GHISA RAM Vs. SURAT SINGH

JUDGEMENT

(1.) This is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of facts recorded by both the Courts below. It has been concurrently found that the plaintiff respondents are the co-owners of the suit land as has been mentioned in the jamabandis Exs. P1, P2 and the statement made by DW2 admitting the ownership of plaintiff-respondents 2. Even otherwise, the defendant-appellants did not specifically deny the ownership and proprietorship of the plaintiff-respondents. It has further been found that the land in dispute is dohli and no sale, mortgage, lease for 99 years in respect of such a land is permissible and the same has to be held as void ab initio. The lease deed dated 20/8/1994 for a period of 99 years in respect of Dohli land has been held to be void ab initio as it amounted to permanent alienation. The law does not confer any rights on the lessee like the defendant-appellants and reliance has been placed on the judgments of this Court and other courts in the case of Sewa Ram v. Udegir, Tirkha and others v. Dewarka Par shad and another, Sittal Das and another v. Financial Commissioner, Haryana and others. The owners have been held to be competent to file a suit and there was no reference with regard to production of Wajib-ul-arz. The Dohli tenure came to an end because the Dohlidars did not carry out the religious purpose of the Dohli. The claim of the Dohlidar is that his right to occupy and continue as Dohlidar cannot be disputed but they did not produce any condition or restriction to show that Dolhidar was not competent to lease out the land for 99 years. It is appropriate to mention that Dohli is a rent-free grant of a small plot of land by village community for the benefit of a temple, mosque or shrine, or to a person for religious purpose. Such land cannot be alienated by sale or mortgage because the status of Dohlidar is that of trustee. In the instant case, the lease for 99 years at a fixed amount of Rs. 1,10,000/- with possession to Dohli was given to the lessee vide lease deed dated 20.8.1993. Accordingly, the lessee could not be evicted from the Dohli before the expiry of full term of 99 years and possession could not be taken from the lessee, even though Dohlidar has been rendering no service. It has been held by the Courts below that it is settled law that Dohli is not for a permanent tenure; and Dohli rights are extinguished and the property reverts back to the original proprietors. It is in these circumstances that the lease deed in favour of the defendant-appellants was held to be void conferring no right.

(2.) Brief facts of the case which have led to the filing of the instant appeal are that plaintiff-respondents Surat Singh and others filed Civil Suit No. 317 of 2000 dated 8.2.1994 seeking declaration and injunction alleging that the suit land as per entry made in the jamabandi was owned and possessed by the owners whose name figure in Khewat Nos. 50, 51, 52, 54 and 55. The land was given on Dohli to defendant-respondent 8 to 14 several years ago who were in possession as Dohlidars. Similarly, another piece of land owned by Shamlat deh measuring 6 kanals 1 marla was given on Dohli to defendant-respondents 8 to 14. Plaintiff-respondents 1 to 6 further alleged that defendant-respondents 8 to 14, without any legal right permanently alienated the suit land in favour of defendant-appellants and defendant- respondent 7 for a period of 99 years for a consideration of Rs. 1,10.000/- vide registered lease deed dated 20.8.1993. Seeking a declaration, the plaintiff-respondents 1 to 6 asserted that the lease deed amounted to permanent alienation and the same was liable to be de- dared null and void. It was further prayed that plaintiff-respondents 1 to 6 and proforma defendant-respondents 17 to 32 were the co- sharers/co owners of the same.

(3.) The Civil Judge held that Dohlidars were not entitled to lease out the land for a period of 99 years and declared the lease deed dated 20.8.1993 as null and void. The view taken by the Civil Judge was challenged before the learned Additional District Judge who also affirmed the findings. The argument raised that the list of properties comprised in Khewat No. 51, 54 and 55 were not filed and the proprietors of those properties were not served under Order 1 Rule 8 of the Code, was considered by the learned Additional District Judge and it was held that non-service would not vitiate the decree as the proprietors of Khewat Nos. 51, 52, 54 and 55 are the beneficiaries of the decree passed by the Civil Judge. The observations of the learned Additional District Judge are as under:- .....But the question is whether failure of procedure prescribed under Order 1 Rule 8 CPC vitiates the proceedings in the case in hand. The proforma respondents as well as the proprietors of khewat Nos. 51, 52, 54 and 55 are the beneficiaries under the decree in hand. The plaintiffs had filed the suit seeking relief for themselves as well as for other proprietors of the khewats. They did not claim any relief against those proprietors. Thus, in my considered view non- compliance of Order 1, Rule 8 CPC in the case in hand cannot be construed as vitiating all the proceedings. In the absence of compliance of Order 1 Rule 8 CPC, the suit can well be treated to have been filed by the plaintiffs in their individual capacity and not under Order 1 Rule 8 CPC and hence in such circumstances there would be no need to remanded the case back. Reference in this respect may be made to Single Bench authority of our own Hon'ble High Court cited as Suhlar etc. v. Ram Singh, 1987 Recent Revenue Reports 366."