Research › Search › Judgment

Punjab High Court · body

2021 DIGILAW 205 (PNJ)

Fazri v. State Of Haryana

2021-01-22

JASWANT SINGH, SANT PARKASH

body2021
JUDGMENT Jaswant Singh, J. - The petitioner (who is subsequent purchaser) has challenged the order dated 23.07.2019 (Annexure P-7) passed by the Financial Commissioner, Haryana (respondent No. 1) by which revision filed under Section 8 of the Haryana Dohlidar, Butimar, Bhondedar and Muqarirdar (Vesting of Proprietary Rights) Act, 2010 (for short 'the Act') by which order dated 12.02.2013 (Annexure P-4) passed by the Collector, Mewat and the order dated 10.03.2014 (Annexure P-6) passed by the Commissioner, Gurgaon were set aside. 2. Learned counsel for the petitioner has argued that the impugned order dated 23.07.2019 (P-7) has been passed by respondent No. 1 by adopting an erroneous approach while observing and recording that application under Section 3 of the 2010 Act was moved by Mandir Devla through its caretaker-respondent Nos. 4 & 5. It is submitted that the application was moved by respondents Nos. 4 & 5 in their own capacity as Dholidar and Ahertamam who were delivering religious service at Mandir Devla of the village. It is further argued that Mandir Devla is a religious premises and not an entity as held by the authority below and therefore there is gross misreading of evidence led on record. Finally it is argued that the petitioner is a subsequent bonafide purchaser of the property in question and therefore the authority below ought to have considered this aspect of the matter before passing the impugned order and saved his rights. 3. We have heard learned counsel for the petitioner at length and scrutinized the paper book. [3.1] It is evident from the record that an application for grant of ownership rights of the land in question was filed at the instance of Ahtmam (Manager) of Mandir Devla. The Collector, Mewat, vide its order dated 12.02.2013 (P-4), conferred the ownership rights upon Narayan Dass etc. and the appeal filed by the Gram Panchayat before the Commissioner, Gurgaon was dismissed on 10.03.2014 (P-6). However, during the pendency of the appeal before the Commissioner, Gurgaon, the alleged, Dholidars sold 32 kanals of land vide sale deed dated 11.04.2013 to respondent No. 3 (a builder) and 32 kanal and 15 marla to petitioner, respondent Nos. 6 & 7 on 27.05.2013. However, during the pendency of the appeal before the Commissioner, Gurgaon, the alleged, Dholidars sold 32 kanals of land vide sale deed dated 11.04.2013 to respondent No. 3 (a builder) and 32 kanal and 15 marla to petitioner, respondent Nos. 6 & 7 on 27.05.2013. [3.2] The revision petition filed by the Gram Panchayat was allowed by the Financial Commissioner on the ground that it was Mandir Devla which is recorded as a Dholidar in the Revenue Record and in view of Section 2 (d) of the Act, the Ahtemam is not the Dholidar. [3.3] Thus, considering the findings recorded herein above it would be relevant to reproduce Section 2(d) of the Act, which reads as under: (d) Dohlidar, Butimar, Bhondedar or Muqararidar" means a person who has been recorded as such in the revenue record and includes his predecessor and successor in interest. 4. Under Section 13 of the Act, the State Government has the power to make rules and consequently, Haryana Dholidar, Butimar, Bhondedar and Muqararidar (Vesting of Proprietary Rights) Rules, 2011 (for short the Rules ) were framed. Rule 3 of these rules is relevant for adjudication of the controversy involved and therefore same is reproduced as under:- 3. Application for vesting of proprietary rights. - (1) Dholidars. Butimars. Bhondedars or Muqararidars or their successorin- interest whose period of twenty years have been completed on the date of commencement of the Act, shall apply in Annexure-I to the Collector concerned within a period of six months from the date of commencement of these rules for vesting of proprietary rights. (2) Dholidars. Butimars, Bhondedars or Muqararidars or their successorin- interest whose period of twenty years have not been completed on the date of commencement of the Act, shall apply to the Collector concerned within a period of six months from the date of completion of twenty years for vesting of proprietary rights. (3) Dholidars, Butimars, Bhondedars or Muqararidars in occupation of the land in question shall prove their occupation from the entries of the revenue record. (3) Dholidars, Butimars, Bhondedars or Muqararidars in occupation of the land in question shall prove their occupation from the entries of the revenue record. (4) On receipt of an application, the Collector shall examine the eligibility of the applicant and continuous occupation thereof, from the entries in the revenue record, as on the date of making an order, for vesting of proprietary rights: Provided that before passing an order for conferment of proprietary rights on the Dholidar, Butimar, Bhondedar or Muqararidar, the Collector shall afford an opportunity of hearing to the land owner concerned or his successors-in-interest, as the case may be. (5) If the owner of land is the Gram Panchayat or Shamilat Deh, an opportunity of being heard shall be provided to the Gram Panchayat concerned. (6) If the ownership of any plot or site or building within the Abadi Deh is claimed then the possession over the plot or site or building shall have to be proved by the Dholidar, Butimar, Bhondedar or Muqararidar, as the case may be, on the basis of house tax, ration card, telephone bill, water charges bill or any other relevant document. (7) No stamp duty shall be charged from such Dholidar, Butimar, Bhondedar or Muqararidar on account of conferment of proprietary rights. (Emphasis Supplied) [4.1] Thus, as per the scheme of the Act and rules framed thereunder, any person who is recorded as Dholidar would be entitled to file a title suit under the Act, in case he is able to show continuous possession of himself or his predecessor over the land in question for the last more than twenty years. 5. Now coming back to the case in hand, the writ petitioner, on asking of the Court, has placed on record the revenue record from the year 1963-64 onwards as Annexure P-8 (colly). 5. Now coming back to the case in hand, the writ petitioner, on asking of the Court, has placed on record the revenue record from the year 1963-64 onwards as Annexure P-8 (colly). The relevant part of said record reads as under: Year Owner Possession Nature of possession 1963-64 Panchayat Deh Mandir Austhal dholidar ba ahtmam Sheetaldas chela Dhyan dass Sakin deh (When translated means: Mandir Austhal Dholidar through caretaker/ Ahtmam Sheetaldas Chela Dhyan Dass, resident of the village) Without payment of rent for religious purposes and thus exempted 1975-76 Panchayat Deh Mandir Devala dholidar ba Ahtmam Sheetaldas vald Rupa Sakin deh (When translated means: Mandir Devala Dholidar through caretaker/ Ahtmam Sheetaldas son of Rupa, resident of the village) 1985-86 Panchayat Deh Mandir Devla dholidar ba ahtmam Sheetaldas chela Dhyan dass Sakin deh (When translated means: Mandir Devla Dholidar through caretaker/ Ahtmam Sheetaldas Chela Dhyan Dass, residents of the village) Without rent for religious purposes and thus exempted 1995-96 Panchayat Deh Mandir Devla dholidar va ahtmam Sheetaldas chela Dhyan dass Sakin deh (When translated means: Mandir Devla Dholidar and caretaker/ Ahtmam Sheetaldas Chela Dhyan Dass, residents of the village) Without rent for religious purpose and thus exempted 2000-01 Panchayat Deh Mandir Devla dholidar va ahtmam Sheetaldas chela Dhyan dass Sakin deh (When translated means: Mandir Devla Dholidar and caretaker/ Ahtmam Sheetaldas Chela Dhyan Dass, residents of the village) Without rent for religious purpose and thus exempted 2005-06 Panchayat Deh Mandir Devla dholidar va ahtmam Sheetaldas chela Dhyan dass Sakin deh (When translated means: Mandir Devla Dholidar and caretaker/ Ahtmam 5 of 9 ::: Downloaded on - 23-01-2021 11:02:05 ::: C.W.P. No. 10897 of 2020 (O&M) -6- Year Owner Possession Nature of possession Sheetaldas Chela Dhyan Dass, residents of the village) 2008-09 Panchayat Deh Mandir Devla dholidar va ahtmam Sheetaldas chela Dhyan dass Sakin deh (When translated means: Mandir Devla Dholidar and caretaker/ Ahtmam Sheetaldas Chela Dhyan Dass, residents of the village) Without rent for religious purpose and thus exempted [5.1] A perusal of the afore-referred revenue record would show that the land in question was given by the Gram Panchayat for a temple in the Village. This temple was being looked after by a caretaker-Sheetal Dass, whose children (impleaded as respondents no 4 and 5) have claimed right, title and interest over the land in question by invoking the provisions of Act, 2010. 6. This temple was being looked after by a caretaker-Sheetal Dass, whose children (impleaded as respondents no 4 and 5) have claimed right, title and interest over the land in question by invoking the provisions of Act, 2010. 6. Although the writ petitioner has given us the translated versions of the document as Annexure P-8 (colly), but keeping in view the nature of controversy involved, we have undertaken the exercise to look into the vernacular and translated them. Once the vernaculars are pursued then it becomes amply clear that the land in question was given to the Mandir as Dholi and not to the individuals as claimed by the writ petitioner. As per Jamabandi for the years 1963-64, 1975-76 and 1985- 86, the land in question is reflected under the ownership of Panchayat Deh with possession of Mandir Aushtal/ Devla as Dholidar through its caretaker Sheetaldass. These entries however have changed with passage of time as being in possession of Mandir Devla Dholidar and caretaker Sheetaldas. No document has been placed before us, which would show the reason for change in revenue record. Consequently, the subsequent entries where Ba has been changed to Va are without authority and thus liable to be ignored. 7. Even if the subsequent entries are taken on their face value still, they do not advance the case of writ petitioner. Although at first blush these entries might seem to suggest that an individual Sheetaldass is in possession as dholidar of the land, however the entries of revenue record have to be read jointly. Sheetaldas has never been recorded in his individual capacity to be in possession. His possession has always been co-related with the Mandir and that also as a Chela of Dhyan Dass. Meaning thereby, the Mandir has a seat for a Mohatmim/ caretaker/ahtmim/Manager, who is entrusted with the management of the temple Devla. This, fact becomes even more clear when the entry of nature of possession is seen, which depicts that no rent is being charged because it is given for religious purposes. Hence, once it is established that the possession of Sheetaldass was that of caretaker of Mandir Devla, it cannot be said that the nature of his possession was that of a Dholidar. [7.1] It is settled position of law that a temple is an entity of its own but has to work through individuals/ caretakers. Hence, once it is established that the possession of Sheetaldass was that of caretaker of Mandir Devla, it cannot be said that the nature of his possession was that of a Dholidar. [7.1] It is settled position of law that a temple is an entity of its own but has to work through individuals/ caretakers. Although, it has been argued by the counsel for the petitioner that the mandir is not an entity as it is premises, however, we disagree with the said argument raised by the petitioner in view of the revenue record placed before us. It is for the donor to decide to whom it considers as an entity and in the present case the Gram Panchayat has conferred Dholi rights upon the temple. [7.2] Consequently, we hold that the Financial Commissioner had rightly passed the impugned order dated 23.07.2019 (P-7) dismissing the petition filed by respondent Nos. 4 & 5 claiming right over the land as Dholidars. 8. As far as the plea raised by learned counsel regarding his client being a bonafide purchaser is concerned, we are of the view that the said plea is without merit for two reasons: [8.1] Firstly, the petitioner and others had bought the property during the pendency of the proceedings pending before the authorities below and therefore lis-pendens would apply. It is an admitted position that after Collector had conferred rights of ownership upon respondent Nos. 4 & 5 and the appeal was pending against the said order before the Commissioner, Gurgaon, the petitioner and others had bought the land in question. Thus, it cannot be said that they were not aware about the litigation. [8.2] Secondly, when the Financial Commissioner held that authorities below had wrongly conferred ownership upon respondent Nos. 4 & 5, then they could not have transferred a better title than what they had. Hence, there arises no question of transferring perfect title upon subsequent purchasers. [8.3] Since, respondent Nos. 4 & 5 are not owners by any stretch of imagination then no protection can be given to the petitioner, as he had knowingly bought litigation from them. 9. In this view of the matter, finding no merit, instant writ petition is hereby ordered to be dismissed.