Thus, the decree granted against Gram Panchayat cannot be used against the proprietors as none of them was party before the Assistant Collector. Such void order can be ignored in collateral proceedings i.e. the present suit by proprietors. This is apart from the fact that the limitation to challenge the sale deed would arise when the right to sue accrue to the plaintiff in terms of the Article 58 of the Limitation Act, 1963. Even under Article 59 of the Limitation Act, the period of 3 years to set aside an instrument or a decree or for recession of a contract, the time begins to run when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside, first became known to him. Therefore, the period to set aside the sale deed will not commence from the date the sale deed was registered, but when such sale became known to the plaintiff. On such knowledge alone, the right to sue would arise to the plaintiff and the suit would be within the period of limitation. {Para 17}
IN THE HIGH COURT OF PUNJAB AND HARYANA
R.S.A. No. 4041 of 2007
Decided On: 12.08.2009
Lajja Ram and Ors. Vs. Rati Chand and Ors.
Hon'ble Judges/Coram:
Hemant Gupta, J.
Citation: MANU/PH/2423/2009,2010(1) ICC 70, 2009(4) R.C.R(Civil) 598.
1. This order shall dispose of RSA No. 4041 of 2007 filed by the proprietors challenging alienation effected by defendant No. 1 in favour of defendant Nos. 2 to 5. It shall also dispose of RSA No. 2552 of 2008 arising out of suit for injunction filed by the purchasers to seek protection from dispossession of the land purchased by them. Since, the issue is identical being cross suits, the same are being disposed of together by the common judgment. However, for facility of reference, the facts are taken from RSA No. 4041 of 2007. Defendant Nos. 2 to 5 are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the learned first Appellate Court decreed the suit for declaration, injunction and possession of land measuring 33 kanals 5 marlas said to be owned by Gram Panchayat-defendant No. 6.
2. It is the case of the plaintiffs that 20 years back, defendant No. 1 was assigned the duties of Bhondedar on the land aforementioned. The said defendant ceased to render services to the Temple and migrated to village Nangla Gudhrana, P.O. Aurangabad. He is, thus, ceased to be inhabitant of village Bhurja. The revenue entries continued in favour of defendant No. 1 as Bhondedar even after migration from village Bhurja to village Nangla Gudhrana in the year 1970-71. It is asserted that after defendant No. 1 left village Bhurja, he ceased to be Bhondedar as he stopped rendering services to the temple. However, defendant No. 1 in collusion with defendant Nos. 2 to 5 filed a suit for declaration and acquisition of occupancy rights in the Court of Assistant Collector 1st Grade, Palwal on 9.9.1982. An ex parte decree against the Panchayat was granted on 6.3.1986. After the mutation was sanctioned, defendant No. 1 alienated the suit land to defendant Nos.2 to 5 vide sale deeds dated 24.7.1987, 31.8.1987 and 7.6.1988. It was alleged that the declaration of occupancy rights is wholly illegal and defendant No. 1, who is a Bhondedar cannot become owner of the suit land ever. His assertions that he is occupancy tenant was misconceived and the order passed by the Assistant Collector on 6.3.1986 is illegal and void as no such declaration could be granted by the Assistant Collector. It was alleged that the plaintiffs are interested in the suit land as it was reserved for common purposes of the village by applying pro-rata cut from their respective holdings. It was also alleged that the plaintiffs and other inhabitants worship in the temple and that defendant No. 1, who was engaged for providing services to the temple having left the village, the up-keep of the temple has suffered seriously and, therefore, the plaintiffs sought declaration over the suit land.
3. Defendant No. 1 did not contest the suit. Defendant No. 6 has averred that defendant No. 1 was Bhondedar and was looking after the temple. On the other hand, defendant Nos. 2 to 5 claimed that the plaintiffs were never in possession of the suit land and that by way of adverse possession, defendant Nos.2 to 5 have become owners of the same. It was alleged that vide the order passed by the Assistant Collector, the land does not vest in the Gram Panchayat and that defendant Nos.2 to 5 are owners. It was also alleged that defendant No. 1 was Bhondedar of the suit land for more than 60 years and the temple was looked after by him. It is admitted that defendant No. 1 migrated to village Nangla Gudhrana about 25 years back and permanently settled in the said village and ceased to be the inhabitant of the village Bhurja. It was denied that defendant No. 1 no longer remained Bhondedar of the suit land after 1970-71.
4. The learned trial Court held that defendant No. 1 is performing services in Shivayalay and the jamabandies continued to show possession of Narain Dass and his Guru Mathura Dass. From the jamabandi for the year 1988 to 1999, defendant Nos. 2 to 5 are in possession of the same. The Court held that the decree dated 6.3.1986 and the subsequent sale deeds executed by defendant No. 1 are legal and valid. The trial Court also held that the challenge to the sale deed is beyond the period of 3 years, therefore, the suit is barred by limitation.
5. The learned first Appellate Court reversed the findings and found that Narain Dass-defendant No. 1 was recorded as Bhondedar in possession, in the jamabandi for the year 1983-84 (Ex.P-1) and for the year 1988-89 (Ex.P-2). Narain Dass-defendant No. 1 filed suit Ex.P-6 in the Court of Assistant Collector 1st Grade, Palwal, claiming himself to be occupancy tenant. In the said suit, the judgment and decree Exs.P-3 and P-4, was passed. Thereafter, defendant No. 1 sold land measuring 27 kanals 18 marlas to defendant Nos.2 to 5. The Court found that in the plaint itself, the case of defendant No. 1 was that he is Bhondedar Gair Marusi and is in possession of the suit land and Mandir Shivayalay without any hindrance. It was also pleaded that he is cultivating the land in question, as Bhondedar and in this manner he and his ancestors had relationship of landlord and tenant between them and share- holders and proprietors of Shamlat Deh. With the said pleadings, he has sought declaration that his occupancy tenancy rights have matured into full ownership.
6. The learned first Appellate Court has quoted in extenso from the orders passed by the Assistant Collector 1st Grade, Palwal. The said order grants declaration on the basis of jamabandi for the year 1954-55 reflecting defendant No. 1 and earlier his ancestors to be in possession as Bhondedar.
7. The entire claim of defendant No. 1 is based upon an order dated 6.3.1986 obtained from the Assistant Collector 1st Grade, Palwal, by defendant No. 1 against Gram Panchayat. As per the revenue record, the possession of defendant No. 1 was that of a Bhondedar. Even the Assistant Collector in the aforesaid order has granted occupancy rights observing that the possession of defendant No. 1 and his ancestors is that of Bhondedar. The learned first Appellate Court has recorded a finding of fact that the land in dispute does not vest in Panchayat, as the land, the possession of which was with defendant No. 1 or with his ancestors was reserved for such purposes after applying pro-rata cut in the holdings of the proprietors. Since, the proprietors were not impleaded before the Assistant Collector 1st Grade, the Assistant Collector could not grant any declaration of title in favour of defendant No. 1.
8. I have heard learned counsel for the parties at some length. The nature of Bhondedar rights have been explained in Mamala and others v. ISA and others 1983 Punjab Law Journal 231. This Court has quoted to the following effect :-
"4. Before I proceed further, I may quote here a passage from the District Gazetteer, Volume IV-A of Gurgaon District compiled and published in 1910 under the authority of the Punjab Government. That passage will illustrate as to what is Bhonda tenure and in what respect it differs from the Dohli tenure. At page 177, it is remarked :
'It is very common for an individual proprietor, and still more so for a whole village community to set apart a small piece of land, usually two or three Bighas, to be held rent free for the benefit of some temple, mosque or shrine, or to give a piece of land, on similar favourable terms to a pandit or other person of a religious order. Such a grant is called a dohli, and the holder a dohlidar. So long as the purposes for which the grant was made are carried out, it cannot be resumed, but should the holder grossly fail to carry out the duties of his office, the proprietors can eject him and put in some one else under a like tenure.
The bhonda is like the dohli a grant of a few Bighas of land rent-free. The Principal difference is that, while the service for which the dohli is granted is something directly connected with religion, the bhonda is given for some secular service, such as the duties of the village watchman (chowkidar) or messenger (bulahar). The bhondedar may be ejected on failure of fulfil the conditions of his tenure and perhaps in some cases at the will of the proprietors. It is simply an old-fashioned mode of paying for services.'
From the above passage, it is clear that Bhondadari tenure is not necessarily heritable, because in some cases it can be terminated at will. Inference of mine findings support from Ex.D.3 which is a copy of sharat wazib-ul-araz relating to this village. It is mentioned in the entry that appointment and removal of the Bhondedar rested with the proprietors of the village."
9. The above para will show that though Dholi is generally granted directly connected with religion, whereas, Bhondedar is given for some secular services. The Bhondedar may be ejected on failure to fulfil the conditions of his tenure and perhaps in some cases at the will of the proprietors.
10. In the present case, it is admitted fact that defendant No. 1 has left the village and shifted to village Nangla Gudhrana. He is, therefore, not rendering services as Bhondedar, which are expected from him to do.
11. Whether a Dholidar has a right of alienation, it being a grant or trust for religious purpose or Dholi is a gift, creating full ownership has been examined by the Division Bench of this Court in Dharam Vir v. Bahadur Singh and another, 2007(2) RCR(Civil) 217 (P&H). After considering the entire case law, it has been concluded as under :
"(i) The '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 as held in Sewa Ram's case (supra) ILR 2 Lahore 313 : AIR 1922 Lahore 326 relied.
(ii) 'Dohlidar' may be a landowner qua his tenant in the situation mentioned in Baba Badri Dass's case (supra) 1982(1) ILR 491 relied.
(iii) 'Dholidar' 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, as noticed in judgments of this Court in Baba Badri Dass case, 1982(1) ILR 491 and Dhani Ram's case (supra) (1984 PLJ 234).
(iv) 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."
12. In terms of the aforesaid judgments, it transpires that defendant No. 1- Bhondedar could continue in possession of land in dispute, till such time, he carried out the duties of his office. There are no other terms of Bhondedar produced on record. Therefore, once he has failed to discharge the duties attached to his office, he ceases to be Bhondedar and the property reverse back to the proprietors. Thus, the plaintiffs, who are proprietors have been rightly found entitled to impugne the decree suffered by defendant No. 1 and subsequent sale deeds executed by defendant No. 1.
13. Under Section 4 of the Punjab Village Common Lands (Regulation) Act, 1961, the shamlat deh of any village and the land under shamlat deh vest with Panchayat. However, the existing rights, title or interests of persons, who though not entered as occupancy tenants in the revenue records are accorded a similar status by custom or otherwise, such as Dholidars, Bhondedars etc. is not effected. The said Section reads as under ;
"4. Vesting of rights in Panchayat and non-proprietors :-
(1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interests whatever in the land :-
(a) which is included in the shamilat deh of any village and which has not vested in a panchayat under the shamilat law shall, at the commencement of this Act, vest in a Panchayat constituted for such village, and where no such panchayat has been constituted for such village, vest in the panchayat on such date as a Panchayat having jurisdiction over that village is constituted ;
(b) which is situated within or outside the abadi deh of a village and which is under the house owned by a non-proprietor, shall, on the commencement of shamilat law, be deemed to have been vested in such non-proprietor.
(2) Any land which is vested in a Panchayat under the shamilat law shall be deemed to have been vested in the Panchayat under this Act.
(3) Nothing contained in clause (a) sub-section (1) and in sub-section (2) shall affect or shall be deemed ever to have affected the :-
(i) existing rights, title or interest of persons, who though not entered as occupancy tenants in the revenue records are accorded a similar status by custom or otherwise, such as Dholidars, Bhondedars, Butimars, Basikhuopahus, Saunjidars, Muqarrirdars;
14. In view of the aforesaid provision, it transpires that existing rights, title or interests of persons, recorded in the Revenue records as Dholidars, Bhondedars, etc. shall not be affected by sub section (1) or sub-section (2) of Section 4 of the Act i.e. it will not vest with Panchayat. Thus, the land recorded in possession of defendant No. 1 as Bhondedar does not vest in Panchayat. Consequently, the Assistant Collector 1st Grade, Palwal, could not grant decree of ownership in favour of defendant No. 1 against the Gram Panchayat, as the said land does not vest with Gram Panchayat.
15. Learned counsel for the appellants has then vehemently argued that the suit is beyond the period of limitation as the sale deeds executed in the year 1987-88 are sought to be challenged in a suit filed in the year 1996.
16. Firstly, the proprietors are not party to the decree dated 6.3.1986 or the subsequent sale deeds. The said sale deeds are without any title or interest in the suit property. The sale deeds have been executed by defendant No. 1 even though he had no title or interest to sell the same in favour of defendant Nos. 2 to 5. Since the sales are by incompetent person without having title in the suit property, such sale deed will not confer a valid title in favour of the purchasers. Since such sale deeds are without any title of the vendor, the same can be ignored even in collateral proceedings. This is what has been held by supreme Court in the case of Dhurandhar Prasad Singh v. Jai Parkash University and others, 2001(4) RCR(Civil) 280 : Judgments today 2001(6) SC 573, wherein the distinction between void and voidable order has been discussed in detail. Before proceeding further, it may be relevant to reproduce Para No. 21 of the judgment hereunder:-
"21. Thus the expression "void and voidable" have been subject matter of consideration on innumerable occasions by courts. The expression 'void' has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same it can be disregarded in collateral proceedings or otherwise. The other type of void act, e.g. may be transaction against a minor without being represented by a next friend. Such a transaction is good transaction against the whole world. So far the minor is concerned, if he decided to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceedings the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoidable, e.g. if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as apparent state of affairs is real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given a transaction becomes void from the very beginning. There may be a void transaction which is required to be set aside and the same is avoided from the day, it is so set aside and not any day prior to it. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable".
(emphasis supplied).
17. Thus, the decree granted against Gram Panchayat cannot be used against the proprietors as none of them was party before the Assistant Collector. Such void order can be ignored in collateral proceedings i.e. the present suit by proprietors. This is apart from the fact that the limitation to challenge the sale deed would arise when the right to sue accrue to the plaintiff in terms of the Article 58 of the Limitation Act, 1963. Even under Article 59 of the Limitation Act, the period of 3 years to set aside an instrument or a decree or for recession of a contract, the time begins to run when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside, first became known to him. Therefore, the period to set aside the sale deed will not commence from the date the sale deed was registered, but when such sale became known to the plaintiff. On such knowledge alone, the right to sue would arise to the plaintiff and the suit would be within the period of limitation. In view of the above, I do not find any patent illegality or irregularity in the judgment and decree passed by the learned first Appellate Court, which may give rise to any substantial question of law for consideration of this Court in second appeal. Dismissed.
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