Punjab-Haryana High Court
Chattar Singh And Others vs Nanti on 3 August, 2018
Author: Amit Rawal
Bench: Amit Rawal
RSA Nos.1838 & 1453 of 1991 (O&M) 1
346
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision : 03.08.2018
1. RSA No.1838 of 1991 (O&M)
Chattar Singh and others
... Appellants
Versus
Nanti
... Respondent
2. RSA No.1453 of 1991 (O&M)
Ram Kumar and others
... Appellants
Versus
Nananti and others
... Respondents
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL
Present: Mr. D.S. Bali, Senior Advocate with
Ms. Anshika Sharma, Advocate
for the appellants in RSA No.1453 of 1991.
Mr. Subhash Rana, Advocate
for the appellant(s) in RSA No.1838 of 1991.
Mr. Sanjay Mittal, Advocate
for the respondent(s).
****
AMIT RAWAL, J.
This order of mine shall dispose of two appeals bearing RSA No.1838 of 1991 titled as "Chattar Singh and others V/s Nanti" arising out of civil suit No.209 of 1982 (in short 'the first suit') and RSA No.1453 of 1991 titled as "Ram Kumar and others V/s Nananti and others" arising out of civil suit No.210 of 1982.
Both the suits, aforementioned, challenging lease deed dated 04.05.1981 in respect of the agricultural land detailed in para No.1 of the 1 of 13 ::: Downloaded on - 07-10-2018 01:26:10 ::: RSA Nos.1838 & 1453 of 1991 (O&M) 2 plaints, were instituted on the premise that Puran Singh, father of the plaintiff, Nanati and Naraini, was in possession of the suit land. Nanati became widow in her child-hood and was living with her father and cultivating the suit land. Naraini, sister of the plaintiff, was married and living in village Chom (Purohitan). The plaintiff and Naraini were dohlidar of the disputed land, but the cultivation was done exclusively by the plaintiff. Naraini died about 6-7 years before filing of the suit and Chhatar Singh as general attorney of defendants Nos.2 to 5, who were sons and daugthers of Naraini, executed a lease deed on 04.05.1981 in respect of ½ share in favour of defendant No.1, thus, dohlidar was not competent to transfer any interest in the dohli by way of mortgage, sale etc., which was void.
The defendant No.1 contested the suit and claimed that he had become the owner of the suit land being occupancy tenants by operation of law. Defendant Nos.2 to 5 also controverted the allegations and taken the same stand that Naraini had become the owner of the suit land by operation of law.
Since the parties were at variance, the trial Court framed as many as five issues including the issue of relief in both the suits.
As per the evidence brought on record, the trial Court noticing the fact that the plaintiff had no locus standi to challenge the validity of the lease deed, dismissed the suit. The appeal taken before the lower Appellate Court by the plaintiff has been allowed and decree of declaration setting aside the lease deed dated 04.05.1981, in respect of the suit land, aforementioned, has been granted.
Mr. D.S. Bali, learned Senior Counsel assisted by Ms. Anshika 2 of 13 ::: Downloaded on - 07-10-2018 01:26:10 ::: RSA Nos.1838 & 1453 of 1991 (O&M) 3 Sharma, learned counsel appearing on behalf of the appellants in RSA No.1453 of 1991 and Mr. Subhash Rana, learned counsel appearing on behalf of the appellants in RSA No.1838 of 1991, submitted that the judgment and decree of the trial Court holding that the plaintiff had no locus standi is perfectly legal and justified and could not be set aside on the premise that the defendants were found to be in cultivation of the suit land and not the plaintiff. Since the plaintiff was not in exclusive possession of the entire land possessed by Puran Singh, the lower Appellate Court committed illegality and perversity in reversing the findings of the trial Court on the premise that a person, who is the owner of the land, could challenge the lease deed, but co-dohlidar had no locus standi. The appellants-defendants had become the owner of the suit land being the occupant tenants under The Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 i.e. by operation of law. During the pendency of the appeal, even an application for additional evidence was also moved for placing on record a lease deed dated 08.06.1990 executed by the plaintiff in respect of land measuring 14 kanals 3 marals, but the same was dismissed on 13.05.1991. The lower Appellate Court erroneously laid reliance upon the uncorroborated oral evidence of the plaintiff, resulting into, failure of justice. In support of the aforementioned contentions, Mr. Bali, relied upon the judgment rendered by this Court in "Baba Badri Dass V/s Dharma and others" 1981 PLJ 447 to contend that in a dispute arisen between two dohlidars, where one of the dohlidars had leased out the land, question whether dohlidar would acquire the status of landowner for the purpose of seeking eviction under Sections 14-A and 9 of the Punjab Security of Land Tenures Act, 1953 and after discussing the case law i.e. 3 of 13 ::: Downloaded on - 07-10-2018 01:26:10 ::: RSA Nos.1838 & 1453 of 1991 (O&M) 4 judgment rendered in "Khema Nand and others V/s Kundan and another"
AIR 1937 Lahore 805 and "Sewa Ram V/s Udegir" AIR 1922 Lahore 126, was answered holding that a person, who is having malik kabza, can always institute the ejectment proceedings.
It was next contended that the State of Haryana had promulgated the Haryana Dholidar, Butimar, Bhondedar and Muqararidar (Vesting of Proprietary Rights) Act, 2010 (in short 'the 2010 Act'), whereby the ownership of the land in favour of the landowner ceases to exist and therefore, law would have a retrospective effect, thus, the suit has rightly been held to be not maintainable by the trial Court. It was a correct interpretation of law and therefore, the judgment and decree of the lower Appellate Court is liable to be set aside.
Mr. Sanjay Mittal, learned counsel appearing on behalf of the respondents submitted that the aforementioned Act has been held to be prospective in nature from the plain and simple reading of the provisions of Section 3 of the 2010 Act and as well as per judgments in "Hukam Chand and another V/s Ram Dia (since deceased) through LRs" 2014 (2) RCR (Civil) 997 as well as in "Ram Singh deceased through his LRs V/s Nawal Singh deceased through his LRs and others" 2015 (43) RCR (Civil) 420.
It was next contended that the role of dohlidar is to perform the duties assigned to him and retain the possession without any payment of rent, thus, under no circumstances, dohlidar is authorised to mortgage and lease the land to third party, which amounted to permanent alienation running from generation to generation. In the aforementioned judgments, Division Bench judgment rendered in Baba Badri Dass's case (supra) has also been discussed. The defendants cannot set up a plea of ownership by 4 of 13 ::: Downloaded on - 07-10-2018 01:26:10 ::: RSA Nos.1838 & 1453 of 1991 (O&M) 5 implication until and unless any declaration of law claiming absolute ownership being an occupant tenant had been obtained, thus, urges this Court for dismissal of the regular second appeals.
I have heard learned counsel for the parties, appraised the paper book as well as records of the courts below and of the view that there is no force in the submissions of Mr. Bali and Mr. Subhash Rana.
The questions/points which emerge from the respective submissions of the counsel, are i) whether co-dohlidar has locus standi to challenge the action of co-dohlidar leasing out of the property or not?,
ii) whether owing to promulgation of the 2010 Act ibid would have a retrospective effect, whereby the landowner ceases to have right and in such circumstances, had acquired the status of landowner or not?
The concept of dohlidar was to accord the tenure as dohlidar, which was found in the south eastern districts of Punjab being a rent free grant or small plot by village community for the benefit of temple, mosque or shrine or for other religious purpose. Though in the revenue record, ownership is recorded in favour of proprietary body and the grantee as tenant. Dohlidar is a grant or trust for religious purpose. It can be expressed or implied. Dohlidar can also perform the duties as understood between the owner and him. Dohlidar may be a landlord qua his tenant in view of judgment rendered in "Baba Badri Dass's case (supra) and can acquire the status of dohlidar in nature of gift, but cannot be permitted to alienate or a person can claim to succeed in individual's property by succession of such property.
It would be in the fitness of things to extract the relevant para Nos.15 to 19 of the judgment rendered in "Baba Badri Dass's case (supra), 5 of 13 ::: Downloaded on - 07-10-2018 01:26:10 ::: RSA Nos.1838 & 1453 of 1991 (O&M) 6 which read as under:-
''15. The concept of perpetual tenancy as conceived of in S. 8 of the Punjab Tenancy Act in the light of Ss. 5, 6 and 7 has also become non-existent on account of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952. Occupancy or perpetual tenants have been made owners of the land. This Act came about to carry out agrarian reforms and to remove the intermediaries. And if the dohlidar is a perpetual tenant as conceived of in Sewa Ram's (AIR 1922 Lah 126) and Khema Nand's cases (AIR 1937 Lah 805) (supra) of the Lahore High Court followed in the cases of Bharat Dass (1973 Rev LR 280) and Baba Nand Ram (1976 Pun LJ 586) by this Court, then there is no reason why such like tenure should be allowed to exist in the fact of the aforementioned statute. The reason is obvious. The succession to occupancy tenancy was governed by S. 59 of the Punjab Tenancy Act, whereas succession to the dohli tenure is either natural or traditional. The occupancy tenure is capable of sale carrying with it a peremptory obligation to offer it in the first instance to the land-owner. There is no such obligation in the dohli tenure treating it for the moment, though no holding, that it is transferable. The occupancy tenancy rights are capable of being sold in execution of a decree against the occupancy tenant but the rights of a dohlidar are not subject to such permissible process of Court under the law as understood. Alienations made by occupancy tenants are voidable at the instances of the landowner. For these reasons, which are only some of them, we differ from the view that the dohli tenure is of a perpetual tenancy or is ever covered by the concept of tenancy at all. The view to the contrary taken by above referred to two decisions of the Lahore High Court does not appear to us to be correct. We do not expressly follow the decisions of the Lahore High Court in Sewa Ram's case (AIR 1922 Lah 126) and Khema Nand's case (AIR 1937 Lah 805) and overrule the single Bench
6 of 13 ::: Downloaded on - 07-10-2018 01:26:10 ::: RSA Nos.1838 & 1453 of 1991 (O&M) 7 decisions afore-quoted taking the view based thereon on this aspect.
16. Now when the dohlidar is not a purpetual tenant as held by us, typification of the dohli tenure in Douie's Settlement Manual as an instance of malik kabza and hence that of a landowner for the purposes of the Land Revenue Act and derivatively for the purposes of the Act, appears to us crystal clear. He is a landowner because he is in possession of the land. We take the view as taken by H. R. Sodhi, J. in Mahant Sirya Nath's case (1969 Pun LJ 27) (supra) and hold that a dohli tenure is an instance of malik kabza and a dohlidar, a landowner for the purposes of the Act.
17. To be fair to the learned counsel for the respondent, a decision of the Supreme Court in Tekan v. Ganeshi, 1962 Pun LJ 75, may be noted. That is a case of a lessee. He sought ejectment of a tenant whom he had inducted. Here the lessee was holding land under his landowner and himself being a tenant was held disentitled to eject his inducted tenant under the Act. That decision has no applicability to the facts of the present case which are distinctly dissimilar.
18. Reverting to the facts of the present case, the registered lease deed, Annexure P-1, clearly mentioned that the petitioner had created the lease describing himself to be as the owner and possessor of the land as dohlidar. The respondents could not deny such title of their landowner. They had fought him on the level of reducing his status to that of a tenant wanting immunisation from ejectment. They have failed. In para 3 of the petition, the landowner had asserted in categoric terms that the tenants have not paid to him the rent for two consecutive years. In reply thereto, the tenants-respondents have not denied it. Rather asserting that the petitioner was not maintainable, they have taken the plea that they are not liable to pay any amount to the petitioner since his title as a dohlidar, for some reasons asserted, is not finally settled. Why the status 7 of 13 ::: Downloaded on - 07-10-2018 01:26:10 ::: RSA Nos.1838 & 1453 of 1991 (O&M) 8 of the petitioner landowner as dohlidar is unsettled has not been projected before us. There is no assertion by the tenants that they have paid the rent, or if they had not paid such rent, what was the sufficient cause for non-payment. Thus it appear to us that the tenants-respondents had no other point to urge before the Financial Commissioner except the one which they chose to project before the Financial Commissioner and which he opted to decide. Though it was urged by the learned counsel for the respondents that we must send back the case to the Financial Commissioner for re-decision on other questions which may be raisable in the revision petition, yet we are disinclined to accept that prayer as it appears to us that none has been highlighted in the return and none is so raisable. And at the same time recalling the well known Latin phrase 'interest reipublicae ut sit finis litium' we have thus chosen to put an end to this long standing dispute.
19. For the foregoing reasons, this petition is allowed. The impugned order of the Financial Commissioner, Annexure P-2, is hereby quashed. There would, however, be no order as to costs. Petition accepted.
In view of the findings, aforementioned, it is crystal clear that the adverse party cannot be permitted to raise objection of locus standi in respect of lease created by a dohlidar i.e. lessee only and no other question as to whether Dohlidar had acquired the ownership was pondered upon or decided.
While noticing the provisions of the 2010 Act, this Court as per ratio decidendi culled out in Hukam Chand's case (supra) pertaining to the assertion of right of pre-emption to be prospective or retrospective, while posing question No.(ii) and (iii) in para No.15, answered that the 2010 Act is prospective in nature i.e. w.e.f. 09.06.2011. For the sake of brevity, the 8 of 13 ::: Downloaded on - 07-10-2018 01:26:10 ::: RSA Nos.1838 & 1453 of 1991 (O&M) 9 relevant para Nos.15 onwards reads as under:-
''Question Nos.(ii) and (iii)
15. What will be the effect of the Act where some rights have been conferred on 'dohlidar' in pursuance to the provisions of this Act?
Before I deal with the Act, it would be appropriate to point out that this Act has come into effect w.e.f 9th June, 2011 in pursuance to the Notification issued by the Haryana Government. It would be appropriate to refer to Sections 1(4) and 2 of the Act which read as under:
"1(1) xxxxx 1(2) xxxxx 1(3) xxxxx 1(4) This Act shall be applicable to Dohlidar, Butimar, Bhondedar, Muqararidar or any other similar class or category of persons which the State Government may notify in the Official Gazette.
2. In this Act, unless the context otherwise requires:-
(a) "appointed day" means in relation to Dohlidar, Butimar, Bhondedar or Muqararidar, recorded as such in revenue record for more than twenty years, the day on which this Act comes into force and in other cases where twenty years have not yet been completed and such person is recorded as Dohlidar, Butimar, Bhondedar or Muqararidar on or before the date of commencement of this Act, the day on which the person fulfils the condition of twenty years;
(b) "Collector" means the Collector of the district in which the land, in respect of which such rights are vested in a Dohlidar, Butimar, Bhondedar or Muqararidar under this Act, is situated and includes any officer not below the rank of an Assistant Collector of the First Grade specially empowered by the State Government to perform the duties of a Collector under this Act;
(c) "Commissioner" means the Commissioner appointed under the Punjab Land Revenue Act, 1887 (Punjab Act
9 of 13 ::: Downloaded on - 07-10-2018 01:26:10 ::: RSA Nos.1838 & 1453 of 1991 (O&M) 10 17 of 1887);
(d) "Dohlidar, Butimar, Bhondedar or Muqararidar"
means a person who has been recorded as such in the revenue record and includes his predecessor and successor in interest;
(e) "Financial Commissioner" means the Financial Commissioner appointed under the Punjab Land Revenue Act, 1887 (Punjab Act 17 of 1887);
(f) "land means land which is occupied by a " Dohlidar, Butimar, Bhondedar or Muqararidar and given to him by landlord in lieu of services rendered and includes the sites of buildings and other structures on such land;
(g) landowner means a person under whom a " Dohlidar, Butimar, Bhondedar or Muqararidar holds land and includes his predecessors and successors;
(h) "State Government means the Government " " of the State of Haryana the Administrative Department."
Perusal of above provisions of the Act reveals that for conferring right of ownership, this Act is applicable between the land 'owner' and 'dohlidar' and their predecessors and successors-in-interest. This Act does not apply to a dispute between 'dohlidar' and the person who is purchaser from 'dohlidar'. In the civil suit, even owner is not a party. Thus, right qua conferring title on the 'dohlidar' is not in issue, nor required to be determined. It is settled principle of law that a statute does not operate retrospectively unless it is specifically provided for in the statute. The issue of such a nature arose in Shyam Sunder and another vs. Ram Kumar and another 2001(3) R.C.R.(Civil) 754. In that case, issue before the Hon'ble Supreme Court was with regard to the substituted provisions of the Punjab Pre-emption Act, 1913 and following question was framed by the Hon'ble Supreme Court:
"What is the effect of substituted Section 15 introduced by the Haryana Amendment Act, 1995 (hereinafter 10 of 13 ::: Downloaded on - 07-10-2018 01:26:10 ::: RSA Nos.1838 & 1453 of 1991 (O&M) 11 referred to as the Amending Act 1995) in the parent Act i.e. The Punjab Pre-emption Act (hereinafter referred to as the parent Act) as applicable to the State of Haryana whereby the right of a co-sharer to pre-empt a sale has been taken away during the pendency of an appeal filed against a judgment of the High Court affirming the decree passed by the trial Court in a preemption suit".
While answering the said question in Shyam Sunder's case (supra), the Hon'ble Supreme Court has held as under:
"48. The result of the aforesaid discussion is that the amending Act being prospective in operation does not affect the rights of the parties to the litigation on the date of adjudication of the pre-emption suit and the appellate court is not required to take into account or give effect to the substituted Section 15 introduced by the amending Act."
In view of law laid down in Shyam Sunder's case (supra), it is to be held that the Act is prospective in nature. The Act was made applicable w.e.f 9th June, 2011 vide Notification No.S.O.52/H.A.I/2011/ S.I./2011 dated 09.06.2011. A 'dohlidar' has no right to execute sale deed in respect of the 'dohli' prior to 09.06.2011 as he cannot acquire title prior to that date. Since a 'dohlidar' cannot become owner of a 'dohli' prior to 09.06.2011, therefore, the Act is not applicable to appeals pending on 09.06.2011. The substantial questions of law are answered accordingly.
In view of above, there is no merit in the present appeal. However, with regard to issue of conferment of title on a 'dohlidar', the 'dohlidar'/plaintiff will be at liberty to proceed in accordance with law to claim ownership, if any, accrues to him in accordance with law.
Disposed of in the aforementioned terms.'' Concededly Puran Singh was dohlidar and both the daughters 11 of 13 ::: Downloaded on - 07-10-2018 01:26:10 ::: RSA Nos.1838 & 1453 of 1991 (O&M) 12 set up a claim of dohlidar and impugned action of one of the dohlidars in creating lease in favour of a third person as there is no provision in the 2010 Act and prior to amendment empowering the dohlidar to alienate the property. That fact had also been decided in Hukum Chand's case (supra) in para No.14, for determination of question No.(i). For the sake of brevity, para No.14 of the judgment reads as under:-
''Question no.(i)
14. In the present case, perusal of revenue records reveals that ownership vests in real owners i.e. Chandgi Ram and others, however, name of the plaintiff appears in the column of cultivation as 'dohlidar'. Column no.9 of jamabandis, which deals with the rent, reveals that it is mentioned that 'dohli' will be without payment of rent (lagan) being gift (baawaja punarath) and 'revenue' will be paid by the 'owner' and 'aabyana' will be paid by the 'dohlidar' , meaning thereby limited rights have been given to the plaintiff and ownership vests in the original owners. This is very much clear from the jamabandi for the year 1967-68 which has been placed on record as Ex.P-3. Similar entries are depicted in the subsequent jamabandis. From the revenue records, it is clear that 'dohli' was created for limited purpose and the ownership rights do not vest in dohlidar' and the same is not alienable. A 'dohlidar' cannot transfer his right which he is having. This question is answered to the effect that 'dohli' is inalienable in the present case. A 'dohlidar' cannot sell the land by way of sale deeds and both the courts below have rightly set aside the sale deeds.'' I would be failing my duty in not extracting the relevant provisions of Section 3 of the 2010 Act, which reads thus:-
''3. Vesting of proprietary rights in Dholidar, Butimar, Bhondedar or Muqararidar.
12 of 13 ::: Downloaded on - 07-10-2018 01:26:10 ::: RSA Nos.1838 & 1453 of 1991 (O&M) 13 Notwithstanding anything to the contrary contained in any other law, custom, usage or deed for the time being in force, on and from the appointed day-
(a) all rights, title and interest including the contingent interest, if any, recognized by any law, custom, usage or deed for the time being in force with respect to the land and vested in the landowner shall be extinguished, and such rights, title and interest shall vest in the Dohlidar, Butimar, Bhondedar or Muqararidar or any other similar class or category of persons, which the State Government has notified in the official Gazette, under whose occupation the land is, free from all encumbrances, if any, created by the landowner;
(b) the landowner shall cease to have any right to collect or receive any rent or service in respect of such land.'' From the plain and simple reading of the aforementioned provisions, proprietor would vest only in Dholidar, Butimar, Bhondedar and Muqararidar, from the date of appointment i.e. 09.06.2011.
As an upshot of my findings, I do not intend to differ with the findings rendered by the lower Appellate Court, which are based upon the appreciation of oral and documentary evidence, much less, there is no illegality and perversity as no substantial question of law arises for adjudication of the present appeals. Resultantly, by answering question in the manner, indicated above, the regular second appeals are dismissed.
Interim order dated 22.07.1991 passed in RSA Nos.1453 of 1999 is ordered to be vacated.
( AMIT RAWAL)
03.08.2018 JUDGE
Yogesh Sharma
Whether speaking/reasoned Yes
Whether Reportable No
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