IMPORTANT POINT
Where appellant/defendant was a joint licensee of mine therefore respondent/plaintiff cannot claim exclusive right to operate mining area.

Sangeet Lodha J.—This miscellaneous appeal is directed against order dated 14.1.2011 of Additional District Judge, Parbatsar passed in Civil Misc. Case No.91/10 allowing the application preferred by the respondent/ plaintiff under Order XXXIX, Rule 1 & 2 of CPC.

2. The brief facts in nutshell are that late Shri Udai Singh was holding 56 bighas & 17 biswas agriculture land comprising khasra No.657, 657/1, 663, 682 and 695 in revenue village Makarana as ‘jagir khudkast land’. After death of Shri Udai Singh, said land devolved upon his two sons Bheru Singh and Rawat Singh (the respondent No.1 herein).After resumption of the jagir, on 1.7.1958 late Shri Bheru Singh and the respondent Rawat Singh acquired khatedari rights in the said land, who surrendered the land admeasuring 100 x 100 sq. meter (6 bighas & 5 biswas) to the State Government and acquired the license dated 2.3.1989 for mining operation therein. Bheru Singh expired on 19.3.1999 and thereafter, the respondent Rawat Singh alone is operating the mine on the strength of the license issued as aforesaid.

3. Bheru Singh is survived by a daughter Smt. Santosh Kanwar, the appellant herein. It is alleged that after the death of Bheru Singh, the appellant relinquished her share in all properties jointly owned by late Bheru Singh and the respondent Rawat Singh, for a consideration of Rs. 11,50,000 vide agreement dated on 8.6.1999. It is alleged that on 3.6.1999, the appellant submitted an application before the concerned authority of Department of Mines, for transfer of the license of the disputed mining area in favour of the respondent Rawat Singh alone. However, later the appellant filed an application before the court of Additional District Judge, Parbatsar to obtain the succession certificate in respect of the properties owned by her deceased father Bheru Singh. After due consideration, the court granted the succession certificate in favour of the appellant. Aggrieved thereby, the respondent Rawat Singh preferred an appeal before the court which also failed. The appellant also made application before the Mining Engineer, Department of Mines for substitution of the name in place of late Shri Bheru Singh in the mining license which was allowed vide order dated 21.6.2003 and the name of the appellant was entered in the existing license alongwith the respondent Rawat Singh. Later, on the basis of the alleged agreement entered into between the parties, order dated 21.6.2003 allowing the application of the appellant herein was set aside and thus, the respondent Rawat Singh became the sole licensee of the mining area in question. However, the appellant preferred a revision petition under Section 47 of Rajasthan Minor Mineral Concession Rules, 1986 against the order dated 11.2.2008 passed by the Mining Engineer, which was allowed by the revisional authority vide order dated 8.6.2010.

4. After passing of the order by the revisional authority as aforesaid, the Mining Engineer, Makrana vide order 20.7.2010 directed the Senior Mining Foremen to hand over the appellant herein, the possession of the portion of the mining area falling in her share. Accordingly, the possession of half of the mining area in the northern side of the mine was handed over by the Senior Foremen to the appellant and a site report dated 31.8.2010 recording the factum of delivery of possession was prepared.

5. In these circumstances, the respondent Rawat Singh filed a suit for declaration and permanent injunction regarding the disputed mining area, accompanied by an application seeking temporary injunction in terms that the defendants (the appellant & respondent No.2 to 4 herein) may not interfere with his mining operation in the mining area in question.

6. On behalf of the respondent/plaintiff, it was contended before the court below that the land in question was jagir khudkast land of late Shri Udai Singh and, therefore, the succession rights therein shall be governed by the provisions of Marwar Land Reve