1. This appeal arises out of a suit for possession of property appertaining to a certain temple at Nayagaon and for a perpetual injunction against the defendant No. 1 restraining him from interfering with plaintiff's possession of the property and his performance of his duties as mahant of the temple. The temple is situate at a place called Nayagaon in the territory of the jagirdar of Paldeo and it adjoins Chitrakot, a famous place of Hindu pilgrimage in the Banda District. To this temple there appertains another temple in manza Dhorahi also in the Banda District, and considerable landed property in the Banda District as well as in the adjoining Native States of Paldeo and Baraunda. Gobind Das, the last mahant of the temple, died on the 17th of July, 1907. On his death a dispute arose as to succession to the mahantship. The defendant Gobind Parpan Ramanuj Das, as it appears from the evidence, was installed as mahant by the leading mahants of Ohitrakot and he obtained a sanad confirming his appointment from the chiefs of the two Native States. His appointment was recognized by the Political Agent of Bundelkhand and he obtained mutation of names in his favour in respect to the property appertaining to the temple in the Banda District from the Revenue Courts of that district. The defendant, therefore, is the man in possession and it is for the plaintiff, who seeks to oust him, to show a better title. The title, on which the plaintiff bases his suit, is set out in paragraph 4 of the plaint which is to the following effect: The Mahant Gobind Das died on the 17th of July, 1907, without making a Will. The plaintiff is the only disciple of the said deceased mahant and is the grandson of the deceased's brother. The plaintiff is lawful heir and representative of the deceased mahant, and, as such representative, is entitled to become the owner and possessor of the whole of the property in suit left by the said mahant and also to become the owner, possessor and manager of the temple of Sri Ram Kunwarji situate in Nayagaon.' The plaintiff is a youth of 15. His guardian is Ram Parpan Ramanuj Das, who, it appears, is also a disciple of the deceased mahant. Upon the main issue in the case, viz., whether the plaintiff was the chela and grand-nephew of the deceased Mahant Gobind Das, and if so whether he was entitled to inherit his estate, the Court below has found that the plaintiff was proved to be the chela and grand-nephew of the deceased mahant and that he was appointed by mahants of his bradri to succeed the deceased mahant and that it followed, therefore, that he was entitled to succeed to all the property left by Gobind Das.
2. The main contention on appeal to this Court is that on the evidence on the record the Court below was not justified in coming to that finding. The plaintiff's claim, as set out in the fourth paragraph of the plaint, is further developed in the evidence of the plaintiff's witnesses into a claim to succeed to the deceased mahant by right of a custom whereby the senior chela of a deceased mahant is entitled as of right to succeed him. Several witnesses were examined on behalf of the plaintiff. They deposed that the plaintiff was the senior chela, of the deceased mahant and was also related to him as agrand-nephew. The evidence as to the alleged custom is that of the following witnesses: Bhagwat Das states: A successor to the gaddi is appointed by the mahants. A jagir-holder or ruler of the estate cannot do so. The Mahants cannot, contrary to the practice, appoint a junior disciple as owner of the gaddi. A senior disciple is appointed as owner of the gaddi. The person, to whom all the Mahants, Acharis, and Vishnus jointly invest with a kanthi, is appointed heir to the gaddi.' Narayan Das states: among the Mahants and Acharis a senior disciple is appointed as heir. Bala Saran is the senior disciple.' Ram Sahai Achari states 'Bala Saran is Gobind Das' grand-nephew and disciple. He is the senior disciple. We, the Acharis, appointed Bala Saran a mahant and invested him with a kanthi on the thirteenth day ceremony of Gobind Das. The senior disciple is installed to the gaddi.' This is all the evidence as to the alleged custom upon which the plaintiff bases his claim. It appears that there are two rival factions amongst the religious orders of Chitrakot, each of which has put forward its own nominee for (sic) of this temple, and each of which has gone through the form of installing its nominee as mahant. We are unable to hold that the evidence, to which we have referred above, is sufficient to establish a custom such as would entitle the plaintiff to succeed. No evidence has been given of the observance of the said custom in the appointment of Gobind Das or his predecessors. There is no documentary evidence of the existence of the alleged custom. In the evidence of the witnesses examined on behalf of the defendant, we find a totally different custom set up which was deposed to by a set of witnesses at least equal in standing and opportunities of knowledge to those produced by the plaintiff. The custom as alleged on behalf of the defendant was that a mahant was appointed by selection by the mahants of the religious orders at Chitrakot, viz., the Digambar, Nirbani and Khaki Mahants. It is apparent from the evidence of these witnesses, amongst whom was mahant Kunj Behary Das, admittedly the most influential mahant of Chitrakot, that the defendant was so appointed and installed as a mahant. The Court below appears to have based its decision rather upon what it regarded as the weakness of the defendant's case than upon the strength of the plaintiff's. That this is not the principle upon which cases of this nature should be decided appears from the ruling of their Lordships of the Privy Council reported in the case of Genda Puri v. Chata Puri 9 A. 1 : 13 I.A. 100, in which it is stated: In determining the right of succession to the property left by the deceased head of a religious institution, the only law to be observed is to be found in custom and practice, which must be proved by the evidence.' Their Lordships further held that the claimant, in order to succeed, must prove the custom of the math entitling him to recover the office and the property appertaining to it.' We must hold that in this case the plaintiff has not discharged the burden which lay upon him. 'We think that the Court below has come to a wrong conclusion upon the first and main issue in the case. This being our view, it is unnecessary to consider the other pleas raised in this appeal. We allow the appeal and set aside the decree of the Court below save in so far as it decrees the plaintiff's claim in respect of the shares in Chhitupur Kalan and Chhitupur Khurd and the two houses transferred to the deceased Gobind Das by a deed of gift dated the 2nd of April 1902. It appears from this document that the late mahant was the absolute owner of the property given by this document and that his personal heirs should be entitled to succeed to it. The plaintiff, as a chela and grand-nephew to the deceased, has a better title to this property than the defendant. As to this portion of the property, which does not appertain to the temple, the defendant has no right. The plaintiff will pay the costs of the defendant both in this Court and in the Court below including fees in this Court on the higher scale.