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PETITIONER: S.G.P. COMMITTEE

       Vs.

RESPONDENT: M.P. DASS CHELA (DEAD) BY LRS.

DATE OF JUDGMENT:       30/04/1998

BENCH: G.N. RAY, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T SRINIVASAN, J. Leave granted. 2.   This proceeding  has its origin in an application by 60 persons claiming  to be  worshippers of  Gurudwara Dera Lang Shri Guru  Granth Sahib situate within the revenue estate of village  Sardararh,  Tehsil  and  District  Bahatinda  under Section 7(1)  of the Sikh Gurudwara Act 1925 (hereinafter to be referred  to as  the ‘Act’). Under the provisions of sub- section (8)  of Section 7 of the Act, the Governor of Punjab issued a  Notification No.  1301- GP  dated 7th  August 1984 published in  the Government  gazette alongwith  a  list  or rights, titles and interests in properties said to belong to the said  Gurudwara. One  Mahant Puran  Dass filed  petition under Section  8 of  the Act with the State Government which was forwarded  under Section  14 (1)  of the Act to the Sikh Gurudwaras Tribunal, Punjab at Chandigarh. Mahant Puran Dass claimed that the institution was not a Sikh Gurudwara but it was a  Dera of  Udasi Sadhus.  The  Tribunal  impleaded  the appellant herein  as party  respondent in the said petition. Evidence as  adduced by both the parties. The  Tribunal have that Mahant  Puran Dass  was not  a hereditary office holder and had no locus standi to maintain a petition under Section 8. The Tribunal also held that he institution in question is a Sikh  Gurudwara within the ambit of Section 16 (2)(iii) of the Act. 3.   Aggrieved thereby,  Mahant Puran  Dass filed  an appeal under Section  34 of the Act before the High Court or Punjab & Haryana.  As per  the requirement  of the said Section the appeal was  heard by  two learned Judge of the Court. One of them, namely  Justice K.S.  Tiwana agreed  with the Tribunal and held  against the  appellant. The  other learned  Judge, namely, Justice Yadav took a contrary view and held that the appellant in  the High  Court was a hereditary office holder and  that  the  Institution  in  question  was  not  a  sikh gurudwara. In  view of  the difference  of opinion, the case was referred  to a third Judge. Justice J.V. Gupta concurred with the  opinion expressed  by Justice  Yadav and held that the appeal  should be  allowed. Consequently  the appeal was allowed and  the order  of the  Tribunal was  set aside.  It

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should be  mentioned here  that during  the pendency  of the said appeal,  Mahant Puran Dass died and in his place Mahant Bhagwant Dass  who was  his chela  came on  record as  legal representative. 4.   The appellant has preferred this appeal challenging the correctness of the judgment of Justice Gupta concurring with that  of   Justice  Yadav.   During  the  pendency  of  this proceeding the  respondent Mahant  Bhagwant Dass died and in his place Mahant Pritam Dass has been substituted. 5.   Learned counsel  for the  appellant has  advanced three main contentions: (a)  The matter  should not  have been  referred to  a third Judge in  the High  Court and such reference is violative of Section 98  (2) of the Code of Civil Procedure. According to him there  was no point of law which arose for consideration and in any event no point of law was framed or stated by the learned Judges  who expressed different opinions. In as much as  the  matter  was  referred  to  a  third  Judge  without following  the  procedure  in  Section  98  (2)  C.P.C.  the reference to  the third  Judge was  a nullity and the appeal before the  High Court ought to have been dismissed as there was no  majority taking  a view  different from  that of the Tribunal (b)  Secondly, it  is argued  that Mahant  Puran Dass  was a hereditary office holder and had no locus standi to maintain the petition under Section 8 of the Act. (c)  The third  contention is that the Institution is a Sikh Gurudwara and  there is  overwhelming evidence  on record to prove the same. 6.   At  the  outset,  learned  counsel  for  the  appellant submitted that  even without  considering any  of the  above three contentions,  the judgment of the third Judge, namely, Justice Gupta  deserves to be set aside in limine as he h as not considered  the materials on record independently and he has only  expressed his  concurrence with  the  judgment  of Justice Yadav  without giving  any reason therefor. No doubt the judgement of judgment of Justice Gupta is not a detailed one and  it does  not refer  to the evidence alaborately but the learned Judge has referred to the crux of the matter and expressed his  opinion concurring  with Justice Yadav. While dealing with  the first   question  with regard to the locus standi of  Mahant Pruan  Dass the learned Judge has referred to the  principle laid  down by a Full Bench of the Punjab & Haryana High Court in Mahant Dharam Dass Chela Karam Prakash Versus Shiromani  Gurdwaran Prabandhak  Committee  AIR  1987 Punjab &  Haryana   64 and  pointed out  that succession  to Mahantship was  from guru  to chela and therefore Puran Dass was a  hereditary office  holder. Similarly  on  the  second question, the learned Judge has made particular reference to Ex. R-14  which is the crucial document being the title deed of the  Institution and  on the basis of the entries therein held the   Institution  is not a Sikh Gurudwaras. Hence, the criticism made  by the  learned counsel for the appellant is not acceptable. 7.   As regards the applicability of Section 98 (2) C.P.C. , it is  rightly  pointed  out  by  learned  counsel  for  the respondent that  the contention  was not raised at any stage before the  arguments in this appeal. It has not been raised even in  the Special  Leave Petition. There is also no merit whatever in  the said  contention. The provisions of Section 98 (3) have obviously been overlooked by learned counsel for the appellant.  As per  that sub-section, nothing in Section 98  shall  be  deemed  to  after  or  otherwise  affect  any provision of the Letter Patent of any High Court. Admittedly the High Court or Punjab has Letters Patent. Clause 26 of he

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Letters Paten  provides that  in the  event of difference of opinion between  two Judge as to the decision to be given on any point  it shall  be head  upon that point by one or more of the  other Judges  and the  case must  be decided  on the basis of  the majority opinion. Our attention has been drawn to the  judgment of  the High  Court of  Punjab & Haryana in Mahant  Swarn  Dass  Versus  Shiromani  Gurdwara  Prabandhak Committee AIR  1981 Punjab  & Haryana  110 and the following rulings of  various High  Courts taking  the view  that  the provisions of  Section 98, C.P.C. are not applicable to High Courts which are governed by Letters Patent and a matter can be referred  to a  third Judge  on a  difference of  opinion between two Judges even on a point of fact:      (i)  (Immidisetti) Dhanaraja and another versus Motilal Daga and another AIR 1929 Madras 641:      (ii) M.D. Puri & Sons Versus Lyons Cinema Ltd. AIR 1933 Lahore 648:      (iii) Pritam Dass Versus Mst. Akbari and other AIR 1973 Madhya Pradesh 224:      (iv)   Sushila Kesarbahi  and others  Versus Bai Lilava and others AIR 1975 Gujarat 39:      (v) Rulia  Devi and  others versus Raghunath Prasad AIR 1979 Patna 115 : and      (vi) Smt. Jayanti Devi Versus Sri Chand Mal Agrawal and others AIR  1984 Patna  296. We  agree with those ruling and hold that  the reference  to Justice Gupta in this case on a difference of  opinion between  Justice Tiwana  and  Justice Yadav is not in any way vitiated an does not suffer from any infirmity.  There  is  no  merit  whatsoever  in  the  first contention of the learned counsel for the appellant which is hereby rejected. 8.   The second  question to be considered is whether Mahant Puran Dass was a hereditary office holder. Section 2 (4)(iv) of the  Act defines  hereditary office to mean an office the succession to  which before the first day of January 1920 or in the  case of extended territories before the first day of November 1956,  as the  case may  be devolved  according  to hereditary rights  or by nomination by the office-holder for the time being and hereditary office holder means the holder of the  hereditary office. There is ample evidence on record in this  case to  the effect  that office of Mahant devolves for guru  to chela.  It a Mahant has several chelas and does not nominate  one of  them to  be the next office-holder the Bhek congregates  and nominates one of t he chelas to be the next Mahant.  This Custom  or usage  as it may be called has been in vogue with reference to this Institution for quite a long time.  Ex. R-14  itself contains the following Pedigree table : By Caste : Sadh Udasi : -------- Khem Dass Amar Dass Jodha Ram Harsewak Ram Gain Dass Jawahar Dass After Jawahar  Dass his  chela Puran Dass succeeded. When he passed away,  his chela  Bhagwant Dass  was nominated and on his death  his chela Pritam Dass became the Mahant. Thus the office of  Mahant  was  devolving  from  guru  to  chela  in accordance with an established usage and custom. 9.  The  necessary  averments  have  been  clearly  made  in Paragraphs 3 and 4 of the petition filed by Puran Dass under Section 8  of the Act. In support of the said pleading, nine witnesses have  been examined  including  Puran  Dass.  That

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evidence has  been accepted  by Justice  Yadav  and  Justice Gupta. We  do not  find any error in their doing so. Nothing has  been   elicited  in  the  cross-examination  so  as  to discredit their  evidence. The  only  argument  advanced  on behalf of  the appellant  is that the requirement of Section 2(4)(iv) are not satisfied in the present case. According to learned counsel  under the  said Section  there should  be a devolution by  hereditary succession  or nomination  by  the office holder  for the  time  being.  According  to  learned counsel, the  nomination of  a chela  by the  bhek after the death of office holder will not fall within the scope of the succession; not can it be said to be hereditary succession. 10.  We are  unable to  accept the  said contention.  It has been held  in several cases that if succession to the office of Mahant  is in  accordance with  a particular  scheme or a definite usage  or custom,  it will  be case  of  hereditary succession. 11.  In Amar  Dass Cchela  Jai Ram  Dass of Nabha Versus The Shiromanigurdwara Prabandhak  Committee AIR  1978  Punjab  & Haryana 273,  a Division  Bench of  the High  Court to which Justice Tiwana was a party observed that appointment by Bhek could be one of the methods of hereditary succession.      In  Mahant  Dharam  Dass  Chela  Karam  Prakash  Versus Shiromani Gurdwara  Prabandhak Committee:  AIR 1987 Punjab & Haryana 64  (F.B.) a Full Bench of the Punjab & Haryana High Court held  that the  ahantship had  devolved from  guru  to chela in  that case and it was hereditary succession and the office holder was hereditary office holder. 12.  The matter  could be viewed in a different manner also. When the  Mahant dies  the  right  to  the  office  devolves admittedly on  his chelas. It is not in dispute in this case that it  is only  a chela  of the  previous mahant  who  can succeed him as a mahant. The right of succession devolves on all the chelas and one among them who is nominated to be the next mahant  by the  Bekh is  none the less a person on whom the right  to succession  has devolved.  Thus he  is also  a hereditary office  holder. It  is in  evidence that normally the seniormost chela will be nominated unless he is found to be unfit. 13.  Learned  counsel   for  the  appellant  has  drawn  our attention to the judgment of the Full Bench or Five Judge of the Punjab  & Haryana High Court in Mahant Tehal Dass Versus Shiromani Gurdwara  Prabandhak  Committee  I.L.R.  1979  (2) Punjab &  Haryana 131. It has been held in that case that in a petition  under Section  8, the  Tribunal has to decide in the first  instance the  locus standi  of the petitioner and hold whether  the petition is maintainable or not. The  said decision does  not help the appellant in his contention that Puran Dass  was not  a hereditary office holder. In the fact and circumstances  of the case we hold that Puran Dass was a hereditary office holder and the view taken by Justice Yadav and Justice Gupta is correct. 14.  The next  question to  be  considered  is  whether  the Institution is  a Sikh Gurudwara. The Tribunal has held that the Institution  satisfies the requirements of S.16 (2)(III) of the  Act. Under  that sub-section  two conditions must be satisfied :(1)  The Institution  was established  for use by Sikhs for purpose of public worship; (2) The Institution was used for such public worship by Sikhs both before and at the time of the presentation of the petition under Section 7 (1) of the  Act.  Unless  both  conditions  are  fulfilled,  the Tribunal cannot declare it to be Sikh Gurudwara. 15.  In Lachhman Das and others versus Atma Singh and others AIR 1935  Lahore 666 it was held that both matters should be proved separately  and when user of the Institution only has

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been established,  it is  not a  necessary inference that it was established  for the  purpose of  public worship  by the Sikhs. 16.  It is quite evident from the language of Section 16 (2) that the  burden of  proving an  institution to  be  a  Sikh Gurudwara  is   on  the   person  who   asserts  the   same. Significantly in  this case,  none of  the sixty persons who presented t  he petition  under Section  7 (1) has chosen to enter    the  witness  box  and  give  evidence  in  support therefore. There  is no  explanation for  the same. The oral evidence adduced on behalf of the appellant has not inspired even the Tribunal. All that is relied on by the appellant is the entry  in Jamabandi  Register and mutation register. The entries in  those registers are to the effect that Dera Guru Granth Sahib  is the  owner. Those  entries can hardly prove either the  purpose of  establishment of  the institution or the use thereof before and at the time of the petition under Section 7(1)  of the Act. Tiwana, J. has himself pointed out that the  appellant herein who was the respondent before him was not in a position to furnish any direct evidence that it is a Sikh Gurudwara. 17.  On the  other hand, the entires in Ex. R-14, containing the proceedings  of the Settlement commissioner held in 1903 prove beyond  doubt that  the  institution  is  not  a  Sikh Gurudwara. Column  2 thereof  shows that  the original donor was Sardar  Jodh Singh  Saboke and  the donee  was Khem Dass Faqir Udasi.  Column 9  refers to  Guru Granth  Sahib  (Dera Lang, under  the management of Jawahar Dass, Chela Gain Dass Udasi of  the village.  Column 20 contains the report of the Superintendent. That  shows that  the muafi  was granted  by Sardar Jodh  Singh of  Sobo for  expenses of the building of Sawara Guru  Granth Sahib.  The  opinion  of  the  Assistant Settlement Officer is set out in Column 21. The order of the Settlement Commissioner  dated 1.5.1903  in Column  22 reads thus :  "Muafi as detailed continued to the Lang Dera in the name of  the custodian for the time being". Thus it is clear that the institution was not established for use by sikhs. 18.  Learned counsel for the appellant submits that Ex. R-13 is earlier  in point  of time  to Ex.  R-14 and  the entries therein support  the appellant’s case. We find that Ex. R-13 does not  contain any relevat matter. Ex. R-14 evidences the proceedings of  Settlement Commission  which is  an  Act  of State and  in the face of it, the documents relied on by the appellant do  not have any value. 19.  In a perusal of the records, we find that the following facts are proved :      (a) The  original grant was to an individual who belong to udasi sect. (Ex. R-14).      (b) All  Mahants of  this institution  have been  Udasi Sadhus (Para 16 of the Tribunal’s order).      (c) Succession to Mahantship is from Guru to Chela.      (d)   Several Samadhis  exist on the property which are objects of worship. (PW-9 and PW-16).      (e) Shradhs  are performed and Ram Navami festivals are celebrated. Gola Sahib and Murti of Baba Siri Chand are worshipped. (PW-10).      (f)  There is no Nishan-Sahib.      (g)  No proof of public worship by sikhs. 20.  The appellant  relies on  the evidence  that  the  Guru Granth Sahib  is worshipped.  That circumstance alone is not helpful to  the appellant.  It is contended by the appellant that the  oral evidence  of the  witnesses examined  by  the respondent were  disbelieved on some points by Yadav, J. and they ought  to have been disbelieved completely. There is no substance in the contention. It is open to any Court to sift

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the deposition  of any  witness and  accept a  part  thereof while rejecting the other part. 21.  In Shiromani  Gurudwara Prabandhak Committee and others versus Harcharan  Singh, air 1934 Lahore 1. a Division Bench held that where a grant was made to an Udasi sadh so that he might found  a village  in a  desolute place and establish a langar for feeding sadhus, the land or muafi was not granted to a Gurudwara. 22.  In Bawa Ishar Dass and others versus Dr. Mohan Singh an d others  AIR 1939  Lahore 239, the Court found that mahants of the  institution were  all along  udasis  and  ceremonies observed by  udasis and  Hindus  were  performed.  On  those facts, the  Court held  that it was not a sikh gurudwara and that the mere fact that Guru Granth Sahib was read there did not make it a Sikh Gurudwara. 23.  In  Pritam   Das  Mahant   versus  Shiromani  Gurudwara Parbandhak Committee  (1984) 2  S.C.C. 600  this Court  held that the  central object  of worship  in a gurudwara is Shri Guru Granth Sahib and sine qua non is that Guru Granth Sahib should  be   established  there   and  worshipped   by   the congregation and  that there should be a ‘Nishan-Sahib’. The Court held  that the  following aspects themselves negatived the institution being a gurudwara.      (a)  there were samadhis on the premises;      (b) there  were idols  and photos  of Hindu  deities as also of Baba Siri Chand;      (c) Bhai Bhagtu was an udasi saint and;      (d) Succession was from guru to chela. 24.  In Sikh  Gurudwara Parbandhak Committee Amritsar versus Mahant Kirpa Ram and others : (1984) 2 S.C.C. 614 this Court held that  were an Institution was established by a follower of udasi  sect to  commemorate the  memory of  his guru  and succession of  mahantship was guru to chela, the institution was not  a sikh institution. The Bench has elaborately dealt with the  requirements of Section 16(2) (iii) of the Act and pointed out  the distinction  between the  sikhs and udasis. The Bench  quoted with approval a passage in the judgment of the Privy  Council in  Hem Singh versus Basant Das, AIR 1936 P.C. 93 wherein the distinction between udasis and sikhs was clearly recognized.  The Bench  pointed out  that while  the udasis generate  the sikh  scriptures they also keep the old Hindu practices. 25.  On analysing  the materials  on record in this case, we find that  the institution  question is  not Sikh Gurudwara. The order  of the Tribunal has been rightly set aside by the High Court.  There is  no merit  in this  appeal and  it  is hereby dismissed. There will be no order as to costs.