Ram Sarup vs Commissioner, Ambala Division

V.K. Jhanji, J.

The present writ petition has been filed by the petitioners challenging the orders dated 16.3.1983, 19.12.1983 and 17.1.1985 passed by the Assistant Collector Ist Grade, Jhajjar, Collector, Rohtak and Commissioner Ambala Division, Ambala, respectively, ordering ejectment against the petitioners in pursuance of an application filed by the Gram Panchayat, Dhanirwas, Tehsil Jhajjar, District Rohtak (respondent No. 4) under Section 7 of the Act for the ejectment of Gulab Singh Dohlidar from the land measuring 19 kanals 2 marlas on the ground that Gulab Singh had leased out the land in dispute for 99 years to the petitioner and is liable to be ejected as a Dohlidar could not sell, gift or mortgage the land. The Assistant Collector Ist Grade, Jhajjar, after giving opportunity to Dohlidar, ordered the ejectment. This order of the Assistant Collector Ist Grade was set aside by the Collector, Rohtak in appeal who remanded the case for fresh decision after giving lessees i.e. the petitioners an opportunity of hearing. The Assistant Collector Ist Grade vide order dated 16.3.1983 held that Dohli is liable to be terminated as Dohlidar has violated the terms and conditions of Dohli by giving the land on lease for 99 years.

The order of the Assistant Collector Ist Grade was upheld in appeal by the Collector, Rohtak, vide order dated 19.12.1983. The revision filed by the petitioners was dismissed by the Commissioner, Ambala Division, Ambala, vide order dated 17.1.1985. The revision was dismissed by the Commissioner mainly on the ground that the petitioners have no right to raise the question of title as the said defence was available only to Dohlidar. The petitioners have challenged the said order in the present writ petition.

After hearing the learned counsel for the parties, we are of the view that this petition deserves to succeed. As far as the ground that the petitioners have no right to raise the question of title is concerned, the same cannot be sustained. It is now well settled that law grants possessory remedies to all who have been in possession. In all cases, possession is protected against a stranger though not against a true owner or his representative. Admittedly, the petitioners are in possession of the land in dispute and thus are entitled to protect their possession. The petitioners not only can raise all the defences which are available to Dohlidar from whom they have taken the land on lease but can also question the action of the respondents terminating Dohli and can raise the question of title being the lessees from Dohlidar. As far as the other ground as to whether the lease in question amounts to alienation or not, we are not in a position to give any finding because we do not have the advantage to look into the terms and conditions of the lease as no copy of the lease deed has been placed on the record. The decision of this Court in Dharma v. Smt. Harbai, 1976 PLJ 617 relied upon by the counsel for the respondents is clearly distinguishable on the facts of this case. In Dharma''s case (supra), in view of the terms and conditions of the lease deed produced in that case, it was held that it was a case of permanent alienation. However, in the present case, in absence of the lease deed, we cannot raise such a presumption that the lease in question amounts to permanent alienation.

Counsel for the petitioners has also challenged the locus standi of the Gram Panchayat in filing application under Section 7 of the Act on the ground that the land in dispute is covered under clause (1) of subsection (3) of Section 4 of the Act and thus does not vest in Gram Panchayat. in support of this argument, the learned counsel for the petitioners has relied upon WazabUIArz of Village Dhanirwas Tehsil Jhajjar District Rohtak for the year 190910 to whom that Dohli in respect of the land in dispute was created by Nandu in favour of the predecessors of the petitioners.

In reply, the learned counsel for the respondents has submitted that the land in dispute vests in Panchayat as mutation in favour of the Panchayat was sanctioned in the year 1954 and Dohlidars thus are holding the land under the Panchayat. Respondents No. 1 to 3 while deciding application under Section 7 of the Act have not given any finding as to whether the land vests in Panchayat or not. We find from the record that though this point was raised before respondents No. 1 to 3 but no finding has been given by them.

In the facts and circumstances of this case, we think it proper that the case should be remanded back to the Assistant Collector Ist Grade, Jhajjar to decide the application of ejectment afresh on merits.

For the reasons recorded above, this writ petition is allowed and orders dated 16.3.1983 (Annexure P1), 19.12.1983 (Annexure P3) and 17.1.1985 (Annexure P5) passed by the Assistant Collector Ist Grade, Jhajjar, Collector, Rohtak and Commissioner, Ambala Division, Ambala, respectively, are hereby quashed and the case is remanded back to the Assistant Collector Ist Grade, Jhajjar The petitioners shall be entitled to raise the question of title and raise all the defences even the ones available to Dohlidar from whom they have taken the land on lease. The Assistant Collector Ist Grade shall also decide as to whether the land in dispute vests in Panchayat or is covered under clause (1) of subsection (3) of Section 4 of the Act. In case he comes to a finding that the land in dispute vests in Panchayat and Panchayat has the locus standi to file application for ejectment of the petitioners, then he shall also determine as to whether lease in question amounts to permanentalienation after taking into consideration the terms and conditions of the lease. Parties through their counsel are directed to appear before the Assistant Collector Ist Grade, Jhajjar on 2nd September, 1991.