discovered on land held by a bapidar. Thus, while the ex-ruler - Jagirdar could handover the land as bapi land to an individual, who would have known as bapidar. So far as mines, minerals or anything find on bapi land, which has been handed-over for cultivation or other purposes as above, would still vest with the Darbar/Jagirdar/King as the case may be. The Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, which came into force with effect from 18.02.1952 and the assent was received on 13.02.1953. Section 22 of the Act of 1952 provides as under:
(Downloaded on 28/11/2019 at 08:34:13 PM)
(24 of 34) [CSA 208/1981] "Section 22 - the right, title and interest of the jagirdar and of every other person claiming through him in his jagir lands, including forests, trees, fisheries, wells, tanks, ponds, water channels, ferries, pathways, village sites, hats, bazaars and mela grounds and mines and minerals whether being worked or not, shall stand resumed to the Government free from all encumbrances. Consequently, the right created under the bapi patta after the resumption of the jagir, no longer remain with the holders of the patta."
33. If both the provisions are read together, the only corollary, which would follow is that the rights of jagirdar/darbar/king as the case may be, would resume with the State Government including that of Mines and the bapidar will have no right on the said Mines. Accordingly, the aforesaid question of law framed is answered that the Rules of Bapidar and Gair-Bapidar would not be applicable after coming into force of the Act of 1952 and the plaintiffs would have no right to claim the Mine under the Bapidar Rules.
34. Second question of law framed by this Court as to "whether on the facts and in the circumstances of the case, the learned District Judge was not right in granting declaration in regard to quarries in question on the basis of the 'Patta" Ex.1 particularly when it was not got renewed under r. 2 of the Makrana Marble Quarries Rules within the time limit under r. 3 of the Rules thereof" is examined and this Court finds that this question requires firstly to examine whether renewal of Mines allotment was required to be done under the Marwar Marble Makrana Quarry Rules or not. As per Rule 3 of the said Rules, a patta of Mine was required to apply for renewal within three calendar months from (Downloaded on 28/11/2019 at 08:34:13 PM) (25 of 34) [CSA 208/1981] the date of publication of the Rules. The fee for renewal of the old patta was fixed as Rs.1/- payable by means of a stamped paper of that amount on which the renewal will be recorded. The maximum period of bapi patta was provided as 30 years unless further renewed. Thus, there existed a provision for renewal. The contention of the learned counsel for the respondents-plaintiffs is that the right under the Bapi Rules is an inheritable right and there was no occasion for renewal under the Rules. Rule 22(2) of the Rules has been referred to.
35. As per the Makrana Marble Quarries Rules, which were published in the Marwar Gazette on 30.06.1923, it was provided that except in cases where leases, covering area of definite extend and recording specific conditions on which such areas are held, have been granted by Darbar, the right to hold or work a quarry is based on the possession of a patta or permit issued or under the authority of the Darbar. Rules 2, 3, 6 and 8 read as under:
"2. Right of existing quarry-holders recognized subject to the condition that they renew their pattas in their own names or take fresh pattas if they have none.
(1) Subject to the conditions hereinafter mentioned, the right of all persons to hold quarries or portions of quarries whose possession has been verified by and whose names are recorded in the survey khasra verified by the special officer between the dates June 1st and October 31st, 1922, is recognized by the Darbar.
(2) Every such person must obtain a patta in his own name for the quarry or portion of quarry held by him, provided that:-(Downloaded on 28/11/2019 at 08:34:13 PM)
(26 of 34) [CSA 208/1981]
(a) where there is already a patta in existence,
but such patta has not been renewed in the name of the person whose name is recorded in the survey khasra such person shall get it renewed in his name;
(b) if the quarry is held by a number of persons jointly, whether with or without specification of shares, but without partition by metes and bounds on the spot:
(i) the existing patta, if one exists, shall be renewed in the names of all the persons whose names are recorded in the survey khasra as in possession of the quarry; and,
(ii) it shall be necessary to obtain one new patta only in the names of all the persons whose names are so recorded.
3. Time limit for renewals of pattas of existing quarry-holders.
(1) All persons whose cases fall under sub-
section (1) of rule 2 shall apply for renewals of their pattas, or, where there is no patta in existence for a new patta within three calendar months of the publication of these rules.
(2) The fee for renewal of old pattas shall be Rs.1/- (one only) payable by means of a stamped paper of that amount on which the renewal will be recorded. The fee for a new patta, in cases where the old patta has been lost or destroyed or for any reason does not exist, shall be Rs.5/- payable similarly.
6. Right of Inheritance.
All pattas are heritable, but only by males who are entitled to inherit under the personal law of the holder.
8. Mutation.
(1) Every person obtaining possession of a quarry or part of a quarry, whether by inheritance or transfer, shall report the same to the officer in charge of the quarries, (Downloaded on 28/11/2019 at 08:34:13 PM) (27 of 34) [CSA 208/1981]
(i) in the case of inheritance-immediately;
(ii) in the case of transfer-within three calendar months of obtaining possession.
NOTE:- "Transfer" includes subletting.
(2) On receiving such report of the facts coming otherwise to his knowledge, the officer incharge shall take formal proceedings for (1) the renewal of the patta and (2) the mutation of names in the register to be kept for the purpose.
(3) The Darbar may prescribe fines for delay in reporting successions and transfers."
36. In Abdul Shakoor (supra), a Division Bench of this Court has considered the Rules of 1923 and observed as under:
"4. It may be mentioned here that the so called 'Bapi' right is the right inherited from the father i.e. hereditary right which was recognized under rule 6 of the erstwhile Makrana Marble Quarries Rules, 1922. Case of the appellants is that their rights can be treated to the lease by the erstwhile State of Jodhpur in favour of their ancestor Noor Mohd. whose sons and grand sons etc. came to inherit the rights in terms of the Quarries Rules, and they cannot be deprived of these rights. The appellants had simply made application to convert the lease into a quarry licence which was rightly allowed by the Mining Engineer. The respondent not being a descendant of Noor Mohd. he cannot claim any right or interest in the quarry, and the Deputy Secretary (Mines) committed error in interfering with the licence of the appellants at his instance. In course of hearing counsel for the appellants highlighted that the respondent had failed to obtain any order in his favour either in the civil suit or in the writ petitions except for a short period in S.B. Civil Writ Petition No. 3228/98 vide order dated 2.9.1998 (supra).(Downloaded on 28/11/2019 at 08:34:13 PM)
(28 of 34) [CSA 208/1981]
11. Rule 64 of the Minor Mineral Concession Rules no doubt recognizes acquisition of Bapi and proprietory right 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 28.08.2004. 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."
37. However, in the aforesaid case, question whether renewal is required or not under the Makrana Marble Quarries Rules, which requires for claiming bapi right was not decided. A look at the aforesaid provisions of the Makrana Marble Quarries Rules shows that the renewal rules talk about two different conditions, firstly that every such person may obtain a patta in his own name and where there is already a patta exists, but such patta has not been renewed in the name of the person whose name is recorded in the survey khasra, then he has to get a renewal done. With regard to a quarry, which is held by a number of persons jointly without any specific share, thus renewal would be done in the names of all the persons and it would be necessary to obtain a new patta. Thus, for all purposes and in all the conditions existing quarry-holders, renewal was necessary.
Admittedly, the plaintiffs have not got renewal done in terms of the provisions of the Makrana Marble Quarries Rules. However, (Downloaded on 28/11/2019 at 08:34:13 PM) (29 of 34) [CSA 208/1981] the question still arises whether non-renewal of the patta would entail cancellation of the bapi patta or not. With the said aspect, the Rules are silent. Admittedly, the plaintiffs possessed the bapi patta for the Mine in question and were holding the same, however, as this Court has reached to the conclusion that the plaintiffs were required to get the lease/quarry licence under the Rules of 1959 and as the State Government has not granted any such licence and the application moved for grant of lease under Rule 7 of the Rules, (document which has now been taken on record under Order 41 Rule 27 CPC) was rejected and the revision petition was also rejected by the State Government vide its order dated 17.04.1969, which was not challenged in any Court of law, the suit could not have been decreed in favour of the plaintiffs. It is to be noticed that the relief as per amended suit was only limited to set aside the original order dated 08.04.1968, but said order merged with the order dated 17.04.1969 and as per Rule 43 of the Rules, the order dated 17.04.1969 attained finality and the Mine had been declared khalsa (vacant). Thus, the action of the State Government in declaring the Mine as vacant on 22.08.1961 is unjustified and illegal.
Accordingly, substantial question of law No.2 is framed by the Court is answered to the effect that the learned District Judge was not right in granting declaration with regard to quarry in question on the basis of 'Patta' Ex.1 as the same was not got renewed under the Rules.
38. The first question of law, framed in the second appeal preferred by the State (supra), is "whether the first appellate (Downloaded on 28/11/2019 at 08:34:13 PM) (30 of 34) [CSA 208/1981] Court erred in holding that 'Patta' Ex.1 relates to the disputed land in the absence of any evidence on record".
Examining this aspect, it is noticed that 'Patta' Ex.1 relates to Mine No.50 and evidence has come on record that Mine No.50/1 was held by Habibur Rahman and it has also come on record that Mine No.50 was declared as vacant by the State Government and thereafter, handed over to one R.C. Bhargava, who surrendered the said Mine whereafter the area of Mine No.50/1 was increased accordingly. Thus, it was neither case of the plaintiffs nor the case of the defendants that the 'Patta' Ex.1 did not relate to the disputed land. In the opinion of this Court, therefore, question No.1 as framed by this Court in the second appeal preferred by the State, cannot be said to be a substantial question of law as the entire case revolves on the fulcrum that there was a Mine No.50 for which a Bapi Patta existed on 30.11.1904.
39. Second question of law as framed by this Court in the second appeal preferred by the State is "whether the Bapi and Non-Bapi Rules of the erstwhile State of Marwar were applicable to the land in question and Makrana Marble Quarries Rules are not applicable and what is the effect of non-renewal of 'Patta' Ex.1".
40. In this regard, this Court in the proceeding paras has noticed that upto the coming into force of the Act of 1952, the Bapidar and Gair Bapidar Rules of erstwhile State of Marwar is applicable to the land in question and similarly, Makrana Marble Quarries Rules were also applicable. Further, effect of non-renewal of the patta under the Makrana Marble Quarries Rules is required to be examined.
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(31 of 34) [CSA 208/1981]
41. As noticed above, Makrana Marble Quarries Rules did not provide as to what will be consequence of not getting the renewal done. Makrana Marble Quarries Rules also recognized it as an inheritable right, thus a person, who may not have got the renewal done by depositing the amount of Rs.1/- with the erstwhile Darbar, would continue to have an inheritable right on the bapi patta, but the concerned Darbar/King could have recovered the amount at any particular time. However, the question becomes wholly academic after the Act of 1952 as thereafter Makrana Marble Quarries Rules as well as Bapi Rules will cease to have any effect on all the Mines and the same would stand vested with the State. As per Section 64 of the Rules of 1959, it has been laid down, as under:
"The Government shall not recognize any Bapi or propriety right in or 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 competent jurisdiction."
42. In Mohd. Habib & Ors. (supra), almost similar issue came up before this Court wherein this Court has held as under:
"Admittedly, the property belongs to the then Mewar State. The Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (for short 'the Act of 1952' hereinafter) has come into force from 15.2.1952 and by virtue of S. 22 of the Act from the date of resumption of the jagir, all rights, title and interest of the Jagirdar and of every other person claiming through him in his jagir lands, including forests, trees, fisheries, wells, tanks, ponds, water channels, ferries, pathways, village sites, huts, bazars and mela grounds and mines and minerals whether being worked out or (Downloaded on 28/11/2019 at 08:34:13 PM) (32 of 34) [CSA 208/1981] not, shall stand resumed to the Govt. free from all encumbrances. By virtue of S. 22 of the Act of 1952, the rights, title and interest of the mines and minerals stood resumed in favour of the Govt. and consequently, the right created under the bapi patta after the resumption of the jagir, no longer remains with the holders of patta. After coming into force of the Mines and Mineral (Regulations and Development) Act, 1957 (for short 'the Act of 1957' hereinafter), no person is entitled to undertake any prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a prospecting licence or, as the case may be, a mining lease, granted under the Act and the rules made thereunder. The mining operations could be carried out only under the lease granted by the State. In the absence of the mining lease, the plaintiff-appellant
-petitioners are not entitled to carry out mining operations over the suit land. The right under the bapi patta being extinguished, the mining operation could only be carried out under the mining lease issued by the State Govt."
43. Accordingly, this Court is of the firm view that after coming into the force of the Act of 1952, all the mines and properties of the Darbar would now vest with the State Government and therefore, any right of any person, which includes that of the plaintiffs, who were having bapi right for the Mine upto 1952 would cease to have the right available to them. It is a settled law that a person cannot give a better title to another, which he does not possess. Admittedly, after coming into the force of the Act of 1952, Darbar/Jagirdar/King as the case may be lost their right to hold any mine, mineral or land as noted above. Therefore, any lease given earlier to any person would also cease to operate and (Downloaded on 28/11/2019 at 08:34:13 PM) (33 of 34) [CSA 208/1981] no right would continue to flow with such person as bapi or propriety right on any land, which was with the Jagirdar in relation to mines.
44. Third question of law is "whether the suit is not within limitation qua the appellant - State of Rajasthan and the Director of Mines and Geology Department, Rajasthan".
45. Thus, this Court finds that issue No.5 was framed by the Court below and a finding has been arrived at that the suit is essentially for restoration of the possession and the limitation provided is 12 years under the relevant Act and therefore, the suit was to be treated as within the limitation. So far as the State Government is concerned, the order passed by the State Government relating to declaring the land as vacant, which resulted in dispossession as averred by the plaintiffs and therefore, both the Courts below held the suit to be within limitation. This Court finds no reason to interfere with the said findings based on facts and the prayer made and it is held that the suit was within limitation. During the pendency of the suit, if any, further orders are passed, it would be necessary for the suit to be amended or to file a fresh suit. Since the amendments were allowed and amendments were not challenged nor such an issue has been framed, it would be appropriate to hold that the original suit is within limitation as against the State and it is also held that the land was vested with the State Government. The provisions of the Rajasthan Minor Mineral Concession Rules, 1959 and the Rajasthan Mines and Minerals (Development and Regulation) Act, 1957 so also the Rajasthan Minor Mineral Concession Rules, 1959 shall come into force and the plaintiffs were required to proceed (Downloaded on 28/11/2019 at 08:34:13 PM) (34 of 34) [CSA 208/1981] under Rule 58 of the Rules of 1959, but they have not applied under Rule 58 for grant of lease from the State Government and therefore, the State Government has rightly declared the Mine as khalsa (vacant).
46. In view of the answers to the substantial questions of law as framed and the findings arrived at in favour of the appellants except that of limitation, both the appeals are allowed. The judgment and decree passed by the first Appellate Court is accordingly set aside. The suit filed by the plaintiffs-defendants is dismissed. The interim order passed by this Court stands merged with the final order.
47. No costs.
48. All the pending applications stand disposed of.
(SANJEEV PRAKASH SHARMA),J SUNIL SOLANKI /19 (Downloaded on 28/11/2019 at 08:34:13 PM) Powered by TCPDF (www.tcpdf.org)