Rajasthan High Court - Jodhpur
Smt. Salma Khatoon & Ors vs State & Ors on 10 May, 2016
Author: Arun Bhansali
Bench: Arun Bhansali
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:ORDER :
S.B. CIVIL WRIT PETITION NO.3590/2016
Smt. Salma Khatoon & Ors.
vs.
State of Raj. & Ors.
Date of Order :: 10th May, 2016
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. S.D. Purohit, for the petitioners.
Mrs. Varsha Bissa, for the respondents.
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BY THE COURT:
This writ petition has been filed by the petitioners aggrieved against order dated 23.01.2016 passed by the trial court, whereby, the application filed by the respondents under Order I, Rule 10 CPC has been allowed.
The petitioners filed a suit for declaration regarding Mine No. 27 ad measuring 86.6x63 ft. claiming themselves to be the Bapidar and a direction against the Mining Department for issuance of licence under the Minor Mineral Concession Rules, 1986 ('MMCR'); the declaration was sought on the ground that a Bapi Patta issued in the year 1946 existed in the names of Gulam Suleman, Abdul Gaffur and Mohd. Ali and Mohd. Ali had agreed in the year 1986 to partition the mine in question into 27 and 27/1 and the mine 27 according to the petitioners fell in their share.
The respondents-applicants filed application for being impleaded as parties, inter alia, claiming that they were necessary parties to the suit as they are legal representatives of 2 deceased Mohd. Ali; it was also contended that the claim made by the plaintiffs is baseless as they have no relation whatsoever qua the persons, who were holding the Bapi Patta and that the applicants were in possession of the mine in question.
The application was opposed by the petitioners and the trial court after hearing the partiers by the impugned order, came to the conclusion that as the plaintiffs have not claimed themselves to be the legal representatives of the original Bapidars, for effective disposal of the suit, the presence of the applicants was necessary; it was also held that the affidavit, which was claimed to be produced before the Mining Department for partitioning the mine in question, primary evidence has not been produced and, consequently, accepted the application filed by the respondents-applicants.
It is submitted by learned counsel for the petitioners that the trial court committed error in accepting the application filed by the respondents, inasmuch as, they are not necessary parties to the suit; it was claimed that nowhere in the plaint petitioners have made any averment or sought any relief against the respondents; the petitioners are in possession of the mine in question and they have been paying the licence fee ever since the same was partitioned; it was submitted that the respondents have claimed in the reply that they would be seeking declaration/injunction against the petitioners and, therefore, they may be left free to do so; however, their presence in the present suit is not necessary; so far as the production of primary evidence regarding the application made to the department is 3 concerned, it is submitted that an application under Right to Information Act was filed, wherein, the documents have been made available, which have been placed on record as Annexure-8. It was prayed that the order impugned be quashed.
Learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the petitioners; it was submitted that the entire plea raised in the suit is ex facie baseless, inasmuch as, the petitioners have no right in the mine in question, they are not direct decedents of the Bapidars and to claim that by way of alleged affidavit before the Mining Department, they would become owner of the half of the mine is totally baseless; it is submitted that the respondents are in possession of the mine in question and that in fact a suit has been filed by them seeking relief against the petitioners; it is further submitted that the order passed by the trial court does not call for any interference looking to the limited scope of the writ jurisdiction in such matters and, therefore, the writ petition deserves to be dismissed.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
It is not in dispute that the original Bapi Patta stood in the names of Gulam Suleman, Abdul Gaffur and Mohd. Ali, various submissions have been made by the petitioners and the respondents regarding the right post the said three original Bapidaras; while the respondents claim their right based on their 4 being the legal representatives of Mohd. Ali, the petitioners claim right based on the document said to have been executed by Mohd. Ali; the legality, validity and the consequence of the said document, which is said to have been produced before the Mining Department, which document has been produced by the petitioners in the present writ petition after obtaining the same under the Right to Information Act, has to be determined before a declaration is given by the trial court regarding the petitioners' claim.
Once the respondents by way of their application before the trial court have contradicted the existence and/or validity of the document in question, the said aspect cannot be decided ex parte qua the said respondents-applicants by the trial court/in their absence and, therefore, in those circumstances as the entire claim of the petitioners is based on execution of the document by Mohd. Ali before the Mining Department, for examining its validity for giving declaration to the petitioners, the presence of the respondents is necessary and it cannot be said that the trial court committed any error in granting the application filed by the respondents-applicants.
In view thereof, no interference is called for in the order impugned. The writ petition has no substance and the same is, therefore, dismissed.
(ARUN BHANSALI), J.
A.K. Chouhan/-
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