Ajmer Singh and Others vs Dera Baba Lal Dass and Others

T.P.S. Mann, J.—Suit for specific performance of an agreement to lease dated 27.4.1965 and for permanent injunction filed by plaintiff-appellants was dismissed by learned Sub Judge, IInd Class, Patiala ''B'' vide judgment dated March 31, 1980. Aggrieved of the same, the plaintiffs filed an appeal which was partly accepted by learned Additional District Judge, Patiala vide judgment dated 21.9.1983, whereby the judgment and decree passed by the learned trial Court in so far as it related to dismissal of suit for permanent injunction restraining the defendants from dispossessing the plaintiffs from the suit land otherwise than in due course of law was passed in favour of the plaintiffs and against the defendants. However, judgment and decree of the learned trial Court regarding dismissal of suit for specific performance was upheld. The plaintiffs thereafter filed the present second appeal in this Court so as to seek relief of specific performance of the agreement in question.

The case of the plaintiffs-appellants as set up by them in the plaint was that Mahant Chetan Dass, Mohtmim of Dera Baba Lal Dass, leased out 149 bighas 7 biswas of land out of the suit land in their favour on 28.5.1954 for a period of 18 years at the rate of Rs. 300/- per year. Later on, the land in dispute was leased out by Dera Baba Lal Dass on 27.4.1965 in their favour for a period of 99 years for a sum of Rs. 10,000/-. The plaintiffs had paid Rs. 1,000/- on 27.4.1965, whereas a sum of Rs. 3,000/- had already been paid in two installments of Rs. 1,500/- each on 19.1.1963 and 19.2.1963. Formal lease deed for 99 years was agreed to be executed one month before the termination of the earlier lease of 18 years. However, the lease deed was never executed. Rather, on 10.11.1968 Mahant Chetan Dass executed a lease deed for 99 years in favour of defendants-respondents Nos. 2 to 4 for 99 years regarding the same very land. The said lease deed dated 10.11.1968 was a sham transaction and executed with the notice of the earlier lease in favour of the plaintiffs. The plaintiffs were not bound by the same and entitled for specific performance of the agreement dated 27.4.1965, besides relief of injunction.

In its written statement, defendant No. 1 denied the claim of the plaintiffs and alleged that the lease of 18 years in favour of the plaintiffs came to an end on 27.5.1972 and thereafter their possession over the suit land was that of trespassers. The agreement of lease said to have been executed by Mahant Chetan Dass on 27.4.1965 in favour of the plaintiffs was a forged document and result of misrepresentation. Mahant Chetan Dass was a drunkard and profligate. He had lost his senses. No sane person would have executed any such agreement for a meager sum of Rs. 10,000/- in respect of the suit land, which was much more valuable. Moreover, the alleged agreement of lease dated 27.4.1965 was without legal necessity. It amounted to permanent alienation of land which could not be permitted under the law.

Defendants Nos. 2 to 5 also opposed the claim of the plaintiffs and pleaded that the land in dispute was given to them on lease by defendant No. 1 vide registered lease deed dated 13.11.1968 and the period of lease was to start after the expiry of 18 years'' lease in favour of the plaintiffs. The possession of the land was delivered to them on 28.5.1972 and they started tilling the land. On 2.6.1972, when they were away, the plaintiffs took forcible possession of the land in dispute for which they had no right.

The plaintiffs preferred to file a replication to the written statements of the defendants aforementioned wherein they reiterated the allegations made by them in the plaint. It was also asserted that Mahant Bant Dass had claimed succession of the Dera on the basis of a Will executed by Mahant Chetan Dass in his favour. They also pleaded that the amount settled on 27.4.1965 at the time of execution of the agreement was reasonable and Mahant Chetan Dass was neither a drunkard nor profligate.

On the pleadings of the parties, learned trial Court framed the following issues:

Whether defendant No. 1 executed agreement in favour of the plaintiff on 27.4.1065 for leasing out the land in dispute to the plaintiff for 99 years which was to expire on 15.6.1972? OPP

Whether defendant No. 1 received Rs. 4,000/- from the plaintiff as advance under the agreement dated 27.4.1965? OPP

Whether the plaintiffs have waived their rights by their acts and deeds by themselves giving possession of the land in dispute to the defendant Nos. 2, 3 and 4 and also by participation in the lease of the land in dispute to these defendants as alleged in Para No. 6 of the written statement? OPD (2, 3 & 4).

What is the effect of execution of the lease deed dated 13.11.1968 by defendant No. 1 in favour of defendants Nos. 2, 3 and 4? OPP

Whether the plaintiffs are entitled to specific performance of the agreement dated 27.4.1965? OPP

Relief.

Later on, following additional issues were also framed:

Whether the plaintiffs are in possession of the suit land as tenants of the Dera? OPP

Whether the deceased Mahant executed a lease deed dated 13.11.1968 in favour of defendants Nos. 2 to 4? OPD

If the possession of the lease deed dated 13.11.1968 is proved whether it is illegal, null and void in excess of right and authority in violation of the purposes of the trust? OPD

Whether the possession of the plaintiffs after the expiry of 18 years has become that of trespasser? OPD

Whether the agreement dated 27.4.1965 is illegal, null and void and unenforceable on the grounds mentioned in paras 2 and 3 of further objections? OPD

Whether the agreement dated 27.4.1965 has been executed for legal necessity? OPP

Whether the suit has been properly valued for the purposes of Court fee? OPP

The relief of permanent injunction granted by the learned first appellate Court to the plaintiffs-appellants has not been challenged by the defendants-respondents. The present appeal has been filed by the plaintiffs so as to seek relief of specific performance of the agreement dated 27.4.1965.

According to learned Counsel for the appellants, following substantial questions of law arose for determination:

Whether the oral evidence adduced by plaintiffs could be completely ignored on the ground that documentary evidence, which could only be in possession of respondent No. 1 ought to have been produced by the plaintiffs?

Whether the unrebutted oral evidence adduced by the plaintiffs could be ignored by the trial Court, when die defendant No. 1 did not even step in the witness box?

In order to prove execution of agreement dated 27.4.1965, the plaintiffs relied upon the testimonies of Garibu PW-1 Bant Singh PW-2 and Shish Ram PW-3. Both Garibu and Bant Singh were said to be the attesting witnesses of the agreement, while Shish Ram is one of the plaintiffs. On the other hand, the defendants produced Nihal Singh DW-1, Krishan Ram DW-2 and Lal Singh, DW-3.

Though it was held by the learned courts below that, the agreement was executed by Mahant Chetan Dass on 27.4.1965 in favour of the plaintiffs and that an amount of Rs. 4,000/- stood received under the same, the plaintiffs being in possession of the suit land, yet the defendants-respondents failed to establish as to why Mahant Chetan Dass felt the necessity of executing the same when the earlier lease was still in existence. It was also held that there was no evidence brought on record by the plaintiffs to prove the necessity for which the alienation of such a large magnitude as leasing out land measuring 149 bighas 7 biswas for 99 years by Mahant was effected.

The law is well settled that any alienation made by Mahant of a Dera for legal necessity would be sufficient to justify the same but in case no such necessity is established then the Courts would not hesitate to disallow its effect/operation. Reference in this regard can be made to Shromani Gurdwara Parbandhak Committee, Amritsar v. Sewa Singh 1973 CLJ 463 (P&H) wherein it was observed as follows:

While disposing of this contention it has to be borne in mind that in the present case, we are not concerned with the power of a Mahant to sell the properties belonging to the institutions or create a permanent lease regarding them. What we have to decide is whether the Mahant could lease the property for a limited period of 20 years and if so, in what circumstances? It was conceded by the learned Counsel for the appellant that the law governing such cases was that if the manager of a religious institution effected a temporary alienation of the land for necessity, then such an alienation was valid. But if necessity for the lease in question was not established then in such circumstances, it would have no effect after the death of the Manager or the termination of his office, whichever was earlier. Reference for this proposition of law may be made to a Bench decision of Tek Chand and Hilton, JJ. In Mathra Dass v. Gopal Nath and Ors. AIR 1929 Lah 816, wherein it was held:

No necessity for the lease in question has been established and in such circumstances, it is settled law that the lease cannot have effect after the death or termination of the incumbency of the office by the Mahant who made it.

No such documentary evidence has been brought on record by the plaintiffs-appellants from which it could be inferred that Mahant Chetan Dass was having a legal necessity to execute lease deed dated 27.4.1965 in their favour. They have relied upon the oral testimonies of Sant Singh PW-4, Jagan Nath PW-5 and Shisha Ram PW-6, who claimed that the Mahant needed the money for carrying out the repairs of smadh and building of the Dera. Such oral evidence was not enough to prove the necessity for which the alienation of a large tract of land measuring 149 bighas 7 biswas was executed in favour of the plaintiffs and that too for a period of 99 years.

Learned Counsel for the appellants submitted that any documentary evidence regarding legal necessity for which amount had been received by Mahant Chetan Dass could be in possession of the defendants and not in possession of the plaintiffs and, therefore, the latter could only rely upon oral evidence. Moreover, Mahant Bant Dass of Dera Baba Lal Dass after the death of Mahant Chetan Dass did not step into the witness-box to rebut the oral evidence led by the plaintiffs.

The onus to prove additional issue No. 6 that the agreement in question was executed for legal necessity was upon the plaintiffs. They were required to lead sufficient and convincing evidence to prove the existence of legal necessity for which Mahant Chetan Dass had executed the agreement dated 27.4.1965 in their favour.

Once they fail to discharge the said onus, they cannot be granted the relief of specific performance of the agreement in question. As such, both the substantial questions of law, as claimed by the appellants, do not arise for consideration.

The concurrent findings arrived at by the learned lower Courts regarding non suiting the plaintiffs, qua relief of specific performance, are based on proper appreciation of the pleadings and evidence led by the parties. No case is made out for any inter ference in the same.

The appeal is without any merit and, therefore, dismissed. No costs.