@JUDGMENTTAG-ORDER
Rakesh Kumar Jain, J.@mdashThis order shall dispose of two writ petitions namely CWP No. 14964 of 2009 titled as Durga Dass alias Dawarka Dass Chela v. Commissioner, Hissar Division, Hissar and others for short ''1st petition) and CWP No. 9332 of 2010 titled as Mehar Singh v. State of Haryana and others (for short ''IInd petition'') as similar question is involved in both the writ petitions for adjudication. In the 1st petition, the petitioner has prayed for issuance of writ in the nature of certiorari for quashing orders dated 28.11.2000 (Annexure P-14) passed by respondent No. 3 (Assistant Collector, 1st Grade, Jind), 25.5.2004 (Annexure P-16) passed by respondent No. 2 (Collector, Jind) and 26.6.2009 (Annexure P-18) passed by respondent No. 1 (Commissioner, Hissar Division, Hissar) whereby an, application filed by Jaina Ram, who is now represented by respondents No. 4 and 5, u/s 7(2) of the Punjab Village Common Land (Regulations) Act, 1961 (for short ''the Act'') has been allowed. In this petition, the petitioner has alleged that land comprising in Khewat No. 482, Khata No. 575, Rect. No. 32, Killa No. 15 (8-6), 16 (6-2), 25/2 (3-18), Rect, No. 47, Killa No. 15(8-6), 16(6-2), 25/2(3-18), Killa No. 5/1/1 (5-2), 5/1/2(1-0), total measuring 24 kanals 8 marlas situated in Village Bibipur, Tehsil and District Jind, was owned by Grain Panchayat but was in possession of Suraj Dass Chela Chet Ram Beragi as ''Dholidar'' and has been mutated in favour of Chalti widow and the petitioner Durga Dass s/o Suraj Dass by way of mutation No. 976 dated 26.9.1974.
2. It is alleged that Dholidari rights are heritable and there cannot be any revocation of such rights unless conditions of Dholidari are reproduced in writing and proved. The petitioner has thus, claimed protection u/s 4(3)(i) of the Act.
3. In the IInd petition, the petitioner has prayed for issuance of writ in the nature of certiorari for quashing orders dated 9.5.2007 (Annexure P-4) passed by respondent No. 3 (Assistant Collector, 1st Grade, Sonepat), 29.11.2007 (Annexure P-6) by respondent No. 2 (Collector, Sonepat) and 19.3.2009 (Annexure P-8) by respondent No. 1 (Commissioner, Rohtak). In this case, respondent No. 5/Daya Singh filed a petition u/s 7 of the Act in respect of land comprising Khewat No. 157, Khata No. 281, Khasra No. 12/20, 21, 22, total measuring 21 Kanals 9 Marias, situated in village Tewari, Tehsil Ganaur, District Sonepat, which is admittedly owned by Gram Panchayat. It is alleged that the land in question was in possession of Chandan Singh as a ''Dholidar'', who has established it in his CWP No. 5101 of 1976, decided on 21.9.1976, and was the predecessor-in-interest of the petitioner. It is further alleged that Gram Panchayat had earlier filed petition u/s 7 of the Act against the petitioner, which was dismissed on 29.10.1996 and the appeal filed against it was also dismissed on 5.2.1997 but thereafter one of the respondents, namely, Daya Singh/respondent No. 5 filed application u/s 7, which has been allowed by all the authorities under the Act. The petitioner has submitted that the Dholidari rights are heritable and being ''Dholidar'', the petitioner is protected u/s 4(3)(i) of the Act.
4. In both the aforesaid writ petitions, written statements have been filed by the respondents.
5. In the 1st petition, written statement filed by respondents No. 4 & 5. Durga Dass (petitioner) has admitted in the cross-examination before the Courts below that he is not Chela of Suraj Dass. It was alleged that Dholi was given to Chet Ram Beragi for religious purposes, who was succeeded by his chela Suraj but he did not leave any chela. The petitioner has specifically denied that he is a claimed Dholidari rights being the son of Suraj Dass.
6. In the IInd petition also the written statement has been filed in which it is alleged that Mehar Singh-petitioner is neither a Chela nor he is performing any social duties which Chandan Singh was performing and no stall for serving water to the general public was found. In view thereof, it is argued that the Dholi has reverted back to the Panchayat.
7. Thus, in both the cases, the question involved is "Whether Dholidari rights are heritable and if yes, whether the petitioners in both the cases are entitled to seek protection u/s 4(3)(i) of the Act?"
8. As in both cases, the petitioners have claimed protection u/s 4(3)(i) of the Act, it would be relevant to refer to the said provision, which is reproduced as under:
Section 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 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 hauq 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 mis Act.
(3) Nothing contained in clause (a) of sub-section (1) and in sub section (2) shall affect or shall be deemed ever to have affected the;
(i) 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, Butimars, Basikhopahus, Saunjidars, Muqarrirdars;
(ii) rights of persons in cultivating possession of Shamilat deh, for more than twelve years 1 [immediately preceding, the commencement of this Act] without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon.
(iii) rights of a mortgagee to whom such land is mortgaged with possession before the 26th January, 1950.
9. Apparently, Section 4(3)(i) of the Act is an exception to Section 4(1)(a) of the Act as it protects the existing right, title or interest of persons, who are recorded as Dholidars, Bhondedars, Butimars, Basikhopohus, Saunjidars, Muqarrirdars.
10. Before proceeding further, it would be relevant to refer to the meaning of the aforesaid terms.
''Dholidar'' - is a person to whom rent free grant is given by the village community for benefit of temple, mosque and shrine or for rendering any requisite service. The Dholi rights are extinguished after his service is over and the property reverts to its original proprietors. In case, it is shown to be gift of land then sharat wajib-ul arz or any other cogent evidence in support is required.
''Bhondedar''- is a person to whom a rent free land is given for some secular service such as duty of the village watchman (chowkidar) messenger (bulahar). It is an old fashioned mode of paying for services.
''Butimar'' - is a tenant, who clear jungles and brings land under cultivation.
"Basikhopahus"- are tenants, who are settled down on the land and build as a basik or homestead or of near it for the purpose on a implied contract that they shall hold the land so long as they farm well and pay their stipulated rent. They may be evicted from land but cannot be turned out from basik or homesteads.
"Saunjidars" - the persons having dome right, as per the Jamabandi, similar to occupancy tenant, but with some limitations according to the wajib-ul-arz of a particular revenue estate.
"Muqarrirdars" - is interfere in degree to a Malik Makboza, who is recorded as having heritable estate in the land which he occupies and from which he cannot be ousted so long as he pays equal rent to the proprietors.
11. Counsel for the petitioners has cited a Division Bench judgment of this Court in the case of "Dharam Vir v. Bahadur Singh and another" 2007(2) R.C.R.(Civil) 217: 2007(1) PLR 176, wherein the question involved was whether Dholidar'' has a right to make a will in reflect of the property acquired as ''Dholidar?
12. The Division Bench made reference to various judgments in extent so and answered the question referred, to the following effect:
(i) The ''dholi'' 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 our 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 Lah 326 relied.
(ii) ''Dholidar'' may be a landowner qua his tenant in the situation mentioned in
(iii) ''Dholidar'' may be an owner if ''dholi is in the nature of gift and at the time of creating ''dholi'' no condition for use of the dholi land for the benefit of a temple, mosque or shrine or other religious purposes is imposed, as noticed in judgments of this Court in
(iv) If a ''dhoti'' is held to be 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.
13. Thus, it has been held that the question as to whether the Dholi rights are heritable or not would depend upon the terms of Dholi, express or implied because if the Dholi tenure is a rent free grant for the benefit of a temple, mosque or shrine or to a person for a religious purpose then the grant would continue till the holder carries out the duties of his office which would terminate on failure to carry out the said duties and if the Dholi is in the nature of a gift at the time of its creation and there is no condition imposed for the use of the Dholi for the benefit of a temple, mosque or shrine or other religious purpose then he would become the owner and property in the hands of such a ''Dholidar'', could always been inherited in terms of the Succession Act.
14. However, in the first petition. Chet Ram Beragi was Dholidar, who further had a chela Suraj Dass, who did not appoint any other chela. The petitioner has failed to prove that the said Dholi was a death bed gift to "C" Dholidar or meant for performing religious duties because after the death of Suraj Dass chela, admittedly there was no appointment of chela, therefore, the petitioner being son of Suraj Dass was not entitled to inherit the property as the property was allegedly owned by the Dera and not by Suraj Dass as an individual owner as held by the Division Bench in Dharars-vir''s Case (Supra).
15. Insofar as IInd petition is concerned, Chandar Singh has been held, to be ''Dholidar'' and Mehar Singh claiming Dholidari rights on the basis of his inheritance being a son was required to plead and prove the terms and conditions of the Dholi because the stand taken by the respondents is that it was given for running a piau and since service to the piau has stopped, therefore. Dholi has reverted to the proprietors and cannot be inherited. In of the above discussion, we are of the considered opinion that the petitioner in both the cases has no right to inherit Dholidari rights and as such the present writ petitions are here hereby dismissed.
A photocopy of this order be placed on the file of connected case.
