R.S.A.No.1006 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.1006 of 2009 (O&M) Date of Decision : 5.5.2009 Badri Parshad ....Appellant Versus Ram Niwas and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Sanjay Mittal, Advocate for the appellant. ... MAHESH GROVER, J. This is defendant's second appeal filed against the judgments of the learned trial Court dated 2.12.2005 and that of the first appellate Court dated 18.10.2008 The plaintiffs/respondents filed a suit against the appellant/defendant and two others pleading that the the appellant is a Dholidar in the suit property. It was pleaded that they are owners of the suit property and that a well and a Dharamshala had been constructed thereon to provide drinking water to general public and for staying of desirous persons in the Dharamshala. It was pleaded that the land and the well was given to the appellant on Dholi and he R.S.A.No.1006 of 2009 (O&M) -2- was required to perform his duties as Dholidar and to carry out the religious functions on the land. The suit land was given to the appellant without any Lagan, Bawaja Punarth. It is further pleaded that since the appellant has failed to perform his duties as Dholidar, therefore, he was entitled to be dispossessed as the purpose of creation of Dholi has been defeated. It was also pleaded that on account of the cessation of the religious activities, the appellant has lost his right to continue in possession of the suit property. The appellant, who was arrayed as defendant No.1 in the suit, pleaded that he was in possession of the suit property since the last more than three decades and was a tenant in the suit property @ Rs.22/- per month. It was pleaded that he is residing in the land along with his family members and is performing his duties and continuously providing drinking water to the public. He denied that he was required to return the suit property to the plaintiffs/respondents in the eventuality of his failure to perform the religious duties. He pleaded that earlier he had filed a suit for permanent injunction against the plaintiffs/respondents which was decreed in his favour and that the plaintiffs/respondents have no cause of action to file the present suit. Replication was also filed by the plaintiffs/respondents denying the plea of tenancy as raised by the defendant/appellant and reiterating the pleas as taken in the plaint. The parties went to trial on the following issues :- 1. Whether the plaintiffs/petitioners are entitled to the possession of the suit property as alleged?OPP R.S.A.No.1006 of 2009 (O&M) -3- 2. Whether the petitioners have no locus standi to file the present suit?OPD 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the plaintiffs are estopped from filing the suit due to their act and conduct?OPD 5. Whether the civil court has no jurisdiction to try and entertain the suit?OPD 6. Whether the suit is barred under Section 92 C.P.C. as alleged ?OPD 7. Whether the suit is hit by principle of res judicata?OPD 8. Whether the defendants are entitled to special costs under Section 35-A C.P.C.?OPD 9. Relief. Both the Courts below on the basis of evidence before them concluded that the plaintiffs/respondents had succeeded in establishing their case that the appellant was a Dholidar in the suit property and has ceased to perform the religious functions and therefore is entitled to be evicted from the suit land. This has resulted in the filing of the regular second appeal in which the learned counsel for the appellant contended that there is no evidence to show that the appellant is a Dholidar on the suit land. In fact, he was a tenant and the respondents were required to prove their case by leading cogent evidence, and since they have failed miserably, the suit of the plaintiffs/respondents could not have been R.S.A.No.1006 of 2009 (O&M) -4- decreed. He relied on the judgment of this Court reported as Dharam Singh and others v. Smt.Phullan Devi and others 2005(3) P.L.R. 175, wherein it was held that unless the conditions of Dholi are reduced in writing in any manner, or proved, the question of violation of the conditions of Dholi cannot be raised. According to the learned counsel for the appellant, the following substantial questions of law arise for the consideration of this Court :- a) Whether it is necessary by the plaintiffs to prove the terms and conditions of Dholi when they are claiming that defendant No.1 has not complied with the conditions of Dholi ? b) Whether the oral evidence can be taken into consideration when there is a documentary evidence on record to rebut the oral evidence? c) Whether there is any mis-appreciation or non-leading of evidence by the Courts below while coming on the conclusion that the defendant No.1 has violated the terms and conditions of the Dholi ? After hearing the learned counsel for the appellant and perusing the impugned judgments, I am of the considered opinion that the appeal is completely without merit. The jamabandi for the years 1994-95, Ex.PW1/A shows that Badri Parshad and Yad Ram have been recorded in possession of the suit land and the column of rent reflects 'without rent due to Dharmarth', and there is also a Piyau and a well in this land. This clearly establishes the fact that the land was being used for religious purposes and the possession of the appellant R.S.A.No.1006 of 2009 (O&M) -5- was for the said purpose to run the Dharmshala and provide drinking water to the general public. The appellant himself while setting up his case in the written statement has not clearly denied the fact that he was required to carry out the religious duties. He has set up tenancy as a plea to justify his possession, but the same could not be proved. Regarding performance of religious functions, he himself has admitted that he and his family members are residing in the suit property and serving water to the passers-bye and passengers and are doing the work properly. In short, he has not denied that this was the purpose for which possession was afforded to him. Consequently, he cannot now turn around to say that the plaintiffs/respondents have failed to prove the terms of Dholi when there is his own candid admission in the written statement, which conforms to the pleadings raised by the plaintiffs/respondents. The observations of this Court in Dharam Singh's case (supra) therefore are of no help to the appellant for this reason. It is next contended that there is only oral evidence adduced by the plaintiffs/respondents. I am afraid this contention is also meaningless. The documentary evidence in the shape of revenue record establishes the factum of the suit property being used for religious purposes and the admission of the appellant similarly proves the case of the plaintiffs/respondents. In this view of the matter, the questions of law which have been raised by the learned counsel for the appellant, apparently do not arise for the reason that the plaintiffs/respondents by virtue of the revenue record proved that the land was being used for religious R.S.A.No.1006 of 2009 (O&M) -6- purposes and the possession of the appellant was to carry out the religious activities therefrom. In so far as the plea of oral evidence regarding cessation of religious activities is concerned, I am of the opinion that this is purely a question of fact which has been determined by both the Courts below, and since it does not involve any question of law, the same need not be interfered. Consequently, the appeal is devoid of any merit and is dismissed. 5.5.2009 (MAHESH GROVER) JUDGE dss