K. Thippanna @
Thippeswamy. Vs. Varalakshmi & ANR.
[Civil Appeal No.
2473 of 2012 arising out of SLP (C) No.30087 of 2009]
J U D G M E N T
appeal arises out of S.L.P. (Civil) No.30087 of 2009. The said S.L.P., was
filed aggrieved by the Judgment dated 14-07-2009 in W.P.No.61948 of 2009, of the
High Court of Karnataka, Circuit Bench at Dharwad, by the respondent therein.
facts are as follows:The 1st respondent herein filed O.S.No.87 of 2002 on the
file of the Civil Judge, Senior Division at Hospet, for partition of the suit scheduled
property and to deliver half of the said property and also for mesne profits,
etc. The 1st respondent is the brother's daughter of the appellant herein. The
case of the 1st respondent is that the 2entire suit scheduled property is the ancestral
property of the coparcenery consisting of, the father of the 1st respondent and
the appellant herein. By Judgment dated 18-11-2005, the Trial Court decreed the
suit in part.
upon the abovementioned decree, the 1st respondent herein filed an application (F.D.P.No.8
of 2006) on 03-03-2006 for drawing up the final decree. Subsequently, on 29-11-2006,
the 1st respondent filed an application (I.A.No.4 of 2006) for amendment of the
appellant herein contested I.A.No.4 of 2006 referred to above. By an order dated
08-12-2006, the said I.A., was dismissed.
by the order dated 08-12-2006, the respondent filed W.P.No.75 of 2007 in the
High Court of Karnataka. The High Court by its order dated 16-06-2008 allowed the
writ petition setting aside the order dated 08-12-2006 passed in I.A.No.4 of 2006.
The operative portion of the order reads as follows: "Accordingly, the
writ petition is allowed and the impugned order passed by the trial court on
IA. No. 4 in FDP No.8 / 2008 is hereby set aside and the petitioner is permitted
to amend the prayer, as prayed in the application. All contentions of the
parties are left open. The trial court shall consider the application filed under
Order 20 Rule 18 r/w Section 54 of CPC on its merits."Aggrieved by the said
order, the appellant herein, carried the matter in W.A.No.5020 of 2008, before the
Division Bench. The matter, it appears, is pending.
the meanwhile, the Trial Court by its order dated 29-11-2008, rejected the
prayer of the respondent for amendment of the application for final decree. The
operative portion of the said order is as follows: "The objection raised
by respondent to the extent that, there is no preliminary decree in respect of
Mineral stored in the petition schedule property is upheld. The petitioner is entitled
to got the fruits of preliminary decree through the process of court in respect
of Item No. 1 to 4 and 6 of the B schedule properties."
respondent once again carried the matter by way of W.P.No.61948 of 2009, to the
High Court. By the Judgment under appeal dated 14-07-2009, the said writ
petition was allowed. The operative portion of the same is follows: "The
impugned order dated 29th November, 2008 insofar as it relates to the
non-granting of permission to the petitioner to amend the prayer column of the
petition filed for drawing up of final decree pursuant to the order of this Court
in Writ Petition No.75/2007 dated 16th June, 2008 is illegal and consequently, the
same is set-aside. The Executing Court shall decide FDP No.8/2006 keeping in
mind the order of this court in W.P.No.75/2007. Till such time, the extracted ore
shall not be lifted by either of the parties. The Writ Petition is allowed
accordingly."Hence, the instant appeal.
learned counsel for the appellant Mr. S.N. Bhat, very strenuously argued that the
effect of allowing I.A.No.4 of 2006 would be to permit the respondent to seek a
relief in the final decree, which goes beyond the relief granted in the preliminary
decree in the partition suit and, therefore, the High Court grossly erred in
allowing the writ petition.
understand the nature of the controversy, it is necessary to examine the prayer
in the I.A.No.4 of 2006 as well as the prayer in the suit. The prayer in the
I.A.No.4 of 2006 is as follows: "Add: Add the following sentence to the existing
prayer column at Para XI (a) as:- "and also to divide the extracted loose
mining product stored in the petition schedule item no.1 to 4 properties
between the petitioner and the respondent no.1 as the same is part and parcel
of the suit properties already decreed."Whereas, the suit is only with regard
to the partition of the suit scheduled properties.
have meticulously gone through the plaint. There is no whisper in the plaint
regarding the "extracted loose mining product stored in the petition
schedule item no.1 to 4 properties". On the other hand, there is only a stray
sentence at Para 4 of the plaint that the defendant and the deceased-father of the
plaintiff were carrying on mining business. The relevant portion reads as
follows: "............... The land shown as item No.1 to 4 in `B' schedule
are not fit for cultivation, but contain rich iron ore. Balakrishnappa and defendant
started partnership concern and started to do mining business." Apart from
that, there was neither an issue framed, muchless any evidence adduced in the
suit regarding the winning of the mineral from that part of the suit scheduled
property, which was held liable for partition.
assuming for the sake of arguments that there is iron ore extracted from and
stored on the decree scheduled property by the (defendant) appellant herein, in
our opinion, the respondent is not entitled, as of right, to a share in the
iron ore by virtue of her being a co-sharer in the decree scheduled property. It
must be remembered that the suit was for partition of the suit scheduled property,
on the ground that the same is the joint family property of the 1st respondent's
father and the appellant herein.
The plaint schedule
does not deal with the subsoil rights of the various items of landed property included
therein. It is well settled in law that subsoil rights do not form part of
surfacial rights of the land. The pattedar / owner of the land is entitled only
for the surfacial rights and subsoil rights normally vest in the State (See State
of Andhra Pradesh Vs Duvvuru Balarami Reddy and others, AIR 1963 SC 264). Therefore,
assuming for the sake of arguments that the appellant herein did, in fact, win the
mineral from the decree scheduled property, the respondent is not entitled for
the share in the same on the ground that she is entitled for a half share of the
surface of the property from out of which, the iron ore was (allegedly)
Extraction of the minerals
is governed in this country by the Provisions of the Mines and Minerals Development
and Regulatory Act, 1957, which requires a license to be acquired by any person
interested in carrying on the mining activity. Such a license is granted under
the said Act, subject to various rules and regulations and including a requirement
of payment of royalty on the part of the licensee as the mineral essentially belongs
to the State. Without any pleading or proof in this regard to the effect that
the respondent is a licensee under the provisions of the abovementioned Act,
the respondent is not entitled, automatically, to claim a share in the mineral
alleged to have been extracted by the appellant herein.
the above mentioned reasons, this appeal is allowed. The Judgment of the High
Court is set aside.