1. This is regular second appeal filed by the plaintiffs against the judgment and decree dated 29.1.2000 of Additional District Judge, Hissar whereby he dismissed their appeal and affirmed the judgment and decree of Civil Judge (Jr. Division), Hisar dated 18.3.1998 who had dismissed their suit for declaration.
Harji and Budha alia Budh Ram-plaintiffs tiled suit for declaration against Smadh Baba Vijay Ram Chela Mangal Dass Chela Hari Ram Smadh Dadu Panthi through Ramesh son of Chhotu Dass alleged Chela Bal Rarn Dass r/o village Dorali, Tehsil and District Hisar defendant to the effect that they are in possession of land measuring 22 kanal 16 marls, situated in the revenue estate of village Jagan as lessees on the basis of a registered lease deed No. 377 dated 16.5.1968 for a period of 99 years, on the basis of which mutation No. 1078 dated 28.2.1969 has been sanctioned. They are in possession as lease holders for a period of 99 years and they are not non-occupancy tenants and the entries in the revenue record whereby they have been shown as non-occupancy tenants on payment of 1/3rd batai are absolutely wrong, illegal and against the factual position and that the said entries have no binding effect on their lease hold rights and that the said entries are liable to be set aside and they are legally entitled to have themselves incorporated as lease holders for a period of 99 years and for permanent injunction restraining the defendant from claiming 1/3rd batai from the plaintiffs. It is alleged in the plaint that Mahant Rameshwar Dass was owner of this land. He inducted them to this land for a period of 99 years as lease holders vide registered lease deed No. 377 dated 16.5.1968, on the basis of which mutation No. 1078 dated 28.2.1969 was sanctioned. Plaintiffs are continuing in possession as lessees and paying lease money to the lessor. In Jamabandi for the year 1987-99, entries came to be recorded whereby they were shown as gair marusi tenant on 1/3rd batai. In fact, they are lessees for a period of 99 years paying lease money.
3. Defendant contested the suit urging that Rameshwar Dass had no power to grant lease beyond one year. He was removed from the mohitmimship of the Smadh by Court of competent jurisdiction. Said Rameshwar Dass had no power under the law to grant lease to the land of smadh for any period beyond one year. He had no legal right or authority to execute any lease deed for 99 years. In case, he executed any lease deed for 99 years, it was null and void, conferring no right on the plaintiffs.
4. The plaintiffs suit was dismissed by Civil Judge (Jr. Division), Hisar vide order dated 18,3.1998 in view of his finding that the Mohitmim had no right to create lease for a period of 99 years. Plaintiffs went in appeal which was dismissed by Additional District Judge, Hisar vide order dated 29.1.2000.
5. Still not satisfied, plaintiffs have come in further appeal to this Court.
6. Mohitmim of che smadh could not lease out the property of smadh for a period of 99 years. In Sheo Dayal and Anr. v. Om Parkash alias Dhaulia and Ors., (1992-1)101 P.L.R. 102, it was held that Mohimim of Dharamsala could not create lease for 99 years for a negligible annual lease money. Creation of lease of 99 years fro negligible annual lease money is an act not in the-interest of institution. There was no justification for creating a lease for 99 years.
7. In R.S.A. No. 1404 of 1973 (Dhonkal and Anr. v. Smadh Daba Vijay Singh Chela Mangal Dass Chela Hari Dass, Smadh Dadu Panthi through Chhotu Dass alleged Chela Bal Ram Dass, Smadh Dadu Panthi Ahtmam, village Jagan, Tehsil and Distt. Hisar and Anr.), it was held by this Court that Rameshwar Dass Chela Balu Ram Chela Khem Dass alias Murli Dass had no right to lease out the property for a period of 99 years in favour of Dhonkal etc. defendant-appellants. It was held that pattanama executed by Rameshwar Dass was not for the benefit of Smadh and was thus void. It was held that the creation of 99 years lease by Rameshwar Dass was not an act of good management. Dhonkal etc. filed SLP before the Hon'ble Supreme Court which was dismissed on 3.2.1984.
8. There can thus be no gain-saying the fact that Mohitmim could not create 99 year lease in respect of the property of smadh. Creation of 99 years lease in favour of Harji and Om Parkash by Mohitmim Rameshwar Dass was void, conferring no night on them to claim that they are lessees for 99 years.
9. Faced with this position, learned counsel for the appellants submitted that they were recorded as lessee since 1968 continuously till 1987. Patwari changed the lease entries into the entries of tenancy suo-motu without notice to them or without any order of the competent authority. The said change is void and has to be ignored. In support, of this submission, he drew my attention to Durga (deceased) and Ors. v. Milkhi Ram and Ors., 1969 P.L.J. 105 where it was held that where the earlier revenue entries were changed in the later revenue entries and the change was effected without any mutation and there was no order of the revenue authorities showing how the change was made, although the presumption (under Section 44 of the Punjab land Revenue Act) would be in favour of the later entries but that presumption was a reputable one and it would stand rebutted by the fact that the alteration in the later entries was made unauthorisedly or mistakenly, there being no material to justify the change of entries.
10. Similarly, in Aman Kumar and Ors. v. Bhupinder Singh and Ors., 1976 P.L.J. 26 it was held that prior notice in writing has to be given to the person or persons likely to be adversely affected by the change in khasra girdawari. It is the duty of patwari before changing the khasra girdawari and making an entry in favour of the tenant to inform the landowner so that he can come and contest the new entry which is to be made by him. Entries made in violation of instructions of Financial Commissioner are void.
11. In Bachan Singh v. Sher Singh, (1994-2)107 P.L.R. 623, it was held that change of Khasra girdawari without following procedure laid down in instructions issued by the Financial Commissioner for effecting change in Khasra girdawari is bad in law.
12. In my opinion, Mohitmim could not create lease for 99 years of the land of smadh in favour of the plaintiffs and the creation of such lease was null and void. Plaintiffs could not insist upon that they should be recorded as lease holders for 99 years in the revenue record. Even if they had continued as lease holders for 99 years in the revenue record for a number of years that will be of no consequence because a void act would remain void act. Passage of time will not add validity to a void act.
13. It was submitted by the learned counsel for the appellants that registered lease deed could not be washed away by a mere change in the revenue entry effected unauthorisedly by the revenue staff. It could be challenged and avoided by the smadh by filling a suit. It was submitted that in the suit filed by Harji and Budha alia Budh Ram, Court could give no finding that the creation of 99 years lease of the property of smadh by the Mohitmim was void.
14. In my opinion, in this suit also, while refusing the relief of declaration to the plaintiffs, court could dwell upon whether the creation of 99 years lease by the mohitmim regarding the property of the smadh was or was not a valid act of the mohitmim.
15. Both the Courts below justifiably refused the relief of declaration to the plaintiffs. Why should the plaintiffs be shown as lease holders for a period of 99 years of the smadh property when no perpetual lease could be crated by the mohitmim? Plaintiffs are neither permanent lease holders nor they are gair marusi tenants, liable to pay 1/3rd share of the produce to the Dera. When they entered possession under some colour of authority of the mohitmim, they cannot be viewed as trespassers but they can be viewed as un-authorised occupants. In our system of jurisprudence even an unauthorised occupant has to be thrown out in due course of law.
For the reasons given above, this regular second appeal fails and is dismissed but if the plaintiffs are sought to be dispossessed, they shall be dispossessed not forcibly but only in due course of law as their status is that of un-authorised occupant.