Ram Singh deceased through his L.Rs. Vs. Nawal Singh deceased through his L.Rs. and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1180480
CourtPunjab and Haryana High Court
Decided OnMay-12-2015
Case NumberRSA No. 1868 of 2015 (O&M)
JudgeRajiv Narain Raina
AppellantRam Singh deceased through his L.Rs.
RespondentNawal Singh deceased through his L.Rs. and Others
Excerpt:
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rent act - section 30 - comparative citation: 2015 air(pandh) 175, 
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the issues which appear to give rise to two substantial questions of law involved for determination in this defendants' second appeal are: [1] as to whether the construction of the revenue entry in the jamabandi of the year 1877 makes it a gift or an entrustment or a grant by way of a dohli for private religious purposes in lieu of spiritual services rendered to original owner. if it is of the first kind then no restrictions can be imposed by donor on the property and donee (appellant) is free to alienate, lease, rent or deal with the property according to his own choice. if the case falls in the second/third parts then the dohli in favour of the defendant appears to be inalienable in view of restriction placed by owner against sale or mortgage. if it is inalienable then dohlis could not.....
Judgment:

The issues which appear to give rise to two substantial questions of law involved for determination in this defendants' second appeal are:

[1] As to whether the construction of the revenue entry in the Jamabandi of the year 1877 makes it a gift or an entrustment or a grant by way of a dohli for private religious purposes in lieu of spiritual services rendered to original owner. If it is of the first kind then no restrictions can be imposed by donor on the property and donee (appellant) is free to alienate, lease, rent or deal with the property according to his own choice. If the case falls in the second/third parts then the dohli in favour of the defendant appears to be inalienable in view of restriction placed by owner against sale or mortgage. If it is inalienable then dohlis could not have further leased out disputed property to the third party defendant/appellants in the year 1986. What is the position in law and on facts?

[2] The other substantial question arising is whether the 95 year lease to defendant-8 by the dohlidars amounts to permanent alienation or sale of dohli land and, therefore, falls within the severe restrictions imposed by original owner in the 1877 against sale and thus further long lease from generation to generation in favour of defendant-8 was legally impermissible and ab initio void transaction which could not affect the rights of the true owner or his successors-in-interest to recover property for breach of the terms of the dohli grant?

2. In order to answer the questions, of vital importance is the interpretation to be placed on the revenue entry in the Jamabandi of the year 1877 relied upon by the plaintiffs (owners) as also the defendants (dohlidar and lessee) each according to their own construction and the signification of the terms `sankalp', `samarpan' and `mahsool'/'mahsul' on which the arguments proceeded and centered around.

3. Heard the learned counsel twice over at great length on the two issues. The opinion of this court on the points formulated are as hereafter discussed.

4. The word `sankalp' used in the suit revenue entry has been explained by the predecessor court, the Lahore High Court in Prem Nath and ors. v. Har Ram and ors., AIR 1934 Lahore 771, where the word `sankalp' has been assigned the meaning of `entrusting'. So long there is a clear and unequivocal manifestation of intention to create a trust and there is a formal investing of the ownership in the property on the part of donor and vesting on the same in another or even in the donor himself as a trustee then dedication must be deemed to be complete. The guiding consideration in such cases has been held in Prem Nath's case (supra) is the intention of the maker to divest himself of the property and if it is so then the dedication must be deemed to be complete. Mr Chaudhary appearing for the appellants/dohlidars relies on a selection of judgments bearing five in number to press his case. These are: (i) Dharam Vir v. Bahadur Singh and another, 2007 (1) PLR 176; (ii) Durga Dass alias Dawarka Dass Chela v. Commissioner, Hissar Division, Hisar and others, 2013 (2) PLR 394; (iii) Prem Nath and others v. Har Ram and others, AIR 1934 Lahore 771; (iv) Jai Dayal v. Dewan Ram Saran Das and others, AIR 1938 Lahore 686; (v) Dharam Singh and others v. Smt. Phullan Devi and others, 2005 (3) RCR (Civil) 832 and a Division Bench decision of the Allahabad High Court in Muhammad Ismail and others v. Waris Ali, (1886) ILR 8 All 552 comprising Hon'ble Oldfield and Hon'ble Syed Mahmood, JJ., Hon'ble Justice Mahmood dissenting, unable to concur with Justice Richard Charles Oldfield by dismissing the suit and decreeing the appeal in a comprehensive judgment delivered. Oldfield, J. held that there was no rent-free grant at all in the sense contemplated by section 30 of the Rent Act, and the one filed cannot be held to be a suit to resume a rent-free grant, in which matters revenue court has exclusive jurisdiction, the parties having litigated before the revenue court. If there was no relation whatever of landlord and tenant then civil court can take no cognizance of the dispute and, therefore, the appeal has no force. On the other hand Hon'ble Mahmood, J. was of opinion that the only question of significance relates to the jurisdiction of the civil court. The learned Judge quoted from Robert Spankie, J. that the Sudder Board of Revenue in Ganga Dhar v. Baldeo, NWP Legal Remembrancer, Revenue and Rent Series, 118 in holding that an assignment of land, on condition that certain services are performed by the assignee (Haqqul-Khidmat grants), is not a rent-free grant within the meaning of section 30 of the Rent Act since the service rendered is equivalent to rent. In distinguishing one of his [Mahmood, J.] earlier judgment on the subject the learned Judge observed:-

"19. It might perhaps have been possible, with reference to the rulings above mentioned, to distinguish my ruling in Tika Ram v. Khuda Yar Khan, I.L.R. 7 All. 191 by saying that the duties of a kherapati were of a spiritual nature, and could not therefore be regarded as rent within the meaning of the definition contained in Clause (2) of Section 3 of the Rent Act, or Clause (4) of Section 3 of the Land Revenue Act. But this was not the ratio decidendi upon which my ruling in that case proceeded, and, moreover, here the services for which the grant is alleged to have been made were those of a mimic or drollery, which it would not be easy to classify either under the head of spiritual or substantial temporal services. At any rate, the exigencies of the present case require me to decide whether such services are "rent" within the meaning of Clause (2), Section 3 of the Rent Act, or Clause (4), Section 3 of the Land Revenue Act, the words employed in both the enactments in defining rent being identical. The words are: "'Rent' means whatever is to be paid, delivered, or rendered by a tenant on account of his holding, use or occupation of land." It is contended that the word "rendered" is used in this definition as applicable only to services, and that Clause (c) of the proviso to Section 8 of the Act, which lays down that no tenant shall acquire a right of occupancy" in land held by him in lieu of wages," supports this interpretation."

5. In this last case plaintiff brought a suit for ejectment of defendant Waris Ali from one Bigha of land in Mauza Burhausi. The plaintiff's case was that this was rent-paying land which had been granted to Nasiba by the plaintiff's father many years ago, free from payment of any rent, on condition that certain services as a mimic, drollery or nakkal should be performed that these services continued to be performed till lately, when Nasiba discontinued them, and sold the land to the appellant. The defence was, that the land had been bestowed unconditionally on Nasiba, who enjoyed it as the proprietor. The meaning of the word rent and native words such as "naqad", batai and kankut, "mauafi" or rent-free with sub divisions as "shankalp", "chakran" or chakri i.e. service tenure were explained by the learned dissenting Judge in the following terms:-

"23. What I have already said is sufficient to show that upon the case as setup by the plaintiff himself, the grant in this case was free of "rent," in the sense in which that word must be understood both in the Rent Acts and in the Land Revenue Act. But I will go further and show how the definition of the word in those two enactments may be accepted in an intelligible sense without; involving the inconsistencies to which I have referred. The truth seems to me to be that the word "rent," which has found its way into the two enactments above referred to from the old Regulations of the East India Company, is used probably "as the equivalent of the Hindustani words lagan or poth, which are well understood in the country as representing the compensation receivable by the landlord for letting the land to a kashtkar or cultivator. It is equally well known that such compensation, ever same the reign of the Emperor Akbar, when his Revenue Minister, Raja Todar Mal, introduced his system, payments of lagan were made in three ways. The first of these was batai or division of the produce in kind, of which the zamindar or where such rights, did not exist, the Government, took a certain proportion. When cash payments were introduced instead of batai, one method was to make an estimate or appraisement of the crops, and to take in cash what would represent the due proportion as the lagan. The third method was cash payments of fixed lagan agreed upon jay the kashtkar, and irrespective of the nature, quality or quantity of the produce. This last was perhaps the most recent outcome of Maharaja Todar Mal's powerful administrative intellect, and this is the system which has received encouragement all over India under the British rule. But neither the old Regulations nor our, present Land Revenue and Rent Acts force the zamindar to adopt the system of pure cash payments in preference to the other two methods. I am Unaware of any further kind of "rent" or lagan which went beyond the principle of the three main methods which I have thus described, though there were mixed methods of paying rent. At any rate, so long as the law does not make the matter so clear as to place it beyond doubt, I shall not be willing to interpret the word "rent" as used in the Revenue and Bent Acts in any such way as would operate in defeasance of the rights of the agricultural population.

24. But what do those two Acts themselves indicate? I have already shown that they cannot, without involving immense inconsistency, be taken to use the word "rent" as including the services of a mimic. And I will now show that there is every indication that the rent Act uses the word in no sense which goes beyond the principle of the three old methods of receiving lagan horn kashtkars or cultivators. And once this interpretation of the word "rent" is accepted, the whole Act becomes consistent and intelligible. We have then Section 24, Clause (b), relating to purely cash payments, and Clause (c) relating to the instalments of such payments. Then comes Clause (e), which distinctly relates to the other two kinds of lagan, namely, "rent payable in kind" or "calculated on a valuation of the produce"--the former being batai, and the latter being usually called kankut in most parts of the country. The three methods of receiving rent are kept in view throughout by the Act, and whilst in connection with purely cash payments no great difficulties as to the amount of rent can arise, we have the whole of Section 43 devoted to providing rules in respect of the other two methods of realising lagan or rent, with the object of providing a remedy both for the landlord and the tenant. The provisions, then, both in respect of distress and suits for recovery of rent, become intelligible, and the body of the Act presents no contradiction of its preamble. And in this light the definition of "rent" in Clause (2), Section 3 of the Act, when it uses the three words "paid, delivered or rendered," must be taken to refer respectively to rent paid in cash, to rent delivered in kind, and to rent rendered by appraisement, the native words for the three methods being "naqad," "batai," and " kankut."

25. I may here add that lands held under any other system, that is to say, lands granted either for past or continuing services, or for personal merit or worth (as in the case of religious or Charitable grants), which involved no rent in any of the three forms above described, were all known under the generic name of muafi or "rent free"--a term having many subdivisions (such as shankalap, etc.), and one of them is well known as chakran or chakri, that is, service tenure, to which Section 41, Regulation VIII of 1793, related, rendering them liable to redemption and assessment. All these were regarded as "rent-free," simply because they were not subject to anything which could be called "rent," whatever the origin, the motive, the object or the conditions of the grant, may have been. In the present case, according to the plaintiff's own allegation, "the father of the plaintiff remitted the rent of the land in suit to the ancestors of Nasiba, defendant, on the occasion of the birth of Muhammad Ismail Khan, plaintiff, on the condition of his performing the services of naqqal (mimic). The ancestors of Nasiba and Nasiba himself continued to perform the services in lieu of the rent of the land, and they were recorded in the settlement papers to be in possession as servants." This, taken at its best, would go to show that no "rent" in the sense in which I have explained the word was taken for the land. There is indeed tip allegation to this effect, and the finding of the Lower Appellate court is the same. The grant then, putting the plaintiff's Case at its best, was a rent free grant of the nature of chakri."

6. Justice Mahmood ultimately formed the dissenting view in para.32 of the report in Muhammad Ismail case that:-

"32. The exact terms of the grant do not appear from any document or any specific oral evidence. All that has been said or proved is, that the grant was made on the occasion of the birth of a son in lieu of services as a mimic or naqqal. But there is nothing to establish that the continued performance of such services was the condition upon which the grant was to be held. To use the words of the Lords of the Privy Council in Forbes v. Meer Mahomed Tuquee, 18 Moo. I.A. at p. 464 "there is a dear distinction between the grant of an estate burdened with a certain service and the grant of an office the performance of whose duties are remunerated by the use of certain lands. And Their Lordships went on to say: "Assuming it to be u grant of the former kind, Their Lordships do not dispute that it might have been so expressed as to make the continued performance of the services a condition to the continuance of the tenure. But in such a case, either the continued performance of the service would be the whole motive to, and consideration for, the grant, or the instrument would, by express words, declare that, the service ceasing, the tenure should determine." And no such conditions being proved, Their Lordships said: "Hence the grant may be said to have been made pro servitiis impensis et impendend is--partly as a reward for past, partly as an inducement for future services." Whether the grant in this case was of this nature or of the other, it was a rent-free grant all the same; and in calling it "rent-free" I am only using the expression as employed by the Lords of the Privy Council in the case just referred to. And this being so, the incidents of the tenure as to resumption or assessment of rent would be governed by Section 30 of the Rent Act and Sections 79-84 of the Revenue Act, being matters which lie beyond the jurisdiction of the Civil Court. Whether the defendant Nasiba had, under those provisions, acquired a proprietary title under Clause (d) of Section 30 of the Rent Act, or under Section 82 of the Revenue Act, is a question which, for want of jurisdiction of the Civil Court, I am not called upon to determine in this case. For it is admitted that such rights as Nasiba had have been sold by him to Waris Ali, appellant, under the sale-deed of the 26th May 1883, and the latter therefore" "stands in the shoes of the former, for purposes either of resumption or of assessment of rent. Nor do I, under this view, feel myself called upon to decide the question of res judicata, or to enter into the merits of the case, and the only ground upon which I base my judgment is the want of jurisdiction of the Civil Court. For these reasons, I regret I am unable to concur with my learned brother Oldfield in the conclusions at which he has arrived, and I would decree this appeal, and, setting aside the decrees of both the lower courts, dismiss the suit with costs in all the courts."

7. The material issues in search of answers in the present case arise in the following facts. The defendants through LRs are in second appeal against the appellate decree dated February 05, 2015 affirming the reasoning of the court of first instance in the judgment and decree dated May 09, 2013 allowing the title suit against the defendants directing them to deliver vacant possession of the suit land to the plaintiffs within two months of the passing of the decree failing which the plaintiffs shall be entitled to take possession of the suit land in due course of law. The defendants have been permanently injuncted from alienating the suit land or raising any sort of construction over the same in the suit for declaration and possession with consequential relief of permanent injunction. The plaintiffs brought a suit for declaration to the effect that the lease deed bearing No.4780 dated November 13, 1986 and the mutation No.457 dated July 16, 1987 are null and void, not binding on their rights because the defendants have ceased to have any dohli rights over the suit property having parted them away in favour of the third parties through a 95 years lease executed by them. A decree of possession of the suit land was sought. The lease deed was between the defendant # 1 to 7 and defendant # 8 - Ram Singh son of Sh. Maha Ram (Lessees) through his six legal representatives; all sons of late Ram Singh, residents of Village Joniawas, Tehsil and District Gurgaon. The suit was instituted on November 12, 1998 and both sides are presently represented by their legal representatives.

8. The Jamabandi for the year 1877 Ex.P-2 is the crux of the dispute and the interpretation of the revenue entries therein are significant in settling the controversy. The true translation of the Jamabandi is Ex.P-2/A. Long ago, the ancestors of the plaintiffs leased out the property to the ancestors of the defendants. The land is described as dohli land created for religious purposes and for the `dohlidar' to render religious services such as by Purohits as is mentioned in para.2 of the plaint. The plaintiffs claimed that defendants 1 to 7 have stopped rendering religious services to the families of the plaintiffs and, therefore, the land has to revert back to its owners, the defendants being defaulting lessees of the dohli.

9. On the other hand, the defendants contested the claim of the plaintiffs asserting that the suit land was given as a gift and not for the purposes of performing religious ceremonies of the landholding family in perpetuity.

10. The unsuccessful defendants urged in first appeal the essential ingredients for creation of a dohli at the initial stage were not satisfied on the basis of evidence available on the file. They contended:-

"(i) For what purpose dohli was created? It is no where mentioned in the Jamabandi, on which the plaintiffs are relying upon that dohli was created for this purpose. There is only vague allegation in the oral evidence that it was created for religious purpose. It is very much clear from the Jamabandi and Khasra Girdawri as well as Ex.P2 that it was the agricultural land given by way of "Sankalp", meaning thereby under some commitment.

(ii) What was the function assigned to the dohlidar, when dohli was created?

It is no where mentioned in Ex.P2, that what is the function/duty assigned to the dohlidar and requisite service for which dohli was created. Except in their oral evidence and pleading in Para No.2, that dohli was created for the function of Purohit, but neither the condition of dohli was produced, nor any evidence was led down for the same."

11. It is argued that both the courts below have not touched the above points and have decided the issues # 1 and 2 wrongly in favour of the plaintiffs. It was for the court to first decide the status of the land in question because there was no condition for use of dohli land for benefit of temple, mosque or shrine or other religious purposes, and if the same not worded, in that eventuality the land falls in the definition of a gift, and when there is a gift then the same is not conditional or inalienable by the `dohlidar', being an absolute owner. If the nature of the dohli is seen, it was already under tenancy then defendants draw heritable rights from the predecessors to the successor `dohlidars' and, therefore, the successors of the owner, the plaintiffs, cannot take back the same. As far as the lease is concerned it does not fall within the definition of inalienable rights and property would fall back to the heirs of the `dohlidar', when the lease period will expire after which the defendants would become tenants at will. This is in case and subject to the aforesaid submissions based on dohli, "sankalp" and "gift" which first should draw the attention of the court. The appellants urged that suit was barred by limitation and the courts below fell in error in holding that no limitation lies in a suit for possession based on documents of title, the plaintiffs being owners. The suit was not merely for possession but for declaration and permanent injunction also, for which there are prescribed periods when bars of limitation set in for bringing suits in civil courts.

12. The lease deed brought under challenge in the suit is dated November 13, 1986 instituted in trial court on November 12, 1998, one day short of expiration of 12 years. From the pleadings of the parties, the following issues were framed:-

"(i). Whether the plaintiff is entitled to decree of declaration as prayed for on the grounds mentioned in the plaint? OPP.

(ii). Whether the plaintiffs are entitled for a decree of possession with consequential relief of permanent injunction as prayed for on the grounds mentioned in the plaint? OPP.

(iii). Whether the plaintiffs have concealed the true and material facts from the court? OPD.

(iv). Whether the suit of the plaintiffs is barred by limitation? OPD

(v). Whether the plaintiffs are estopped by their own act and conduct from filing the present suit? OPD

(vi). Whether the plaintiffs have no cause of action to file the present suit? OPD.

(vii). Whether the suit has not been properly valued for the purposes of jurisdiction and court fee? OPD.

(viii). Whether the suit is bad for non joinder of necessary parties? OPD.

(ix). Relief."

13. The parties led their evidence both oral and documentary in support of their respective cases. The undisputed facts are that the plaintiffs are the original owners of the suit property claiming through their predecessors-in-interest and by law of succession and inheritance under the Hindu Succession Act, 1956. It is also not disputed that the original owner gave the suit land to the predecessors of defendants 1 to 7 on dohli in the year 1877. It is also not disputed that defendants # 1 to 7 executed lease deed in favour of defendant-8 in 1986 without the consent of the plaintiffs. These admitted facts were culled out from the Jamabandi of the year 1877 Ex.P-2, copy of Jamabandi 1956-57 Ex.P-3, copy of Jamabandi for the year 1984-85 Ex.P-4 and copies of Jamabandies for the years 1994-95 and 2004-05 Ex.P-6 and Ex.P-7 respectively.

14. The plaintiffs' case is that the lease deed executed by defendants 1 to 7 in favour of defendant-8 and the consequential mutation sanctioned on the strength of the lease deed in favour of defendant # 8 was not legal and valid since defendants #1 to 7 were `dohlidars' but were never authorised to sell or alienate the suit land and thus for violating the conditions of dohli the suit land was liable to be reverted to the plaintiffs. The plaintiffs relied on the following binding decisions in the courts below: Dharam v. Harbai, 1976 PLJ 617; Dhani Ram v. Gram Sabha and Gram Panchayat Jatmalpur and Ors., 1984 PLJ 234; Hazari and Ors. v. Collector Rohtak and Ors., 2008 (1) LAR 456 and Ghisa Ram v. Surat Singh, 2003 (2) PLJ 565 [99 years lease by dohlidar - is void ab initio as it amounts to permanent alienation (para.6)] to support their case with precedents.

15. The court took help from two other decisions in Dharam Vir v. Bahadur Singh and another, 2007 (2) RCR (Civil) 217 and Sewa Ram v. Udegir, AIR 1922 Lahore 126. In Sewa Ram, the Division Bench of the Lahore High Court dealt with dohli tenure observing:-

"The dohli tenure is a peculiar kind of tenure to be found in the south-eastern districts of Punjab. It is a rent-free grant of a small plot of land by the village community for the benefit of a temple, mosque or shrine, or to a person for a religious purpose. In the revenue records the proprietary body are recorded as the owners of the property and the grantee is recorded as a tenant in the column of cultivation. So long as the purpose, for which the grant is made, is carried out, it cannot be resumed, but should the holder fail to carry out the duties of his office, the proprietors can eject him and put in someone else under a like tenure."

16. The court further observed that dohli tenure had not been statutorily defined but has often been used in revenue records and dealt with in judicial decisions. This appears to be also presently the view of this court in the four decisions, cited supra. The courts below culled out the principles involved in dohlis and found that a `dohlidar' is not empowered or entitled to either sell or mortgage the land of the dohli, under any circumstances. There was also a condition in the dohli grant as recorded in the 1877 Jamabandi that the `dohlidar' is not entitled to sell or mortgage the suit land. The lease deed Ex.P- 1 was executed for a period of 95 years which meant that the lease was from generation to generation and this amounted to permanent alienation and thus defendants were not right in contending that defendants 1 to 7 had only leased out the suit property to defendant # 8 but had not alienated the same. The court took view that execution of lease deed implied sale and conditions enumerated in Jamabandi 1877 stand violated. For this, the court drew from the decision of this court in Dharam v. Harbai, 1976 PLJ 617. If defendants # 1 to 7 have leased out the property which appears preeminently a sale transaction then they have by their own act and conduct put an end to performance of the duty cast on them when original owner granted the dohli and violation of the dohli took place for the first time on November 13, 1986 by defendants # 1 to 7 entering into a lease arrangement of 95 years for which reason the suit property was liable to be reverted back to the original owners and proprietors of suit land.

17. It may be noted that the Division Bench of this court in Baba Badri Dass v. Dharma and others, AIR 1982 P and H 255 overruled the Single Bench decisions of the Lahore High Court in Sewa Ram (supra) and Khema Nand and others v. Kundan, AIR 1937 Lahore 805 cases. This court did not follow those decisions since the court had not noticed or dealt with the provisions of section 9 (1) of the Punjab Security of Land Tenures Act, 1953 and sections 4 (3) and (6) of the Punjab Tenancy Act, 1887. But it may be noted that the ratio of the decision in Baba Badri Dass case rests on its facts where ejectment of the lessee/tenant was sought under section 9 (1) on Form-L of the 1953 Act before the Assistant Collector Grade-I, Rohtak. The tenants resisted the claim of the petitioner inter alia on the ground that the petitioner was not a "landowner" as defined in the Act, and, therefore, the revenue court could not take cognizance of the ejectment application. There were differences of opinion, with H.R. Sodhi, J. taking the view in Mahant Sirya Nath v. The Financial Commissioner, Haryana and others, 1969 PLJ 27 that a dohlidar would be a "landowner" as the expression was used in the Act and thus the holdings in his hand would be subjected to the process of surplus area determination, meaning thereby, that the petitioner in Baba Badri Dass was a landowner who had a right to maintain the ejectment petition. Whereas, Hon'ble A.D.Kaushal, J. in Baba Nand Ram v. Gram Panchayat of Village Malkos, 1976 PLJ 536 commended himself to hold that the status of a dohlidar does not differ from that of a tenant, albeit that a tenant is a dohlidar in perpetuity which position favoured the respondent in the writ petition decided by the Division Bench with M.M. Punchhi, J. [when his lordship was a Judge of this Court] speaking for the court preferring the view expressed in Mahant Sirya Nath case that a dohli tenure is in the nature of malik kabza and hence a landowner for the purposes of the Punjab Land Revenue Act, 1887. The decision was evidently rendered in a direct action between owner and dohlidar for recovery of possession. The facts were that Baba Badri Dass was dohlidar of agricultural land. He entered into a registered lease deed with respondents # 1 and 2 for a period of ten years at an annual rent of Rs. 2000/- payable by 15th May of each year. Leaseholder fell in default of rent which led to the filing of the eviction petition. It was in these facts that the judgment was rendered protecting rights of dohlidar as statutory landlord to evict his tenant in default of the terms of the lease.

18. But in the present case the facts are of a different hue, the dohlidar himself has parted away the dohli land by executing a lease for 95 years with third party defendant which amounts to a perpetual alienation in the nature of sale of the suit land which they could not transact in terms of the dohli and the `sankalp'. The legal battle in the present case is between the successors-in interest of the owner and the third party defendant # 8 claiming from defendants # 1 to 7, the dohlidars. The present case is, therefore, distinguishable on facts and the principles involved in deciding the appeal lies in the clue culled out by the coordinate Bench in Dharam Vir case laying down that: "Crucial issue for holding whether `dohli' tenure was alienable or not will depend upon terms of `dohli', express or implied." This takes us back to the key recitals in the Jamabandi/Mutation to know what the parties in fact intended.

19. Accordingly, issues # 1 and 2 were decided in favour of the plaintiffs and against the defendants. The trial court was correct in holding that the suit was not barred by limitation. Issues # 5 to 8 were dismissed as not pressed. The court held that the plaintiffs were not estopped by their own conduct in disputing the lease deed since they had no knowledge of the lease under challenge except in 1998 when they inquired into and consulted revenue record of the kharif girdawari entered in the name of defendant # 8. The suit was accordingly decreed. The defendants were restrained from alienating the suit land or from raising any construction over the same. A direction was issued to the defendants to hand over the vacant possession of the suit land to the plaintiffs within two months from the passing of the decree failing which plaintiffs shall be entitled to take possession of the suit land in due course of law.

20. Similarly, the appeal carried by the appellants/defendants to the court of the learned Additional District Judge, Gurgaon remained unsuccessful when it was dismissed on February 05, 2015.

21. The learned lower appellate court agreed with the view of the trial court that the Haryana `Dohlidar', Butimar, Bhondedar and Muqararidar (Vesting of Proprietary Rights) Act, 2010 notified in the year 2011 conferring right of ownership to the four classes of persons whose names are recorded in the revenue record by such classification would not have retrospective effect because when the impugned lease deed Exb.P-1 was executed in 1986, the Act had not come into existence and could not clothe ownership rights in favour of the two sets of defendants.

22. In order to appreciate the import of the old revenue entry of 1877, upon which the case rests, it would be profitable to read its translated version in English and in Roman script of the relevant remarks in the last column in the Jamabandi for the year 1877 Ex.P-2/A which read one after the other as under:-

"This land has been given by the owners for sankalp (resolution). The revenue of this land is towards the owners and the Dohlidar is exempted from the same. Dohlidar can cultivate the land throughout his life or he can get the land cultivated from others. Trees in the land are of dohlidar. Owner of the land cannot eject the dohlidar. After his death his offspring will hold the dohli and in their absence their brothers, sons will be entitled. But under no circumstance dohlidar is authorised to sell and mortgage the land of Dohli. Dohlidar takes 8 Anna Chakota from the tenant."

In Roman script the entry reads as under:

"Yeh arazi min janib malkan bator sankalp dee gai hai. Mahshool jis zamin ka taraf malkaan hai dohlidaran ko muaf hai. Dohlidar tahyat khud bajria kast va nashib darkhatan jaydad haja sakanaye malkan be-dakhal nahi kar sakte. Baad yafat dohlidar ke aulad narina basurat adam maujudagi uske bratheran bete ya makujaddi musthaik hai. Lekin kisi halat mein dohlidaran ko araji dohli ke bai va rehan karne ka akhtyar nahi hai aur dohlidar mujara se 8 anna chakota leta hai."

23. The language is clear and unambiguous. The `dohlidar' had no right to sell or mortgage the suit land. However, the term `lease' has not being used in the `sankalp' sense, but when the lease deed is for 95 years passing from defendants # 1 to 7 to defendant # 8 it amounts to a permanent alienation of property from generation to generation.

24. The point of fiction which remains between both the learned counsel is short-listed to the word Mahsool/Mahsul [both in usage for one and the same thing] used in the Jamabandi 1877. While Mr Yadav submits that Mahsul means "revenue" [which meaning to my mind would hardly make any difference as to the text and context of the revenue entry] whereas Mr Chaudhary urges that Mahsul means "rent" and not strictly "revenue" to bring his case into tenancy law and get rid of the burdens of the dohli. There appears to be no dispute that when the dohli was created in 1877 there were existing tenants on the suit land and, therefore, the dohli was given a right to recover 8 Annas Chakota from the tenant and appropriate it for himself.

25. Mr Yadav cites from the Dictionary of Revenue Terms to elaborate the meaning of Mahsul which means produce, profit, revenue, tax, duty, toll, excise, custom and postage and further points out that the Punjab Land Revenue (Haryana Amendment) Act, 1986 which came into force on December 22, 1986 amending the Punjab Land Revenue Act, 1887 in its application to the State of Haryana by which Chapter V of the Punjab Land Revenue Act, 1887 was omitted and, therefore, it follows that the appellants can have no advantage from this court on splitting hairs on the amplitude of the word Mahsul.

26. I do not think the friction perceived by the appellants in the meaning to be assigned to the word Mahsul has any substantial nexus with the adjudication of the dispute in the face of the express terms and conditions of the dohli grant. Defendants # 1 to 7 had clearly two options before them. One was to pass down the dohli to the sons of the dholidar or to his reversioner "brothers and sons" without any right in owner to eject dohlidar from suit land since offspring had right to hold the dohli after the death of the dohlidar on the same terms and conditions as envisaged in the original grant of 1877. But defendants # 1 to 7 breached the conditions of the dohli by entering into a 95 years lease agreement with defendant # 8 in 1986 which was not permissible under any circumstances in terms of the grant of dohli by the owner. They, the dohlidars, had only a right to get the land cultivated from others when not by self. This, Mr Yadav explains is for the reason that `dohlidars' in the olden days were traditionally Brahmins/Pandits or Purohits/Pujaries who were engaged by land owning classes to help them in performance of rituals and religious ceremonies for their pious and spiritual needs and for their religious benefits from time to time and from generation to generation as their personally appointed Purohits and the dohli was given only to give effect to such a sentiment creating in utmost good faith a permanent relationship between the owner and the service provider. Or one might say the dohli was given to a Pandit or a Pujari to look after the spiritual interests of the family of the land owner by exclusivity as the Purohit holding dohli was in a relationship of trust and faith on valuable consideration, the Purohit becoming privy by the nature of things to many personal matters of the family of the owner which they may not want to divulge for which purpose the Purohit was settled by a grant of dohli land/tenure to live beside the family and to be available at all times to look after their spiritual needs. If this was not spelled out in the entry as suggested by Mr Chaudhary in his favour it needn't have been since custom supported such a condition well known in its times. It would have to be inferred that functions and duties were a part of the mahsool read in the context of the then prevailing mores. Both the parties would have known the consequences of the grant when it was not a free gift since it carried burdens of a spiritual nature there being no financial consideration.

27. I have considered the judgments relied upon by Mr Chaudhary, the most important of which is in the Division Bench decision of this Court in Dharam Vir v. Bahadur Singh and another (supra) where the principles of law on `dholi' rights have been culled out by the Division Bench as follows:-

"Thus, `dohli' tenure has to be held to be inalienable if `dohli' is a grant or trust for religious purpose. On the other hand, if `dohli' is a gift, restriction on alienability will not apply. Crucial issue for holding whether `dohli' tenure was alienable or not will depend upon terms of `dohli', express or implied.

xxx xxx xxx

(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."

28. The case is clearly distinguishable on facts and precepts since the defendant did not dispute existence of dohli tenure but asserted in defence of the suit that there was no restriction on alienation while the word was not written in the revenue entry. The dispute was with respect to a testamentary will which showed that according to the testator, the suit property was personal property which he could dispose of by documented will. The plaintiff did plead inalienability of dohli tenure but no evidence about the origin or terms of dohli had been brought on record. In these circumstances, the Division Bench held that in the absence of pleadings of the terms of the dohli and material showing violation of terms of dohli a court finding of inalienability of dohli tenure cannot be sustained. But in the present case, the terms of the dohli are clear, unambiguous and emphatic. Neither is it necessary to trace the origin of the foundational terms of the dohli of 1877 nor why was it given and try to unravel the mystery at this distance of time. This is because the owner remained superior to the `dohlidar' and continued to have dominion over the estate property however with no permanent rights over land parted except upon a breach of the covenants whereon he could successfully assert his right to recovery and possession of the land. The defendants misjudged the recitals in the Jamabandi and fell into the ambush by parting away the suit land to third party defendant # 8 by signing the lease deed for a long period of 95 years.

29. I am inclined to think that if the benefit which the owner intended to draw in fashioning the grant in favour of the `dohlidar' had been penned down in piety then it would be one thing. But in the present case, it would be another thing when the owner gave the grant in lieu of "sankalp" which is an all pervading word, wide enough to include grant of dohli or dedication or benefaction for achieving personal spiritual benefit of services rendered by the `dohlidar' as Purohit etc. to the owner and his family in lieu of land given to them under a pious reciprocal obligation which is capable of being inferred, otherwise land would not have been parted with without some valuable consideration other than money. It required no elaboration of services to be performed as that would be axiomatic in its significance when in all probability the raison detre of such disposition of property was known and understood equally to both the parties from the very inception of the dohli by virtue of the then prevailing traditions and customs among the Hindus while making such an eleemosynary endowment for personal spiritual benefit. As I understand from a reading of the entry, the land would not necessarily revert back only because the descendants of owner stop receiving spiritual benefits from the descendants of the `dohlidar'. The relationship would continue still as there is no negative covenant in the Jamabandi terminating or foreclosing the grant for this reason. Therefore, I would not lean too much on this aspect but would instead rather place weight heavily on the event that occasioned abrogation of the terms of the private grant by the mischief of concealed sale or mortgage by lifting the veil to find the true nature of the transfer.

30. To my mind it seems that the foremost question really is whether there was complete renunciation of right, title and interest in a portion of private property by the owner in favour of the grantee, call him dohli or `dohlidar' or by whatever name. If there were conditions precedent in the grant of 1877 then they were meant to be obeyed to prevent the owner from reclaiming the land by sticking to its terms. It is really a matter of the intention of the owner and how that may be culled out from the only available document on record, that is, the Jamabandi/Mutation entry which presents no difficulty in understanding its import or contents which are clear and emphatic and circumscribed by restrictions against parting away special rights infused in the record of rights. The rights created by the owner in favour of the `dohlidars' were personal to them which they could not part with except to the reversionary rights granted to the brothers of the `dholidar' and their sons by way of inheritance and succession, failing which the grant/endowment would cease to operate and become infructuous and defunct. It also appears most certain that a grant of dohli may be absolute or partial depending on the will of the grantee as the owner of property in fee simple absolute.

31. In Pt. Ram Chandra Shukla v. Shree Mahadeoji, Mahabirji v. Hazrat Alikanpur and Ors, (1969) 3 SCC 700: AIR 1970 SC 458 the Supreme Court made observations, which help in understanding the concepts of trusts, charities and private religious purposes in the Hindu system involving settling grants of personal property for religious purposes, as follows:-

"An appropriation of property for specific religious or charitable purposes is all that is necessary for a valid dedication. As stated by the Privy Council in Vidyavaruthi v. Balusami Ayyar, (1922) 24 Bom. LR 629, a trust in the sense in which it is understood in English law is unknown in the Hindu system. Hindu piety found expression in gifts to idols, to religious institutions and for all purposes considered meritorious in the Hindu social and religious system. Therefore, although courts in India have for a long time adopted the technical meaning of charitable trusts and charitable purposes which the courts in England have placed upon the term `charity' in the Statute of Elizabeth, and therefore, all purposes which according to English law are charitable will be charitable under Hindu law, the Hindu concept of charity is so comprehensive that there are other purposes in addition which are recognised as charitable purposes. Hence, what are purely religious purposes and what religious purposes will be charitable purposes must be decided according to Hindu notions and Hindu law. As observed by Mukherjea in Hindu Law and Religious and Charitable Trusts (2nd ed.), p. 11, there is no line of demarcation in the Hindu system between religion and charity. Indeed, charity is regarded as part of religion, for, gift both for religious and charitable purposes are impelled by the desire to acquire religious merit. According to Pandit Prannath Saraswati these fell under two heads, Istha and Purta. The former meant sacrifices and sacrificial gifts and the latter meant charities. Among the Istha acts are Vedic sacrifices, gifts to the priests at the time of such sacrifices, preservations of Vedas, religious austerity, rectitude, Vaisvadev sacrifices and hospitality. Among the Purta acts are construction and maintenance of temples, tanks, wells, planting of groves, gifts of food, dharamshalas, places for drinking water, relief of the sick, and promotion of education and learning,(cf. Pandit Prannath Saraswati's Hindu Law of Endowments, 1897, pp. 26-27). Istha and Purta are in fact regarded as the common duties of the twice born class. (cf. Pandit Saraswati, p. 27) Though Pandit Saraswati sought to enumerate from different texts various acts which would fall under either of the two categories of Ishta and Purta, no exhaustive list of charitable purposes can be possible as the expressions `Ishta' and `Purta' themselves are elastic and admit no rigid definition. As times advance, more and more categories of acts considered to be beneficial to the public would be recognised depending on the needs and beliefs of the time. (cf. Mukherjea, p. 74). Neither the Statute of Elizabeth nor the Law relating to Superstitious Uses was applied at any time to India. Consequently, the English decisions based on one or the other of these statutes would not be applicable nor can they be commensurate with the conditions prevailing in India, though those decisions might undoubtedly be of some guidance."

32. In Prem Nath and others v. Har Ram and others, AIR 1934 Lahore 771, the Division Bench of the Lahore High Court while reading commentaries on the Hindu Law of Religious Endowments as enacted, interpreted the meaning of the word "sankalp" for which a religious ceremony or "samarpan" is not a necessary ingredient. The intention of the maker to divest, or a formal divesting in favour of a trust are sufficient and an endowment can come into existence. The court observed:-

"While it is true that in order to create a trust for religious purposes there must be true sankalp and samarpan, I do not think that according to the law as administered in the British Indian courts any religious ceremony of sankalp and samarpan is essential though it seems that sometimes such a ceremony is performed. The literal meaning of "sankalp" is "decision or formation of an intention" and "samarpan" means "entrusting." Among the orthodox Hindus ordinarily both sankalp and samarpan are done by formally declaring the intention in the one case and relinquishing dominion on the property in favour of another in a ceremonial manner in the other case. The religious ceremony in both cases includes the recitation of mantras, i.e., hymns and the pouring of water and delivery of other prescribed articles either on the ground or in the hands of the person who is to be considered the recipient of the gift or of the trust."

The court further observed:-

"The guiding consideration in such cases is therefore the intention of the maker to divest himself of the property and some symbolical act such as handing over documents of title, permitting the donee to receive rents or other like acts or the transfer of possession: see, 9 Cal 854 (6). In my opinion no different rule was laid down in the two Patna cases cited above. In 1924 Pat 657 (2), the learned Judges were of opinion that delivery of possession is not essential to the validity of a gift in all cases, but is only one of the modes for acceptance of the gift. In 33 All 253 (7), the Allahabad High Court held that where by a deed of gift certain zamindari property was given to an idol and possession of the property was made over to a certain person as a pujari the deed was valid and created a trust in favour of the idol which did not exist at the time of the execution of the deed."

33. With a view to bring his case within the teeth of gift and therefore completed and irrevocable on acceptance by one of the modes of divesting by donor of ownership in favour of donee the learned counsel draws proximity of a gift to the creation of a trust for religious purposes with the essential ingredients of `sankalp' and `samarpan' to constitute a valid gift of movable or immovable property by pointing out the observations of the Patna High Court in two of its decided cases, i.e. Deo Saran Bharti v. Deoki Bharti, AIR 1924 Patna 657: (1924) ILR Pat 842: 80 Ind. Cas. 980 (DB) and Bhekdhari Singh v. Sri Ramchanderji, AIR 1931 Patna 275 (Ross, J.) which read in one of them; [Deo Saran case] the following observations:-

"The Transfer of Property Act lays down general provisions governing gifts and dedications, and I have in vain ransacked the provision in the texts to find out any real distinction in principle between the essential ingredients requisite for a valid gift or dedication in Hindu Law and those laid down in the Transfer of Property Act The dedication to a deity and the creation of a trust for religious purposes no doubt finds favour in the Hindu Law just in the same way as it does in other communities, and the essential ingredient that constitutes gift whether of moveable or immoveable property in the Hindu Law is the Sankalp and the Samarpan whereby the property is completely given away and the owner completely divests himself of the ownership in the property. In the Hindu Law as elsewhere there must be a real and true Sankalp and Samarpan."

34. Therefore, it must be proved in each case, apart from the registration of the document in terms of section 122 of the Transfer of Property Act, that there was a complete divesting of ownership determined upon proof or otherwise of there being a complete divesting of the ownership by the donor.

35. The ratio of the decision in Prem Nath lies in intention to gift or to create a trust. In the present case the dohli land was not gifted as is clear from the Jamabandi 1877. There would be a reasonable presumption drawn after over one hundred and a score of years that customary rites were duly performed as per tradition then prevailing when samarpan and sankalp led to the creation of the dohli but not without the riders placed by owner against sale or mortgage. Even if a presumption is not possible to draw even then samarpan and sankalp can be read in since the fanfare of samarpan is not a necessary ingredient to activate sankalp.

36. Mr Chaudhary then relies on a Division Bench decision of this court in Baba Badri Dass case (supra) which dealt with the provisions of section 9 (1) of the Punjab Security of Land Tenures Act, 1953, and section 4 (3) and (6) of the Punjab Tenancy Act, 1887. The point for decision was whether a `dohlidar' inducting tenant could be considered landowner so as to seek ejectment of a tenant from agricultural land. I do not see how this case helps the appellants. In this case, the question is not one of tenancy. The `dohlidar' had right to receive chakota from the tenant for whom he may be considered to be a landowner but qua his relationship as a `dohlidar' with the true owner, he remains bound by the terms and conditions of the grant settled long ago as `dohlidar' in 1877. In this case, the Division Bench held that a dohli tenure is not a perpetual tenancy and is never covered by the concept of tenancy at all. When the dohlidar is not a perpetual tenant, the dohli tenure is an instance of malik kabza and hence that of a land owner for the purposes of the Land Revenue Act, 1887 and derivatively for the purposes of the Punjab Security of Land Tenures Act, 1953. He is a land owner because he is in possession of the land and, therefore, a dohlidar is entitled to seek ejectment of his tenant under section 9(1) of the latter Act. However, in order to fully appreciate the legal position, paragraphs 14 to 17 are profitable to read:-

"14. In Baba Nand Ram's case (1976 Pun LJ 586) (supra) the special contract conceived of by A. D. Koshal, J. in which the dohlidar undertakes not to pay any rent to the landowner but binds himself to perform certain other obligations to others, as it appears to us, is not `a special contract' but for which he would be liable to pay rent for that land to `that other person'. It appears to us that the service rendered by a dohlidar to institutions or persons other than the creator of the dohli, strictly speaking does not fall either within the concept of rent or within that of a tenant. The liability to pay rent to the creator of the dohli, or the latter's right to claim rent in the event of the terms of dohli not being faithfully observed, is altogether missing in the nature of the creation of the tenure. It is equally inconceivable how a validly created trust in the event of the trustee or his successors-in-interest failing or refusing to perform their duties could warrant the abolition of the trust causing extinguishment of dohli rights or that the property reverts to the original proprietors. The observations of the Bench in Dharma's case (1976 Rev LR 641) (supra) are in the nature of obiter dicta and do not seem to have arisen on the facts of that case. We, therefore, hold that though a dohlidar is not an owner of the land as the term is well understood yet he is otherwise a landowner for the purposes of the Act. The other questions whether he is trustee or that his alienation are void ab initio do not arise in the present case, though we have our doubts about the correctness of the view in that regard taken by the Lahore High Court in Sewa Ram's case (AIR 1922 Lah 126) (supra)

15. A passing reference need be made that out of the four classes of owners mentioned to have emerged in para 175 of Douie's Settlement Manual, the ala malikan have ceased to exist and the adna malikan have come to be full proprietor. That instance of dual ownership was abolished by the Punjab Abolition of Ala Malikiyat and Talukdari Act, 1950. This obliterates classes of owners mentioned at serial numbers (a) and (c) and merged in class mentioned at serial number (b). Just two kinds of owners are prevalent now--(i) who are owners of land or their heirs and (ii) landowners on the basis of possession.

16. The concept of perpetual tenancy as conceived of in Section 8 of the Punjab Tenancy Act in the light of Sections 5, 6 and 7 has also become non-existent on account of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952. Occupancy or perpetual tenants have been made owners of the land. This Act came about to carry out agrarian reforms and to remove the intermediaries. And if the dohlidar is a perpetual tenant as conceived of in Sewa Ram's (AIR 1922 Lah 126) and Khema Nand's cases (AIR 1937 Lah 805) (supra) of the Lahore High Court followed in the cases of Bharat Dass (1973 Rev LR 280) and Baba Nand Ram (1976 Pun LJ 586) by this court, then there is no reason why such like tenure should be allowed to exist in the fact of the aforementioned statute. The reason is obvious. The succession to occupancy tenancy was governed by Section 59 of the Punjab Tenancy Act, whereas succession to the dohli tenure is either natural or traditional. The occupancy tenure is capable of sale carrying with it a peremptory obligation to offer it in the first instance to the land-owner. There is no such obligation in the dohli tenure treating it for the moment, though no holding, that it is transferable. The occupancy tenancy rights are capable of being sold in execution of a decree against the occupancy tenant but the rights of a dohlidar are not subject to such permissible process of court under the law as understood. Alienations made by occupancy tenants are voidable at the instances of the landowner. For these reasons, which are only some of them, we differ from the view that the dohli tenure is of a perpetual tenancy or is ever covered by the concept of tenancy at all. The view to the contrary taken by above referred to two decisions of the Lahore High Court does not appear to us to be correct. We do not expressly follow the decisions of the Lahore High Court in Sewa Ram's case (AIR 1922 Lah 126)and Khema Nand's case (AIR 1937 Lah 805)and overrule the single Bench decisions afore-quoted taking the view based thereon on this aspect.

17. Now when the dohlidar is not a purpetual tenant as held by us, typification of the dohli tenure in Douie's Settlement Manual as an instance of malik kabza and hence that of a landowner for the purposes of the Land Revenue Act and derivatively for the purposes of the Act, appears to us crystal clear. He is a landowner because he is in possession of the land. We take the view as taken by H. R. Sodhi, J. in Mahant Sirya Nath's case (1969 Pun LJ 27) (supra) and hold that a dohli tenure is an instance of malik kabza and a dohlidar, a landowner for the purposes of the Act."

(Emphasis added)

37. Mr Chaudhary would then refer to Chapter V of the Transfer of Property Act, 1882 dealing with leases of immovable property. It is his submission that while the terms `sale' and `mortgage' are found in the grant of 1877 but the word `lease' is singularly missing and, therefore, there was no restraint on lease and that is what the `dohlidars' did in the year 1986 when they entered into the 95 years lease agreement with third party defendants. He would read section 105 which defines lease as follows:-

"105. Lease defined.- A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms."

38. It is his contention that the lease for 95 years is nothing but a lease, and no more, and in terms of section 105 of the Act the transaction does not amount to sale transferring title from vendor to vendee, even if it is in perpetuity, even then it remains only a lease arrangement and not a conveyance deed. Hence, there was no breach of the grant of dohli and the lease or sub-lease is legally permissible within the contours of the original grant.

39. In rebuttal, Mr Yadav cites the Division Bench decision of this court in Dharma v. Smt. Harbai, (supra) where this court dealt with leases falling under sections 105 and 54 and when a transaction would amount to permanent alienation. The decision was rendered with reference to dohli land where a restriction was put on `dohlidar' not to alienate or mortgage dohli property. The restriction was held not to be void. Such a condition could be imposed by the owner on the `'dohlidar''. The court considered the effect of a lease deed for 99 years and held that it amounted to permanent alienation immovable property. This court studied the terms and conditions of the lease deed in Dharma's case and answered the question by observing that the terms when read would lead to the irresistible conclusion that it was a case of permanent alienation. If it amounted to permanent alienation then it was ab initio void and property was not conveyed irreversible to the right, title and interest of the lessor. Mr Chaudhary's trifling distinction drawn and pressed between a 99 and a 95 year lease contending that both are materially different in purpose with a view to distinguish the case in Dharma does not appeal to reason. I would reject any such argument built on an unrealistic edifice and illogical foundation.

40. In Commissioner of Income Tax, Tamil Nadu-III v. M/s Rane Brake Linings Ltd., Tax Case (Appeal) No.1031 of 2007 decided on April 7, 2014 (unreported) on the proposition of long leases the Division Bench of the Madras High Court had occasion to deal with the issue in the context of tax on capital gains in the light of the provisions of section 12B of the Income Tax Act, 1922. The observations made are of some help in this appeal. In para. 24 of the report the following was held:-

"24. Incidentally, we may also point out that as early as 1928 in the decision in the case of Archaka Sundara Raju Dikshatulu v. Archaka Seshadri Dikshatulu, reported in (1928) 54 MLJ 76, this court held that the lease for 99 years or for a long term in consideration of a premium paid down is as much an alienation as a sale or mortgage. This court pointed out that the mere use of the word `lease' or the fact that a long term is fixed would not by itself make the document in lease. In this connection, this court followed the decision in the case of Rama Varma Tambaran v. Raman Nayar, reported in (1882) ILR 5 Madras 89, holding that there was no real distinction between mischief of such a transfer in perpetuity and a transfer for the long period of 96 years. Thus, this court took a view that a permanent lease is as much an alienation as a sale. In the background of what we have narrated about and the clauses in the assignment deed, we hold that the lumpsum amount paid does not make a permanent lease any the less an alienation than a sale."

41. In the 1928 ruling of the Madras High Court relied upon by the Division Bench it was observed in para. 14 of the report as under:-

"14. It is thus clear that permanent leases or leases for so long a period as would practically amount to an alienation will be invalid as against the successor in office who will be entitled to the rents and other emoluments arising out of the land which goes with the office.

42. The 1882 ruling of Innes and Muttusami Ayyar, JJ. relied in the 1928 precedent is quoted in full text for its pithiness and import on the proposition of what long leases are in fact about, by lifting the veil on such transfers of rights in land in perpetuity:-

"1. We cannot see our way to distinguishing this case in principle from Raja Varmah Raja v. Revi Varma Raja, I.L.R. 1 Mad. 235 in which the Privy Council held that transfers of religious trusts were void.

2. There seems to be no real distinction between the mischief of such a transfer in perpetuity and a transfer for the long period of ninety-six years.

3. If the validity of the transfer is not made out, it follows that plaintiff cannot redeem and his suit for redemption must fail.

4. We dismiss the appeal with costs."

43. The terms of the lease in the present case reveal they are without recurring consideration or payment of annuity as required by section 105 of the Transfer of Property Act, 1882. It has been recorded in the appellate judgment that the entire lease money of Rs. 30,000/- was paid when the lease deed Ex.P-1 was executed on November 13, 1996 which is a strong enough indication that the lease was a sale of property for all intents and purposes. It has also been noticed that long cultivation by defendant # 8 of the land in dispute will not extinguish the superior rights of the plaintiffs arising from breach of terms of the dohli where there was express restriction placed against `sale' and `mortgage'. The way out found by the defendants to circumvent the dohli by executing a lease deed of 95 years with the entire lease money paid up front was a device prohibited by the intention recorded in the revenue entry in dealing with the land in dispute.

44. For the many reasons recorded above, the first and second question in summary is answered in favour of the plaintiffs and against the defendants. It is held:-

(i) The relationship between the original owner and his successors-in-interest and the original dohlidar was one of sankalp as understood in the light of case law cited and noticed above. The transaction was not one of gift since revenue on the land continued to be the liability of the owners with the dohlidar exempted from payment. The dohlidar did not become, so to speak, a `tenant' on the suit land but was permitted to cultivate it either himself or by the hands of others during his life time and if the conditions of the dholi, sankalp or samarpan were faithfully observed, then beyond, in the manner provided.

(ii) The revenue entry of 1877 restrained owner to eject dohlidar for any reason other than the prohibitions imposed. But a right was created by the landowner that after the death of dohlidar his offspring will hold the dohli and in their absence their brothers, and their sons will be entitled to continue with the arrangement fashioned. But under no circumstance was dohlidar authorised to sell and mortgage the dohli land to third parties.

(iii) The intention of the owner was against alienation by dohlidar by sale or mortgage. Therefore, dohlidar could not enter into a lease deed with defendant # 8 for 95 years which amounted to an impermissible permanent alienation running from generation to generation in favour of third parties. Due to the breach of covenants of the dohli by the successors-in-interest of the dohlidar, the disputed lease deed is rendered voidable at the hands of the plaintiffs when they objected to the lease by filing lawsuit to recover possession. I say voidable because it is a matter of choice to take the dispute to a court of law for adjudication of rights. The lease of 1986 will not confer any right, title or interest in defendant # 8 in the suit land. Plaintiff is entitled to recover possession of the property in dispute.

45. As a result, the judgment and decree appealed from is affirmed as no fault is found with it in the conclusions arrived at and the findings recorded on the controversies involved in the lis. The substantial questions of law are answered accordingly. The appeal is dismissed with costs in all the courts.