Sir George Rankin:
The dispute in this case relates to an area of 28 kanals and 1 marla (nearly three acres) situated in the village of Kot Fateh Khan in the Attock district of the Punjab. Within this area lies the tomb (samadh) of a Hindu ascetic Baba Than Singh who is said to have died in or about 1793. This tomb has long been held in veneration and had become a udasi shrine (debri or deri) before the Punjab came under British rule. The tomb of his disciple Chet Ram lies near to that of Than Singh, but the religious institution is known as the Deri Baba Than Singh. It would appear to be in enjoyment of one if not two jagirs or assignments of revenue dating from Sikh times. At its head there has been a long succession of mahants and in the area now in question have lived the sadhus connected with the institution as well as the mahant. A langar or free kitchen with certain buildings attached thereto has also been maintained there. The various compounds or closes comprised in the area are referred to in the judgments and decrees of the Courts in India as ihatas Nos. 179 to 230, these being the numbers given to them in the khasra abadi register of 1862 at the first regular settlement.
The village is said to have been founded in the 16th century by an ancestor of respondent 1 Lieutenant Sardar Mohammad Nawaz Khan (herein called the respondent). Its inhabitants, apart from those connected with the shrine, are Muslim cultivators and one or two kamins e.g., the blacksmith, the carpenter. At the first regular settlement in 1862, the proprietors consisted of a number of members of the respondent's family, but in or about 1882 a partition was made between three branches of the family. By this the village was divided into three portions called Abadi Kot Khas, Abadi Kot Bala and Abadi Deri Baba Than Singh. This last portion was included in the share which fell to the respondent's predecessor. It includes the land in suit which is separated from that part of the village Kot Khas in which the cultivators and kamins live by some 30 yards or more of cultivated land.
The respondent was a minor when in 1903 he succeeded to the property on the death of his father, and from 1903 to 1924 the Court of Wards was in charge of his estate. Since 1924 the respondent has had the management of his own property and has asserted rights as proprietor of the village over the area in question which are now contested by those interested in the shrine. It is not now disputed by the respondent that the sites of the two samadhas must be treated as having been dedicated to the religious institution and that the langar buildings belong to it permanently. But he contests the appellants' claim on behalf of the shrine that the whole area of 28 kanals and 1 marla together with the various houses thereon is in the same position as the samadhs, and that the has no right in it; as also their claim that in any event the right of occupation is vested in the shrine and continues so long as the shrine exists. He claims moreover certain rights by village custom in the malba or materials of which the houses are built, which rights are denied by the appellants. These matters came originally before a tribunal constituted under the Sikh Gurdwaras Act (Punjab Act 8 of 1925). An application having been made to have the shrine declared to be a Sikh gurdwara, the mahant objected that it was a Udasi institution and not within the Act. The respondent by petition dated 25th April 1931, objected that the area claimed as belonging to the institution was his sole property; that he was the owner of the malba of the houses and buildings, and that their sites reverted to him if a non-proprietor occupant died childless, or abandoned the building, or alienated it without his permission. In effect, his claim was to treat the mahant and the sadhus as non-proprietors occupying separate houses with permission of the proprietors and subject to the rights which the custom of the village gave to the proprietor. The mahant's objection at first succeeded but in March 1935, it was compromised on appeal to the High Court and the institution was declared to be a Sikh gurdwara. It thus became necessary to decide the various matters raised by the respondent's petition and the Tribunal received oral and documentary evidence thereon in considerable quantity. On 18th November 1935, the Tribunal by a majority determined that the petitioner is owner of the sites of ihatas Nos.179 to 230 but as long as the shrine exists there is no right of reversion in favour of the petitioner ; it has a right of occupation of the whole area of 28 kanals 1 marla and there is no right of reversion, in favour of the petitioner, of the site or malba of any house over this area in the event of the oocupant thereof dying issueless or abandoning or alienating the building without the permission of the proprietor.
Apart from the two samadhs and the langar, Hilton J. the President of the Tribunal dissented from this decision of his two colleagues save as regards the declaration of the respondent's ownership. On appeal to the High Court, Coldstream and Blacker JJ. agreed with Hilton J. The High Court's decree of 16th July 1936, declared the petitioner (the present respondent) to be the owner of the sites of ihatas Nos. 179 to 230 "except the sites of the two gurdwaras Dehri Bhai Than Singh and Dehri Bhai Chet Ram;" and also to be entitled to the malba of the superstructures situated on the disputed areas in the event of the occupant thereof dying issueless or abandoning or alienating the building without the proprietor's permission. From this last declaration, however, they excepted the superstructures of the "gurdwaras" and of the langar and the buildings appertaining thereto. Neither of the Courts in India has taken the view, for which the appellants contend, that the area in dispute has as a whole become dedicated to the shrine so as to make an end of the respondent's ownership therein. But the two members of the Tribunal who were in the majority considered that the right of occupation, whether or not given at different times to individual sadhus, was given to the institution, which occupied the various houses through them as its members. Rai Bahadur Lala Dwarka Parshad said in his judgment that "it was a case of dedication by user "; also, it is the shrine that has the right of occupation over this whole area of 28 kanals and so long as it exists there is no case of reversion to the Sardar.
The other member, Sardar Man Singh, added that as the sadhus were all ascetics whatever they acquired was for and on behalf of the dehri and not for themselves. For this he vouched as authority para. 89 of Rattigan's "Digest of Civil Law for the Punjab" :
89. All property acquired by individual members of a religious fraternity belongs, as a general rule, to the religious institution to which they are attached.
The papers prepared in 1862 at the first regular settlement were prepared before the village had been partitioned and at a time when there were a considerable number of proprietors. The khasra abadi register (a list of inhabited sites) and the map of 1862 disclose some sixty "ihatas" as being houses or areas of land held therewith in the occupation of individuals who are for the most part without women or children. The great majority of them if not indeed all are clearly sadhus, but in two cases it is noticed that one house is a school and the other a police station. The sadhu in every case is entered in the register as "owner" of the house, but too much need not be made of this expression. In another of these settlement papers - a statement of owners' and tenants' holdings called the mumtakib assamiwar khasra - the owner as distinct from the tenant is entered as "shamilat deh" (village common land). In the wajib-ul-arz prepared at this time it is stated in para. 8 relating to "income from cesses" : .
A person who wishes to take up residence, does so with our (proprietors') permission. If a person demands any help for the construction of a kotha, he is helped with wood. He is entitled to reside as long as he likes. When he deserts the place, he is not entitled to sell the house. After he has left, the proprietor of the place shall be entitled to Malba. The proprietor may make Abad in the kotha any person he likes, subject to the condition that if the former returns to the village after 2-4 years and his house is in a sound condition, then he is given on his request the same kotha for residence.
The only point material to the present case in which this differs from the ordinary custom (set forth in para. 236 of Rattigan's "Digest") concerns the right to the malba - the latter giving to the non-proprietary resident a right to sell the materials of the house on his occupation ceasing. In 1882, the mahant having died, a question arose as to the continuation by Government of the jagir of the village of Jassian and the revenue Court required the tahsildar of Fateh Jang to report on the condition of the dehri now in question and its langar. This official requested Sardar Fateh Khan a predecessor of the respondent to inquire, and his report of 10th June 1882 (Ex. O/31) is in evidence. It describes this abadi as a separate and important colony and it gives the dehri a good character, saying that its kitchen not only feeds its sadhus and fakirs but also wayfarers and that it gives each fakir one rupee per month for clothes, etc. The appellants also seek to rely on Ex.O/32 a "list of houses attached to Dehri Baba Than Singh " made out - it does not appear by whom-for the revenue Court on this occasion. This list has been treated as inadmissible by the High Court but, if it be admitted, it shows the bulk of the houses as having a sadhu for " owner ", though a number are entered as musafirkhana making them appear as intended for use by wayfarers rather than residents - an appearance which would make a better impression upon any revenue official dealing with the continuation of the jagir:
otherwise it does not substantially alter the picture presented by the settlement papers of 1862 save that it shows the pakka buildings to be 16 and the kacha to be 42.
At the second regular settlement of 1882 in the khasra paimaish papers (statement of measurements) under the heading "owner" in respect of these 28 kanals 1 marla is the entry "village abadi." The area itself is described as unculturable inhabited land (abadi ghair mumkin). In the Record of Rights at the third settlement, 1905, and at the fourth, 1925, the entry "village abadi" is put in the column headed "tenant" as well as in the column headed "owner" and to the description ghair mumkin abadi is added "of Dehri Baba Man Singh"-which the respondent claims to be in recognition of the partition of 1882. In none of the settlements after the first is there any entry in a settlement paper corresponding to the entry which has been cited with reference to persons wishing to reside in the village. This the High Court has noted, but the learned Judges following a previous decision of their own Court in 17 Lab 403,(1) have held that it does not detract from the force of the entry as after the first settlement the revenue authorities did not concern themselves with recording rights in the village abadi. This is a matter of the revenue history of the province and their Lordships see no reason to think that the High Court is not correctly informed.
Two matters which their Lordships do not find it necessary to discuss may here be mentioned and put aside. The first is an arbitration held in 1904 by an Assistant Commissioner, Mr. C.F. Usborne, in a dispute about the right to receive the rents paid for shops opened or erected in the area in suit at the time of the Baisakhi fair. The award of 27th March 1904, was that half the rent should be taken by the respondent and the other half by the sadhu in whose house the shop was put up. Both sides crave this in aid, the respondent pointing to the fact that the houses were held to belong to the individual sadhus, the appellant to the fact that the proceedings were brought by the mahant. The second matter is the claim made by the respondent in 1925 to receive huq buha or door tax from the mahant Parkasha Nand under the wajib-ul-arz of 1862. This claim succeeded before the revenue Courts which were ultimately held by the Board to have exclusive jurisdiction over the claim, but doubts had been thrown upon the right by opinions of the civil Courts and the Board did not pronounce upon the matter : 65 IA 301.(2)Their Lordships are not to be understood as thinking that the results of these two disputes are irrelevant in the present case. On the contrary, their view is that on balance they are not without weight in favour of the respondent but that in view of more direct and cogent evidence a discussion of them would encumber the present case unnecessarily.
The respondent's 59 witnesses may be taken to establish that since he came of age in 1924 he has exercised the rights claimed by him and the appellants' evidence is that of late years he has done so somewhat harshly having had a number of the kacha houses demolished. On the other hand - and Mr. Wallach for the appellants has most forcefully laid stress upon this as his main point-the respondent's evidence does not include anything to show that his father before his death in 1903 or any previous proprietor had taken possession of sadhus' houses on their death or departure from the village or had otherwise exercised the customary rights now claimed. For the time (1903 to 1924) of the management of the Court of Wards while the respondent was a minor, there is some such evidence. The responsible official who was a manager from 1918 to 1923 (P.W.5) speaks to the supply of timber to a sadhu called Budh Prakash and says that the house of another sadhu called Narain Das was on his death, about 1922, taken by the Court of Wards. The evidence of this witness (P.W.5) as also of the assistant managers from 1914-17, 1917-23, and of several other witnesses shows that there was no musafirkhana in this part of the village, though witnesses for the appellants say that the people of Qutbal about 1917 built one which has been demolished. One sadhu Bawa Mohan Das (p.W. 24) fully supports the respondent on all points but is much exposed to suspicion of partisanship. Some at least of the sadhus appear to have had chelas who lived with them and in some cases at least the chela succeeded in fact to the possession of the guru's house at his death. The witnesses called for the appellants include some who say in general terms that the sadhus' houses were given to them by or belonged to the dehri, or that the sadhus were living through the mahant, or that when a sadhu went away the mahant got the key of his house and managed it, or that the mahant got the sadhus' houses repaired or that pilgrims were put up in the houses as the mahant directed. But this evidence is poor in quality and is wholly lacking in particulars. The Mahant Bhaqta Nand who succeeded Parkasha Nand in 1928 and who compromised with the appellants in 1935 over their claim that the shrine was not a Udasi institution but a Sikh gurdwara was called on their behalf and said that all the kacha houses except three or four were in his possession and were the property of the dehri, that he used some of them for his servants and some as storehouses. On the other hand he says :
I took the right of residence from Garib Das and also from Sarup Das. If a sadhu lives in a certain house he cannot be ousted by the mahant unless he does something against the principles of the dehri sahib but no sadhu could alienate his right of residence to anybody except the dehri sahib.
The general effect of the evidence for the appellants is that in 1889 and down to 1933 the houses in this abadi were some forty or fifty in number of which a dozen or so were pakka, i.e., built of masonry, while the rest were kacha, i.e., of mud and stones; and that all, or all save three or four, had been demolished recently, that is about 1934. The Court of Wards manager says that in his period of office (1918 to 1923) the pakka buildings were the langar, the mahant's bungalow, the main dehri, the second dehri and two houses one on each side of the latter. Also that there were about twelve kacha houses inhabited by sadhus most of whom lived there permanently but some of whom came and went though they had houses there. The papers of 1862 show some 68 compounds but apparently the number of sadhu tenants holding houses is in the neighbourhood of thirty. The list, exhibit 0.32, given to the revenue Court in 1882 mentions 16 pakka and 42 kacha buildings. The general effect of this evidence is to show that between 1862 or 1882 and 1920 or thereabouts there was a considerable diminution in the number of the kacha houses but their Lordships are not prepared to go all the way with Hilton J. in saying "that this fact can only be attributed to the proprietor having gained possession of them according to the custom." If the number of sadhus for any reason became less, such houses, unoccupied, would tend to fall down and might not be repaired or rebuilt by the mahant or by anyone else whether they belonged to the dehri or to the individual sadhus.
It appears unreasonable on the evidence to doubt that the original right in the land in suit was with the proprietary body. Hence the first question is whether the appellants have proved a dedication by user of the whole of the area to the purposes of the shrine. This burden lies heavy on the appellants and it is beside the point to show that the respondent's evidence does not exclude the theory of dedication. For practical purposes, the shrine would hardly be treated as other than a permanent institution, and it is not easy to envisage conduct which would show an intention to dedicate the right of occupation until such time as the shrine should cease to exist and which would yet fall short of a simple out-and-out dedication of the whole interest as in the case of the samadhs themselves. But, in their Lordships' opinion, the evidence falls far abort of establishing that the individual houses of the sadhus were dedicated to the shrine in either sense or at all. The settlement papers of 1862 and of the later settlements make it almost hopeless to challenge, as regards this abadi of some three acres, the proprietorship of the respondent. They exclude any suggestion that in 1862 or later the mahant had become entitled to theabadi by any form of dedication and indeed there is no trace of any such claim having been brought to notice at any of the settlements or having been taken account of at the time of the partition between the members of the proprietors' family. Yet the case now made by the appellants and pleaded in their written statement of 20th July 1935, is that the respondent "has no right, title or interest in the said area." That the right of occupation but not the proprietorship has been dedicated is not an impossible position as a matter of law, and it might be affirmed without contradicting the entries in the settlement papers as to the proprietorship. But it it equally inconsistent with the settlement papers to suppose that the mahant or the dehri sahib itself was the sole and quasi-permanent tenant of this area. No trace of such a claim can be discerned in the map or khasras of 1862. The individual occupiers of the different houses are set forth in detail as the persons having the right of occupation. For the purposes of the question whether the proprietors' rights in those three acres of abadi have been parted with wholly or partially by way of dedication to the shrine, the particular custom as to malba laid down in the wajib-ul-arz of 1862 is only of subsidiary importance. If it be postulated for the sake of argument that the case falls under the general custom referred to by Hilton J. and stated in Rattigan's Digest in para. 236 the case as to dedication is not substantially altered though the claim to malba would be inconsistent with the assumption made. But their Lordships agree with the High Court in thinking that the special custom is proved, and in any case they think it reasonably clear that individual sadhus minded to attach themselves to the shrine were from time to time permitted by the proprietors to set up for their own habitation kacha houses in its neighbourhood, thus making it an abadi fairly enough described as a separate colony-a colony which not only enjoyed considerable reputation but also had the good will of the respondent's predecessors such as Sardar Fateh Khan. The absence of evidence that the respondent's predecessors refuted to allow one sadhu to succeed another in the occupation of the houses, or took away the materials, or installed a different class of tenant, is sufficiently explained by the circumstances and by the lapse of time and in no way warrants an inference of dedication whether of the right of occupation or of the whole interest in the land. Such a conclusion requires to be supported by clear and specific evidence of individual transactions which require the hypothesis of dedication to account for them-all the more so that it is contrary to the custom recorded in 1862 and to the position recorded at four settlements. The case of dedication is not made out merely by evidence of neighbourly or considerate conduct towards a religious institution or by showing that small profits have not been churlishly exacted by the proprietor from persons held in general esteem. Nor is it to be made out by showing that the sadhus dependent on the mahant got his help for repairs, or allowed him to assign pilgrims to them at the time of mela, or sought his help in other ways. As Hilton J. has observed, "there is no evidence that the manager of the institution obtained the proprietors' permission to build houses for sadhus." There is moreover no foundation for the contention that the mahant was in management and control of the houses occupied by sadhus in such sense that the sadhus enjoyed a sort of service occupation of the property of the institution. Save as regards the samadhs themselves and the langar buildings the case of dedication by user fails.
The appeal made to para. 89 of Rattigan's "Digest" is in these circumstances of no avail to the appellants. If it were intended as the statement of a legal presumption based upon a general custom of the Punjab, their Lordships, in view of the wide sweep of the proposition and of the importance of presumptions in India, would have desired and indeed expected ampler authority for it than they have been able to discover. Of the two cases cited as authority by the learned author their Lordships have been able to examine the first, 21 P R 1874,(3) and cannot find that it affirms any such proposition. Ascetics and religious institutions exhibit great diversity of character and Udasis in particular conform to no single type. In any case to presume that a particular Udasi shrine followed a certain practice because on a count of all religious institutions throughout the province the practice was found to obtain in a majority of the cases is a course of reasoning unwarranted by principle or authority. Their Lordships would be very slow to apply to such an institution at this dehri a rule not collected from its own constitution or practice as proved in evidence. Of the rule now in question it may be further said that unless it be written large in the conduct and history of the "fraternity" the greatest doubt is thrown upon it. However, from the introduction to chap.6 of the "Digest" and from para. 84 it appears that the force of such considerations did not escape the learned author, who insists that there is no general law applicable to religious institutions in the Punjab and appears to recognize in the light of long-standing decisions of the Board that they are to be governed only by customs and usages which they can be shown to accept. Thus in 11 MIA 405 (4) at p. 428, a case about a Hindu math in Bengal, it was said by the Board:
The only law as to these mahants and their office, functions and duties is to be found in custom and practice, which is to be proved by testimony.
Paragraph 89 of the "Digest" is not really put forward as a statement of any legal presumption: though it uses the words "general rule" it is not the statement of a rule but of something which has been found by enquiry to be true of most fraternities. Their Lordships are not satisfied that the sadhus living in this abadi were members of such a "fraternity" as is contemplated by the paragraph; but, whether they were or were not, it is, in their Lordships' view, established by the evidence that the houses in which the sadhus lived were treated by them and by the mahant as their own and not as belonging to the dehri. It cannot, in these circumstances, be held that the rights which the sadhus obtained as a result of their being allowed to live in this abadi became enlarged as against the respondent by virtue of any such rule as is put forward. Their Lordships will humbly advise His Majesty that this appeal should be dismissed. The appellants will pay the costs of respondent 1. The Registrar in taxing such costs will take note of and deal with any complaint made by the appellants as to the inclusion in the record of unnecessary documents such as those specified in para. 9 of the appellants' case.