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2004 DIGILAW 361 (PNJ)

Hardeep Singh v. Bhai Udhe Chand

2004-03-24

V.K.BALI

body2004
Judgment V.K.Bali, J. 1. This Regular Second Appeal has been filed by Hardeep Singh son of Santa Singh, who was arrayed as defendant No. 1 in the original lis. Suit filed by Bhai Udhey Chand, respondent No. 1 herein, against Hardeep Singh and Bhai Sunder Chand for declaration to the effect that alienations made by the second respondent herein, Bhai Sunder Chand, of the land, subject matter of dispute, for a period of 99 years in favour of Hardeep Singh vide two lease deeds dated 3.2.1975 and 25.7.1975, would have no effect on the right of the plaintiff as a Mahant as also Uddasi Mandal and Institution of Dharamsala Uddasin of Mehatpur, Tehsil Nakodar, being inalienable after the death of Bhai Sunder Chand, the second respondent. This suit was decreed by learned Subordinate Judge, 1st Class, Nakodar, vide his judgment and decree dated 22.7.1977. Aggrieved, Hardeep Singh filed appeal against the judgment and decree passed by learned trial Court, which has since been dismissed by learned Additional District Judge, Jalandhar, vide his judgment dated 31.11.1979. 2. Brief facts of the case, giving rise to the suit with the relief, as noted above, would reveal that plaintiff Bhai Udhey Chand is the eldest son of Rai Chand, as shown in the pedigree table, reproduced in the judgment recorded by learned trial Court and is rightful heir of a Mahant of Uddasi Dharamsala, Mehatpur and surrounding villages, including Bulanda village, Tehsil Nakodar and has, thus, a right to file the suit. Even otherwise too, every believer in Uddasi faith had an inherent right to protect the property of the Uddasi Dharamsala, to which this Muafi land in dispute was attached, according to the principles of Uddasi Sect and Uddasi Mandal. It was then pleaded that Bhai Kishan Chand was a muafidar of the land, which was attached to Uddasi Mandal. It was then pleaded that Bhai Kishan Chand was a muafidar of the land, which was attached to Uddasi Dharamsala, Mehatpur and the income of this land was used for the benefit of the Dharamsala concerned, members of Uddasi community and the needy general public and could not be used by Bhai Kishan Chand or after his death, Bhai Sunder Chand, defendant No. 2, exclusively. Bhai Sunder Chand had legally no right to spend the income for his own use, exclusively. Bhai Sunder Chand had legally no right to spend the income for his own use, exclusively. Kishan Chand died about 24-25 years ago, when the suit was filed and after his death, his estate was inherited by Sunder Chand, defendant No. 2, to the extent of 1/2 share and Bhai Rai Chand and Bhai Ram Chand to the extent of remaining 1/2 share, by mutual consent. It was then pleaded that this very land was sold by Bhai Kishan Chand, predecessor-in-interest of the rights of Muafi in respect of this land, whereupon, none other than defendant No. 2 raised an objection pertaining to mutation of sale in favour of one Mehanga Singh and this objection was upheld. Mehanga Singh then filed a civil suit, which was decreed. Aggrieved, Bhai Sunder Chand filed appeal, which was also dismissed. Then Bhai Sunder Chand filed Regular Second Appeal, where he succeeded and his appeal was accepted and it was held by the High Court that the land was Muafi land and Bhai Sunder Chand had no right to make sale of the same. Aggrieved, Mehanga Singh filed appeal in Honble Supreme Court but the same was dismissed. Despite the fact that nature of the property and the fact that the same could not be alienated has since been established upto the Apex Court, the very person, who came against the first sale, this time himself vide two deeds, dated 3.2.1975 and 25.7.1975, leased the disputed land to Hardeep Singh, who, as mentioned above, was arrayed as defendant No. 1 in the original lis. There is no need to give other facts of the case in view of the limited contention that has been raised in support of this appeal by learned counsel representating appellant Hardeep Singh. Suffice it to say that the pleadings of the parties resulted into framing the following issues:- "1. Whether the plaintiff has got locus standi to file the present suit? OPP 2. Whether the land in suit is muafi land and the defendant No. 2 was not competent to lease it out? 3. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD 4. Whether the Uddasi Mandal is a necessary party to this suit? OPD 5. Whether the property in suit has not been properly described? OPD 6. Whether the suit for declaration is maintainable? 7. 3. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD 4. Whether the Uddasi Mandal is a necessary party to this suit? OPD 5. Whether the property in suit has not been properly described? OPD 6. Whether the suit for declaration is maintainable? 7. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP 8. Whether the defendant No. 1 is a bonafide transferee for value, without notice and in good faith, if so, its effect? OPD. 9. Whether the defendant No. 2 leased out the land in suit in favour of the defendant No. 1, if so, when and to what effect? OPD 10. Whether the plea taken by defendant No. 1 is a matter of res judicata? OPP 11. Relief." 3. All that has been urged in support of this appeal by Mr. V.G. Dogra, learned counsel representing the appellant, is that learned Courts, erred in holding that earlier judgment of this Court, Ex.P-12, recorded in RSA No. 1633 of 1962, decided on 6.3.1963, operated as resjudicata inasmuch as, whereas alienation in the case culminating into judgment, Ex.P12, was a sale, in the present case, it is a case of lease for 99 years. Learned counsel, however, on a specific question put to him as to whether lease for 99 years has been held to be a sale by judicial precedents, in all fairness states that right from 1922, in the matter of Sewa Singh v. Udheygir, A.I.R. 1922 Lahore 126, till 1981, at least, all judicial precedents are to be effect that lease for 99 years would partake the character of sale. He, however, states that a Division Bench of this Court in Baba Badri Dass v. Sh. Dharma and Ors., 1981 P.L.J. 447, doubted the correctness of the judgment in Sewa Singhs case (supra). Learned counsel, however, states that all subsequent judicial precedents, holding lease for a period of 99 years as sale, are based upon a Division Bench judgment in Sewa Singhs case (supra). Learned counsel further states that by simply doubting the correctness of the finding, question as such was left open. 4. Learned counsel, however, states that all subsequent judicial precedents, holding lease for a period of 99 years as sale, are based upon a Division Bench judgment in Sewa Singhs case (supra). Learned counsel further states that by simply doubting the correctness of the finding, question as such was left open. 4. The Court might have gone deeper into the contention raised by learned counsel representing the appellant but the findings recorded by this Court in Ex.P12, which, as mentioned above, have since already been confirmed by Honble Supreme Court, are such that no different view can be taken than the one taken by this Court in Ex.P12. Same are reproduced for ready reference:- "After going through the entire record, I am of the view that, a) the property in dispute was a part of the Shamlat Deh; b) it appears to have been given by the proprietary body for the maintenance and up-keep of the Dharamsala. It may be mentioned that the Gram Panchayat of this village was made a party, but it remained absent in spite of service; c) the muafi was also granted by the Government in favour of the Dharamsala; and d) Kishan Chand was the Mahant of this Dharamsala, but he had no power either to dispose of the property in dispute or to transfer its possession and the sale made by him in favour of the plaintiff, Mehnga Singh, does not confer any rights on the vendee. The net result of the above discussion is that the plaintiff cannot get a decree for possession of the suit property. Its possession would remain with the Dharamsala and the Mahant of this dharamsala would merely manage the same for the benefit of the dharamsala. It may be mentioned that the appellant in his written statement had taken the plea that he was the Mahant of this dharamsala. However, there was no issue on this point and, therefore, it cannot be held that the appellant is the Mahant of this dharamsala. But it is unnecessary to decide this matter in these proceedings, because the plaintiffs suit is being dismissed as mentioned above." 5 Property in dispute is a part of Dharamsala. It was given by the proprietary body for the maintenance and up-keep of the Dharamsala. But it is unnecessary to decide this matter in these proceedings, because the plaintiffs suit is being dismissed as mentioned above." 5 Property in dispute is a part of Dharamsala. It was given by the proprietary body for the maintenance and up-keep of the Dharamsala. It was a case of Muafi, that had been granted by the Government of favour of the Dharamsala and any body for the time being, who might have been managing the affairs of the Dharamsala, can only be a Mahant and would have no power, either to dispose of the property in dispute or transfer its possession. The pertinent finding of learned Single Judge in Ex.P12 is, thus, that the Mahant has no power, either to dispose of the property or transfer its possession. Certainly, by virtue of a lease, possession is transferred and, therefore even if it would be assumed that lease for 99 years would not partake the character of the sale, the very transfer of possession with whatever deed it may be, has to be held as invalid. 6. Finding no merit in this appeal, the same is dismissed, leaving, however, the parties to bear their own costs.