S.P. Goyal, J.
1. This is an appeal against the judgment of the Sikh Gurdwara Tribunal (hereinafter referred to as the Tribunal) dated February 8, 1966, whereby three institutions, namely Gurdwara Deg Sahib, Gurdwara Akal Garh and Gurdwara Guru Granth Sahib, situate in the revenue estate of Gharuan, Tahsil Sirhind, District Patiala, were declared to be Sikh Gurdwaras and the petition of the appellant was dismissed.
2. On a petition having been presented under Sub-section (1) of Section 7 of the Sikh Gurdwaras Act (hereinafter referred to as the Act), the State Government published a Notification No. 1999-C.I., dated November 6, 1962, under the provisions of Sub-section (3) of Section 7 of the Act describing the said institution as a Sikh Gurdwara. Two claims were filed under Section 8 of the Act--one by Joginder Singh and 34 other residents of the said village and the other by Amar Singh and others, which were registered as claims Nos. 272 and 273. Both these claims were filed by more than 20 Sikh worshippers of the institution stating themselves to be more than 21 years of age. The Tribunal consolidated both the claims as they related to the same institution and recorded evidence in claim No. 272 alone. Though the notification and the claims related to the said three institutions, namely, Gurdwara Deg Sahib, Gurdwara Akal Garh and Gurdwara Guru Granth Sahib, and the appeal was also filed respecting all the three institutions, but at the time of arguments, the learned counsel had not pressed the appeal qua the two institutions, namely, Gurdwara Deg Sahib, Gurdwara Akal Garh, and hence we are only concerned with the third institution, that is, Gurdwara Guru Granth Sahib.
3. In their claim petition, the appellants had stated that the institution in dispute was not a Sikh Gurdwara within the meaning of Section 16 of the Act; that the petition under Section 7, Sub-section No. (1) had not been properly presented as the persons alleged to have signed or thumb marked, actually did not sign or thumb mark the petition; that the petition under Section 7 had not been presented within limitation end that the Sikh Gurdwara Act was ultra vires of the Constitution. The claim petitions were opposed by the Shiromani Gurdwara Parbandhak Committee (hereinafter referred to as the Committee) who pleaded that the institution in dispute had been established in the memory of a Sikh Saini Bhai Jagga or in the alternative, had been established for worship by the Sikhs and was so used till now. It was, therefore, claimed that the institution in dispute may be declared to be a Sikh Gurdwara by application of the provisions of either Section 16 (2) (iv) or Section 16 (2) (iii) of the Act. The Committee also raised a preliminary objection that the petition, as framed, was not maintainable which gave rise to the following preliminary issue in petition No, 272:--
Whether the petition, as such, is not maintainable ?
4. After hearing the parties this issue was decided against the Committee whereafter two more issues were framed in Petition No. 273 which read as under:--
1. Whether the Act is ultra vires as noted in the preliminary objection of the petitioners ?
2. Whether the institution in dispute is a Sikh Gurdwara or not ?
5. Arguments were heard on the issue regarding the vires of the Act before the trial of the issue on merits and this issue was decided in favour of the respondent Committee.
6. Both the parties led oral and documentary evidence on the issue or merits and after hearing the parties and the perusal of the record the Tribunal by application of the provisions of Section 16 (2) (iii) of the Act held the institution in dispute to be a Sikh Gurdwara. The claim of the respondent-Committee to declare the institution in dispute as a Sikh Gurdwara by application of Section 16 (2) (iv) of the Act was rejected by the Tribunal and we are not concerned with the same in this appeal as the learned counsel for the respondent has not challenged this finding of the Tribunal.
7. The only question before us in this appeal is as to whether the Tribunal has rightly declared the institution in dispute to be a Sikh Gurdwara by applying the provisions of Section 16 (2) (iii) of the Act which reads aa under.--
'If the Tribunal finds that the Gurdwara was established for use by Sikhs for the purpose of public worship and was used for such worship by Sikhs before and at the time of presentation of petition under Sub-section (1) of Section 7, the Tribunal shall decide that it should be declared to be a Sikh Gurdwara and record an order accordingly,'
8. From a bare reading of the said provisions, it is clear that two facts have to be established before any institution can be declared a Sikh Gurdwara, namely, that the institution in dispute was established for use by the Sikhs for the purpose of public worship and that it was so used before and at the time of the presentation of the petition under Sub-section (1) of Section 7 of the Act.
9. To substantiate their claim the Committee had examined 5 witnesses Gurdial Singh (R. W. 1), Maghar Singh (R. W. 2), Gurbachan Singh (R. W. 3), Jagan Nath (R. W. 4) and Rattan Singh (R. W. 5) and tendered in evidence certified copies of the revenue record Exhibits Rule 1 to Rule 15. The appellants in support of their claim examined 7 witnesses, namely, Devinder Gir (P. W. 1), Harnarain (P. W. 2), Pritam Dass (P. W. 3), Mansa Dass (P. W. 4), Narat Singh (P. W. 5), Sawan Singh (P. W. 6) and Teja Singh (P. W. 7) and also tendered in evidence certified copies of the revenue record Exhibits P-l to P-7. Out of the documentary evidence produced by the parties, only Exhibits R-9 to 15 and Exhibits P-l to P-7 relate to the institution in dispute. Exhibit R-10 is a copy of jamabandi for the year 1960-61 B. K., (that is 1903-4 A. D.) and in the column of ownership Sukha Nand Chela Brahm Chetan Sadh is shown to be the owner of the land which is claimed to be the property of the institution in dispute, Exhibits R-11 and R-11-A are copies of the Jamabandis for the years 1973-74 Bk. and 1985-86 Bk. respectively, whereas Exhibits R-9 and R-12 are copies of the Jamabandis for the year 1960-61 A. D. In the column of ownership in all the Jamabandis the Granth Sahib is entered as the owner of the land in dispute under the management of the then Mahant. Exhibit R-13 is a copy of the statement given by Brahma Nand Chela Chattar Dass and Exhibit R-14. a certified copy of the joint statement of certain residents of the village forming part of the Muafi file concerning the institution In dispute. The sum and substance of the statements is that Brahma Nand serves the wayfarers and the Faqirs who visit the Dera, provides ail sorts of comforts to them and Parkash of the Adi Granth Sahib is regularly done in the institution. Exhibit R-15 is a copy of the relevant part of Naksha Muafiat. The recipient of the Muafi in this document is shown to be Dera Makan Granth Sahib under the management of Brahma Nand Chela Chattar Dass, Faqir Udasi. In Column No. 7 reference is made to an order Of the Settlement Commissioner dated October 15, 1907 A. D. whereby the Muafi was entered in the name of Granth Sahib under the management of Sukha Nand Chela Brahm Chetan Faqir Udasi on the condition that he will look after the comforts of the wayfarers and Faqirs, recite Granth Sahib and be of good conduct From these documents, the Tribunal arrived at the conclusion and rightly 90 that from the years 1960-61 Bk. till the time the said notification was made, the institution was described as Dera Granth Sahib. Further, on the basis of the oral evidence adduced by the parties, the Tribunal found that the village Gharuan where the institution in dispute is situated is a Sikh village and it was the village community who appointed or removed the Mahants of this institution. The Tribunal also found, though without any evidence on the record, that the land attached to this Dera was donated by the Sikli Sardars. On the basis of these findings and relying upon some decisions of the Lahore High Court, namely Bishan Das v. Gurbaksh Singh, AIR 1934 Lah 63 (2), Gurmukh Das v. Partap Singh, AIR 1934 Lah 319 and Harnam Dass v. Kartar Singh, AIR 1936 Lah 825, the Tribunal held that the respondent had succeeded in substantiating both the ingredients of establishment end user as laid down in Section 16 (2) (iii) of the Act with respect to the institution in dispute and consequently declared the same as a Sikh Gurdwara.
10. Mr. Achhra Singh, the learned counsel for the appellant, has challenged the said finding of the Tribunal and has urged that neither the institution in dispute has been proved to have been established for use by the Sikhs for the purpose of public worship nor was it so used before and at the time of presentation of the petition under Sub-section (1) of Section 7 of the Act. According to the learned counsel, the most material document on the record Exhibit P-3, a copy of Kafiyat Dehi, had not been taken into consideration by the Tribunal which conclusively shows that the institution in dispute was established in the memory of Bhai Jagga who was an Udasi Faqir. The perusal of the said document shows that village Chandesar, where part of the land claimed to be belonging to the institution in dispute is situate, was a Rajput village. Due to famines, the Rajputs were turned out by one Guria, a resident of village Gharuan. After the death of Guria, his descendants accepted the suzerainty of Maharaja Karam Singh, Guria, during his lifetime, distributed the estate amongst his sons and gave some land by way of Muafi to Bhai Jagga. During the regime of Maharaja Sahib Singh, a regular Patta Muafi was granted concerning the said Muafi. It is admitted between the parties that Maharaja Sahib Singh died in the year 1813 A- D. It is, therefore, evident that the land attached to the institution in dispute was granted to Bhai Jagga as Muafi sometime before the year 1813 A. D. At the time of the first settlement in the erstwhile State of Patiala which took place in the year 1960-61 Bk., (1903-4 A. D.) the ownership of the land was entered in the name of Sukha Nand Chela Brahm Chetan Sadh Udasi, but regarding the Muafi a note was made in the remarks column that the matter was under consideration. Ultimately, the Muafi was entered in the name of Granth Sahib by the order of the Settlement Commissioner as entered in Exhibit P. 15.
11. As regards the Institution in dispute, it is a common case of the parties that the same was established in the memory of Bhai Jagga, who was an Udasi Faqir. It is also not disputed by the respondent that the smadh of Bhai Jagga exists at the premises of the said institution. The existence of the smadh naturally must have come into being on the death of Bhai Jagga and consequently the institution in dispute must have been in existence when Bhai Jagga died. The pedigree-table Exhibit P.4 relating to Faqir Udasis shows that Bhai Jagga was succeeded by Pritam Dass. There were two more successions till Sukha Nand who was alive at the time of first settlement. There is neither any evidence produced nor any suggestion that these Udasi Faqirs had any other Dera, apart from the one in dispute. The presence of the Smadh of Bhai Jagga establishes beyond doubt that it was the institution in dispute which was the Dera of Bhai Jagga and his descendants. There is no evidence worth the name on the record to show that Bhai Jagga was a Sikh or any of his descendants were Sikhs or had faith in Sikh religlon. In Hem Singh v. Basant Dass, AIR 1936 PC 93, it was held:--
'Parallel with the growth of this movement (Sikh religion) there seems from the time of Siri Chand, Nanak's son, to have been a sect of Udasis who while using the same sacred writings, as the Sikhs, kept up much more of the old Hindu practices followed asceticism, were given to the veneration of Smadhas or tombs, and continued the Hindu rites concerning birth, marriage and Shradh.'
12. The Privy Council further approved in the said case a rinding given by the Tribunal that:--
'x x x x both from the historical aspect of the case and from the observation of outward practices and inward beliefs of Udasis, I would have no hesitation in holding that Udasis are not Sikhs for the purpose of the Sikh Gurdwaras Act.' Since the said decision, it has never been disputed that the Udasis are a separate fect and have their separate institutions. There can, therefore, be no manner of doubt that the institution in dispute was established by Bhai Jagga or his spiritual descendants who were all Sadh Udasis.
13. There is another very important circumstance which goes a long way to show that the institution in dispute was an Udasi Dera and not a Sikh Gurdwara. The documents Exhibits R-13 and R-14 are the statements of Brahma Nand and some of the residents of village Gharuan where the institution in dispute is situate. These statements were recorded in the year 1938 A. D. to decide if the Muafi was to be continued or not. Brahma Nand is described in Exhibit R-13 as Chela Chattar Dass Faqir Udasi Mohtmim Dera Baba Jagga. In his statement also Brahma Nand stated that he was looking after the comforts of the wayfarers and Faqirs coming to the Dera and that Parkash of Guru Granth Sahib had been done in the Dera by him. The other residents of the village also described the institution in dispute as a Dera and not a Gurdwara. It would be futile to say that as late as the year 1938 the residents of the village who were mostly Sikhs and gave their statements would not be knowing the distinction between an Udasi Dera and a Gurdwara. Had it been a Sikh Gurdwara it was highly improbable that they would term it as a Dera. All these facts and circumstances had been completely ignored by the Tribunal and instead the said documents were used by the Tribunal to record a finding in favour of the respondent on the ground that Granth Sahib was admittedly recited in the institution in dispute and no other object of worship had been mentioned in the said documents. The fact that in the statement of Brahma Nand it is mentioned that Granth Sahib was recited in the Dera and the fact that no other object of worship was mentioned in the said statement or in the statements of the other villagers can be easily explained. The proceedings in which those statements were made were instituted by the State to find out if the Muafi was to be continued or not. The institution was situated in the erstwhile Patiala State which was a Sikh State. In his anxiety to secure the continuance of the Muafi, Brahma Nand must have thought it inadvisable to mention any other object of worship in the Dera and confined his statement to the fact that Parkash of Guru Granth Sahib was done in the Dera. So far as the recitation of Granth Sahib in the institution in dispute is concerned it is well known that the Udasis used the same sacred writings as the Sikhs and the recitation of Guru Granth Sahib in Udasi Dera is a very common feature. With respect to a similar statement, their Lordships of the Privy Council in Hem Singh's case AIR 1936 PC 93 (supra) observed:-
'Comment has been made that the only references to worship are to the reading of Granth, but these are directed to showing the diligence and worthiness of the applicant. Before inferences can be drawn from the absence of any reference to other forms of worship, one must remember that they might well have seemed both unnecessary and tactless when the backing of Sikh officials and persons of local influence was being sought.'
14. The appellants had produced nine witnesses who had all stated that Smadh of Bhai Jagga was the object of worship in the institution in dispute. No cross-examination was adverted to, to discredit their statements in this respect. The respondents produced five witnesses who stated that the only festival celebrated in the institution was that of Maghi which was held in the memory of Bhai Jagga. They had all admitted the existence of the Smadh and none had the courage to depose that the Smadh of Bhai Jagga was not the object of worship on the said festival. All the witnesses of the respondents had deposed that no Gur Purb or other Sikh festival was ever celebrated in the institution in dispute. Moreover, the oral evidence adduced is not concerning the establishment of the institution. The institution was established many years before any of the witnesses was born. There being clear documentary evidence available as to the nature of the institution at the time of its establishment, the oral evidence is meaningless.
15. The other two factors relied upon by the Tribunal to record a finding in favour of the respondent were that the grant of the Muafi was described in the revenue records since the year 1907 in the name of either Makan Granth Sahib or Granth Sahib and that the lands standing in the name of the institution were granted by Sikh Sardars. There is absolutely no evidence on the record to support the observation that the lands attached with the institution were donated by the Sikh Sardars. On the other hand, from the Kafiyat Dehi Exhibit P-3 it is proved beyond doubt that the land situate at village Chandesar was donated by one Guria to Bhai Jagga. It is no-body's case that Guria was a follower of Sikh religion or of the ten Gurus. Regarding the rest of the land standing in the name of the institution, there is no evidence on the record as to who donated the same. The observation made by the Tribunal that the land standing in the name of the institution in dispute was donated by the Sikh Sardars is, therefore, without any basis and is based on mere conjectures. The other fact, which weighed with the Tribunal that the Muafi was entered in the name of Makan Granth Sahib or Granth Sahib since the year 1907, can hardly justify a finding that the institution in dispute was a Sikh Gurdwara. It is not disputed that prior to the year 1907 the Muafi stood in the personal names of the Mahants for more than 100 years. The fact that in the regime of a Sikh ruler the Muafi was entered in the name of Granth Sahib, would by no stretch of reasoning, be an indication of the situation as it prevailed in the 18th or earlier period of 19th century when the institution in dispute came into existence. The facts and circumstances in Hem Singh's case AIR 1936 PC 93 (supra), though similar to the facts and circumstances of the present case in many respects, were much stronger and still their Lordships of the Privy Council held that the institution could not be held to have been established by the Sikhs for public worship. The decisions relied upon by the Tribunal have actually no bearing on the facts of the present case. In Bishan Das v. Gurbaksh Singh, AIR 1934 Lah 63 (2), apart from the fact that the institution in dispute was the only place of worship in the village, it was found that the original institution which was an Udasi Dharmsala had fallen down and abandoned and the institution in dispute was a different foundation which had been built by the Sikh residents of the village at their own expense. It was under those circumstances that the institution was declared to be a Sikh Gurdwara and the decision obviously has no relevancy to the facts of the present case. In Gurmukh Das v. Partap Singh, AIR 1934 Lah 319, the other case relied upon by the Tribunal, what weighed with the Bench was that there was no Smadh on the premises of the institution and all the Smadhs of the office-holders were situated outside the village and that the Mahant, at the time when the question of Muafi was being investigated in the year 1952, stated that the lands were Muafi for the expenses of the Gurdwara. Moreover, in the said case there was no allegation much less any proof that the institution was established in the memory of an Udasi Faqir whose Smadh was in existence at the premises of the institution and was also the object of worship. The ratio and the decision in this case is, therefore, of no help and guidance for the determination of the nature of the present institution in dispute,
16. The third case of Harnam Dass AIR 1936 Lah 825 (supra) relied upon by the Tribunal, if read as a whole, supports the conclusion that the institution in dispute is an Udasi dera and not a Sikh Gurdwara. The facts found and the findings given in that case are contained in detail in head-note (b) which reads as under:--
'The Dharamsalas were managed by Mahants, the Udasi Fakirs. They had their chelas as Mahants of the institution. Muafi of land was granted on condition of Granth Sahib being regularly read. The Dharamsalas were not called Dharamshalas but were referred in documents as deras. There were smadhs on the land of Mahants and smadhs were commonly found in Udasi institutions. Though there was langar or an alms-house, there was no place shown where Granth Sahib was read or recited.
Held: that the institution was not a Sikh Gurdwara and that the mere fact that the Granth Sahib was read was not sufficient to make it a Sikh Gurdwara.'
17. Mr. Narinder Singh, the learned counsel for the respondent, however, contends that the institution in dispute holding the muafi has been continuously described in the revenue record as Makan Granth Sahib or Granth Sahib since the first settlement which took place in the year 1907 A. D, and relying on certain decisions of the Lahore High Court, has argued that from this use of the institution for a long period of more than 50 years, a presumption can be raised that the institution in dispute was established for use by the Sikhs for the purpose of public worship. There can be no dispute with this principle of law, but as discussed above, in the present case the facts proved on the record give a clear indication that the institution in dispute was established by Bhai Jagga who was an Udasi Faqir. Moreover, the institution in dispute was claimed to be a Dera by the then Mahant Brahma Nand as late as in the year 1938 A. D. and so was it described by the residents of the village. In view of these facts and circumstances it is not possible to raise a presumption from the latter use of the institution that it was established or used by the Sikhs for the purpose of public worship.
18. As a result, this appeal is allowed, the judgment of the Tribunal is set aside and a declaration is granted in favour of the appellant that the institution in dispute is not a Sikh Gurdwara. The parties are, however, left to bear their own costs.
B. S. Dhillon, J.
19. I agree.