Shekher Dhawan, J. - (1.) THE present Regular Second Appeal is against the judgment and decree dated 15.06.1988 by the learned Additional District Judge, Hoshiarpur whereby the appeal filed by the plaintiff -appellant was dismissed. For convenience sake, hereinafter parties will be referred to as they were arrayed in the trial court i.e. appellant as plaintiff and respondents as defendants.
(2.) BRIEF facts of this case are that the plaintiff filed a suit for declaration that right to assess and demand royalty on manufacturing and sales of bricks did not vest in the State and defendant No. 2 i.e. the Mining Officer, Department of Industries, Punjab is not competent to issue notice. As per plaintiff, he was having a license for sale of bricks. The land from where the bricks were being excavated was owned by Charan Singh and was with him on leave. Defendant No. 2 issued notice for assessing royalty treating the brick earth having been vested in the State. However, the defendant is not competent to demand and recover the royalty. The excavation of earth being used by the plaintiff for manufacturing the bricks is not a minor mineral. More so, the action of defendant No. 2 is against the entry recorded in wajab -ul -arz of the village. The defendants contested the suit taking the preliminary objections that the brick earth has been declared as minor mineral vide Government of India notification dated 01.06.1958. The said notification has been upheld by the Supreme Court and, as such, the Punjab Government is competent to charge royalty on all the minerals including brick earth. As per the entries of the Sharait -Wajab -Ul -Arz of village Bullewal Rathan, Tehsil Garhshankar, District Hoshiarpur of the year 1852 read with Section 42(1) of the Punjab Land Revenue Act, 1887, the right to all the minerals without any exception vest with the Government. The plea was also taken that the suit was not maintainable as the same was not in proper form.
(3.) THE learned trial Court framed the following issues: "1. Whether the quarry right of brick kiln lies with the plaintiff? OPP 2. Whether brick kiln is a minor mineral? OPP 3. Whether the defendant is not competent to issue notice to assess to recover royalty? OPP 4. Whether the civil court has no jurisdiction to entertain the suit? OPD;