Punjab-Haryana High Court
Shri Sheo Nath And Ors. vs Ram Narain And Anr. on 29 January, 2008
Equivalent citations: (2008)149PLR659
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. This judgment shall dispose of two Regular Second Appeals bearing No. 2103 and 2102 of 1982.
2. In both these appeals, the dispute is about 12 kanals 13 marlas of land situated in the revenue estate of village Lakhnaula, Tehsil and District Gurgaon, which was originally owned by 'Shamilat Patti Jai Ram.' Regarding this land, a 'Dohli' was created long back by the members of the said Patti in favour of Mool Chand and Roshan Lal, in lieu of the services to be rendered as Prohit by them to the land owners.
3. In October, 1960, the aforesaid Mool Chand and Roshan Lal, who were in possession of the land as Dohlidars, leased out the land in question to Khushi Ram (father of Ram Narain and Guru Dev) vide an agreement/lease deed for 30 years. Thereafter, he cultivated the land as lessee, and after the death of Khushi Ram, his sons Ram Narain and Guru Dev cultivated the land. In the year 1978, Sheo Nath and others (appellants herein) took forcible possession of the said land claiming themselves to be owners of the suit land. Thereupon, Ram Narain and Guru Dev sons of Khushi Ram filed civil suit No. 196 dated 12.10.1978 for possession of the suit land and for recovery of Rs. 1,000/- on account of compensation. The said suit was contested by the appellants on the ground that the 'Dohli' tenure created by their forefathers automatically came to an end, when the Dohlidars ceased to render services to the owner of the land. It was further alleged that they resumed possession of the suit land about 40 years ago, after the Dohlidars left the village and since then, they are in its continuing possession. It was further pleased that Dohlidars had no right to give suit land on lease ft) the plaintiffs and the alleged lease deed for 30 years is illegal and void as the same amounts to permanent alienation, and Dohlidars have no right to permanently alienate the 'Dohli' land.
4. The said suit was decreed by the trial Court. It was held that the 'Dohli' tenure never comes to an end. Dohlidars were within their right to lease out the 'Dholi' land. The lease deed executed by the Dohlidars was not illegal and void and the same can not be termed as permanent alienation. It was further held that the plaintiffs have dispossessed the defendants-lessees on 7.7.1978 illegally and without any right by causing loss to the lessees of the Dohlidars.
5. The appeal, filed by the defendants against the above said judgment, was dismissed and findings of the trial court were affirmed.
6. Against the judgments and decree of both the courts below, Regular Second Appeal No. 2103 of 1982 has been filed.
7. The second Regular Second Appeal i.e. R.S.A. No. 2102 of 1982 is arising from civil suit No. 509 dated 16.11.1978. This suit was filed by Sheo Nath and others (appellants herein) against Ram Narain, Guru Dev (the plaintiffs in civil suit No. 196 dated 12.10.1978) sons of Khushi Ram (lessee), and Mool Chand and Roshan Lal (Dohlidars). In this suit, a declaration was sought to the effect that the plaintiffs (appellants herein) are owners in possession of the suit land being members of 'Shamilat Patti Jai Ram', its original owner. The 'Dohli' tenure created in favour of Mool Chand and Roshan Lal came to an end as Dohlidars ceased to render services, for which the 'Dohli' was created, and abandoned the 'Dohli' land by leaving the village. Therefore, the plaintiffs had taken possession of the suit land 40 years ago. The alleged lease deed executed by Mool Chand and Roshan Lal in favour of Khushi Ram, father of Ram Narain and Guru Dev, for 30 years in October, 1960, was said to be illegal, null and void. The suit was contested by the defendants by taking the pleas, which were taken by defendants No. 1 and 2, namely, Ram Narain and Guru Dev, in their suit.
8. Initially, the said suit was decreed by the trial court, but the judgment and decree of the trial court was reversed by the first appellate court on 31.5.1982, in which the same finding was recorded, which was recorded in the aforesaid civil suit No. 196 dated 12.10.1978 filed by the lessees. Against the judgment and decree dated 31.5.1982 passed by the first appellate court, Regular Second Appeal No. 2102 of 1982 has been filed.
9. Thus, in both these appeals, the common question of facts and law are involved. Therefore, the same are being disposed of together.
10. I have heard the arguments of learned Counsel for the parties and have gone through the record of the case.
11. During the course of arguments, learned Counsel for the appellants has not disputed the creation of 'Dholi' tenure in favour of Mool Chand and Roshan Lal. Though, the appellants have taken the stand that they had taken possession of the suit land about 40 years ago, when the Dohlidars left the village and when 'Dohli' tenure extinguished, as Dohlidars ceased to render services to the members of the 'Shamilat Patti Jai Ram', but a finding of fact has been recorded by both the courts below in Civil Suit No. 196 dated 12.10.1978 that the appellants dispossessed the lessees of Dohlidars on 7.7.1978. The said finding of fact has not been challenged and could not be challenged by the appellants in these appeals being finding of fact. Further, learned Counsel for the appellants has not been able to challenge the finding of fact recorded by the courts below that 'Dohli' tenure in favour of Mool Chand and Roshan Lal never came to an end, as the appellants have failed to prove the extinguishment of Dohlidar rights in the suit land. It has also not been disputed and could not be disputed that a Dohlidar has a right to lease out the 'Dohli' land, as it has been so held by a Division Bench of this Court in Baba Badri Dass v. Sh. Dharma and Ors. 1981 P.L.J. 447, that the status of a Dohlidar is that of a land owner and he can lease out the 'Dohli' land.
12. During the course of arguments, learned Counsel for the appellants contended that by leasing out the 'Dohli' land, the 'Dohli' tenure comes to an end. In view of the aforesaid Division Bench judgment of this Court, this argument has no force. Even otherwise, before it can be said that a Dohlidar has no right to lease out the land, it has to be pleaded and proved that while creating the 'Dohli, a condition was imposed upon the Dohlidar that he will not lease out the 'Dohli' land. In this case, the appellants neither pleaded nor proved, nor there is any evidence that at the time of creation of 'Dohli' in question, any condition was imposed that Dohlidar will not lease out the suit land. In Dharam Vir v. Bahadur Singh and Anr. (2007-1)145 P.L.R. 176, it has been held by a Division Bench of this Court that in absence of pleadings about terms of 'dohli' and material showing violation of terms of 'dohli', finding of inalienability of 'dohli' tenure cannot be sustained.
13. Further, learned Counsel for the appellants made two fold submissions. Firstly, that the lease deed executed by Dohlidars in favour of Mool Chand and Roshan Lal for 30 years is void ab initio as it amounts to permanent alienation. Secondly, he submitted that if it is assumed that the lease in question is valid, even then possession of the suit land cannot be taken by the lessee from the appellants, who are the original owners of the suit land, because the period of lease has expired. He submitted that only the Dohlidar can take possession from the appellants. While raising these two submissions, learned Counsel submitted that in these appeals, the following three substantial questions of law are arising for consideration:
1. Whether the lease deed allegedly executed by Dohlidars in favour of defendants No. 1 and 2 is void ab initio and confers no right on them?
2. Whether the defendants can seek possession of the land in dispute on the basis of a lease deed, allegedly executed in their favour, which is void ab initio?
3. Even if, it is accepted that defendants No. 3 and 4 had leased out the suit land for a period of 30 years, as pleaded by defendants No. l and 2, whether they are entitled to possession, when admittedly the said period of lease, has since expired?
14. After hearing the arguments of learned Counsel for the parties, I am of the opinion that in these appeals, no substantial question of law is either involved or arising.
15. Learned Counsel for the appellants could not cite any judgment that leasing out the 'Dohli' land for 30 years by Dohlidar is void ab initio, being permanent alienation. Even otherwise, there is no bar under the law that a lease cannot be created for 30 years. The Division Bench judgment of this Court, cited by learned Counsel in Dharma v. Smt. Harbai 1976 P.L.J. 617, only lays down that 99 years lease of the 'Dohli' land by a dohlidar amounts to permanent alienation. It has not been disputed that Dohlidar has a right to lease out the land. It is also not the case of the appellants that while creating the 'Dohli', the owner of the land prohibited the Dohlidar from leasing out the land for a longer period. There is no material that leasing out of land in question for 30 years amounts to permanent alienation. Therefore, I do not find any ground to set aside the findings recorded by both the courts below that the lease of land in question was perfectly legal and valid and the same cannot be said to be illegal, null and void ab initio.
16. As far as the second contention is concerned, it is well settled, as has been held by the Supreme Court in Krishna Ram Mahale (dead) by his LRs v. Mrs. Shobha Venkat Rao A.I.R. 1989 Supreme Court 2097, that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse of law. In that case, the plaintiff had filed a suit for recovery of possession of premises upon which she had entered as a licensee to conduct the business of restaurant; and was subsequently dispossessed by the licensor unlawfully behind her back. Immediately thereafter, she filed suit for recovery of possession. In these circumstances, while holding the plaintiff to be entitled to decree for recovery of possession, it was held by the Supreme Court that since the plaintiff was unlawfully dispossessed, it could not be said that the licence having expired long back and the plaintiff not being entitled to renewal of licence could only ask for damages for unlawful possession.
17. In the instant case, it has been proved on record that Dohlidars, who were having right to lease out 'Dohli' land, have actually leased out the suit land in October, 1960, in favour of Khushi Ram (father of Ram Narain and Guru Dev) and thereafter, the lessee cultivated the land. It has also been held that the appellants have illegally dispossessed the lessee on 7.7.1978 without any right. The stand taken by the appellants that they had taken possession 40 years back was not found correct. In view of these facts, the contention raised by learned Counsel for the appellants that since during the pendency of the appeals, the lease period has expired, therefore, the decree for possession passed in favour of lessee cannot be given effect, as the defendants are not entitled to take possession after the expiry of lease period, cannot be accepted. Even otherwise, Dohlidars cannot be denied the relief because the appeals remained pending for a long period. During the pendency of the appeals, stay of dispossession remained continued. Further, it is for the Dohlidars to take possession from the lessee and the appellants cannot be permitted to retain the illegal possession, only on the plea that during the pendency of the appeals, lease period has expired. Even lessor has no right to take possession from the lessee, without following due process of law.
In view of the above, I do not find any merit in both these appeals and the same are, accordingly, dismissed.