KAILASH CHANDRA JOSHI,J. - (1.) THIS civil second appeal preferred by appellant- defendant State is directed against the judgment and decree dated 10.5.2007 passed by learned Additional District and Sessions Judge (Fast Track), Rajsamand in Civil Appeal No. 34/2007 (50/1998), whereby the learned first appellate Court dismissed the appeal of the appellant-defendant State on the ground of limitation, which was filed against the judgment and decree dated 27.3.1998 passed by learned Civil Judge (Senior Division) and Chief Judicial Magistrate, Rajsamand in Civil Original Suit No. 30/1997, whereby the learned trial Court decreed the suit of the respondent-plaintiff Hasan Ali and granted permanent injunction order to the effect that the appellant-defendants are restrained from recovering Rs. 15,81,926.40 from the respondent-plaintiff in pursuance to notice Ex.1 and the learned trial Court also granted costs.
(2.) THE brief facts of the case are that the respondent-plaintiff filed a suit before the trial Court on 26.9.1991 for permanent injunction averring therein that the plaintiff is a mine owner lease holder having mining lease No. 35/1981 for mine situated near village Kotdi. It is further averred that though the plaintiff never excavated minerals beyond the permissible boundary line of the mining area, yet the Mining Engineer, Rajsamand vide notice dated 5.6.1991 asked the plaintiff to deposit Rs. 15,81,926.40 averring therein that the plaintif has carried on illegal mining operation outside the. mining area and he should deposit the aforesaid amount within 15 days else the said amount would be recovered as arrears of land revenue. It is the case of the plaintiff that no prior notice was served upon him before asking the cost by the aforesaid notice. Being aggrieved by the said notice, the plaintiff-respondent filed the suit. The appellant defendants refuted the averments made in the plaint by filing the written statement. The case as set forth in the written statement is that the respondent-plaintiff illegally excavated the marble minerals to the tune of 1647.84 tons and as such the demand has been legitimately raised. As per the written statement, the appellant-defendants before serving the notice on the respondent-plaintiff prepared the site inspection note in the presence of the authorized representative of the plaintiff, namely, Altaf Hussain, on 19.4.1991 and 20.4.1991. Thus, the appellant-defendant raising the objection of jurisdiction and non-maintainability of the suit in view of availability of remedy of appeal under the Mines and Mineral Concession Rules, 1986, prayed to dismiss the suit. The learned trial Court framed the following six issues: JUDGEMENT_268_RAJLW1_2013IMG1.jpg
(3.) THE learned trial Court after hearing the parties and considering the material available on record, held that the appellant-defendant could not prove that Altaf Hussain was the representative of Hasan Ali and further held that before asking the cost by the aforesaid notice, no prior notice was served on the lessee, hence, the demand raised by the defendants remains without jurisdiction. Thus, the learned trial Court decreed the suit of the respondent- plaintiff and granted permanent injunction vide judgment and decree dated 27.3.1998.;