SBCMA No.363/2008 Khubi Ram Vs. State of Rajasthan & Ors. -{ 1 }- S.B. Civil Misc. Appeal No.363/2008 Khubi Ram vs State of Rajasthan & Ors. DATE OF ORDER : - 10.9.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.SP Sharma, for the appellant. Mr.Suresh Shrimali, for the respondents. <><><> Heard learned counsel for the parties. The appellant is aggrieved against the injunction order dated 4.2.2008 passed by the court of District Judge, Rajsamand in civil misc. case no.42/2007. The plaintiff filed the suit for injunction and for cancellation of the lease granted in favour of the defendant-appellant. The trial court after hearing the parties relying upon the report submitted by the Mining Department issued injunction for 114.63 meter land shown in map and 27,488.13 meter over lapping mining area for which the trial court was of the view that that much of land SBCMA No.363/2008 Khubi Ram Vs. State of Rajasthan & Ors. -{ 2 }- may be over laping in the two Pattas issued by the Mining Department. Learned counsel for the appellant vehemently submitted that the plaintiff in his plaint nowhere pleaded that measurement of his mine has been wrongly measured by the Mining Department while granting the mining lease to the defendant. Not only this, but the plaintiff in his plaint very specifically admitted the fixed point to be T2165 and it is nowhere the case of the plaintiff-respondents that fixed point for the measurement of the mining area starts from TI2165. It is also submitted that the Mining Department conducted the survey of both the mines and submitted a report before the trial court and copy of which has been submitted before the trial court. In the said report, though finding is in favour of the appellant-defendant, but the trial court relied upon the note appended to the report unilaterally by one of the officers of the Mining Department contradicting the report which was recorded by the Engineer himself in the presence of number of persons including in the presence of the surveyor of the Department SBCMA No.363/2008 Khubi Ram Vs. State of Rajasthan & Ors. -{ 3 }- itself. In view of the above reasons, the trial court's order is absolutely illegal and deserves to set aside. Learned counsel for the appellant submitted that the suit of the plaintiff itself is not maintainable in view of the fact that plaintiff sought relief of cancellation of lease of the appellant for the mining area and that relief cannot be granted by the civil court as held by this Court (By me) in SB Civil Revision Petition No.16/2007- Khubiram Suthar Vs. State of Raj. & ors decided on 16.4.2007. I considered the submissions of learned counsel for the parties and perused the record, which has been summoned. The trial court reached to the conclusion that there is serious dispute with respect to the location of the two mines and there is prima facie material available on the record on the basis of which the trial court reached to the conclusion that a small portion of land is over lapping and this fact is proved from the material available on record including the report referred above. The trial court considered the facts in detail and also SBCMA No.363/2008 Khubi Ram Vs. State of Rajasthan & Ors. -{ 4 }- considered the plea of both the parties with respect to measurements be taken from the fixed points. It is not a case where the trial court has not considered the evidence and the facts of the case, therefore, it is not a case where the order can be said to be perverse or capricious. Apart from above fact, it will be worthwhile to mention here that claim of the appellant as well as respondent is that they have right to excavate the land. In the peculiar facts if any of the party is permitted to excavate the land then nothing will survive till the suit is decided. Not only this, but the appellant-defendant has mining lease for 5 hectares of land then stay of excavation over land measuring 114.63 meter or 27488.13 sq. meter cannot cause any injury to the appellant in any manner. So far as one relief if cannot be granted by the civil court even then the suit for injunction as framed by the appellant was maintainable. It is also made clear that the apprehension of learned counsel for the appellant that by impugned order, the mining operation over entire land of the appellant or respondent has been stayed is not coming out from the injunction order. The SBCMA No.363/2008 Khubi Ram Vs. State of Rajasthan & Ors. -{ 5 }- injunction has been granted only for the over lapping mining of the area measuring 114.63 meter and 27488.13 sq. meter. In view of the above reasons, I do not find any merit in the appeal, hence the same is hereby dismissed. At this stage, learned counsel for the appellant submitted that the trial court may be directed to decide the suit expeditiously. Hence, it is requested to the court below may decide the suit expeditiously. The record be sent forthwith to the trial court. (PRAKASH TATIA), J. c.p.goyal/-