Teja Singh, J.
1. The following pedigree-table, which appears to have been proved by the parties' statements and evidence, will be helpful in understanding the facts of this second appeal:
MANOHAR DAS___________|_______________________| | |Ganesh Das Bhagat Ram Thakar Das|Lal Daa___________|_______| |Om Parkash Tilak Raj2. Ganesh Das was the owner of 129 kanals and 5 marlas of land and he held occupancy rights in 65 kanals 91/2 marlas. He died childless in April 1941 and the entire land left by him, including his occupancy holding, was mutated by the revenue authorities in favour of Thakardwara Naushehra on the ground that it belonged to the institution. Om Parkash who was minor at the time, through his next friend and grandfather Thakar Das, brought a suit for possession of the land. He alleged that the suit land was the personal property of Ganeeh Das and consequently he being Ganesh Das's grandson and heir was entitled to it. He claimed that he was the chela of Ganesh Das and had a right to inherit the suit land in that capacity also. It was further alleged in the plaint that Bhagat Ram and Thakar Das had relinquished their rights in the plaintiff's favour. The suit was resisted by the Thakardwara on the plea that Ganesh Das held the land as a representative of the Thakardwara and the land in fact belonged to the Thakardwara which was a religious institution. The plaintiff's allegation in respect of his being Ganesh Das's chela and the relinquishment of their respective rights by Bhagat Ram and Thakar Das, if any, were also denied The following issues were framed by the trial Court:
1. Is the suit maintainable in its present form?
2. Cannot the suit lie without the consent of the Advocate-General?
3. Was the suit land waqf property and did it vest in the Thakardwara at Mauza Naushehra as such?
4. Was the suit land the private and personal property of Ganesh Das?
5. Was the plaintiff a chela of Ganeah Das and as such entitled to possess the land in dispute?
6. Is the plaintiff entitled to possess the land as grandson and heir of Ganesh Das?
The technical issues were found for the plaintiff. As regards the issues on merits, the trial Sub-Judge held that though the plaintiff had not been proved to be Ganesh Das's Chela, he was entitled to inherit the suit land, because it was Ganesh Das's personal property and the plaintiff was his grandson. In the result the plaintiff's suit was decreed with costs. On appeal the learned District Judge did not accept the finding of the trial Sub-Judge regarding the relationship of the plaintiff with Ganesh Das and held that he was not Ganesh Das's grandson but the grandson of his brother Thakar Das; none the less he upheld the decree in his favour, because he agreed with the trial Sub-Judge that the suit land was not waqf property and the other heirs of Ganesh Das having relinquished their rights in the plaintiff's favour he had a right to suecceed to it. The Thakardwara has now come to this Court on second appeal.
3. The first point urged by the appellant's counsel was that the finding of the Courts below that the suit property was Ganesh Das's personal property is not supported by evidence and is erroneous. He further argued that since for a period of about one hundred years the property has been descending from Guru to Chela no presumption ought to have been raised that it belonged to the institution of which Ganesh Das was in charge as a Mahant and Ganesh Das had no personal interest in it. So far as the occupancy rights are concerned, counsel drew our attention to Punjab Singh v. Sant Ram (1996) 22 P.R.1896 and Sher Singh v. Saya Rama (1907) 2 P.R.1907 Rev in order to show that in respect of occupancy rights which are not attached to an institution and are entered in the name of the Mahant, a Chela has no right of succession under Section 59, Punjab Tenancy Act, but when the property is attached to the institution, succession is from Guru to Chela. The relevant words of Section 59 are 'male lineal descendant in the male line of descent' and the question referred to the Pull Bench in Punjab Singh v. Sant Ram (1996) 22 P.R.1896 was whether a Chela of a deceased Bairagi Faqir could succeed to the occupancy rights of the deceased against the wishes of the proprietors. The Full Bench held that the Chela was not a 'male lineal descendant in the male line of descent' within the meaning of the section. Learned Counsel drew our attention particularly to the following paseage appearing in the judgment of Rivaz, J.:
It should be observed that we have no question before us in the present case of the descent of an occupancy holding granted to, or attached to a religious Institution, as such, the incumbent of which for the time being is merely manager and occupant of the land on behalf of the institution. Admittedly the occupanoy holding in the present case belonged to the deceased. Bairagi personally, and not to any institution (if such there be) of which he was merely the manager.4. The second case relied upon by the counsel was decided by the Financial Commissioner Punjab, and he held that where occupancy rights belong to a religious institution, the Chela of the last incumbent who has become Mahant of the institution is entitled to succeed to them in his representative capacity as head of such institution.
5. I have nothing to say regarding the correctness of the above mentioned rulings, but what I do not accept is that it logically follows therefrom that when there is a long line of succession of occupancy holding from Guru to Chela, this fact by itself should give rise to a presumption that the holding belonged to the institution. I am inclined to think that something further has to be shown and among others it should be established that the Gurus were not complete ascetics, that they had natural heirs who could succeed to the holding by virtue of Section 59 and that there was actually a competition between those heirs and the Chelas or there could have been such competition between them on the question of succession. I am supported in this view by the observations made by Broomfield, J. in Amardas Mangal Das v. Hamambhai Jethabhai : AIR1942Bom291 . This is what the learned Judge said:
As for the presumption which in Indar Singh v. Fateh Singh 8 A.I.R.1921 Lah.337 and other cases cited in Dhoribhai Dadabhai v. Pragdasji Bhagwandasji 25 A.I.R.1938 Bom.471 has been held to arise where succession is from Chela to Chela, that seems on further examination of the authorities to be limited to cases where the religious persons concerned are grihastha and not celibates, so that there may be a conflict between the Chela and the natural heirs of the Guru. A Sanyasi's heir is always his Chela. Mr. Shah has pointed out quite correctly that these particular Sadbus have evidently not renounced the world completely because they are permitted to acquire and dispose of property and carry on business. Nevertheless they admittedly belong to a celibate order, and so far as we know there has never been any question of any property held by them, whether trust property or secular property, going by succession to any one but their Chelas. Under the cirmunstances we are not prepared to say that the fact that all these properties have been held by Chelas gives rise to any presumption.In the present case Ganesh Das and his successors (predecessors?) were Baragis and there is nothing on record to show that any of them had natural heirs and there was ever a conflict between the latter and the Chelas. Accordingly, I hold that there is no force in this contention of the counsel. Apart from this, the revenue records show that succession did not always devolve from the Guru to the Chela. In 1884 two persons Brahm Das and Gharib Das held the property in equal shares Brahm Das's share descended to Jnnki Das and on Janki Das'a death to Ganesh Das. Gharib Daa was succeeded by Kahan Das, and Kahan Das by Makhan Das. In 1925 Makhan Das transferred his share to the Thakardwara. The very idea of a Chela succeeding the Mahant is that he represents the institution; but when the property is divided between two Chelas and each of them succeeds to half the share, the inference is that the property did not belong to the institution. It was stressed by the counsel that had the occupancy holding not belonged to the institution, the landlords would never have allowed the Chelas to succeed to it, but I do not think that this fact can be regarded as conclusive, because it may be that the land was not valuable and the landlords did not care much for it or it may be that they were perfectly satisfied with the new occupancy tenants who took the place of old ones and did not like to exercise their right. The condition in respect of the proprietary land is somewhat different, inasmuch as there were no landlords whose rights could clash with those of the Chelas, but this difference is against the appellant and all that I have said about the occupancy holding applies with greater force to this land I, therefore, hold that there is no scope whatever for raising any presumption that the land belonged to the institution.
6. The second point urged by the learned Counsel for the appellant was that so far as the occupancy holding was concerned, even assuming that it was Ganesh Das's personal property, the plaintiff could not succeed to it, for the simple reason that he being Ganesh Das's collateral and not grandson, his case fell within the purview of Clause (d) of Sub-section (1) of Section 59 and according to the proviso to that clause it was incumbent upon him to prove that the land was occupied by common ancestor, which he has not done. All that the respondent's counsel had to say on this point was that the matter was not put specifically in issue and the plaintiff should be given an opportunity of proving that the land was once in the occupation of Manohar Das who was the common ancestor of the plaintiff and Ganesh Das. Now it has to be remembered that it was the plaintiff who came to Court with the claim that he was entitled to succeed to Ganesh Das as an occupancy tenant and it was his duty to prove that he possessed that right under Section 59. It cannot be denied that when a person is not the lineal descendant of the deceased occupancy tenant in the male line and claims the right of succession on the ground that he is his male collateral relative in the male line of descent from the common ancestor of the deceased tenant and himself, it is for him first to allege and then to prove that the common ancestor occupied the land. The plaintiff made no such allegation in his plaint. On the other hand, he wrongly described himself as Ganesh Das's grandson. Besides this we have before us complete revenue records going down to 1852 and it is clear from them that Ganesh Das got the land not from his father Manohar Das but from Janki Das whose Chela he was. I, therefore, hold that this plea raised by the appellant's counsel must prevail and it must be held that so far as the occupancy holding is concerned, the plaintiff had not been able to prove that he had the right to succeed to it.
7. In the result I would accept the appeal in part, set aside the decree of the Courts below in the plaintiff's favour in respect of the occupancy holding and dismiss the plaintiff's suit so far as it relates to it. I would leave the parties to bear their own costs throughout.