Bhim Singh vs Dalip Singh

G.R. Majithia, J.—The defendant has come up in Second appeal against the judgment and decree of the first appellate Court affirming on appeal those of the trial Court.

The facts : The respondentplaintiffs sought a declaration to the effect that their predecessorsininterest had given the land in lieu of which the suit land was allotted in consolidation as Dholi to Manohar Lal son of Kanhiya till the Dholidar rendered services to the owners. The Dholidar leased out the suit land to the defendantappellant for 99 years vide lease deed dated 25.8.1971. The original Dholidar died without leaving any issue and as such the land reverted to the plaintiffs who are the owners. The defendant controverted the allegations made by the plaintiffs and pleaded that the Dholidar was the absolute owner of the land and was competent to create a perpetual lease for 99 years.

The trial Judge framed the following issues :

(1) Whether the plaintiffs are owners of the suit and? OPP.

(2) Whether the suit land was given in dholi by the ancestor of the plaintiffs to Manohar Lal deceased? OPP.

(3) Whether the line of dholidar has become extinct and the suit land thus reverts to the plaintiffs ? OPP.

(4) Whether dholidar has given the suit land on lease for 99 years and this amounts to nonfulfilment of the conditions of dholi ? OPP.

(5) Whether Manohar Lal was absolute owner of the suit land and the defendants are lessee from the said absolute owner? OPD.

(6) Whether there is nonjoinder of necessary parties as alleged in additional plea No. 4 of the written statement? OPD.

(7) Whether the suit is time barred? OPD.

(8) Whether the lease dated 25.8.1971 was done by Manohar Lal with full knowledge of, the plaintiffs and its effect ? OPD.

(9) Whether the suit is not maintainable in the present form? OPD.

(10) Relief.

The trial Court answered issue No. 1 in favour of the plaintiffs and held that they were the owners of the suit land; issue No. 2 was decided in favour of the plaintiffs and it was held that the land was given by their ancestors in Dholi to Manohar Lal; issue No. 3 was found in favour of the plaintiffs and it was held that on the death of Dholidar the rights did not revert to Ravi Dutt or any of his heirs; issue No. 4 was answered in favour of the plaintiffs and it was held that creation of permanent lease for 99 years amounted to nonfulfillment of conditions of Dholi and the land reverted to the owners; issue No. 5 was decided against the defendant and it was held that Manohar Lal Dholidar had not become the absolute owner of the property; issue No. 6 was answered against the defendant and it was held that the suit was not bad for nonjoinder of necessary parties and that Ravi Dutt was not a necessary party to the suit; issue No. 7 was found in favour of the plaintiffs and it was held that the suit was within limitation; issue No. 8 was answered in favour of the plaintiffs and it was held that the lease was created by Manohar Lal Dholidar without the consent of the plaintiffs and issue No. 9 was decided against the defendant and it was held that the suit was maintainable and on the extinction of line of Dholidar the land reverted to the owners. The suit was decreed.

The defendant challenged the judgment and decree of the trial Court in first appeal. It was urged in that Court that the Dholi was created till eternity and the Dholidar was competent to alienate the same and the land would not revert to the proprietors. The first appellate Court after examining the entries in mutation Exhibit P3, under which Dholi was sanctioned in favour of the Dholidar, came to the conclusion that even if the grant was in perpetuity to the Dholidar there was no intention on the part of the proprietors to transfer the rights of ownership to the Dholidar. The rights of ownership vested in the proprietors and the Dholidar was allowed to enjoy usufruct of the property till eternity or any indefinite period. It further found that if the intention had been to transfer the rights, it would have been so said in the order of the revenue officer while sanctioning the mutation. The defendant aggrieved against the judgment and decree of the first appellate Court has come up in second appeal.

The first appellate Court on the basis of evidence rightly came to the conclusion that the Dholidar was not to become the owner of the property given in Dholi to him irrespective of the fact whether he performed services or not. The Dholidar was only given the right to enjoy the usufruct of the property and on the extinction of line of Dholidar, the property was to revert to the proprietors. The perpetual lease created by Dholidar will be invalid after his death. No exception can be taken to the conclusion arrived at by the first appellate Court.

For the reasons stated above, the appeal is dismissed but with no order as to costs.