1. The tenability of the appellant's claim to possession of certainproperties belonging to the Dera of Sanyasi Sadhus in Mauza Kharak TahsilHansi, District Hissar in Punjab is the subject-matter of this appeal which isbefore us on a certificate of fitness granted by the High Court of Punjab.
2. The appellant claimed the properties as the successor of the last Mahantof the Dera-Kishan Puri who died on February 15, 1951. The fortunes of the litigationstarted by the appellant have greatly fluctuated. His suit was decreed by thelearned trial Judge, was dismissed by the first appellate Court, was againdecreed by a learned Single Judge of the Punjab High Court on second appeal butthis judgment has again been reversed on Letters Patent appeal and the suitdirected to be dismissed. On a certificate of fitness granted by the High Courtthe matter is now before us.
3. The last Mahant of this Dera-Kishan Puri died on February 15, 1951.Immediately on his death disputes seem to have arisen as regards the successionto the Dera. Neki Puri - the original respondent in this appeal (now deceased)claiming to be a Chela of the deceased Mahant appears to have entered intopossession of the properties belonging to the Dera basing his title thereto onan appointment made to the office by the Bhekh and the people of the village.The appellant nevertheless claiming to be in possession of the property as thesuccessor of the deceased Kishan Puri by virtue of a title as the Gurbhai ofthe deceased, brought a suit for a declaration regarding his title and for aninjunction restraining Neki Puri from interfering with his possession. NekiPuri, as stated earlier, claimed that he was in possession of the properties andasserted a title to such possession by being a Chela who had been appointed bythe Bhekh. An issue was raised in the suit as to whether it was the plaintiffor the defendant who was in possession of the properties and on a findingrecorded that Neki Puri was in possession, the suit for a mere declaration andinjunction was held to be not maintainable and was, therefore, dismissed.Incidentally, however, evidence was recorded on an issue as to whether NekiPuri was a Chela of Kishan Puri - the last Mahant and finding was recorded onthis question adverse to the claim of Neki Puri. An appeal against thisjudgment was dismissed and that decree has now become final.
4. The suit for declaration and injunction having been dismissed, BrahmaNand Puri - the appellant - brought the suit out of which this appeal arises,in the Civil Court at Hissar for a decree for possession of the propertiesmovable and immovable belonging to the Dera. The suit being on the basis of theplaintiff's title. this was formulated thus :
'5. According to custom regarding succession of theDera and the Riwaj-i-Am of Deras the plaintiff being Gurbhai was entitled toGaddi, as he is the eldest Chela of Shanker Puri and the people of the villageand the Bhekh appointed him as Mahant after performing all the ceremonies onthe 17th day of the death of Shri Kishan Puri and made him occupy the Gaddi ofdera of Kharak.'
5. An alternative basis for the title was also put forward in paragraph 8 inthese terms :
'8. If for any reason it is held that after thedeath of Shri Kishan Puri, the plaintiff was not appointed as Mahant of theDera, even then according to the custom regarding succession of the Dera andRiwaj-i-Am, the plaintiff is entitled to become Mahant of the Dera as he is theGurbhai of Kishan Puri deceased. It was held in the previous case thataccording to the Riwaj, in the absence of a Chela his (deceased Mahant's)Gurbhai becomes Mahant of a Dera.'
6. In the Written Statement that was filed by Neki Puri two defences wereraised : (1) that Neki Puri was a Chela and he had been appointed to succeedKishan Puri by the Bhekh and other villagers. In other words, he put forward apreferential title based on Chelaship followed by an appointment by the Bhekhand others., (2) Alternatively, while admitting that Brahma Nand Puri was aGurbhai of the deceased Mahant, he denied that he had been appointed by theBhekh and also urged that there was no custom by which a Gurbhai who had notbeen appointed by the Bhekh was entitled to succeed as Mahant merely by reasonof his being a Gurbhai. On these pleadings 4 principal questions (omittingcertain others which are not relevant in the present context) arose for trial :(1) Was Neki Puri a Chela of the deceased Kishan Puri (2) Was Neki Puriappointed by the Bhekh It was admitted by Brahma Nand Puri that a Chela had aright superior to a Gurbhai and therefore if these two issues were found infavour of Neki Puri the plaintiff suit had admittedly to fail., (3) Was theplaintiff appointed by the Bhekh No serious attempt was made to establishthat the plaintiff had been appointed by the Bhekh and hence the 4th questionthat arose was whether there was a custom by which a Gurbhai could succeed tothe Mahantship of this institution without an appointment by the Bhekh aspleaded in paragraph 8 of the plaint extracted earlier. On these four mattersthe learned trial Judge recorded the following findings : (1) that Neki Purihad not been proved to be the Chela of the last Mahant., (2) No definitefinding was recorded on the second point but the trial Judge was of the opinionthat there was no proof that the Bhekh could appoint as Mahant a person who wasnot either a Chela or a Gurbhai or that they actually did so in the presentcase., (3) A definite finding was recorded that the plaintiff was not appointedby the Bhekh., (4) Without recording a finding on the custom set up by theplaintiff in para 8 of the plaint the learned trial Judge held that under thelaw in the Punjab in the absence of a Chela, a Gurbhai was entitled to succeedto the Gaddi apart form any question of appointment by the Bhekh and on thisreasoning decreed the plaintiffs suit.
7. The defendant went up in appeal to the Additional Sessions Judge. Theappellate Court reversed the finding of the trial Judge on the issue as towhether Neki Puri was a Chela of the deceased Mahant and held that he was. Adefinite finding was also recorded on the basis of the evidence led by thedefence that Neki Puri had been appointed to succeed the deceased Mahant by theBhekh and the villagers. As admittedly a Chela had a superior title to aGurbhai in the matter of succession the learned District Judge allowed theappeal of the defendant - Neki Puri and directed the dismissal of the suit.
8. The plaintiff took the matter to the High Court by way of second appeal.The learned Single Judge who heard the appeal in his turn reversed the findingof the first appellate Court on the issue regarding Neki Puri being a Chela ofthe deceased Kishan Puri. He considered that the finding on this matter by theAdditional Sessions Judge was vitiated by serious errors of law andmisappreciation of facts. Having thus put aside the claim of Neki Puri tosucceed by holding that he was not a Chela, the learned Judge upheld the plaintiff'sclaim on the ground that a Gurbhai was entitled to succeed to the Gaddi even ifhe had not been appointed by the Bhekh. He, therefore, decreed the suit of theplaintiff. Neki Puri then in his turn took the matter before a Division Benchby a Letters Patent appeal. The learned Judges concurred with the learnedSingle Judge on the issue as to whether Neki Puri was a Chela or not. Theyagreed with him that the first appellate Court had committed serious errors inits reasoning in finding that Neki Puri had established the claim to be theChela of Kishan Puri and affirmed the finding of the learned trial Judge inthat regard. Dealing next with the title of the plaintiff to the Gaddi, thelearned Judges held that the custom set up in paragraph 8 of the plaint thatGurbhai could succeed without an appointment by the Bhekh had not been made outon the evidence and on this reasoning they allowed the appeal and directed thedismissal of the suit. It is the correctness of this decision that ischallenged before us by the appellant.
9. Two points were urged before us by Mr. Chatterjee - learned Counsel forthe appellant. The first was that under the law applicable to Deras in thePunjab that is to say apart from any special custom, a Gurbhai was entitled tosucceed to the Dera even without an appointment by the Bhekh or fraternity, (2)that even if that was not the law and a custom was requires to sustain thatplea, such a custom had been established by the evidence adduced by theappellant in the present case.
10. Passing here, we might mention that Mr. Chatterjee referred us to thecircumstance that during the pendency of the appeal in this Court Neki Puri haddied and that certain others who, he stated, had even less claims to aMahantship were in possession of the property and that seeing that theappellant was admittedly a Gurbhai it would be most inappropriate that hisrights should be overlooked and a stranger permitted to squat on the property.We consider this submission is devoid of force. The plaintiff's suit being onefor ejectment he has to succeed or fail on the tile that he establishes and ifhe cannot succeed on the strength of his title his suit must failnotwithstanding that the defendant in possession has no title to the property,assuming learned Counsel is right in that submission. As pointed out inMukherjea's Hindu Law of Religious and Charitable Trust, Second Edn., page 317:
'The party who lays claim to the office of theMohunt on the strength of any such usage must establish it affirmatively byproper legal evidence. The fact that the definition is a trespasser would notentitle the plaintiff to succeed even though he be a disciple of the lastMohunt, unless he succeeds in proving the particular usage under whichsuccession takes place in the particular institution.'
11. We, therefore, dismiss this aspect of the case from consideration.
12. Taking the first point urged by Mr. Chatterjee, we do not consider thatlearned Counsel is justified in his submission that under the law as obtains inthe Punjab a Gurbhai is entitled to succeed without reference to an appointmentby the Bhekh or the fraternity. In Rattigan's Digest of Customary Law theposition as regards religious institutions in the Punjab is thus stated :
'There is no general law applicableto religious institutions in this Province, and each institution must be deemedto be regulated by its own custom and practice. There are, however, certainbroad propositions which judicial decisions have shown to have received verygeneral recognition, and these propositions are embodied in the followingparagraphs :-
84. The members of suchinstitutions are governed exclusively by the customs and usages of theparticular institution to which they belong.
85. The office of Mahant isusually elective and not hereditary. But a Mahant may nominate a successorsubject to confirmation by his fraternity.'
13. From paragraph 85 it would follow that the office of Mahant beingusually elective and not hereditary, anyone who lays claims to the office onthe basis of a hereditary title resting on Chelaship simplicitor or Gurbhaishipsimplicitor must establish it. (See also Jiwan Das v. Hira Das) A.I.R. 1937 Lah. 311. Though, no doubt, the usage of one institution is no guide to thatof another, it may be mentioned that in regard to the succession of Mahantshipof a Thakurdwara belonging to the Ram Kabir Sect of Hindu Bairagis in districtJullundur in the Punjab this Court held in Sital Das v. Sant Ram A.I.R. 1954 S.C. 60, that the usage required an appointment by the fraternity before a personcould become a Mahant. On the basis, therefore, of the passage in Rattigan'sDigest, which we have extracted, it appears to us that the first of thesubmissions made by Mr. Chatterjee cannot be upheld. In fact, the tenor of para5 of the plaint we have extracted earlier itself shows a consciousness on thepart of the plaintiff himself that he considered that an appointment by theBhekh was necessary to clothe him with the title to the Gaddi besides hisstatus as a Gurbhai. No doubt the plaintiff was a Gurbhai but he had notestablished that he has been appointed by the Bhekh or fraternity. In theabsence of such appointment under the law and apart from any special custompertaining to this institution the appellant could claim no title to the Gaddi,by his being a Gurbhai.
14. This takes us to the second point urged by Mr. Chatterjee that on theevidence the plaintiff had made out the special custom pertaining to thisinstitution that no appointment by the Bhekh was necessary before a Chela orGurbhai could succeed to the Gaddi. We have been taken through the entireevidence in the case. In the first place, there are no documents or anything inwriting in support of the custom and the matter depends entirely on thetestimony of witnesses produced before the Court. P.W. 4 who claimed to be aBhekh of this Dera stated in chief examination :
'According to the custom of our Bhekh if a Mahantdied without leaving a Chela his Gurbhai became the successor. If however thereis Chela he is the successor.'
15. In cross-examination he stated :
'The custom of succession stated by me above iswritten however : it is followed by us.'
and then he continued :
'In village Bata there is a Sanyasi Dera. Therealso Prabhu Puri Chela was not found to be a good man and Sunder Puri Gurbhaiof the last Mahant was installed. In Guna there is a Sanyasi Dera. Lachhman GirSanyasi died without leaving a Chela. His Gurbhai Phag Gir succeeded him to theGaddi.'
16. It would be seen that there was nothing specific in his evidence aboutthe absence of an appointment by the Bhekh in those instances which is thespecial custom which the plaintiff sought to prove by this evidence. P.W. 11 isanother witness to whose evidence reference was made. He stated in his chiefexamination :
'According to the custom of the Bhekh if a Mahantleaves no Chela, his Gurbhai succeeds to the Gaddi.'
17. In cross examination he stated :
'The custom of succession which I have deposed toabove is at par with the General Hindu Customary Law..... There might be manyinstances. But I cannot recall to my mind any such instance now.'
18. P.W. 13 belongs to a different Dera but he claimed that the Dera atKharak was similar to his institution and stated in his chief examination :
'Amongst us if a Sadhu does not leave a Chela, theGaddi goes to his Gurbhai. There is an instance in the Gurdwara of Kosli nearmy Dera of a Gurbhai succeeding a Mahant in the absence of a Chela. There isanother such instance of Dera at Nangri in Rajasthan.'
19. The evidence of P.W. 16 was similar :
'My Guru succeeded to the Gaddi as Gurbhai of thelast Mahant.'
20. Evidence of P.Ws. 17 and 18 was identical with that of the witnesses whopreceded them :
'According to custom of the Bhekh if a Mahant dieswithout leaving a Chela his Gurbhai succeeds.'
21. It would be seen from this evidence : (1) that it is lacking inparticulars as regards the instances, and (2) there is nothing stated as towhether even in the instances referred to, there was no recognition,appointment or confirmation by the Bhekh which according to Rattigan is part ofthe customary law of the Punjab as the source of title for the Mahantship. Weare, therefore, not prepared to hold that the appellant has established thecustom which he put forward in paragraph 8 of his plaint in derogation of theordinary law viz., that without an appointment by the Bhekh or fraternity aChela or, in his absence, a Gurbhai succeeds to the headship of a Dera. Theplaintiff's suit was, therefore, in our opinion, properly dismissed.
22. Mr. Naunit Lal, learned counsel for the respondent urged that thelearned Single Judge was in error in reversing the finding of the firstappellate Court that Neki Puri had proved that he was a Chela of Kishan Puri -the deceased Mahant. It might be noticed that the Division Bench had concurredin the views expressed by the learned Single Judge as regards the defects inthe judgment of the first appellate Court on its findings on this issue.Learned Counsel submitted that the learned Single Judge fell into seriouserrors in interfering with a finding of fact. Though we are satisfied thatcertain portions of the judgment of the learned Single Judge had suffered fromerrors, we do not purpose to examine this question as the same is whollyunnecessary for the disposal of this appeal. It is only in the event of ouraccepting the submissions of Mr. Chatterjee that the correctness of thereversal of the finding on the Chelaship of Neki Puri would have becomematerial. In the view that we have expressed as regards the appellant's titleto the Gaddi we do not consider it necessary or proper to discuss what, infact, is merely an academic question.
23. The result is, the appeal fails and is dismissed with costs.
24. Appeal dismissed.