Non reportable

IN THE SUPREME COUR OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   2473          OF 2012 [Arising out of SLP (C) NO.30087 OF 2009]

K. Thippanna @ Thippeswamy.    ….Appellant

Versus

Varalakshmi & Anr.   ….Respondents

J U D G M E N T

Chelameswar, J.

Leave granted.

2. This 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.

3. The 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

entire  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.

4. Consequent  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 abovementioned application.   

5. 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.

6. Aggrieved  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.

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7. In  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.”

8. The  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.

9. The  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  

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decree in the partition suit and, therefore, the High Court grossly  

erred in allowing the writ petition.

10. To 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.

11. We 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.   

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12. Even 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) extracted.  

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  

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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.

13. For the above mentioned reasons, this appeal is allowed.  The  

Judgment of the High Court is set aside.             

………………………………….J. ( P. SATHASIVAM )

………………………………….J. ( J. CHELAMESWAR )

New Delhi; February 24, 2012.

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