HARDEEP SINGH Vs. BHAI UDHE CHAND

JUDGEMENT

(1.) This Regular Second Appeal has been filed by Hardeep Singh son of Santa Singh, who was arrayed as defendant No. 1 in the original lis. Suit filed by Bhai Udhey Chand, respondent No. 1 herein, against Hardeep Singh and Bhai Sunder Chand for declaration to the effect that alienations made by the second respondent herein, Bhai Sunder Chand, of the land, subject matter of dispute, for a period of 99 years in favour of Hardeep Singh vide two lease deeds dated 3.2.1975 and 25.7.1975, would have no effect on the right of the plaintiff as a Mahant as also Uddasi Mandal and Institution of Dharamsala Uddasin of Mehatpur, Tehsil Nakodar, being inalienable after the death of Bhai Sunder Chand, the second respondent. This suit was decreed by learned Subordinate Judge, 1st Class, Nakodar, vide his judgment and decree dated 22.7.1977. Aggrieved, Hardeep Singh filed appeal against the judgment and decree passed by learned trial Court, which has since been dismissed by learned Additional District Judge, Jalandhar, vide his judgment dated 31.11.1979.

(2.) Brief facts of the case, giving rise to the suit with the relief, as noted above, would reveal that plaintiff Bhai Udhey Chand is the eldest son of Rai Chand, as shown in the pedigree table, reproduced in the judgment recorded by learned trial Court and is rightful heir of a Mahant of Uddasi Dharamsala, Mehatpur and surrounding villages, including Bulanda village, Tehsil Nakodar and has, thus, a right to file the suit. Even otherwise too, every believer in Uddasi faith had an inherent right to protect the property of the Uddasi Dharamsala, to which this Muafi land in dispute was attached, according to the principles of Uddasi Sect and Uddasi Mandal. It was then pleaded that Bhai Kishan Chand was a muafidar of the land, which was attached to Uddasi Mandal. It was then pleaded that Bhai Kishan Chand was a muafidar of the land, which was attached to Uddasi Dharamsala, Mehatpur and the income of this land was used for the benefit of the Dharamsala concerned, members of Uddasi community and the needy general public and could not be used by Bhai Kishan Chand or after his death, Bhai Sunder Chand, defendant No. 2, exclusively. Bhai Sunder Chand had legally no right to spend the income for his own use, exclusively. Kishan Chand died about 24-25 years ago, when the suit was filed and after his death, his estate was inherited by Sunder Chand, defendant No. 2, to the extent of 1/2 share and Bhai Rai Chand and Bhai Ram Chand to the extent of remaining 1/2 share, by mutual consent. It was then pleaded that this very land was sold by Bhai Kishan Chand, predecessor-in-interest of the rights of Muafi in respect of this land, whereupon, none other than defendant No. 2 raised an objection pertaining to mutation of sale in favour of one Mehanga Singh and this objection was upheld. Mehanga Singh then filed a civil suit, which was decreed. Aggrieved, Bhai Sunder Chand filed appeal, which was also dismissed. Then Bhai Sunder Chand filed Regular Second Appeal, where he succeeded and his appeal was accepted and it was held by the High Court that the land was Muafi land and Bhai Sunder Chand had no right to make sale of the same. Aggrieved, Mehanga Singh filed appeal in Hon'ble Supreme Court but the same was dismissed. Despite the fact that nature of the property and the fact that the same could not be alienated has since been established upto the Apex Court, the very person, who came against the first sale, this time himself vide two deeds, dated 3.2.1975 and 25.7.1975, leased the disputed land to Hardeep Singh, who, as mentioned above, was arrayed as defendant No. 1 in the original lis. There is no need to give other facts of the case in view of the limited contention that has been raised in support of this appeal by learned counsel representating appellant Hardeep Singh. Suffice it to say that the pleadings of the parties resulted into framing the following issues:-

(3.) All that has been urged in support of this appeal by Mr. V.G. Dogra, learned counsel representing the appellant, is that learned Courts, erred in holding that earlier judgment of this Court, Ex.P-12, recorded in RSA No. 1633 of 1962, decided on 6.3.1963, operated as resjudicata inasmuch as, whereas alienation in the case culminating into judgment, Ex.P12, was a sale, in the present case, it is a case of lease for 99 years. Learned counsel, however, on a specific question put to him as to whether lease for 99 years has been held to be a sale by judicial precedents, in all fairness states that right from 1922, in the matter of Sewa Singh v. Udheygir, A.I.R. 1922 Lahore 126, till 1981, at least, all judicial precedents are to be effect that lease for 99 years would partake the character of sale. He, however, states that a Division Bench of this Court in Baba Badri Dass v. Sh. Dharma and Ors., 1981 P.L.J. 447, doubted the correctness of the judgment in Sewa Singh's case (supra). Learned counsel, however, states that all subsequent judicial precedents, holding lease for a period of 99 years as sale, are based upon a Division Bench judgment in Sewa Singh's case (supra). Learned counsel further states that by simply doubting the correctness of the finding, question as such was left open.