Judgment:
P.N. Nag, J.
(1) This regular second appeal has been directed against the order dated 8th March , passed by Shri S. R. Goel, Additional District Judge, Delhi whereby the appeal of the appellant, filed against the judgment and decree dated 2.3.1972 passed by Shri R. Dayal, Sub Judge 1st Class, Delhi, has been dismissed.
(2) The appellant-plaintiff has filed a suit for permanent injunction restraining the defendant from interfering with the plaintiff in excavating, digging and gathering stones from the land of Khasra plots 1018/342 and 344 situated within the revenue estate of village Sadhora Khurd, Delhi without payment of any royalty to the Government under the provisions of Minor Minerals Rules, 1938 and from prosecuting the plaintiff for the alleged breach of the provisions of Minor Minerals Rules, 1938. In that suit as many as six issues were framed, out of which Issue No. 3 is relevant to determine the point in controversy between the parties. Issue No. 3 reads as under :
'3.Whether the plaintiff is entitled to excavate, dig or collect stones from the disputed land without obtaining any permit from the Government and without paying any royalty from it as alleged in the point (Onus objected to).'
This issue has been decided against the appellant and in favor of the respondent-defendant.
(3) Ms. Shyamla Pappu, Sr. Advocate for the appellant, has tried to assail this finding.
(4) In my opinion, this finding is a finding of fact and cannot be interfered with in the regular second appeal.
(5) Ms. Pappu, however, states that the appellant do not intend to excavate, dig or collect stones from the disputed land and in fact they want to raise certain constructions thereon for the purpose of running school and college and to make roads, for the appellant, which is a charitable institution and they do not intend to cause any damage to the Government in any form whatsoever. According to her, the finding of the Courts below is standing in their way to demolish the hillock and levelling the pits in the area in dispute. This matter is not the subject matter of controversy in the suit and in my opinion, the apprehension of the appellant is wholly unfounded. The Courts below have no where given a finding that the appellants were not entitled to demolish the hillock and level the pits in the disputed area for the purpose of making road and raising constructions for school and college. In fact such an interim order was also passed on 10.12.1973 by this Court and I have been informed that some of the hillocks have been demolished and pits leveled, constructions raised and roads made in terms of the interim order.
(6) However, it is made clear that the appellant in this process cannot excavate, dig or collect stones from the disputed land without obtaining any permission from the Government as required under Rule 3 of the Delhi Minor Minerals Rules, 1938 and without paying royalty, if payable. If any situation