Back
2006 Supreme(P&H) 3376
PUNJAB AND HARYANA HIGH COURT
Adarsh Kumar Goel and Rajesh Bindal, JJ.
Dharam Vir - Appellant
Versus
Bahadur Singh and another - Respondents
R.S.A. No. 904 of 1983.
Decided On : 25 August, 2006
For the Appellant :Ms. Alka Sareen, Advocate.
For the Respondents:Mr. C.B. Goel and Mr. Dheeraj Lather, Advocate.
Headnote:
DOHLI TENURE - ALIENABILITY - CONFLICT OF DECISIONS - REFERENCE TO DIVISION BENCH - HELD, DOHLI TENURE MAY BE A RENT-FREE GRANT FOR THE BENEFIT OF A TEMPLE, MOSQUE OR SHRINE OR TO A PERSON FOR A RELIGIOUS PURPOSE AND THE GRANT CONTINUES TILL THE HOLDER CARRIES OUT THE DUTIES OF HIS OFFICE AND CAN BE TERMINATED ON FAILURE TO CARRY OUT THE SAID DUTIES. DOHLIDAR MAY BE A LANDOWNER QUA HIS TENANT IN THE SITUATION MENTIONED IN BABA BADRI DASS'S CASE. DOHLIDAR MAY BE AN OWNER IF DOHLI IS IN THE NATURE OF GIFT AND AT THE TIME OF CREATING DOHLI, NO CONDITION FOR USE OF THE DOHLI LAND FOR THE BENEFIT OF A TEMPLE, MOSQUE OR SHRINE OR OTHER RELIGIOUS PURPOSE IS IMPOSED. IF A DOHLI IS HELD TO BE A GRANT FOR A RELIGIOUS PURPOSE, ITS MANAGEMENT, ALIENABILITY AND SUCCESSION WILL NOT BE GOVERNED BY LAW OF MANAGEMENT, ALIENABILITY OR SUCCESSION OF AN INDIVIDUAL'S PROPERTY BUT BY SUCCESSION, MANAGEMENT OR ALIENATION OF A RELIGIOUS PROPERTY.
Fact of the Case:
Suit for declaration to the effect that Will dated 22.12.1969 in favour of appellant Dharamvir was void and inoperative against the interest of the plaintiff and that plaintiff was dohlidar of 3/4th share of land mentioned in the suit and 2/3rd share in the tubewell and was, thus, entitled to injunction restraining appellant-defendant No. 1 from interfering in the rights of the plaintiff.
Finding of the Court:
In absence of pleadings about terms of dohli and material showing violation of terms of dohli, finding of inalienability of dohli tenure cannot be sustained.
Issues: 1. Whether the said Prithi Singh, plaintiff and defendant were owners in possession of 1/3rd share each in the tubewell as alleged ? 2. Whether Mool Chand died about 25 years ago ? 3. Whether Dharam Pal defendant No. 2 has not been heard of for the last more than 20 years. If so, to what effect ? 4. Whether the plaintiff is the nearest heir of Prithi Singh, if so to what effect ? 5. Whether Prithi Singh executed a vaid Will in favour of defendant No. 1. If so to what effect ? 6. Whether the plaintiff has no locus standi ? 7. Whether the suit is not maintainable in the present form ? 8. Whether the owners of the land and the Gram Panchayat are necessary party to the suit. If so to what effect ? 9. Whether the plaintiff is estopped from filing this suit ? 10. Whether the suit is time barred ? 11. Whether the civil Court has no jurisdiction ? 12. Whether the valuation of the suit for purposes of court-fee is inadequate ? 13. Relief.
Ratio Decidendi: The plaintiff has claimed his rights under the Hindu Succession Act, 1956 implying that the property held by the testator was his personal property. Having taken such a plea, the plaintiff could not plead that the title of testator was not absolute title. On this ground alone, the plaintiffs suit ought to fail.
Final Decision: Appeal allowed, judgment and decree of the courts below set aside and suit dismissed.
This appeal has been placed before us in pursuance of order of reference by one of us (Adarsh Kumar Goel, J.) dated 5.10.2004 on account of conflict of decisions on the question of alienability of dohli tenure. The order of reference is as under :-
"This appeal has been preferred by the defendant against decree of the courts below rejecting Will dated 22.12.1969 in favour of the defendant on the ground that the same was executed by Prithi Singh, who was a dohlidar and on account of customary law, had no right to make a Will in respect of the property.
Nature of right of a dohlidar has been considered in various decisions. In Sewa Ram v. Udegir, ILR 2 Lahore 313, it was observed :-
"It is beyond dispute that tenure of this kind cannot be alienated by sale or mortgage, and there can be little doubt that any alienation of that character, if made by the dohlidar, would be absolutely void. This being the case, we are not prepared to accept the contention that the present dohlidar, who is the son of the alienor, is precluded by any rule of law from impeaching the alienation made by his father. As the transaction was altogether void, we consider that even the alienor could have successfully pleaded in answer to the plaintiffs suit that the latter could not enforce it in a Court of law. There is, therefore, no reason why the defendant should not be able to impeach the alienation, more especially when we remember that the office of a dohlidar is similar to that of a trustee, and that it is open to one trustee to impeach the validity of an alienation made by his predecessor."
The said view has been followed by this Court, inter alia, in Tirkha and others v. Dwarka Parshad and another, 1972 PLJ 614; Sahdev Singh v. Lakshmi Chand and others, 2003(1) RCR(Civil) 300 (P&H) : 2003(1) PLR 573 and Dhani Ram and another v. Gram Sabha and Gram Panchayat of Village Jatmalpur and others, 1984 PLJ 234. The said decisions have been relied on by the learned counsel for the respondents in support of the view taken by the courts below.
Learned counsel for the appellant referred to the decisions of this Court in Mahant Sirya Nath chela Mahant Puran Nath v. The Financial Commissioner, Haryana and other, 1969 RLR 5; Mahant Karam Singh and others v. Shri Mulakh Raj and another of Amritsar, 1992 HRR 408; Smt. Daljit Kaur v. Smt. Rukman and others, 1989(1) PLR 30 and particularly, a DB judgment of this Court in Baba Badri Dass v. Dharma and others, 1982(1) ILR 491, wherein it was inter alia observed as under :-
"Sewa Rams case (supra) gave at the same time two sets of reasonings in our view mutually exclusive, namely that a dohlidar is a trustee and his alienations of the dohli property/rights are void ab initio and the other that the dohlidar is a perpetual tenant. Now this kind of reasoning, with due respect, does not appeal to us. It is well understood in legal annals that a trustee is the legal owner of the property, the actual owner thereof having lost title thereto by the creation of a trust. The equitable ownership is the trust property vests in the beneficiaries. The trust is thus an incident of dual ownership in which the creator of the trust no longer figures. A perpetual tenant, on the other hand, partakes the character of an occupancy tenant and in this relationship his landowner is not divested of the title to the property demised..." (Para 9)
"... It is equally inconceivable how a validly created trust in the event of the trustee or his successors-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 reverts to the original proprietors. The observations of the Bench in Dharmas case (supra) (1976 RLR 641) 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 term is well understood yet is otherwise a landowner for the purpose
