RSA No.2110 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2110 of 1984 Date of Decision: 16.02.2010 Om Parkash ..Appellant Vs. Salaga & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.O.P.Goyal, Sr. Advocate, with Mr.Varun Sharma, Advocate, for the appellant. Mr.Amit Jain, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This appeal by the plaintiff/appellant is directed against the judgment and decree dated 28.4.1984, passed by the learned Additional District Judge, Faridabad, vide which suit filed by the plaintiff/appellant RSA No.2110 of 1984 2 was dismissed. Plaintiff/appellant filed a suit for declaration, to the effect that the plaintiff along with proforma defendants have become occupancy tenants of the suit land described in para No.4-A & 4-B of the plaint as per their respective shares described and recorded in the jamabandi for the year 1974-75, therefore they are owners in possession of the suit land. Suit was filed on the pleadings that the plaintiff/appellant was recorded as tenant Bhondedar qua the land detailed in paras No.1-A and 1- B of the plaint, measuring 116 kanals 14 marlas. The plaintiff claimed ownership on the basis of decree passed in suit No.348 of 1956 decided on 25.6.1958 by the learned Assistant Collector First Grade, Palwal. It was pleaded that in pursuance to the passing of the decree by the Assistant Collector First Grade, land was partitioned among the co-sharers vide order dated 20.11.1960. Suit was contested, by raising preliminary objections regarding the maintainability, estoppel, collusive nature and the jurisdiction of the court to try the suit. On merit, averments made in the plaint were denied. It was denied that the plaintiff and defendants No.5 to 8 were tenants of the land in suit. Partition of the suit land was also denied. Defendants No.5 to 8 also denied that any written or oral admission was made qua the rights of the plaintiff/appellant. Defendants also denied the averment that the allotment of land, was made to the plaintiff and proforma defendants. Stand taken by the defendants/respondents was that the plaintiff/appellant was in RSA No.2110 of 1984 3 possession of the land in his capacity as Bhondedar, which could not mature into ownership under the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952. Defendants No.7 and 8 also contested the suit filed by the plaintiff. On the pleadings of the parties, learned trial court framed the following issues:- 1. Whether the plaintiffs and defendants No.5 & 6 have become owners of the suit land on the grounds stated in the plaint? OPP 2. If issue No.1 is proved, whether the plaintiffs have no locus standi to file the present suit? OPD 3. Whether the suit is collusive between the plaintiffs and defendants No.1 to 6? OPD 4. Whether the civil court has no jurisdiction to try the matter in dispute? OPD 5. Whether the plaintiffs are estopped by their acts & conduct for filing the present suit? OPD 6. Whether the suit is barred under the principles of res judicata (Issue objected to). 7. Whether the order of ACIG dated 22.1.79 is liable to be set aside on the grounds stated in the plaint, if so its effect?OPP 8. Relief. RSA No.2110 of 1984 4 On appreciation of pleadings and evidence, learned trial court came to the conclusion that the plaintiff and defendants No.5 and 6 had become the owners of the suit land, in view of their status of Bhondedar which matured into complete ownership, by treating them as occupancy tenants. On issue No.2, it was held that the plaintiff/appellant had locus standi to file the suit. Suit was held to be not collusive. Learned trial court also held that the civil court had jurisdiction to try the suit. Issue No.8 was not pressed, whereas issue No.7 was decided along with issue No.1 against the defendants. Consequently, the suit was decreed. In appeal, learned lower appellate court by relying upon the judgment of this court in the case of Dharma Vs. Smt.Harbi 1976 Revenue Law Reporter 641 and Mamala and others Vs. Isa and Ors 1983 PLJ 231, wherein it was held as under:- “ Before I proceed further, I may quote here a passage from the District Gazette, Volume IV A of Gurgaon District compiled and published in 1910 under the authority of the Punjab Government. That passage will illustrate as to what in Bhonda tenure and in what respect it differs from the 'Dohli tenure. At page 177 it is remarked: It is very common for an individual proprietor, and still more so for a whole village community to set apart a small piece of lane, usually two or three Bighas, to be held rent, free RSA No.2110 of 1984 5 from the benefit of some temple, mosque or shrine, or to give a piece of land, on similar favourable terms to a pandit or other person for a religious order. Such a grant is called a dohli, and the holder a dohlidar. So long as the purpose for which the grant was made are carried out, it cannot be resumed, but should the holder grossly fail to carry out of the duties of his office, the proprietors can eject him and put in some one else under a like tenure. The bhonda is like the dohli a grant of a few Bighas of land rent-free. The principal difference is that, while a service for which the dohli is granted is something directly connected with religion, the bhonda is given for some secular service, the such as the duties of the village watchman (chaukidar) or messenger (bulahar). The Bhondedar may be ejected on failure to fulfill the conditions of his tenure and perhaps in some cases at the will of the proprietors. It is simply an old fashioned made of paying for service.” From the above passage, it is clear that Bhondadari tenure is not necessarily heritable, because in some cases it can be terminated at will. Inference of mine finds support from exhibit D.3 which is a copy of sharat wazib-ul-araz relating to this village. It is mentioned in the entry that appointment and removal of the Bhondedar rested with the proprietors of the village.” RSA No.2110 of 1984 6 came to the conclusion that the plaintiff/appellant could not acquire the right of ownership, as Bhondedar right could not be equated with that of occupancy tenant. Accordingly, findings on issues No.1 and 7 were reversed and the appeal was accepted. The suit filed by the plaintiff/appellant was ordered to be dismissed. Mr. O.P.Goyal, learned senior counsel appearing on behalf of the appellant contends, that the appeal raises the following substantial questions of law for consideration by this court:- 1. Whether the right of occupancy of land as Bhodedar is that of occupancy tenant which could mature into the right of ownership? 2. Whether the judgment and decree passed by the learned lower appellate court is the outcome of misreading of pleadings and evidence, as well as authorities relied upon by the plaintiff/appellant? On the first substantial question of law, the learned senior counsel for the appellant contended, that once it was not disputed that the plaintiff/appellant was in possession of the property since the times of his predecessors as Bhondedar, no other conclusion except the one arrived at by the learned trial court could be reached. Learned senior counsel for the appellant in support of this contention referred to Sections 4 (5) & 5 of the Punjab Tenancy Act, 1887 RSA No.2110 of 1984 7 (for short the Tenancy Act) read with Section 4 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short the 1961 Act). Sections 4 (5) & 5 of the Punjab Tenancy Act, 1887, read as under:- “4. Definition - In this Act, unless there is something repugnant in the subject or context- (1) to (4) xx xx (5) “tenant” means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that other person; but it does not include- (a) an inferior landowner; or (b) a mortgagee of the rights of a landowner, or (c) a person to whom a holding has been transferred, or an estate or holding has been let in farm, under the Punjab Land- Revenue Act, 1887, for the recovery of an arrears of land- revenue or of a sum recoverable as such an arrears ; or (d) a person who takes from the Government a lease of unoccupied land for the purpose of subletting it: 5. Tenants having right of occupancy - (1) A tenant- (a) who at the commencement of this Act has for more than two generations in the male line of descent through a grandfather or grand-uncle and for a period of not less than twenty years, been RSA No.2110 of 1984 8 occupying land paying no rent therefor beyond the amount of the land-revenue thereof and the rates and cesses for the time being chargeable thereon; or (b) who having owned land, and having ceased to be landowner thereof otherwise than by forfeiture to the Government or than by any voluntary act, has since ceased to be land-owner continuously occupied the land; or (c) who in a village or estate in which he settled along with or was settled by the founder thereof as a cultivator therein, occupied land on the twenty-first day of October, 1868, and has continuously occupied the land since that date; or (d) who being jagirdar of the estate or any part of the estate in which the land occupied by him is situate, has continuously occupied the land for not less than twenty years, or, having been such jagirdar, occupied the land while he was jagirdar and has continuously occupied it for not less than twenty years.” Section 4 of, 1961 Act reads as under: “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:- RSA No.2110 of 1984 9 (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 Dohlidars, Bhondedars, Butimars, Basikhopohus, Saunjidars, Muqarrirdars; (ii) rights of persons in cultivating possession of Shamilat RSA No.2110 of 1984 10 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 revenue and cesses payable thereon. (iii) rights of a mortgagee to whom such land is mortgaged with possession before the 26th January, 1950.” The contention of the learned senior counsel for the appellant, therefore, was that as the possession of the appellant/plaintiff without payment of any rent stood proved for more than 60 years, the tenancy as Bhondedar held by the appellant matured into the occupancy tenancy under section 5 of the Tenancy Act as per definition of occupancy tenant. It was also the contention of the learned senior counsel for the appellant that under section 4 of the 1961 Act, status of the Bhondedar has been recognized as similar to the occupancy tenant. The learned lower appellate court, therefore, was not justified in reversing the findings of the learned trial court. It was contended that the first question of law be answered in favour of the plaintiff/appellant, and the judgment and decree passed by the learned trial court be restored. Learned senior counsel for the appellant also contended that in the present case, Assistant Collector First Grade had already declared the plaintiff/appellant to be the occupancy tenant in the previous suit on the basis of which suit land was partitioned. That decision had attained finality and could not be reopened or reversed by the learned lower appellate court, RSA No.2110 of 1984 11 in view of principle of res judicata. Learned senior counsel for the appellant also contended that second substantial question of law also deserved to be answered in favour of the appellant, as the findings recorded by the learned lower appellate court cannot be sustained, being the outcome of misreading of statutory provisions referred to above, as also the judgment relied upon by the plaintiff/appellant. Mr. Amit Jain, learned counsel for the respondents vehemently contended, that the question as to 'whether Dohlidar or Bhondedar could claim right of occupancy tenant' already stands decided by this court and the first substantial question of law raised, therefore, does not arise in this appeal. In support of the contention, learned counsel for the respondents placed reliance on the Division Bench judgment of this court in the case of Baba Badri Dass Vs. Sh.Dharma and others 1981 PLJ 447 on which reliance was placed by the learned lower appellate court. The Hon'ble Division Bench was pleased to lay down as under: “4. On the annexation of Punjab to British India the land tenures and rights of landowners came to be governed by two important pieces of legislation. The first was the Punjab Tenancy Act (XXVIII of 1868) which later came to be substituted by the Punjab Tenancy Act, 1887 (XVII of 1887), which held the field till after the independence of the country and still holds the field in a truncated way. The other one was RSA No.2110 of 1984 12 the Punjab Land Revenue Act (XXXIII of 1871), which later came to be substituted by the Punjab Land Revenue Act, 1887 (XVII of 1887), which holds the field till date. These twin legislation i.e. Act XVI and XVII of 1887, have supplemented each other in a variety of ways. Behind each legislation prevails the experience gathered by the British Settlement Officers who had become acquainted with the complex traditions and behaviourisms of the various communities in the State of Punjab. Their experiences, the necessities of proceeding in particular directions in effecting settlements. In regulating land revenue etc. came to be complied in the Punjab Settlement Manual by Sir James M.Dauie, K.C.S.I., I.C.S., the first edition of which was published on 6th October, 1899. There have been subsequent editions as well improving the previous ones. We find the expression 'Dohli' or 'Dohlidar' significantly missing from both the Punjab Tenancy Act and the Punjab Land Revenue Act but alluded to only in the Manual in the following manner:- Glossary of Vernacular Words Dholi-- Death-bed gift of a small plot of land to a Brahman. Book II. The records of Rights Chapter VII- Of tenures and the rights of landowners. Paragraph 142. Malik Kabza.-- “Owners are sometimes found in village communities who do not belong to the brotherhood RSA No.2110 of 1984 13 and are not sharers in the joint rights, profits and responsibilities of its members. Their proprietary title is a complete or undivided one, but it is confined to certain fields and does not include any share in the village waste. The name by which this tenure is officially known in the Punjab is malkiyat makbuza, and the holder of it is called malik kabza These terms indicate that the interest of the proprietor is limited to the land actually in his own possession. This land he can let, mortgage, or sell as he pleases, and he is responsible for the payment of its revenue. A familiar instance of this form of landholding is the right acquired by a Brahman, who receives a dohli or death bed gift of a small plot of land from a landowner. The tenure is also created whenever a landowner sells a part of his holding without the appurtenant share of the village common land. The malik kabza tenure is common in the districts of Gujarat, Rawalpindi, Jhelum, Attock and Hazara, where it was introduced at the first regular settlement under circumstances which will be described in a later paragraph. In some cases the status of malik kabza is combined with that of an inferior proprietor .... ....” “175. Form of ownership recognized.-- Our officers had in fact to seek for a fair compromise of conflicting claims. In Gujarat, which was the first of the districts to be settled, and where the Sikh mill had ground exceeding small the old owners, known RSA No.2110 of 1984 14 as warisan do not seem to have pressed their claims very hotly. But in Jhelum and Rawalpindi, which then included tehsils now in Attock, the former lords of the soil vehemently contested the proprietary right with the cultivating communities. The original villages of the leading clans often covered very large area, and cultivators had been located in outlaying dhoks, or hamlets, whose occupants now claimed to be treated as entirely independent continuities. Tenants in the parent villages alleged that they also possessed full rights as owners on the ground that the old landholders had received from them no sort of recognition of proprietorship. A similar state of things existed in Hazara, where the settlem3ent did not begin till 1868. Four classes of owners emerges-- (a) talukdars or ala malikan, (b) malikan or warisan, (c) adna malikan, and (d) malikan kabza. The nature of the tenure of ownership of the last class has been described in paragraph 142. It was introduced into the settlement of the North-West districts of the Punjab under the orders of Mr.Thornton, the Commissioner of Rawalpindi. It has been remarked that he invented the name, but not the thing. At any rate the solution of the ownership problem which he proposed was not unfair, and where it was adopted the form of RSA No.2110 of 1984 15 landholding produced was not unlike that which had grown up spontaneously in some of the South Western districts. Of course, new tenures of malikan kabza are created whenever land is sold without its appurtenant share in the common waste.” Mr.Douie's views in the Settlement Manual are treated with great respect but these cannot take place of statutory provisions. See Sardara Singh and others V. Sardara Singh and others, 1976 PLJ 199 (DB). Still he had feared while perfecting his first edition in 1899 in this manner:- “......But it must be remembered that the generation familiar with the early revenue history of the Punjab is rapidly passing away, and that experience shows that it is hard to say of any administrative controversy in India that it is really dead, or of any policy that it has been finally abandoned. Some questions which seemed at one time to have been settled are sure to be revived, and it is well that these who may have to take part in the discussion should know, at least in broad outline, what in the past has been urged and decided in regard to them.” From the Settlement Manual it becomes clear that the dohli tenure was a holding the right of which had been acquired by a Brahman, who received it as such as a death-bed gift from a landowner, and that as a dohlidar, he was in in the RSA No.2110 of 1984 16 status of a malik kabza. It is also clearly recognized vide para 175 ibid that these tenures had spontaneously grown in the South-Western districts of Punjab, but had to be given a name when they were being enforced or made applicable in the Northern districts vide para 142 ibid. Being termed as malik kabza, the dohlidar was held under para 142 ibid to be responsible for the payment of land revenue and otherwise entitled to let, mortgage or sell it as he pleased. 13. In Baba Nand Ram's case (supra, the special contract conceived of by A.D.Koshal, J., in which the dohlidar undertakes not to pay any rent to the landowner but binds himself to perform certain other obligations to others, as it appears to us, is not 'a special contract' but for which he would be liable to pay rent for that land to 'that other person'. It appears to us that the service rendered by a Dohlidar I to institutions or persons other than the creator of the dohli, strictly speaking does snot fall either within the concept of rent or within that of a tenant. The liability in the event of the terms of dohli not being faithfully observed is altogether missing in the nature of the creation of the tenure. It is equally inconceivable how a validly created trust in the event of the trustee or his successor-in-interest failing or refusing to perform their duties could warrant the abolition of the trust causing extinguishment of dohli rights or that the property RSA No.2110 of 1984 17 reverts to the original proprietors. The observations of the Bench in Dharma's case (supra) are in the nature of obiter dicta and do not seem to have arisen on the facts of that case. We, therefore, hold that though a dohlidar is not an owner of the land as the terms is well understood yet is otherwise a landowner for the purposes of the Act. The other questions whether he is a trustee or that his alienations are void ab initio do not arise in the present case, though we have our doubts about the correctness of the view in that regard taken by the Lahore High Court in Sewa Ram's case (supra). 15. The concept of perpetual tenancy as conceived of in section 8 of the Punjab Tenancy Act in the light of sections 5, 6 and 7 has also become non-existent on account of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952. Occupancy or perpetual tenants have been made owners of the land. This Act came about to carry out agrarian reforms and to remove the intermediaries. And if the dohlidar is a perpetual tenant as conceived of in Sewa Ram's and Khema Nand's cases (supra) of the Lahore High Court followed in the case of Barat Dass and Baba Nand, Ram by this court, then there is no reason why such like tenure should be allowed to exist in the face of the aforementioned statue. The reason is obvious. The succession to occupancy tenancy was governed by section 59 of the Punjab Tenancy Act whereas succession to the dohli RSA No.2110 of 1984 18 tenure is either natural or traditional. The occupancy tenure is capable of sale carrying with it a pre-emptory obligation to offer it in the first instance to the landowner. There is no such obligation in the dohli tenure treating it for the moment, though not holding that it is transferable. The occupancy rights are capable of being sold in execution of a decree against the occupancy tenant, but the rights of a dohlidar are not subject to