1. This is a first appeal by the plaintiff Baba Jagtanand Brahmchari whose suit has been dismissed by the learned Civil Judge of Gorakhpur. The suit as brought was in the first instance for a declaration that a number of sale deeds between 1893 and 1916 were not binding on the math and Mahadeoji installed in mauza Mathia Muafi in Gorakhpur district and the plaintiff might be put in possession of the property. Later, this relief was struck out and the relief asked was a simple decree for possession of the property in favour of the plaintiff. This point is of importance because the allegations for a suit asking for the first relief are materially different from the allegations in a suit asking for possession. The plaintiff headed his plaint by describing himself as 'disciple of Swami Lachchmi Charan, deceased, residing at the math at mauza Mathia Muafi.' It would appear therefore that he at first thought of claiming as a disciple or chela of one of the mahants, but that was not proved by the evidence and the learned Counsel for the appellant-plaintiff states that he does not now claim to be a chela of a mahant. The status of the plaintiff is set out in para. 10 of the plaint:
The plaintiff is also a Nihang Sanyasi. He has, for the last four years, been performing all the religious services relating to the math and Shri Mahadeoji, installed in the said math. He has also started a Sanskrit and Hindi Pathshala under the auspices of the said math. He personally performs the service and worship of Shri Mahadeoji aforesaid and imparts religious teachings and has it done by others.
2. The table attached to the plaint shows that the property in question is situated in a number of villages. There were various written statements. One of these, on page 13, para. 5 states that there was never any math in mauza Mathia and in para. 10:
The entire mauza Mathia Muafi was originally the family property of Mahipal Singh.... The ancestors of the said proprietors personally gave some land by way of birt to Shambhu Gir, Ratan Gir, Thamman Gir, Bhawani Bakhsh Upadhia, Kunjan Gir and Pargash Singh. Thus the persons mentioned at the end were the owners in possession of the property aforesaid and in every way entitled to transfer it. Accordingly, on the death of Shambhu Gir, his son and disciple Bundel Gir, became owner in possession by right of inheritance....
3. The Court framed issue 1 which was: 'Whether the plaintiff can maintain the present suit or is it barred by Section 92, Civil P.C.?' The latter part of the issue does not now arise as the suit was altered to one for possession. On page 22 the plaintiff gave evidence and he stated that his residence was at math Kuber Nath which is another place from the alleged math at mauza Mathia. He states on page 23, line 27:
I was born in mauza Koraya at a distance of 5 or 6 miles from village Mathia Muafi...my wife is alive, but I have no issue.
4.On page 22 he states:
I was married at the age of 10 years by my parents. I left my home when I was about 12 years of age for my father used to punish me.... I became a sanyasi about 25 or 30 years ago,... I became a sanyasi at Deoghat Asthan in Raj Naipal. I came back to a place called Kuber Nath in this district about 8 or 9 years ago.... In village Kuber Nath there is a temple of Shiva known as Kuber Nath temple.... I got the temple repaired and started a Sanskrit school.... From Kuber Nath I used to go out for collecting funds by begging to the neighbouring villages and once I happened to reach the village Mathia Muafi about four or five years ago.... In village Mathia Muafi I discovered a temple of Shiva and a math in ruins. A math means a monastery. The residents of village Mathia Muafi and even of other places requested me to take some interest in the shrine and the monastery in the village Mathia Muafi.... I got the shrine and the math repaired and whitewashed and started a school there for the study of Sanskrit and Hindi.... The worship in the shrine in village Mathia Muafi is conducted by myself when I am in the village. But when I am not there the Sanskrit teacher conducts the worship.
5. Now this statement shows that the plaintiff is not in any way connected with the alleged math at the village of Mathia Muafi. He happened to come there as it was a suitable place to have a school, and finding an image there he conducts some worship of that image, but there is no math shown to be in existence at this place called Mathia Muafi and the plaintiff cannot be said to be in possession of a math in any way. We do not think that on his own allegation the plaintiff has shown that he is a person who could bring a suit like the present which is a suit for possession. No doubt anyone who is a worshipper at a temple or of an image, if he obtains permission under Section 92, Civil P.C., can bring a suit for the declaratory reliefs allowed by that Section, but the present is not a suit under Section 92, Civil P.C., and we consider that for a suit like the present for possession of property, alleged to have been illegally transferred by previous persons who were in legal possession of that property, the plaintiff would have to show some right or title to claim possession. The mere worship of the image does not constitute a math, nor does it give the plaintiff any right to bring such a suit for the possession of zamindari property. Learned counsel referred to a ruling of their Lordships of the Privy Council: Ram Charan Das v. Naurangi Lal , where their Lordships stated:
Their Lordships however are not now concerned with any question of title because both the Courts below have found that the plaintiff is the person in actual possession of the Paliganj Math and as such entitled to maintain a suit to recover property not for his own benefit but for the benefit of the math.
6. That dictum will not apply to the present case because the plaintiff fails to establish that he is in any way in possession of a math. As regards the question as to whether there ever was a math or any endowed property we have been taken over a number of documents which learned Counsel for the appellant has had printed in a supplementary record. (After examining certain documents the judgment concluded as follows.) Having examined these documents, we find that there is no document whatever which purports to be the endowment of a math or the creation of endowed property or the endowment of a temple or of deities. It is therefore clear that the plaintiff has failed to prove that there ever was any endowed property or any math or that he is in possession of any math. The plaintiff therefore has in our opinion failed to show that he has a right to obtain possession of property which was transferred by the documents between the years 1893 to 1916. These documents were executed by persons who were at the time in legal possession of the property and during all the years from the time of those documents until plaintiff filed the suit in 1930 no one made any challenge of the right to transfer. It remained for the plaintiff who is a mere wandering sanyasi claiming to be a Nihang sanyasi to bring the suit. The word 'Nihang' means celibate and it is clear from the fact that in this property the succession was from father to son that the persons were not celibates. We do not think that the plaintiff has any right of suit. Accordingly we dismiss this first appeal with costs.