Rajasthan High Court - Jodhpur
Lrs.Of Abdul Gafoor & Anr vs Abdul Razak & Ors on 19 September, 2017
Author: Virendra Kumar Mathur
Bench: Virendra Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil First Appeal No. 216 / 2009
1. Legal Representatives of late Shri Abdul Gafoor son of Shri
Habibullah, By Caste Gesavat, resident of Makrana:
1/1 Mannan son of late Shri Abdul Gafoor
1/2 Vahid son of late Shri Abdul Gafoor
1/3 Smt. Sufiya W/o late Shri Abdul Gafoor
All residents of Near Tiba Maszid, Makrana.
1/4 Smt. Farzana D/o late Shri Abdul Gafoor, resident of Near
Hathai Maszid, Makrana.
1/5 Smt. Kherun D/o Late Shri Abdul Gafoor, resident of Sadar
Bazar, Makrana.
2. Legal Representatives of late Shri Abdul Shakoor son of Shri
Habibullah, By Caste Gesavat, resident of Tiba Mohalla,
Makrana:
2/1 Smt. Kurshida D/o Late Shri Abdul Shakoor W/o Shri Navab
Ali, aged about 50 years, By Caste Rathore, Resident of Near
Do Maszid Road, Railway Station, Makrana.
2/2 Mohd. Umar S/o Late Shri Abdul Shakoor, aged about 48
years, By Caste Gesavat, Resident of Lohapura, Near
Rehaman Pillar Factory, Makrana.
2/3 Shaukat Ali S/o Late Shri Abdul Shakoor, aged about 46
years, By Caste Gesavat, Resident of Near Noorani Madarsa,
Iqbalpupra, Makrana.
2/4 Smt. Raisa D/o Late Shri Abdul Shakoor W/o Shri Abdul
Hakeem Sisodia,aged about 44 years, By Caste Sisodia,
Resident of Near Minara Maszid Building, Godabas, Makrana.
2/5 Smt. Baby D/o Late Shri Abdul Shakoor W/o Shri Abdul
Rehaman Bhati, aged about 42 years, Resident of Near Do
Maszid, Kasaiyon Ki Gali, Khari Tibba, Makrana.
2/6 Mohd. Ali S/o Late Shri Abdul Shakoor, aged about 38 years,
By Caste Gesavat, Resident of Deshwalion ki Dhani,
Islampura, Makrana.
2/7 Mohd. Ayub S/o Late Shri Abdul Shakoor, aged about 38
years, By Caste Gesavat, Resident of Dewhwalion ki Dhani,
Islampura, Makrana.
2/8 Smt. Ruksana D/o Late Shri Abdul Shakoor W/o Shri Sekh
Fareed, aged about 36 years, By Caste Belim, Resident of
Noorani Madarshah, Iqbalpura, Makrana.
(2 of 19)
[CFA-216/2009]
2/9 Smt. Batul D/o Late Shri Abdul Shakoor W/o Shri Jameel
Ahmed, aged about 34 years, By Caste Sisodia, Resident of
Tibba Maszid, Makrana.
2/10 Abdul Kareem S/o Late Shri Abdul Shakoor, aged about 29
years, By Caste Gesavat, Resident of Tibba Maszid, Makrana.
----Appellant
Versus
1. Legal Reresentatives of Late Shri Abdul Razak son of Shri
Allarakh, By Caste Sisodia, resident of Do Maszid, Station
Road, Makrana:
1/1 Sugra W/o Late Shri Abdul Razak, aged about 80 years, By
Caste Sisodia, Resident of Railway Station, Do Maszid Road,
Makrana.
1/2 Legal Representatives of Late Smt. Sayra D/o Late Shri
Abdul Razak W/o Shri Mohd. Ramzan, By Caste Gehlot,
Resident of Mohalla Guwad, Makrana:
1/2/1 Mohd. Afzal S/o Late Shri Mohd. Ramzan, aged about 35
years.
1/2/2 Mohd. Saleem S/o Late Shri Mohd. Ramzan, aged about 30
years.
1/2/3 Mohd. Saddam S/o Shri Modh. Ramzan, aged about 24
years.
1/2/4 Baysa D/o Late Shri Mohd. Ramzan, aged about 20 years.
1/2/5 Sazida D/o Late Shri Mohd. Ramzan, aged about 18 years.
All by Caste Gehlot, resident of Guwad Mohalla, Makrana.
1/2/6 Meharoon @ Kali D/o Late Shri Mohd. Ramzan W/o Shri
Mohd. Saleem, aged about 36 years, By Caste Khilwariya,
Resident of Behind Sargam Talkies, Makrana.
1/2/7 Kammu D/o Late Shri Mohd. Ramzan W/o Shri Noor Randar,
aged about 28 years, Resident of Adarsh Nagar, Near Darula
Alam Madarsa, Makrana.
1/3 Mohd. Ismile @ Pema S/o Late Shri Abdul Razak, By Caste
Sisodia, aged about 58 years, resident of Railway Station, Do
Maszid Road, Makrana.
1/4 Fatma D/o Late Shri Abdul Razak W/o Shri Abdul Saiyad, By
Caste Rathore, aged about 56 years, Resident of Aajam
Video Gali, Near Railway Station, Makrana.
1/5 Abdul Zabbar S/o Late Shri Abdul Razak, By Caste Sisodia,
aged about 54 years, Resident of Railway Station, Do Maszid
Road, Makrana.
(3 of 19)
[CFA-216/2009]
1/6 Abeda S/o Late Shri Abdul Razak w/o Shri Abdul Hafiz, By
Caste Gesavar (Begariya), aged about 52 years, Resident of
Minara Maszid, Godbas, Makrana.
1/7 Smt. Ruksana D/o Lae Shri Abdul Razak W/o Shri Shabeer
Ahmed, By Caste Gesavat, aged about 50 years, Resident of
Near Do Maszid, Kasaiyon Ki Gali, Makrana.
1/8 Smt. Jayada D/o Late Shri Abdul Razak w/o Shri Noor
Ahmed, By Caste Choudhary, aged about 48 years, Resident
of Jama Maszid Road, Near Former MLA Abdul Aziz's House,
Makrana.
1/9 Mohd. Sadeek S/o Late Shri Abdul Razak, By Caste Sisodia,
aged about 46 years, resident of Railway Station, Maszid
Road, Makrana.
1/10 Anwar Ahmed S/o Late Shri Abdul Razak, By Caste Sisodia,
aged about 44 years resident of Railway Station, Maszid
Road, Makrana.
2. Legal Representatives of Late Shri Khaleel Ahmed son of Shri
Ibrahim, By Caste Sisodia, resident of Near Tiba Maszid,
Makrana:
2/1 Mohd. Haroon son of Late Shri Khaleel Ahmed, aged about
58 years, By Caste Sisodia, Resident of Near Do Maszid,
Makrana.
2/2 Abdul Rashid son of Late Shri Khaleel Ahmed, aged about 56
years, By Caste Sisodia, Resident of Near Do Maszid,
Makrana.
2/3 Munna Ahmed son of Late Shri Khaleel Ahmed, aged about
41 years, By Caste Sisodia, Resident of Near Do Maszid,
Makrana.
2/4 Abdul Aziz son of Late Shri Khaleel Ahmed, aged about 40
years, by caste Sisodia, Resident of Near Do Maszid,
Makrana.
2/5 Jameel Ahmed son of Late Shri Khaleel Ahmed, aged about
38 years, By Caste Sisodia, Resident of Near Tibba Maszid,
Makrana.
2/6 Raisa @ Baisa D/o Late Shri Khaleel Ahmed W/o Shri Chand
Ji Khatri, ageda bout 52 years, Resident of Near Jama
Maszid, Makrana.
3. State of Rajasthan through District Collector, nagaur.
4. Director Mining Department, Udaipur.
5. Mining Engineer, Makrana.
----Respondent
(4 of 19)
[CFA-216/2009]
_____________________________________________________
For Appellant(s) : Mr. Rajesh Joshi, Sr. Advocate with
Mr. Chandraveer Singh
For Respondent(s) : Mr. S.P. Sharma, Mr. Narendra Thanvi
_____________________________________________________
HON'BLE DR. JUSTICE VIRENDRA KUMAR MATHUR
Judgment 19/09/2017 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 (5 of 19) [CFA-216/2009] 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.
(6 of 19) [CFA-216/2009] 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.
(7 of 19) [CFA-216/2009] 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.
(8 of 19) [CFA-216/2009] 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 (9 of 19) [CFA-216/2009] 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.
(10 of 19) [CFA-216/2009] 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 (11 of 19) [CFA-216/2009] 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 (12 of 19) [CFA-216/2009] 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:-
(13 of 19) [CFA-216/2009] "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 (14 of 19) [CFA-216/2009] 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.
(15 of 19) [CFA-216/2009] 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.
(16 of 19) [CFA-216/2009] 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 (17 of 19) [CFA-216/2009] 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 (18 of 19) [CFA-216/2009] 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.
(19 of 19) [CFA-216/2009] 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.
(DR. VIRENDRA KUMAR MATHUR)J. /skm/