RSA No.1835 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1835 of 2006 Date of decision: 10.9.2008 Satbir Sharma and others ......Appellants Versus Bhagat Ram and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Sanjay Vij, Advocate for the appellants. Rakesh Kumar Garg, J . 1. The plaintiffs filed a suit for declaration with consequential relief of permanent injunction submitting that they are owners in possession till immemorial time as Dholidars in the suit land which was given to the plaintiffs and defendants No.1 to 7 on Dholidari by the ancestors of defendants No.8 to 23, since then the plaintiffs are performing religious duties in the village and according to the terms and conditions of Misahl Hakiyat and Sarat Wazib Ul-arj, the Dholidars cannot be ejected in any manner. 2. It is the further case of the plaintiffs that defendants No.1 to 7 had left the village about 80 years ago and they are no more retaining Dholidari rights in the aforesaid property and as such, they have no right, title or interest qua the same. While leaving the village, they had transferred all rights and interest in the land vide registered sale deed in favour of the plaintiffs but still the defendants intend to dispossess the plaintiffs illegally and forcibly. Hence, this suit. 3. Defendants No.1 to 13 filed written statement objecting to the maintainability of the suit. It was stated that defendants No.1 to 7 are now RSA No.1835 of 2006 2 performing all the religious ceremonies to the owners of the land in question and the plaintiffs have never performed such duties. In addition, it was also pleaded that rather it is the plaintiffs who intend to raise illegal construction upon the suit property thereby changing the nature of the property and for these reasons it was prayed that the suit be dismissed. The plaintiffs examined two witnesses in support of their case who deposed about continuous possession of the plaintiffs as Dholidars upon the suit property who were performing the religious ceremonies thereupon. It is relevant to mention that the defendants opted not to come present to contest the claim of the plaintiffs and hence, were proceeded against ex parte. The suit of the plaintiffs was dismissed by the trial Court vide judgment and decree dated 29.9.2004. 4. Feeling aggrieved against the judgment and decree of the trial Court, the plaintiffs filed an appeal which was accepted partly vide impugned judgment and decree dated 20.9.2005 by the Additional District Judge, Gurgaon, holding that the plaintiffs have not acquired the right of Dholidari qua the share of defendants No.1 to 7 in the suit land. However, the plaintiffs were declared as Dholidars of the total land qua their 5/72 share along with their sisters Rekha, Babita and mother Ranbir Devi. The prayer of the plaintiffs regarding the relief of permanent injunction for raising construction and obtaining possession against defendants No.1 to 7 was also declined on the ground that they are the co-sharers. 5. Still not satisfied, the plaintiffs have filed the present appeal challenging the judgment and decree of the Courts below for the relief which was not granted. 6. Sh. Sanjay Vij, learned counsel for the appellants, has vehemently argued that the Lower Appellate Court has failed to consider the relevant finding and material available on record whereby it is proved RSA No.1835 of 2006 3 that the appellants were entitled to the decree, as prayed for, as the defendants in the suit either did not contest the same on account of having made the statement to the effect that they do not want to defend the suit or were proceeded against ex parte. According to the learned counsel for the appellants, once this fact is available on the record the learned Lower Appellate Court on the basis of the material available on record ought to have decreed the suit. 7. I have heard learned counsel for the appellants. 8. I find no force in the arguments raised by learned counsel for the appellants. Both the Courts below have recorded a concurrent finding of fact that the plea of the appellants that defendants No.1 to 7 had transferred all rights and interest in the land vide registered sale deed in favour of the plaintiffs is not proved on record and the plaintiffs have miserably failed to produce on record any evidence in this regard. The Lower Appellate Court has also recorded a finding of fact on the basis of revenue record that the plaintiffs are cultivating the land in dispute and their possession is to be considered on behalf of all Dholidars being co-sharers as it is a well settled law that possession of a co-sharer on the joint land is to be considered as possession on behalf of all the co-sharers. In fact, the appellants have failed to produce any evidence to prove that they are in exclusive possession of the suit property. In my view, merely because no evidence could be examined by the defendants, suit of the plaintiffs cannot be decreed as prayed. They are required to prove their case by producing cogent and convincing evidence on the file. It is well settled that the plaintiffs are required to stand on their own legs and the findings cannot be based merely on the weakness of the defendants in favour of the plaintiffs. It is also relevant to mention at this stage that it is well settled that a Dholidar neither gets considered as a land owner nor he has right to RSA No.1835 of 2006 4 alienate the whole land nor he can be considered as a tenant and even if the plea of the plaintiff is accepted that defendants No.1 to 7 had left the village 80 years back, yet the plaintiffs cannot be held to be owners of those Dholi rights of defendants and a finding cannot be given that defendants No.1 to 7 have relinquished their Dholidar rights in the suit property in favour of the plaintiffs, as in that eventuality, the land qua share of defendants No.1 to 7 will revert back to its owners. 9. For the reasons recorded above, I find no merit in the appeal. No substantial question of law arises in the present appeal. 10. Dismissed. September 10, 2008 (RAKESH KUMAR GARG) ps JUDGE