R.S.A.No. 2532 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2532 of 2009 (O&M) Date of decision: 13.7. 2009 Krishan and others ......Appellants Versus Krishan Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.S.P.Chahar, Advocate, for the appellants. **** SABINA, J. Plaintiffs- Krishan Singh and others filed a suit for possession of half share of disputed land. The suit of the plaintiffs was decreed by the Additional Civil Judge (Sr.Divn.) Rohtak vide judgment and decree dated 25.2.2008. In appeal, the said judgment and decree were upheld by the Additional District Judge, Rohtak vide judgment and decree dated 23.3.2009. Hence, the present appeal by defendants No. 1 to 3. Brief facts of the case, as noticed by the Additional District Judge, Rohtak in para Nos. 2 and 3 of the impugned judgment, are as under:- “2. Brief facts of the case of the plaintiff are that their predecessor interest Ranjit (since deceased) was a R.S.A.No. 2532 of 2009 (O&M) 2 Dholidar of 2/3rd share and was in peaceful cultivating possession as Dholidar in the agricultural land comprised in Khewat No.389 min. Khatoni no.606, Rect, and Killa No.26/8/2 (9-0), 13 (11-12), 27 (0-5) total measuring 20 Kanals 17 Marlas situated in village Hamayunpur, Tehsil and District Rohtak (hereinafter referred to as the disputed land for brevity) which is owned by the Gram Panchayat Previously Neki, father of the plaintiff, was Dholidar of the disputed land and after his death, it was inherited by Rati Ram, Ranjeet, Jai Chand sons of Neki and Smt. Bharto, Smt. Chhoto and Smt. Panmeshwari daughters of Neki in equal shares, vide mutation no.2787 dated 20.1.1981 and this mutation has been duly incorporated in the jamabandi for the year 1984-85. Smt. Panmeshwari, Smt. Bharto and Smt. Chhoto gave their half share to the plaintiff Ranjit (since deceased) vide civl Court decree dated 16.3.1984 and dated 1.10.1987, vide mutation No.2977 dated 22.7.1986 and mutation No.3143 dated 14.11.1987 and handed over possession of the same to him. Defendants No.4 to 6 agreed to lease out half share of the disputed land to late Sube Singh father of defendants No.1 and 2 and husband of defendant No.3 and lease deed No.6038/1 dated 3.2.193 was executed and registered on 3.2.1983 in favour of Sube Singh and R.S.A.No. 2532 of 2009 (O&M) 3 possession was also delivered. The half share of the disputed land was leased out to late Sube Singh for 25 years i.e. from 3.2.1983 to 8.2.2008 and the lease amount of Rs.100/- per year was fixed, which was to be paid by him upto 15th June of every year. The impugned lease deed dated 3.2.1983 is illegal and void as Dholidar has no right to alienate the disputed property, which was a Dholi tenure. The disputed property is a Dholi for the benefit of temple, shrine or for religious purposes. An alienation of Dholi tenure by sale, mortgage, lease or any other alienation is void-ab-initio. The lease deed is without consideration and lessor was not competent to lease out the disputed land. Neither deceased Sube Singh nor his L.Rs have paid the lease amount as per terms and conditions of the lease deed dated 3.2.1983 and defendants No. 1 to 3 had detailed all the lease amount illegally and forcibly. Request of the plaintiff Ranjeet (since deceased) to the defendants to ignore the impugned lease deed and to get it set aside and to deliver the possession of half share of the disputed land to the plaintiffs, was refused. Hence, this suit. 3. Upon notice, defendants No.1 to 5 appeared and in their joint written statement have taken preliminary objections that suit deserves to be dismissed as it has R.S.A.No. 2532 of 2009 (O&M) 4 been filed against a dead person i.e. Smt.Bharto, who had died in the year 1994; that plaintiff has no locus- standi or cause of action to file the suit. On merits, it is averred that plaintiff is not Dholidar of the disputed land. The revenue entries in the jamabandi for the year 1994- 95 are not correct and based on illegal mutation. It is admitted that Neki was Dholidar but is further averred that mutation No.2787 dated 21.1.1981 is incorrect and consequently the entries in the jamabandi for the year 1984 are also wrong. The civl Court decree is illegal and void and any mutation sanctioned on the basis of a decree is also illegal and void as Dholidar has no right to alienate Dholi land in any manner. Defendants No. 1 to 3 are lessee of the disputed land and the lease deed is valid and legal. The lease is not alienation in the eyes of law and simply the right of cultivation is given to the lessee as the cultivating possession of the lease is secured till the expiry of the lease time. The Dholi in question is not created for the benefit of temple, shrine or for other religious purpose but was given to the Dholdiar to use the usufruct for the livelihood of Dholidar, which will be inherited by his successors according to law. The Dholi was a Ta-dawam (Perpetual) and lease was with consideration as the disputed land was not cultivable R.S.A.No. 2532 of 2009 (O&M) 5 when it was taken on lease and there were deep ditches in the land and lessors have spent fifteen to twenty thousand rupees to make the land cultivable and in fixing the tubewell etc. The defendants have taken additional pleas that decree and mutations suffers from infirmities and illegalities and are based on fraud and misrepresentation and are also not registered.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is Dholidar of 2/3rd share and is in peaceful possession of the suit land as mentioned in para No.1 of the plaint as alleged? OPP 2. Whether the plaintiff is entitled for the relief of possession as claimed in the plaint? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff has no locus-standi to file the present suit? OPD 5. Whether the plaintiff has no cause of action to file the present suit? OPD 6. Relief. ” After hearing learned counsel for the appellants, I am of the opinion that the present appeal is devoid of any merit. Neki Ram was father of plaintiff Ranjit Singh (since R.S.A.No. 2532 of 2009 (O&M) 6 deceased), who was Dholidar of the suit land and after his death the suit land was inherited by Ranjit Singh and defendant Nos. 3 to 6(i) to (vii) in equal shares. The land was given to the appellants on lease from 3.2.1983 to 8.2.2008 @ Rs.100/- per annum. The case of the plaintiff was that he had got half share in the suit land by virtue of civil Court decrees dated 16.3.1984 and 1.10.1987. Learned Additional District Judge, Rohtak has observed in the impugned judgment that as per the revenue record, plaintiff was Dholidar of the suit land to the extent of 2/3 share. From the lease deed, it is evident that defendant Nos. 4 to 6(i) to (vii) had leased out half share of Dholi in favour of Sube Singh i.e. father of defendant Nos. 1 and 2 and husband of defendant No.3. However, the lease amount was not paid by the defendants. Hence, the lease deed has expired. The defendants have failed to lead any evidence to show that the lease deed was still in operation. Learned counsel for the appellants has failed to point out that the observations of the learned Additional District Judge, Rohtak were contrary to record. In these circumstances, the Courts below have rightly decreed the suit of the plaintiffs. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE July 13, 2009 anita