Punjab-Haryana High Court
Om Parkash Dass Etc vs Commissioner Ambala Etc on 29 July, 2015
Author: Rajive Bhalla
Bench: Rajive Bhalla, Amol Rattan Singh
CWP-3368-1988 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-3368-1988
Pronounced on: 29th July, 2015
Om Parkash and another ..... Petitioners
VERSUS
The Commissioner, Ambala
Division, Ambala and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE AMOL RATTAN SINGH
Present: Mr.Rajbir Singh Sehrawat, Advocate,
for the petitioners.
Mr.D.Khanna, Addl.A.G., Haryana,
for respondent No.1 to 3.
Mr.Sumeet Sheokand, Advocate, for
Mr.R.S.Tacoria, Advocate, for respondent No.4.
*******
RAJIVE BHALLA, J.
The petitioners pray for issuance of a writ of certiorari, quashing, orders dated 14.08.1986, 10.11.1986 and 17.12.1987, passed by the Assistant Collector Ist Grade, Jhajjar, the Collector, Rohtak and the Commissioner, Ambala Division, Ambala, respectively.
Counsel for the petitioners submits that the petitioners are "Dholidars" whose rights are protected by Section 4(3)(i) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the "1961 Act") (as applicable to the State of Haryana). SHAMSHER SINGHThe impugned orders holding that the petitioners cannot inherit 2015.08.03 16:52 I attest to the accuracy and authenticity of this document Chandigarh CWP-3368-1988 [2] Dholidari rights or that the Dholi tenure has come to an end, for failure to serve water, are contrary to the record.
The "wazib-ul-arz" for the year 1879, records the creation of a "Dholi" requiring Harnam Dass, chela Hardayal, to excavate a well and serve water and in return to cultivate the land, in dispute, and appropriate its produce. As recorded in the wazib-ul-arz for the year 1909-10 and repeated at the time of consolidation, in the year 1957-58, the proprietors altered the terms & conditions of the Dholi and provided that henceforth the Dholi would be "Davami" (permanent) and after the death of the Dholidar, it would devolve upon his chela "Gadi Nashin". The terms settled in 1879 or thereafter do not record that in case, the Dholidar stops serving water, the Dholi would come to an end. The fact that the new terms & conditions were accepted by the proprietors, is proved by the fact that after the death of Harnam Dass, his chela Nar Singh Dass was recorded as Dholidar without any objection from any proprietor. After the death of Nar Singh Dass the Dholi has devolved upon petitioners No.1 and 2, on the basis of a will, executed by Nar Singh Dass. The authorities have, however, rejected entries recorded in the wazib-ul-arz, for the years 1909-10 and 1957-58 by holding that entries recorded at the time of settlement, in the year 1879, cannot be varied. The authorities have ignored the fact that in 1909-10, the proprietors decided to vary the terms and prescribed that the Dholi SHAMSHER SINGH 2015.08.03 16:52 I attest to the accuracy and authenticity of this document Chandigarh CWP-3368-1988 [3] would be permanent and heritable. The authorities also ignored Sections 36 and 37 of the Punjab Land Revenue Act, 1887 that empower a revenue officer to update entries in the record of rights if they are based upon undisputed acquisitions of rights in land. The authorities also appear to have confused the customary right to create a "Dholi" with the private right to prescribe the terms & conditions of a Dholi.
The petitioners' claim that they have inherited Dholidari rights, have been rejected by holding that a Dholi cannot devolve by way of a will. The rights of petitioner No.2 have been rejected by holding that a female cannot be a Dholidar. Counsel for the petitioners submits that even if the will is ignored, as petitioner No.1 is admittedly the chela of Nar Singh Dass, he would succeed to the Dholidari rights. As far as petitioner No.2 is concerned, she was the wife of Nar Singh Dass and was only conferred a life estate.
Counsel for the petitioners further submits that the finding that the Dholi tenure has come to an end for failure of the Dholidars to serve drinking water, is incorrect as terms of the Dholi recorded in 1909-10 do not prescribe that failure to serve water would bring the Dholi tenure to an end. The finding, even otherwise, is not based upon any evidence much less evidence adduced by the Gram Panchayat. The writ petition may be allowed by setting aside the impugned orders, dismissing the application filed by the Gram SHAMSHER SINGH 2015.08.03 16:52 I attest to the accuracy and authenticity of this document Chandigarh CWP-3368-1988 [4] Panchayat and declaring that the petitioners are Dholidars protected by Section 4(3)(i) of the 1961 Act.
Counsel for the respondent No.4-Gram Panchayat submits that the Dholi created in 1879, was not heritable. A revenue officer, is not empowered to alter entries in the record of rights. The entries recorded in the wazib-ul-arz, for the years 1909-10 and 1957-58 have been rightly discarded. This apart, even if it is presumed that the Dholi was permanent, the Dholi has come to an end as the petitioners have stopped serving water. The petitioners instead of controverting these findings, assert that there is no condition that the Dholi would come to an end if the petitioners stop serving water, thereby admitting that they have stopped serving water. The petitioners have not controverted these findings by any averment or reference to any evidence that would prove that they continue to serve water. The Dholidari rights in the land are, therefore, not protected by Section 4(3)(i) of the 1961 Act and as admittedly the land is Shamilat Deh, the land must revert to the Gram Panchayat by the petitioners' eviction.
We have heard counsel for the parties, perused the impugned orders and entries in the wazib-ul-arz for the years 1879, 1909-1910 and 1957-58.
Before delimiting the questions posed, it would be appropriate to refer to the facts.
SHAMSHER SINGH2015.08.03 16:52 I attest to the accuracy and authenticity of this document Chandigarh
CWP-3368-1988 [5] The Shamilat Deh (common land) of a village, before it came to statutorily vest in a Gram Panchayat, was owned and possessed by proprietors. The proprietors could sell, mortgage, gift, partition etc. the Shamilat Deh of a village and could also create a customary dedication of property for religious or charitable purposes etc. called a "Dholi". Admittedly, the proprietors of the village settled a Dholi upon Harnam Dass, chela Hardayal, from the Shamilat Deh of the village. The terms & conditions of the Dholi recorded in the sharat wazib-ul-arz for the year 1879, read as follows: -
"For preparing a Chah Abnoshi in the village Madana Kalan. So long they go on serving drinking water from the Dohli, it will continue to be exempted. It has been made clear to the Dohlidar that as per the traditions Dohli shall not be transferred to the successor of Dohlidar and it shall not be mortgaged. Dohlidars themselves cultivate and take the produce and the cess is payable by the owner."
A perusal of the terms & conditions of the Dholi reveals that Harnam Dass was required to excavate a "Chah Abnashi" (a well) and so long as he continued to serve drinking water, would continue to cultivate a parcel of land, from the Shamilat Deh of the village, retain its produce but Dholidari rights could not be transferred to a successor.
Admittedly, the wazib-ul-arz for the year 1909-10, altered the conditions of the Dholi and reads as follows: -
"This Dohli is "Davami" (permanent) and the owners are not entitled to sell or mortgage it. After the death of the Dohlidar it shall pass on to his chela Gadi Nashin."SHAMSHER SINGH
2015.08.03 16:52 I attest to the accuracy and authenticity of this document Chandigarh
CWP-3368-1988 [6] A perusal of the entries in the wazib-ul-arz of year 1909- 10, reveals that the Dholi was now "Davami", an Urdu term for the word "permanent", the owners and the Dholidar could not sell or mortgage the land but after the death of the Dholidar, the Dholi would devolve upon his chela Gadi Nashin. Thus, the Dholi was now permanent and could be inherited by a chela. The same terms are repeated in the wazib-ul-arz prepared at the time of consolidation, in 1957-58.
Admittedly, after the demise of Harnam Dass, chela Hardayal, Dholidari rights passed on to Nar Singh Dass, without any objection from any proprietor. After the demise of Nar Singh Dass, petitioners No.1, who is admittedly the Chela of Nar Singh Dass and petitioner no. 2, who is the widow of Nar Singh Dass put-forth their claim as Dholidars, though on the basis of a will, executed by Nar Singh Dass.
The Gram Panchayat filed a petition under Section 7 of the 1961 Act, praying for the eviction of the petitioners by alleging that on the demise of Nar Singh Dass, the Dholi has come to an end and even otherwise as the Dholidars have stopped serving water, the Dholi has come to an end.
The petitioners, in response, pleaded that petitioner No.1, is the chela and petitioner No.2 is the widow of Nar Singh Dass, who have inherited the Dholi by way of the will, but denied that they have SHAMSHER SINGH 2015.08.03 16:52 I attest to the accuracy and authenticity of this document Chandigarh CWP-3368-1988 [7] stopped serving water. The petitioners also alleged that the terms & conditions of the Dholi do not provide that the Dholi shall stand terminated if the Dholidar stops serving drinking water.
The Assistant Collector Ist Grade, altered the petition into a suit under Section 13-A of the 1961 Act and proceeded to determine the rights of parties in the land, in dispute.
After considering the pleadings and the evidence, the Assistant Collector, Ist Grade, held that as wazib-ul-arz for the year 1879, records that the Dholi cannot be transferred or inherited, the petitioners cannot claim any rights, title or interest in the Dholi whether by inheritance or on the basis of the will. The Assistant Collector, Ist Grade, rejected entries in the wazib-ul-arz for the years 1909-10, 1957-58, that record that the Dholi is permanent and heritable by holding that the sharat wazib-ul-arz (Ex.P1), prepared at the time of "Bandobast" (settlement), in the year 1879, cannot be varied. The Assistant Collector also held that as a Dholi can only devolve on a male, Smt. Dhan Kaur (petitioner No.2) cannot claim any right in the Dholi. The will was rejected by holding that a Dholidar cannot transfer his rights by way of a will.
Apart from these findings the Assistant Collector also recorded a significant finding of fact that the Dholidars have stopped serving drinking water, thereby bringing the Dholi tenure to an end.
Aggrieved by this order, the petitioners filed an appeal SHAMSHER SINGH 2015.08.03 16:52 I attest to the accuracy and authenticity of this document Chandigarh CWP-3368-1988 [8] which was dismissed by the Collector, Rohtak. The petitioners, thereafter, filed a revision before the Commissioner, Ambala Division, Ambala, which was dismissed by holding as follows: -
"I do not agree to the argument of the learned counsel for the applicants that there was no condition of serving the drinking water in the Dohli. As per the conditions of Wajbul Arz Bandobasti for the year 1879 the Dohli was given in the area of village Madana Kalan for preparing a Chah (well) for drinking water and it is mentioned therein that so long the drinking water was served the Dohli will remain exempted. In this case it is now obvious that the work of serving the drinking water has now ceased, therefore, this Dohli would be treated as terminated. As per the condition of the Dohli on the death of Dohlidar, it can go to his Chela but in the present case the Dohlidar has transferred the Dohli in the names of his wife and son which is illegal."
The questions that call for an answer, are (1) the legal nature of a Dholi? (2) rights and obligations in the Dholi in dispute? (3) whether rights and obligations in the Dholi, in dispute, have to be read from the wazib-ul-arz for the year 1879 or from the wazib-ul-arz for the years 1909-10/1957-58? (4) whether Dholidari rights have devolved upon the petitioners? (5) whether Dholidari rights are protected by Section 4(3)(i) of the 1961 Act and if so to what extent? (6) whether the Dholi has come to an end for failure of the petitioners to serve drinking water?
The answer to the first question, namely, the legal nature of a Dholi, does not pose any difficulty. A Dholi is a customary rent free grant (some times called a death bed grant), of a parcel of land, settled for religious purposes in favour of a temple, a mosque or other religious institution but may also be settled for a charitable SHAMSHER SINGH 2015.08.03 16:52 I attest to the accuracy and authenticity of this document Chandigarh CWP-3368-1988 [9] purpose as has happened in the present case. A Dholi was created from private land, and before common land (Shamilat Deh) of a village came to vest in a Gram Panchayat, could be created from the common land. The right to create a "Dholi" flows from custom but the terms and conditions of a Dholi are settled by private covenant, leaving it to each settler to prescribe his particular set of conditions. The recipient of a Dholidari grant is required to discharge, in return, certain religious, social or charitable obligations. A Dholi may be temporary but subsists only so long as the "Dholidar" continues to perform his obligation. A Dholi tenure is inalienable but whether it is heritable and in what manner, depends upon the terms & conditions of a Dholi. Reference may be made to the Punjab Settlement Manual by Sir James M. Douie and a Digest of Customary Law by Sir W.H.Rattigan.
The second and third questions are the rights and obligations in the Dholi in dispute and whether these rights and obligations are to be read from wazib-ul-arz for the year 1879 or the wazib-ul-arz recorded in the years 1909-10/1957-58? An ancillary but equally important question, namely question No.4, is whether Dholidari rights have devolved upon the petitioners, shall also be answered alongwith these questions.
A perusal of the entry in the wazib-ul-arz for the year 1879, reveals that proprietors of the village created a Dholi from the SHAMSHER SINGH 2015.08.03 16:52 I attest to the accuracy and authenticity of this document Chandigarh CWP-3368-1988 [ 10 ] Shamilat Deh land of the village. Harnam Dass chela Hardayal was required to excavate a well and serve drinking water. In return, Harnam Dass was allowed to appropriate the usufruct of the land, in dispute. The Dholi could not be inherited or mortgaged. In the year 1909-10, the proprietors of the village altered the condition by recording in wazib-ul-arz for the year 1909-10 (reproduced at page No.5 of this judgment) that the Dholi would henceforth be "Davami" i.e. "permanent" and upon the demise of the Dholidar, it would pass on to his chela Gadi Nashin. The Dholi, therefore, became permanent and heritable. The entry is repeated in the wazib-ul-arz for the year 1957-58, recorded at the time of consolidation.
The Assistant Collector, the Collector and the Commissioner, have held that the Dholi is not heritable as entries recorded at the time of settlement, in the wazib-ul-arz for the year 1879, cannot be varied, and, therefore, discarded entries in wazib-ul- arz for the years 1909-10 and 1957-58, which record that the Dholi shall be permanent and heritable by the chela. The findings, in our considered opinion, are legally incorrect but before proceeding any further in the matter it would be appropriate to refer to the nature of entries in a Sharat wazib-ul-arz, the nature of customary rights in the Shamilat Deh of a village and thereafter the power of a revenue officer to vary or not to vary entries in the record of rights.
A sharat wazib ul-arz, also called the village SHAMSHER SINGH 2015.08.03 16:52 I attest to the accuracy and authenticity of this document Chandigarh CWP-3368-1988 [ 11 ]
administration paper, records the customary rights of a village, including the rights of proprietors to use, sell, mortgage, partition and gift etc. the Shamilat Deh of a village. A sharat wazib-ul-arz was prepared for every revenue estate at the time of settlement of land holdings. A sharat wazib-ul-arz is a part of the record of the rights, prescribed by Section 31 of the Punjab Land Revenue Act, 1887. The settlement of rights in land commenced in this part of Punjab in 1849 and was followed by three/four other settlements with the object of rectifying defects in earlier settlements and to reflect changing perceptions and understanding of rights in land.
The right to create a Dholi admittedly flows from custom but the terms & conditions of a Dholi are settled and governed by private covenant. The terms and conditions of a Dholi created from the Shamilat Deh (common land) of a village, are generally recorded in the sharat wazib-ul-arz of a revenue estate.
Reverting to the original points, namely, rejection of entries in wazib-ul-arz for the years 1909-10 and 1957-58, by the Assistant Collector, the Collector and the Commissioner, on the ground that the entry recorded at the time of settlement, cannot be varied. It would be appropriate to point out that the authorities apparently confused the customary right to create a Dholi with the private right to prescribe the terms & conditions of a Dholi and also failed to consider Section 37 of the Punjab Land Revenue Act, 1887, SHAMSHER SINGH 2015.08.03 16:52 I attest to the accuracy and authenticity of this document Chandigarh CWP-3368-1988 [ 12 ] which while prohibiting a revenue officer from altering entries in the record of rights confers power upon a revenue officer to vary entries in the record of rights if they disclose an undisputed acquisition of interest in land. A revenue officer, exercising power under Section 37 of the Punjab Land Revenue Act, 1987, may where undisputed rights are acquired in the land, record an entry reflecting the undisputed acquisition of rights in land. The revenue officer, at the behest of the proprietors, modified the terms of the Dholi and recorded them in the wazib-ul-arz for the year 1909-10. The entry continued to be reflected in the wazib-ul-arz without any objection from any proprietor or even from the Gram Panchayat. The fact that after the demise of Hardayal, the Dholi was inherited by his chela Nar Singh Dass, without any objection, proves that the terms & conditions prescribed in the wazib-ul-arz for the year 1909-10, were recorded at the behest of, acted upon and accepted by proprietors. The respondents are, even otherwise, unable to refer to any legal principle, precedent or statutory provision that prohibits the settler of a Dholi, in this case, the proprietors of the village, from altering the terms and conditions of a Dholi or a revenue officer from recording undisputed acquisition of interest in a Dholi recorded in the record of rights. The findings rejecting entries in the wazib-ul-arz for the years 1909-10 and 1957-58, on the ground that the wajib-ul-arz recorded at the time of settlement cannot be varied, are, therefore, legally SHAMSHER SINGH 2015.08.03 16:52 I attest to the accuracy and authenticity of this document Chandigarh CWP-3368-1988 [ 13 ] incorrect and must be reversed. The terms & conditions of the Dholi have to be read conjointly from the wazib-ul-arz for the years 1879, 1909-10 and 1957-58, i.e. the Dholi is permanent and upon the demise of the Dholidar would devolve upon his chela Gadi Nashin. However, the obligation to serve drinking water, remains unchanged and in case of failure to serve drinking water, the Dholi would come to an end.
The question, that now arises, is whether Dholidari rights have devolved upon the petitioners. The Dholi was created, from the Shamilat Deh of the village. The proprietors, as recorded in the wazib-ul-arz for the year 1909-10, decided to continue the Dholi and prescribed that the Dholi would be permanent and would pass on to the chela Gadi Nashin thereby clearly postulating that the Dholi could be inherited by the chela Gadi Nashin. The petitioners claim that they have inherited rights in the Dholi on the basis of a Will, executed by Nar Singh Dass. The question whether Dholidari rights can be inherited by a Will has already been answered by a Division Bench of this Court in CWP-14964-2009, decided on 03.08.2012, by considering the opinion recorded by another Division Bench in "Dharam Vir Vs. Bahadur Singh and another", 2007(1) PLR 176, and holding as follows: -
"Thus, it has been held that the question as to whether the Dholi rights are heritable or not would depend upon the terms of Dholi, express or implied, because if the Dholi tenure is a rent free grant for the benefit of a temple, mosque or shrine or to a person for a religious purpose then the grant would continue till the holder carries out the duties of his SHAMSHER SINGH 2015.08.03 16:52 I attest to the accuracy and authenticity of this document Chandigarh CWP-3368-1988 [ 14 ] office which would terminate on failure to carry out the said duties and if the Dholi is in the nature of a gift at the time of its creation and there is no condition imposed for the use of the Dholi for the benefit of a temple, mosque or shrine or other religious purpose then he would become the owner and property in the hands of such a 'Dholidar', could always been inherited in terms of the Succession Act."
A perusal of the above extract reveals that the right to inherit a Dholi flows from the terms & conditions of the Dholi and cannot be prescribed by the Dholidar and, therefore, cannot be inherited by a will.
As already recorded, Dholidari rights could be inherited by the chela Gadi Nashin, i.e. the nominated chela of the Dholidar and, therefore, cannot devolve by will. The petitioners' claim of having inherited the property on the basis of a will, was rightly rejected.
A perusal of the record, however, reveals that it is not disputed or denied that Om Parkash, petitioner No.1, was the chela of Nar Singh Dass. After the demise of Nar Singh Dass, the Dholidari rights would necessarily devolve upon Om Parkash. Smt. Dhan Kaur, petitioner No.2 (the wife of Nar Singh Dass) would have no right, in the land, in dispute, on the basis of the will as rights in the Dholi, in dispute, can only pass on to the chela Gadi Nashin.
The findings, that the Dholidari rights have devolved upon petitioner No.1, however, does not entitle the petitioners to any relief for reasons that we shall proceed to record while answering the remaining questions.
SHAMSHER SINGH2015.08.03 16:52 I attest to the accuracy and authenticity of this document Chandigarh
CWP-3368-1988 [ 15 ] The land, in dispute, was admittedly part of the Shamilat Deh of the village. The Shamilat Deh of a village came to vest in a Gram Panchayat, under the Punjab Village Common Land Act, 1953 (hereinafter referred to as the "1953 Act"). The 1953 Act was repealed and replaced by the 1961 Act which defines the words Shamilat Deh and by way of Section 3 sets out land to which the Act applies and by way of Section 4 of the 1961 Act, provides for vesting of rights in the panchayat and non-proprietors.
Section 4(3)(i) of the 1961 Act, however, protects the existing rights, title or interest of Dholidars etc. in the Shamilat Deh of a village. Section 4 of the 1961 Act, reads as follows: -
"4. Vesting of rights in Panchayat and non-proprietors.-
(1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interest whatever in the land:-
(a) Which is included in the Shamilat deh of any village and which has not vested in a Panchayat under the Shamilat law shall at the commencement of this Act vest in a Panchayat constituted for such village, and where no such Panchayat has been constituted for such village, and where no such Panchayat has been constituted for such village, vest in the Panchayat on such date as a Panchayat having jurisdiction over that village is constituted;
(b) Which is situated within or outside the abadi deh of a village and which is under the house owned by a non-proprietor, shall, on the commencement of Shamilat law, be deemed to have been vested in such non-proprietor.
(2) Any land which is vested in a Panchayat under the Shamilat law shall be deemed to have been vested in the Panchayat under this Act. (3) Nothing contained in clause (a) of sub-section (1) and in sub section (2) shall affect or shall be deemed ever to have affected the ;-
(i) existing rights, title or interests of persons who, though not entered as occupancy tenants in the revenue records are accorded a similar status by custom or otherwise, such as Dholidars, Bhondedars, Butimars, Basikhopohus, Saunjidars, Muqarrirdars;
(ii) rights of persons in cultivating possession of Shamilat deh, for more than twelve years [immediately preceding the commencement of this Act] without payment of rent or by payment of charges not exceeding the land SHAMSHER SINGH 2015.08.03 16:52 I attest to the accuracy and authenticity of this document Chandigarh CWP-3368-1988 [ 16 ] revenue and cesses payable thereon.
(iii) rights of a mortgagee to whom such land is mortgaged with possession before the 26th January, 1950."
A perusal of Section 4(3)(i) of the 1961 Act, reveals that nothing contained in clause (a) of sub section (1) and in sub section (2) of section 4 shall apply to Dholidars, Bhondedars etc., clarifying that existing rights, title or interests of a Dholidar in the Shamilat Deh of a village shall be protected. The question that must necessarily arise, at this stage, is the nature and extent of the protection, envisaged by Section 4(3)(i) of the 1961 Act, namely, whether it is absolute protection or dependent upon the Dholidar continuing to perform his obligation, in this case, the obligation to serve drinking water?
A perusal of Section 4(3)(i) of the 1961 Act reveals that all that it protects is the existing rights, title or interest in a Dholi, thereby indicating that all that legislature intended to protect were subsisting rights but did not intend to confer any right beyond the rights and obligations conferred by the Dholi. Section 4(3)(i) of the 1961 Act, therefore, does not protect the rights of a Dholidar who has stopped performing his obligation, under the Dholi. To hold otherwise, would absolve the Dholidar of his obligation and in essence, alter the Dholi into an absolute dedication of property. Consequently, if a Dholidar ceases to perform his obligation, the protection provided by Section 4(3)(i) of the 1961 Act shall no SHAMSHER SINGH 2015.08.03 16:52 I attest to the accuracy and authenticity of this document Chandigarh CWP-3368-1988 [ 17 ] longer be available and the settler of the Dholi, in this case, the Gram Panchayat, which has stepped into the shoes of the original proprietors of the Shamilat Deh of the village, may legitimately maintain a petition for restitution of the land.
A perusal of the impugned orders reveals that the Assistant Collector, Ist Grade, the Collector and the Commissioner have recorded concurrent findings of fact that Dholidars have stopped serving drinking water. The petitioners have not controverted these findings by reference to any relevant evidence or pleading that would enable us to hold that these findings of fact are in any manner incorrect or recorded by ignoring any relevant evidence adduced by the petitioners. The petitioners have, on the other hand, averred and urged that there is no condition that if the Dholidar ceases to perform his obligation, the land would revert to the settlers of the grant. The averments and the argument are misplaced. A Dholi is a mutually beneficial, bilateral grant of land in return for services to be rendered. The obligation to perform a service, religious or social, is integral to a Dholi and its continuation. The moment a Dholidar stops performing his obligation, the settler of the Dholi or his successor, may maintain a claim for restitution of the land settled by the Dholi. A reference in this regard, may be made to the following judgments: -
1. Sewa Ram Vs. Udegir, AIR 1922 Lahore 126;SHAMSHER SINGH
2. Dharam Vir Vs. Bahadur Singh and another, 2007 2015.08.03 16:52 I attest to the accuracy and authenticity of this document Chandigarh CWP-3368-1988 [ 18 ] (1) PLR 176;
3. Durga Dass @ Dawarka Dass Chela Vs. Commissioner, Hissar Division, Hissar and others, CWP-14964-2009, decided on 03.08.2012.
At this stage, it would be appropriate to reiterate, as already recorded in a preceding paragraph, that Section 4(3)(i) of the 1961 Act, protects the existing rights, title and interests of a Dholidar but does not provide that even if a Dholidar ceases to abide by the terms & conditions of a Dholi, his rights shall continue to be protected or that he shall continue to unilaterally enjoy the usufruct of the land, assigned to him. The wazib-ul-arz for the year 1879 clearly records that the Dholi shall continue so long as the Dholidar continues to serve drinking water. The Dholi being heritable, by the subsequent wazib-ul-arz for the years 1909-10 and 1957-58, does not alter the basic condition of the grant of the Dholi i.e. the Dholidar must continue to serve water for him to enjoy the usufruct of the land.
The petitioners have failed to controvert findings of fact recorded in the impugned order or adduce any evidence that they are still serving water. The Dholi whether permanent or temporary, whether heritable or not, has thus come to an end for failure of the petitioners to perform their obligation to serve water. The petitioners have been divested of any right in the land, in dispute, whether as Dholidars or in any other manner, by their own conduct. The SHAMSHER SINGH 2015.08.03 16:52 I attest to the accuracy and authenticity of this document Chandigarh CWP-3368-1988 [ 19 ] petitioners having ceased to perform their obligations, the land must necessarily revert to the settlers of the Dholi, now represented by the Gram Panchayat of he village.
Consequently, we affirm the impugned orders in so far as they hold that the Dholi has come to an end for failure of the petitioners to perform their duties as Dholidars. As a consequence, the land being Shamilat Deh, must revert to the existing proprietor i.e. the Gram Panchayat and as the petitioners are nothing more that unauthorised occupants, the Assistant Collector, the Collector and the Commissioner have rightly ordered their eviction.
In view of what has been recorded hereinabove, the writ petition is dismissed but with no order as to costs.
[ RAJIVE BHALLA ]
JUDGE
29th July, 2015 [ AMOL RATTAN SINGH ]
Shamsher S.Sabharwal JUDGE
SHAMSHER SINGH
2015.08.03 16:52
I attest to the accuracy and
authenticity of this document
Chandigarh