IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 118 of 2005. Reserved on: 13.8.2009 Date of decision: 22.10.2009 Smt. Nomi Devi and another ….. Appellants Versus Anil Kumar Mohil & Ors. …. Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellants: Mr. Bhupinder Gupta, Senior Advocate with Mr. Ajeet Jaswal, Advocate. For the respondents: Mr. Karan Singh vice Mr. Bimal Gupta, Advocate, for respondent No. 1. Mrs. Shubh Mahajan, Deputy Advocate General with Mr. J.S. Guleria, Assistant Advocate General, for respondents No. 3 to 5. V.K. Ahuja, J. This is a Regular Second Appeal under Section 100 C.P.C. filed by the appellants against the judgment and decree of the Court of learned Additional District Judge, Sirmaur District at Nahan, dated 31.12.1994, affirming the judgment and decree passed by the learned Senior Sub Judge, Sirmaur District at Nahan, dated 24.3.2000. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Briefly stated, the facts of the case are that respondents No. 1 and 2, hereinafter referred to as the plaintiffs filed a suit for declaration and injunction as against respondents No. 3 to 7 and appellants, who were impleaded as defendants respectively. The case set up by the plaintiffs was that one Thakur Sher Singh filed an application for seeking lime stone mining lease from the Government of Himachal Pradesh in regard to the property comprised in Khasra No. 1886/131 measuring 45.1 Bighas. Plaintiff No.1 Anil Kumar Mohil was the son-in-law of said Sher Singh, while plaintiff No. 2 was the nephew and defendants No. 2 to 4 and 6 are the daughters of said said Sher Singh, while defendant No. 5 was alleged to be the widow of Thakur Sher Singh. It was alleged that on 31.3.1986, said Sher Singh had entered into a partnership with the plaintiff in relation to the mining lease and the share of both the partners was 50%. Defendant No. 1 i.e. the State granted lime stone mining lease in favour of said Sher Singh, duly registered on 16.6.1987, entered into in between the said Sher Singh and defendant No. 1/State. It was alleged by the plaintiff that he had also entered into a partnership agreement with the said Sher Singh for the said mining lease rights and as per the family settlement, defendants No. 2 to 6 had relinquished their rights in favour of the plaintiffs. The plaintiff allegedly worked on the mining lease as per the terms of the mining lease and as per the partnership agreement by spending huge money and since the plaintiff was a partner, defendants had no right to withdraw from their position and the plaintiff was entitled to the relief of declaration that he is the lessee 3 to the extent of 50% share as per the agreement and 50% which he had inherited on the death of deceased Sher Singh on the basis of family settlement and he prayed for relief of injunction restraining the defendants from interfering in the working of mine by the plaintiffs. Defendants filed detailed written statements taking various objections in regard to locus standi etc. and they denied that the deceased had entered into any partnership with plaintiff No. 1 or that the plaintiffs were entitled to the relief of declaration claimed by them. As many as 18 issues were framed numbering 1 to 14, 14-A to 14-D on the basis of the pleadings of the parries and I do not deem it necessary to reproduce the said issues. Learned trial Court decreed the suit in favour of the plaintiffs, who were declared lessee of the entire mining lease on the basis of family settlement made by defendants No. 2 to 6 and they were also held entitled to consequential relief of injunction restraining the defendants from interfering in the rights of the plaintiffs. However, the learned trial Court did not accept the plea of partnership set up by plaintiff No. 1. An appeal was preferred by defendants No. 2 and 3 i.e. the present appellants. The learned Additional District Judge vide its impugned judgment upheld the findings of learned trial Court and consequently dismissed the appeal. The defendants/appellants No. 1 and 2 have come up by way of present second appeal challenging the findings of both the Courts below. I have heard the learned counsel for the parties and have gone through the record of the case. 4 The submissions made by the learned counsel for the appellants were that both the Courts have acted with material illegality and irregularity in decreeing the suit of the plaintiffs since the suit was not maintainable. It was also submitted that the learned Courts below have held wrongly that the plaintiffs were entitled to grant of lease after the death of Sher Singh in whose favour the initial lease was granted. It was also submitted that there was no legal and cogent evidence on record to show that there was any family settlement. The appeal was admitted by this Court on the following substantial questions of law:- 1. Whether the suit by respondents No. 1 and 2, in their individual names, could not have been filed, when according to the alleged family settlement, the lease rights were to be transferred in favour of a firm named and styled as M/s S.S.T. and that firm being not registered, was debarred from filing the suit by virtue of the provisions of Section 69 of the Partnership Act? 2. Whether the civil court’s jurisdiction to try the suit was impliedly barred by the provisions of The Mines and Minerals (Regulation and Development) Act, 1957 and the Rules, framed thereunder? 3. Whether the lease rights inherited by the appellants and other legal heirs of late Sh. Sher Singh, could not have been lawfully transferred in favour of a third person, except by a registered document? 5 During the course of arguments, no specific arguments were raised by the learned counsel for the appellants on the substantial questions of law framed as mentioned above and the arguments were raised in general only challenging the findings of learned trial Court as well as the learned first Appellate Court to be incorrect. No provisions of the Mines and Minerals Act or Rules framed thereunder were pointed out during the course of arguments on the plea that the suit was barred by the provisions of the Act and Rules framed thereunder. Therefore, I have gone through the rules and provisions of Section 37 of the Act as have been reproduced by the learned first Appellate Court in its judgment. It is clear from the findings recorded by the learned Appellate Court that the documentary evidence on record proved that the previous consent in writing of the Government was obtained by the plaintiffs before the mining lease was transferred in their favour in terms of Rule 37 and, therefore, it cannot be said that the jurisdiction of the Civil Court was barred to try the suit. The evidence of the plaintiffs also establish that a family settlement was also arrived at in between the plaintiffs and defendants No. 2 to 6 who had surrendered their rights of mining lease inherited by them in favour of the plaintiffs and as such, the plaintiffs were entitled to the relief of declaration and injunction which was granted by the learned trial Court and affirmed by the learned Appellate Court in their favour. In regard to the plea that the lease rights were to be transferred in favour of the firm which was not registered and it was debarred from filing the suit, no submissions 6 were made in this regard. It is clear that the relinquishment deed or family settlement was arrived at, the lease rights were transferred in favour of the plaintiffs and as such, they were entitled to file the suit in their individual capacity and were entitled to the relief claimed by them. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellants, which is accordingly dismissed. However, the parties are left to bear their own costs. In view of the dismissal of the main appeal, all the pending Misc. Applications, if any, shall also stand disposed of. ( V.K. Ahuja ), October 22, 2009 Judge (BSS) 7