Dev Dutt vs Gram Panchayat Ramila

N.K. Kapoor, J.—This is plaintiffs'' appeal against the judgment and decree of the Courts below by which the suit for prohibitory injunction against Gram Panchayat was dismissed.

The plaintiffs filed suit for prohibitory and mandatory injunction seeking to restrain the defendant Gram Panchayat from interfering in their possession. The case set up by the plaintiffs is that one Chandgi Dass alias Chander Parkash Chela of Sham Dass was the dholidar of the suit land had been in possession as dholidar for the last about 60 years without payment of any rent. Chandgi Dass alias Chander Parkash died in the year 1969 leaving behind plaintiffs ass his successors. Plaintiff Nos. 1 to 7 are sons of Chandgi Dass. Plaintiff No. 8 is the widow whereas plaintiff Nos. 9 and 10 are the daughters of Chandgi Dass. All these persons have claimed that on the death of Chandgi Dass they have become dholidars of the suit land and have a right to continue to be in its possession without any interference from the Gram Panchayat. The plaintiffs further pleaded that the mutation sanctioned by the revenue authorities in favour of the Gram Panchayat, which order has been upheld by the appellate as well as revisional Courts, is illegal and void and does not bind the plaintiffs in any manner.

The defendantPanchayat put in appearance, filed written statement and controverted the various averments made in the plaint. The defendant, however, admitted that Chandgi Dass Chela of Sham Dass was in possession of the land in dispute as dholidar. However, it was pleaded that since Chandgi Dass died without any Chela, dholi rights have come to an end and so have reverted to the real owners and in the instant case to the gram panchayat. This way the possession of the plaintiffs is unauthorised as the gram panchayat is well within its right to seek their eviction in terms of provisions contained in Section 7 of the Punjab Village Commons Lands (Regulations) Act, 1961 (for short ''the Act'').

On the pleadings of the parties, following issues were framed :

Whether Chandgi Dass is also called as Chander Parkash? OPP.

Whether Chandgi Dass died at Ranila in the year 1969? OPP.

Whether the possession of Chandgi Dass alias Chander Parkash over the suit land has been for the last 40 years and without payment of any legal? OPP.

Whether plaintiffs No. 1 to 7 are the sons, plaintiff No. 8 is the widow and plaintiffs Nos. 9 and 10 are the daughters of Chandgi Dass? OPP.

Whether the dohli rights in the suit land have vested in the plaintiffs after the death of Chandgi Dass and whether they have been in possession of it as dholidars? OPP.

If issue No. 5 is proved, whether the dohli came to end and whether the dohli rights in the suit land have reverted to the original owners? OPD.

Whether the order dated 17.872 of the Commissioner and the order dated 16.2.77 of the Financial Commissioner Chandigarh are illegal and void as alleged in para No. 6 of the plaint? OPD.

Whether the defendant Gram Panchayat wants to eject the plaintiff from the suit land forcibly? OPP.

Whether the plaintiffs have no locus standi to file this suit? OPD.

Whether the suit does not lie in this court?

Whether the suit is not maintainable in the present form?

Whether the defendant Gram Panchayat is not a juristic person? If so to what effect? OPD.

Whether the suit land is shamlat deh and has vested in the defendant Gram Panchayat ?

Whether the suit is false and frivolous and if so to what effect ?

Whether the plaintiffs are in possession of the land as trespassers ?

Relief.

The trial Court examined the evidence led by the parties under issue Nos. 5, 6, 7, 13 and 15 together as the decision of one or the other issue had an overlapping effect. It was the admitted case of the parties that Chandgi Dass alias Chander Parkash as dholidar of the suit land did not appoint any their during his life time. Since no Chela had been appointed the Court came to the conclusion that plaintiffs who are sons, daughters and widow of the deceased Chandgi Dass would not automatically become dholidar after the death of Chandgi Dass. As regards the objections raised by the plaintiffs that even if dholi tenure had come to an end yet the property in dispute would revert to its original owner of the panna and not village panchayat, the Court referred to the definition of shamlat deh as given in Section 2(g) of the Act, specifically Section 2(g)(iii) and Section 2(g)(v) of the Act, and construed that since the land given as dholi tenure by the proprietor would come within the ambit of ''benefit of village community'' or for common purpose of the village, it would be shamlat deh and so had rightly been mutated in favour of the gram panchayat. Resultantly, the suit of the plaintiff was dismissed.

The lower appellate Court once again examined of facts as well as on law. The lower appellate Court after exhaustively referring to documentary evidence adduced by the parties came to the conclusion that the land which was given by the proprietor as a dholi tenure came to its end on the death of Chandgi Dass as no Chela had been appointed by him. Similarly, the Court found no merit in the contention of the learned Counsel for the appellants that the land in dispute having not been used for the benefit of village community or part thereof or for common purposes of the village in terms of Section 2(g)(iii) and (v) of the Act would not come within the ambit of shamilat deh as per provisions of the Act. The lower appellate Court also observed that since dholi was created for a ''common purpose'' i.e. a religious purpose and so would be construed and found within the ambit of common purposes of the village. Resultantly, the findings of the trial Court in respect of issues No. 5, 6, 7, 13 and 15 were affirmed. Under issue No. 6, it was held that as per evidence on record gram panchayat had not taken any step to eject the plaintiff from the land in dispute forcibly. However, it was noticed that gram panchayat had already initiated proceedings against the plaintiffs under Section 7 of the Act. This way the appellate Court too found no merit in any of the contentions raised by the appellants and consequently dismissed the appeal.

The learned counsel for the appellants has assailed the judgment and decree of the Courts below on the ground that the same are contrary to the statutory provisions contained in the Act and the judicial pronouncements of this Court. Elaborating the counsel urged that both the Courts have erred in law in construing creation of a dholi tenure by the proprietor to be common purpose of the village or a purpose for the benefit of the village community. Secondly, as per definition of shamilat deh in Section 2(g) of the Act, the land described in the revenue record as shamilat taraf, patti, panna or thola would come within the definition of shamilat deh in case these lands are being put for the benefit of the village community or a part thereof or for the common purposes of the village as per revenue record. Hence, this land would not come within the purview of shamilat deh and so vest in gram panchayat. Thirdly, even if be held that with the enforcement of the Punjab Village Common Lands (Regulation) Act such holdings would vest in the gram Panchayat in terms of the Section 2(g) of the Act, all the same, persons like appellants who have dholidar rights are protected as per Section 4(3)(i) of the Act. This way the judgments and decrees of the Courts below are liable to be reversed.

Dholi tenure is a peculiar kind of the tenure to be found in the southeastern districts of Punjab. It is a rent free grant of a small plot of land by village community for the benefit of a temple, mosque or shrine or to a person for religious purposes. Invariably, the proprietary body is recorded as owners of the property whereas dholidar recorded as a tenant in the column of cultivation. How and in what manner dholi tenure originated is not known. All the same, it is taken that a dholidar is trustee who is entitled to retain its possession and has no power to alienate by means of sale, mortgage, or gift. Since this is an endowment for the benefit of village community rights of dholidar flows to chela as well. The plaintiffs who are sons, daughters, and widow of Chandgi Dass, admittedly, have not succeeded as Chelas. There is neither an averment nor any proof on record that at any given time they or any one of them had been accepted as a Chela by the village proprietary body. In the absence of any Chela of Chandgi Dass such a dholi must be assumed to have come to an end.

Next point which needs consideration is as to whether such a property would revert to the proprietor or the same would vest in the village gram panchayat in view of the provisions of the Act. Expression ''common purposes of the village'' or ''benefit of village community'' has, in fact, not been defined in the Act. All the same it is invariably taken that lands used for the benefit of the village community includes sites, set apart for public use like a chopal or goradeh and the lands given by the common consent to dharamshala, mosque, graveyards, cremation grounds etc. The expression ''benefit of village community'' is intended to cover all sections of the village community including those even who do not own any land in the village. Perhaps of the common good in view, the proprietor thought of giving a piece of land to a Brahmin who was to appropriate the income derived therefrom to maintain temple. However, in the instant case, there is no evidence on record that any temple exists or the income of land is being appropriated for the purpose assigned. All the same, since there is no dispute between the parties that dholi tenure was created by the proprietors of the village, the same would be construed within the expression ''benefit of the village community''. This way the land described as shamlat taraf, patti, panna or thola too would come within the ambit of shamlat deh. Both the Courts rightly came to the conclusion that the land in dispute came within the ambit of shamilat deh and so the mutation sanctioned in favour of the gram panchayat is perfectly legal.

The last plea of the appellants that their rights as dholidars stand protected in terms of Section 4(3)(i) of the Act is also without merit. The Counsel has proceeded on the assumption that the plaintiffs too are dholidars as their father Chandgi Dass was. Had it been so, their rights were, indeed, liable to be protected. But since they have been held to be not dholidars, their possession on the suit land would become unauthorised in view of Rule 19 of the Punjab Village Common Lands (Regulation) Rules, 1964, which reds as under :

"19. Unauthorised occupation of shamlat deh. For purposes of Section 7 of the Act, a person shall be deemed to be in unauthorised occupation of any land in shamilat deh.........

(a) .......

(b) where he being an allottee, lessee or grantee, has by reason of the determination or cancellation of his allotment, lease or grant in accordance with the terms in that behalf, therein contained, ceased whether before or after the commencement of the Act, to be entitled to occupy or hold such land in shamilat deh or"

The appellants are, admittedly, in possession since the death of Chandgi Dass in 1969 and that too without payment of any rent and so possession is wholly unauthorised. All the same, even such a person cannot be evicted forcibly. With a view to recover possession from the plaintiffs defendant gram panchayat is stated to have initiated proceedings under Section 7 of the Act. The suit appears to have been filed to delay pending proceedings which object they seem to have achieved as the appeal was admitted in January, 1981 and has been decided now in 1993. The appeal is devoid of merit and is consequently dismissed with costs. Costs quantified at Rs. 1000/.