RSA No.2706 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2706 of 2010(O&M) Date of decision: 28.7.2010 Satyawan and others ......Appellant(s) Versus Baljit and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Rakesh Kumar Sharma, Advocate for the appellants. Rakesh Kumar Garg, J. CM No.8223-C of 2009 Application is allowed subject to all just exceptions. RSA No.2706 of 2010(O&M) By way of this appeal, the appellants, who are LRs of plaintiff- Surja (since deceased), have challenged the judgment and decrees of the Courts below whereby suit filed by their late father for declaration to the effect that he was in exclusive possession of suit land as Dholidar and mutations sanctioned regarding the suit land were illegal and liable to be ignored with consequential relief of possession, was dismissed. Brief facts which led to the filing of this appeal are that Dalla, common ancestor of deceased Kalu, Budh Ram @ Budhan and the plaintiff was in possession of the land as detailed in the head note of the plaint as Dholidar and after his death, the plaintiff was in possession of 1/3rd share; Budh Ram son of Chhajju 1/3rd share and Kalu son of Mehar Singh alias Mehru 1/3rd share. Kalu died on 16.1.1993 leaving behind the plaintiff as his heir because he was related to Kalu and he was the son of the brother of the father of Kalu. Budha Ram died issueless. Smt. Sarto alias Sarti, was the sister of Budh Ram. Sarto alias Sarti also died and after her RSA No.2706 of 2010(O&M) 2 death, the share of Sarto alias Sarti was wrongly mutated in the name of Daya Chand, defendant and after the death of Budh Ram, the mutation of inheritance regarding Dholidari rights was wrongly sanctioned in the name of Daya Chand as son of Smt. Sarto alias Sarti and Baljit on the basis of a forged Will alleged to be executed by Budh Ram, whereas Budh Ram had no right to execute the Will in respect of Dholidari rights as the same were not alienable. Smt. Bhateri, who was sister of Budh Ram alias Budhan, started claiming her right, out of the share of Budhan in the suit land. Baljit-defendant No.1 also started claiming his share on the basis of forged and illegal Will whereas he had no right, title or interest in the suit land. Moreover, the Will had not been executed by Budh Ram. The Gram Panchayat also started claiming right over the suit land on the ground that Budh Ram and Kalu had died issueless, so it had a right in the same. It was further averred that according to law as provided in section 59 of Punjab Tenancy Act, the plaintiff was the only male heir of Budh Ram alias Budhan and Kalu, therefore, he was entitled to inherit the Dholidari rights exclusively in the suit land. It was further pleaded that if the court came to the conclusion that the plaintiff was not proved to be in possession of the suit land or any party thereof, in that case the plaintiff was entitled to get the possession of the same. It was further pleaded that Kalu at one point of time, alienated his 1/3rd share in the agricultural land comprised in Rect.No.21, Killa No.6/2(3-4), 15(8-0), 14(8-0), 16(8-0), 17/1(2-18), Rect. No.33, Killa No.5/2 (0-12) situated within the revenue estate of village Dhindhar, Tehsil Samalkha, Distt. Panipat vide sale-deed bearing Vasika No.90/1 dated 15.3.1983 to defendants No.5 and 6 and had handed over the possession of the same to the above named vendees and mutation on the basis of the same was sanctioned in their favour, which was illegal against the facts RSA No.2706 of 2010(O&M) 3 and was liable to be ignored as Kalu was in cultivating possession of the suit land as Dholidar and he had no right to alienate the same to defendants No.5 and 6. It was further pleaded that the mutation of inheritance of Chhaju was wrongly and illegally sanctioned in the name of Sarto alias Sarti, the daughter of Chhajju deceased as she could not inherit the Dholidari right of Chhajju deceased and after her death, mutation No.864 had been wrongly and illegally sanctioned in the name of defendant Daya Chand to the extent of 1/9th share. Mutation No.967 of inheritance of Kalu regarding his recorded share in the suit land had been illegally and wrongly sanctioned in the name of Smt. Krishni alias Kreshni daughter of Mehar Singh on 30.11.1999. After the death of Smt. Krishni alias Kreshni, she was succeeded by Parkash, Mai Dhan, Hawa Singh, Banarsi, Ved Parkash sons of Kreshni alias Krishni and Smt. Narain Devi, Smt. Parkashi and Kamla Devi, daughters of Kreshni alias Krishni vide mutation No.968 sanctioned on 30.11.1999. The said mutation No.968 was also illegal, null and void and against the facts. On notice, defendants appeared and filed their joint and separate written statements. Defendant No.1 filed his separate written statement and raised preliminary objections regarding maintainability, suit being bad for mis-joinder and non-joinder of necessary parties, estoppel and locus-standi etc. On merits, the pedigree table as depicted in the plaint was denied and it was stated that there was no relationship between Budh Ram and Baljit. In fact, Baru son of Dalla, the grand-father of defendant No.1 was the real brother of Chhajju, the father of Budh Ram. Said Baru had four sons namely Hari Singh, Phula Ram, Ram Kishan and Neki Ram. At the time of death of Budh Ram, Ram Kishan and Phulla sons of Baru son of Dalla were alive. Even Neki Ram had four sons and one son of RSA No.2706 of 2010(O&M) 4 aforesaid Phulla was alive. Even Budh Ram had one real sister Naro married to Sugna resident of village Alipur, Tehsil Gharaunda, who was alive at the time of death of Budh Ram and after her death, her sons Jai Lal, Krishan and Rameshwar would become owners of her estate. It was further alleged that plaintiff was not the heir of Kalu Ram as Kalu Ram had real sister Kishni, who was married with Singhu resident of village Jalalpur and she was alive at the time of death of Kalu Ram and her sons were also alive and in their presence, no other person could inherit the estate of Kalu Ram. Even plaintiff was not his heir and could not succeed him in the presence of other legal heirs. Deceased Budh Ram had great love and affection with defendant No.1 and he along with his wife and children used to live with him in his house and serve him in every respect in his old age and at the time of his illness even got him admitted in Hospital and got operated him for plies in Jain Charitable Hospital at Ganaur, District Sonepat on 28.3.1993 and he used to cultivate the land during the life time of Budh Ram and he got made the votes of defendant No.1 and his wife with him and he got filed the election forms in that respect. In lieu of love and affection and the service rendered by him, his wife and children, deceased Budh Ram of his own free will got executed and registered a Will on 3.8.1993 regarding his entire property in his favour and after the death of Budh Ram, the mutation of inheritance of the suit property had been rightly entered and sanctioned in his favour on 29.8.1995. Even otherwise, defendant No.1 and his real brothers and cousin were also in equal degree with plaintiff even if he was proved to be male heir of deceased Budh Ram, he was not entitled to inherit the Dholi rights. All other averments made in the plaint were also controverted and the dismissal of the suit of the plaintiff was prayed for. Defendant No.3 filed the written statement admitting the claim RSA No.2706 of 2010(O&M) 5 of the plaintiff in toto. Defendant No.4-Gram Panchayat raised preliminary objections regarding maintainability of the suit. It was further stated that Gram Panchayat was the owner of the land and the same was given to Dalla on rent and his name was wrongly mentioned in the Jamabandi for the year 1991-92 as Dholidar. So, Dalla was the tenant over the suit land and after the death of Kalu and Budh Ram, Nanak etc. had not paid any lagan to the Gram Panchayat, Dhindar. Therefore, the Gram Panchayat, Dhindar was entitled to get the possession of the land from the legal heirs of Kalu, Budh Ram, Nanak etc. and they had no right to claim and retain the possession over the land owned by the Gram Panchayat. Defendants No.5 and 6 pleaded that they had purchased the land in dispute measuring 10 kanals 4 marlas as detailed in para No.1 of their preliminary objections i.e. 1/3rd share out of 30 kanals 14 marlas from Kalu son of Mehar Singh son of Dalla and since then they were in cultivating possession over the same and the plaintiff, who was not the legal heir of deceased Kalu, had no right to challenge the share of defendants No.5 and 6. Defendants No.7 to 14 filed their joint written statement pleading that Dalla had three sons namely Mehar Singh, Chhajju and Baru and in fact, Nanak was not the son of Dalla. The plaintiff had submitted a wrong pedigree table. It was denied that the plaintiff became owner in possession of 1/3rd share after the death of Dalla. In fact, after the death of Dalla, his three sons namely Mehar Singh, Chhajju and Baru succeeded 1/3rd share each. It was further submitted that Kalu had died in the year 1993 and the plaintiff had no relation with Kalu. It was admitted that Budh Ram had died issueless and Smt. Sarti was the sister of Budh Ram and mutation of inheritance of Smt. Sarti had been rightly sanctioned in favour of Daya Chand. It was further submitted that Budh Ram had RSA No.2706 of 2010(O&M) 6 executed and got registered a Will while in a disposing mind and with his free consent in favour of Baljit-defendant. The plaintiff was not in possession over any part of the land in dispute and he was not entitled to the relief of possession also. All other averments made in the plaint were also controverted and dismissal of the suit of the plaintiff was prayed for. Replications to the written statements of the defendants were filed by the plaintiff thereby controverting the contents of the written statements and reiterating the one taken in the plaint. On the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the plaintiff is in exclusive possession as Dholidar on land as detailed in the head-note of the plaint? OPP 2. Whether the Mutation No.893 and 864 of the suit land are illegal, null and void?OPP 3. Whether the plaintiff is entitled to the relief of possession as prayed for? OPP 4. Whether the suit is time barred? OPD 5. Whether the suit in the present form is not maintainable? OPD 6. Whether the plaintiff has no locus standi to file the present suit? OPD 7. Relief.” After hearing learned counsel for the parties and appreciating the evidence led by them, issues No.1 to 3 were decided against the plaintiff and in favour of the defendants and issues No.4 and 5 were decided in favour of the plaintiff and against the defendants. Resultantly, vide impugned judgment and decree dated 24.7.2007, the suit of the RSA No.2706 of 2010(O&M) 7 plaintiff was dismissed with costs. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the LRs of Surja preferred an appeal before the Lower Appellate Court. Vide order dated 15.9.2009, framed the following additional issues: 6(a) Whether the plaintiffs are estopped from filing the present suit by their own act and conduct? OPD 6(b) Whether the suit has not been properly valued for the purposes of court fees? OPD The record of the trial Court was sent back with a direction to give its report on the additional issues No.6(a) and 6(b) and in compliance of order dated 15.9.2009, the Civil Judge (Jr. Division), Panipat vide judgment and decree dated 31.10.2009 decided issue No.6(a) in favour of the defendants and issue No.6(b) in favour of the plaintiff. It may also be noticed that the plaintiff had filed an application for adducing additional evidence but during the course of arguments, the aforesaid application was not pressed and the same was dismissed. The Lower Appellate Court vide impugned judgment and decree dated 29.1.2010 dismissed the appeal. The relevant observations of the Lower Appellate Court reads as follows: “ I have gone through the evidence on record very carefully. There is no pleadings or any evidence as to who was the original Dholidar and who were the persons who gave the land in Dholi. There is no plea either in the plaint or in the written statement as to what were the terms and RSA No.2706 of 2010(O&M) 8 conditions for creating and terminating the Dholi. Even in the revenue record, the terms and conditions of the Dholi have not been incorporated. It is no doubt true that the plaintiff had moved an application in appeal for leading additional evidence to prove the terms and conditions of Dholi, but the said terms and conditions have not been pleaded in the plaint or replication. Even the said application was not pressed by the plaintiff. In the present case, the plaintiff did not plead inalienability of Dholi tenure, but no evidence about origin or terms of Dholi has been brought on record. Similar question arose before the Division Bench of Hon'ble Punjab and Haryana High Court in case reported as Dharam Vir Vs. Bahadur Singh and another, 2007(2) RCR (Civil), 217 in which it was held that crucial issue for holding whether Dholi tenure was alienable or not would depend upon terms of Dholi, expressed or implied. It was further held that in the absence of pleadings about the terms of Dholi and material showing violation of terms of Dholi findings of inalienability of Dholi could not be sustained. The present case is squarely covered by the authority in Dharam Vir's case (supra). In the light of law laid down in the authority (supra), in the facts and circumstances of the present case, it cannot be RSA No.2706 of 2010(O&M) 9 said that Dholi tenure was inalienable as pleaded by the plaintiff in his plaint. During the course of arguments, learned counsel for the plaintiff could not show me any law on the point that the female could not inherit Dholi property. It has come on record that the plaintiff has accepted the mutation of inheritance of Chhajju son of Dalla in favour of his daughter Bhateri as correct and has taken benefit of the same on the basis of Will executed by Bhateri in his favour, but he had challenged the mutation of inheritance of Chhajju in favour of his another daughter Sarti alias Sarto. When the plaintiff has failed to prove that Dholi land is inalienable, Will dated 3.8.1993 executed by Budh Ram in favour of defendant No.1 cannot be said to be wrong and illegal especially in the circumstances when defendant No.1 has proved the Will by examining its attesting witness DW4 Dhara Singh. When the Dholi land was alienable, the plaintiff had no locus-standi to challenge the sale-deed dated 15.3.1983 executed by Kalu in favour of defendants No.5 and 6 when nearest heirs of Kalu (Kreshni sister and her children) to challenge the sale-deed are alive and the suit filed by him on 28.1.1997 challenging the said sale- deed is also barred by limitation as it has come on record that defendants No.5 and 6 have been continuing in possession of the land purchased by RSA No.2706 of 2010(O&M) 10 them under sale-deed dated 15.3.1983 since the day of the execution of the sale-deed. Still not satisfied, the plaintiffs are before this Court in the instant regular second appeal. Learned counsel for the appellants has vehemently argued that the rights of Dholi land are given only to the male members of the Brahman family who are settled in the village and not to their legal heirs such like daughters which have settled elsewhere and are not performing any duties towards religious activities of the village and thus, the inheritance of the Dholi land cannot go to the daughters of the Dholi tenure holder and thus, after the death of forefathers of the plaintiff Sarju deceased became owner in possession of the land in dispute and after his death, the appellants had become owners in possession of the same. It was further argued by him that the land in dispute in the present case is a Dholi land which was given by the land owners of the village to the forefathers of the appellants in lieu of services rendered by them to the land owners of the village and the Courts below have erred at law while non-suiting the appellants. On the basis of the aforesaid argument, learned counsel for the appellants has submitted that the following substantial questions of law arise in this appeal: “(i) Whether the land in dispute is not a Dholi land? (ii) Whether a Dholi land regarding which no terms have been mentioned in the revenue record can be terms as non-Dholi land? (iii) Whether the female heirs of Dholidar has any right in the Dholi land? (iv) Whether the Dholi land is inalienable in its nature? RSA No.2706 of 2010(O&M) 11 (v) Whether the provisions of Section 59 of Punjab Tenancy Act, applies to the Dholi land? I have heard learned counsel for the appellants and perused the impugned judgment and decrees. Both the Courts below on appreciation of evidence have recorded a finding of fact that the necessary pleadings and evidence as to who was the original Dholidar and the persons who gave the land in Dholi and as to what were the terms and conditions for creating and terminating Dholi, were lacking and even in the revenue record, the terms and conditions of the Dholi have not been incorporated and in the absence of the aforesaid pleadings, terms and material showing violations of terms of Dholi, no finding regarding inalienability of Dholi in favour of the appellants can be recorded simply on the basis that the plaintiff had pleaded that Dholi tenure was inalienable. A Division Bench of this Court in a case reported as Dharam Vir Vs. Bahadur Singh and another, 2007(2) RCR (Civil), 217 in which it was held that crucial issue for holding whether Dholi tenure was alienable or not, would depend upon terms of Dholi, expressed or implied. It was further held that in the absence of pleadings about the terms of Dholi and material showing violation of terms of Dholi, the finding in regard to inalienability of Dholi could not be sustained. The present case is squarely covered by the authority in Dharam Vir's case (supra). In the light of law laid down in Dharam Vir's case (supra) and in the facts and circumstances of the present case, it cannot be said that Dholi tenure was inalienable as pleaded by the plaintiff in his plaint. It may be mentioned that learned counsel for the appellant also could not support his argument by citing law that a female could not inherit Dholi property. Rather it has come on record that the plaintiff had accepted the mutation of inheritance of Chhajju Son of Dalla in favour of his daughter Bhateri as correct and has RSA No.2706 of 2010(O&M) 12 taken benefit of the same on the basis of Will executed by Bhateri (defendant No.3) in his favour and thus, he has no locus standi to challenge the inheritance of defendants by female members. No other point was urged. Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed. July 28, 2010 (RAKESH KUMAR GARG) ps JUDGE