DURGA PRASAD Vs. PARVEEN

JUDGEMENT

(1.) THIS appeal, filed by the plaintiff Durga Prasad, is directed against the Judgment and decree of the Additional District Judge, Chhind-wara, dated 25-7-1970, decreeing his claim for damages for Rs. 36,000/- for wrongful extraction and sale of about 1,800 tons of manganese ore against the defendant No. 1, Mst. Parveen Foujdar, together with interest at 4% per annum thereon from the date of the decree i. e. , from 25-7-70 till realisation, as against his claim fox recovery of damages amounting to Rupees 50,000/- for loss of profits due to wrongful extraction and sale of manganese ore, and dismising his suit against the other defendants, including the defendant No. 3, the State of Madhya Pradesh. By the appeal, the plaintiff seeks a modification of the decree, and prays that the dismissal of the suit against the defendant No. 3, the State of Madhya Pradesh be set aside, and a decree for Rupees 50,000/- as damages be passed against the defendants Nos. 1 and 3. There is no appeal against the dismissal of the suit against the defendants Nos. 4 and 5.

(2.) THE material facts leading to the appeal, briefly, are: By an interim agreement dated 11-6-1952, Ex. P-20, the State Government having sanctioned the grant of mining lease for manganese ore in favour of the plaintiff carrying on business under an assumed name of M/s. Kishanchand and Company in respect of 34. 07 acres comprising of several Khasra numbers including part of Khasra No. 21 in village Palaspani of tahsil Sausar known as 'kachhidhana Mine No. 4'. granted him permission 'to commence mining operations' on the said area, pending execution of a formal lease in accordance with the Mineral Concession Rules, 1949. The deed on its terms amounts to nothing more than an executory agreement to lease, coupled with a licence, i. e. , authority for the working of the said area, on certain terms and conditions. The defendant No. 1, the late M. F, Foujdar, held a mining lease since the year 1924 of the adjoining area of 28. 34 acres comprising of several Khasra numbers including part of Khasra No. 21 in the same village, known as 'kachhidhana Mine No. 5'. Pursuant to the grant in favour of the plaintiff, the Revenue Inspector, Sausar demarcated the plaintiff's leasehold area under the orders of the Deputy Commissioner, Chhind-wara, under Section I. 1, M. Rule 50 (iv) of the Mining Rules, and issued to the plaintiff a demarcation certificate dated 23-12-1952, Ex. P-2. The Revenue Inspector, instead of placing the plaintiff in possession of 34. 07 acres, placed him in possession of 34. 98 acres, and purported to demarcate both the plaintiff's leased area i. e. , Kachhidhana Mine No. 4, and that of the adjoining Mine No. 5 of the defendant No. 1 as well as the common boundary between them, by pointing out some boundary marks, at the spot. On 25-9-1954, the State Government having sanctioned the renewal of the mining lease held by the defendant No. 1, the late M. F. Foujdar, of Kachhidhana Mine No. 5, a similar agreement, Ex. D-6, was executed in favour of the defendant No. 1, permitting him 'to continue his mining operations'.

(3.) IT appears that the plaintiff after the demarcation done by the Revenue Inspector, constructed boundary pillars of permanent nature at the places pointed out by the Revenue Inspector, and also put up a barbed wire fencing over the common boundary. The Revenue Inspector apparently demarcated the leasehold area of the plaintiff as 34. 98 acres for 34. 07 acres as per the grant, i. e. , in excess by 0. 91 acre and the plaintiff while constructing the pillars, encroached upon a portion of the leasehold area held by the defendant No. 1 towards the west. Since there was dispute regarding the common boundary of the leasehold areas of the plaintiff and the defendant No. 1, the Deputy Commissioner. Chhindwara ordered that the common boundary be correctly demarcated and accordingly a theodolite survey was carried out by Ratansingh, Surveyor in the establishment of the Director of Land Records in 1955 and the theodolite survey revealed that the leasehold area of the plaintiff bounded by the pillars constructed by him towards the west was in excess by 0. 91 acre.