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The present litigation pertains to land measuring 22 kanal 12 marlas situated in village Bohra Kalan, Tehsil and District Gurgaon in respect whereof 'dohli' was created in favour of Kundan husband of Javitri Devi. The appellants/plaintiffs have claimed themselves to be collaterals of Kundan and challenged the mortgage purported to be created by Javitri in favour of predecessor-in-interest of the respondents/defendants on 03.05.1966. It is averred that suit land is a 'dohli' given in 'punarth' by owners of the land and as such, the same is not transferrable by way of sale, gift, mortgage etc. The appellants claimed that they are in cultivating possession of suit land though the respondents are shown to be in possession thereof in the revenue records with the submission that the entries to this effect are wrong and not according to the spot.

Counsel for the appellants would urge that the appellate Court has grossly erred by holding that 'dohli' for 'punarth' was created without any terms and conditions and there was no restriction on use of 'dohli' and as such, transfer of land by Smt. Javitri through mortgage in favour of respondents cannot be held to be void. To bring home his contention, he has referred to entries in the remarks column of jamabandi for the year 1877, Ex.P2 wherein it has been specifically recorded that dohlidar shall not be entitle to transfer the land by way of sale/mortgage etc. in any circumstances. It is further argued that as Smt. Javitri wife of Kundan mortgaged the suit land in violation of terms and conditions of 'dohli' in favour of dohlidar, the mortgage created by Jaivtri is illegal and void ab 4 of 9 inito.

I have heard counsel for the parties, perused the paper book and records.

The appellants/plaintiffs in para 1 of the plaint had raised a plea that Smt. Javitri widow of Kundan is wrongly recorded as dohlidar of agriculture land measuring 22 kanal 12 marlas. Counsel for the appellants, in response to a query, would fairly concede that on death of Kundan, 'dohli' right created in favour of Kundan was inherited by Smt. Javitri as widow. That being so, contention of the appellants raised in para 1 of the plaint is patently misconceived and liable to be rejected.

Findings of the appellate Court that 'dohli' was created without any terms and conditions are factually incorrect when examined in the light of remarks recorded in the jamabandi Ex P2/B, highlighted by counsel for the appellants. Both the Courts did not advert to the issue that even if 'dohli' was created subject to restrictions against alienation by sale, mortgage etc. but if dohlidar had violated the restrictions or created mortgage by violating the conditions, can a dohlidar seek setting aside of mortgage by saying that the same was created in violation of terms and conditions of dohli. However, counsel for the appellants was asked this question but he failed to give any satisfactory reply. There cannot be dispute that a person cannot take advantage of his own wrong nor can get a transfer set aside by contending that he was not competent to do so. That beinig so, if Javitri who created mortgage could not file a suit seeking declaration that the mortgage is null and void, how can the appellants who are claiming right of inheritance through Javitri, can be heard to say that as the mortgage violates the terms and conditions of 'dohli', the same is liable to be set aside.