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PETITIONER: KESAR SINGH

       Vs.

RESPONDENT: BALWANT SINGH

DATE OF JUDGMENT: 03/11/1961

BENCH:

ACT:      Sikh Gurdwara-Tribunal’s  decision  regarding claims to  property-Binding nature-Civil Court, if can go  behind-Sikh  Gurdwaras  Act,  1925  (8  of 1925), ss. 25A, 36, 37.      Limitation-Adverse  possesion-Possession   as servants-Whether  adverse-Indian  Limitation  Act, 1908 (9 of 1908), Arts. 142, 144.

HEADNOTE:      In 1933  there were  proceedings  before  the Sikh Gurdwaras  Tribunal under  the Sikh Gurdwaras Act, 1925,  for determining  whether the  bunga in suit was  the property  of the  Golden Temple.  In these proceedings  K and J claimed to be owners of the bunga  and claimed  that he was the descendant of Maharaja Sher Singh and as such was entitled to the bunga  as a manager. The Tribunal rejected the claims of  the Golden  Temple and  of K  and J and held that  the bunga  was wakf  property under the management of  the descendants  of  Maharaja  Sher Singh. Subsequently,  B brought  a civil  suit for possession of the bunga by ejectment of K and J on the ground  that they  being servants or servitors of the wakf had forfeited their right of residence as they  were claiming rights adverse to the wakf. K and  J resisted  the suit  mainly on the grounds that was  not competent to maintain the suit as he was not  a descendant  of Maharaja  Sher Singh and that  they   had  prescribed   title  by   adverse possession. ^      Held, that  ss. 36 and 37 of the Act barred K and J  from raising  the question before the Civil Court whether  B was a descendant of Maharaja Sher Singh. The  Act  had  given  full  powers  to  the Tribunal to  decide, not  merely the  claim of the Sikh Gurdwara, but also of all the rival claimants before  it.  Section  36  barred  any  court  from questioning  anything  done  by  the  Tribunal  in exercise of  its powers  under the Act. Section 37 barred any  court from passing any order or decree or executing  any order or decree if the effect of doing so  was inconsistent  with decision  of  the tribunal. The  decision of  the Tribunal  that the bunga was  wakf property  and that the descendants of Maharaja  Sher  Singh  were  the  managers  had become final.  The  claim  of  B  that  he  was  a descendant  of   Maharaja  Sher  Singh  was  never

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challenged before  the Tribunal  and its  decision was given at the instance of B.      Held, further,  that the  suit was not barred by limitation either under Art. 142 or Art. 144 of the Limitation Act. K and 326 J were  in possession as servants or servitors and their possession was permissive. From the decision of the Tribunal it was clear that no hostile title was set up by K and J against B at any time before the proceedings  of 1933,  as such  the suit which was  filed   in  1943   could  not  be  barred  by limitation.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION:  Civil  Appeal No. 34 of 1954.      Appeal from  the judgment  and  decree  dated July 2,  1951, of the Punjab High Court in Regular First Appeal No. 269 of 1945.      N. S.  Bindra, and  Harbans  Singh,  for  the appellant.      Gopal Singh, for the respondents.      1961. November  3. The  Judgment of the Court was delivered by      WANCHOO, J.-The suit out of which the present appeal arises  has had a chequered history. It was filed as  far back  as June  1943,  the  plaintiff being S. Balwant Singh (hereinafter referred to as the respondent).  The main  defendants were  Kesar Singh and  Jaswant Singh, of whom Kesar Singh will be referred  to as  the appellant hereinafter. The suit was  with respect  to a  house known as bunga Maharaja Sher  Singh which  is situate outside the tank  around   Sri  Harmandir  Saheb  (hereinafter referred to as the Golden Temple) in Amritsar. The case of  the respondent  was that he and his uncle who was made a defendant to the suit were managers of this  bunga which  was wakf  property and  that they and their ancestors had been in possession of it throughout.  There were  proceedings before the Sikh Gurdwaras Tribunal established under the Sikh Gurdwaras Act,  No.  VIII  of  1925,  (hereinafter referred to  as the  Act) in  1933 with respect to this bunga.  The proceedings arose because a claim was put forward that the bunga was the property of the  Golden   Temple.  In  those  proceedings  the appellant and  the  other  defendant  claimed  the bunga. The respondent also made a 327 claim to  the  bunga.  The  proceedings  were  all consolidated and it was decided that the bunga was not the  property of the Golden Temple; the claims of the appellant and the other defendant were also dismissed  and   the  Tribunal   held   that   the respondent and  his uncle  had the right to manage and supervise  the bunga  and were  its  managers. There were  appeals to  the High  court from  that decision by  the appellant and the other defendant which were  dismissed with  the  result  that  the status  of   the  respondent   and  his  uncle  as determined by  the Tribunal was upheld. Thereafter the  respondent  along  with  his  uncle  filed  a

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declaratory suit  against the  appellant  and  the other defendant. In that suit they were ordered to file  a  suit  for  possession.  Consequently  the present  suit   was  filed   for  possession   and ejectment  of   the  appellant   and   the   other defendant.      The case  for  ejectment  was  based  on  the ground that  the appellant and the other defendant were in possession of the bunga without any right. They had  been asked  to deliver possession to the respondent but  refused to  do so and continued to treat the  bunga, which was wakf property as their personal property.  The respondent  therefore  did not desire  to keep  the appellant  and the  other defendant as  servitors to look after the bunga as they were  claiming rights adverse to the wakf and consequently  prayed   for  their   ejectment  and delivery of possession of the bunga to him and his uncle.      The suit  was resisted  by the  appellant and the other  defendant and it was contended that the respondent was  not a  descendant of Maharaja Sher Singh  and  was  therefore  not  entitled  to  the management of  the bunga.  It was  denied that the bunga was  wakf property.  It was also denied that the respondent  and his uncle had ever anything to do with the bunga or were ever in possession of it as 328 managers. It was further alleged that any decision of the  tribunal  against  the  appellant  had  no effect as the tribunal had no jurisdiction to give an decision and in any case the tribunal had given no decision  in favour  of the  respondent and his uncle. Further  even if  any decision was given in favour of  the respondent  and his  uncle  by  the tribunal, it  was not  binding on the appellant as he was  no party to those proceedings. It was also claimed that  the appellant  was the  owner of the bunga and  in any  case even if the bunga was wakf property the  appellant was its hereditary manager and was  entitled to  its possession and could not be ejected  by the  respondent.  Finally,  adverse possession was  claimed against the respondent who was alleged  to  have  never  been  in  possession within 12  years before  the suit was filed and in any case  as the respondent’s application under s. 25A of  the Act had been dismissed in July 1935 he had  no  right  to  file  a  suit  for  possession thereafter.      On these  pleadings, eight issues were framed by the trial court, which are as below:-           1.   Whether the  bunga in  dispute is a                wakf property  founded by  Maharaja                Sher Singh,  or any  descendant  of                Maharaja Sher Singh?           2.   Is the  plaintiff a  descendant  of                Maharaja   Sher   Singh,   and   is                therefore    entitled     to    get                possession of  the bunga in dispute                as a manager?           3.   Is the  plaintiff entitled to bring                this suit alone?           4.   Is the suit within time?           5.   Is the  suit  barred  under  s.  92

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              Civil Procedure Code?           6.   Are the  defendants  debarred  from                denying the  plaintiff’s  title  in                view of the judgments. 329                of the  Lahore High  Court and  the                decision  of   the  Sikh  Gurdwaras                Tribunal?           7.   Has the  plaintiff relinquished his                right and what is its effect?           8.   Relief?      In the  trial court,  the parties agreed that the decision  might be given only on issues 3 to 7 and issues  Nos. 1  and " might be left undecided. Consequently, the  trial court Proceeded to decide issues 3  to 7  only. It  held on issue No. 3 that the respondent  was entitled  to  bring  the  suit alone. On  issue No.  4, the trial court held that the suit  was barred  by time. Issue No. 5 was not pressed and  was  therefore  decided  against  the appellant. On  issue No.  6 the trial court was of the view  that it  was not  necessary to  give any finding on  it in  view  of  the  finding  on  the question of  limitation; even  so it held that the defendants  were   debarred   from   denying   the plaintiff’s title  in view  of the judgment of the Lahore  High   Court  and   the  decision  of  the Tribunal. On  issue No.  7 it held that in view of the decision  of the  tribunal and judgment of the High  Court   it  could   not  be  said  that  the respondent had  relinquished his  rights.  In  the result, the  suit was  dismissed on  the ground of limitation.      The respondent  then went  in appeal  to  the Punjab High  Court. The  High Court  held  on  the question of  limitation  that  the  suit  was  not barred by  time. It  then referred to the decision of the  tribunal which had held that the bunga was wakf property  founded by  Maharaja Sher Singh and held  that  this  decision  of  the  tribunal  was binding and  conclusive. It  was of  the view that the  question   whether  the  respondent  was  the descendant of  Maharaja Sher  Singh and  therefore entitled to  obtain possession  of the bunga which was the  subject matter of issue No. 2 should have been decided. It therefore accepted the appeal and set aside  the order  of the  trial court  on  the question of limitation 330 and remanded  the case  for the  decision of issue No. 2  as framed  by the  trial court  and further framed two  additional  issues  and  directed  the trial court  to decide them also. These additional issues were:-           1.   Was Jaswant  Singh a  bungai  or  a      servitor of the plaintiff and defendant No. 3      or their ancetors?           2.   Can  the  plaintiff  dispossess-the      defendants on any of the grounds specified in      paragraph 4 of the plaint?      On remand  the trial  court held  against the respondent on issue No. 2. Its finding was that it had not  been proved  that the  respondent was the eescendant of  Maharaja Sher  Singh and  therefore entitled to get possession of the bunga in dispute

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as manager.  On the  first additional  issue,  the trial court found that the appellant and the other defendant were servitors or bungais. On the second additional issue  it was  found that  a bungai  or servitor if  he denies  the title  of the rightful owner on  whose behalf  he  manages  the  property forfeits his  rights to  retain the property or to continue as servitor, and as the appellant and the other defendant  had set up a title adverse to the respondent, they  would be  liable to ejectment on the ground  specified in  para 4 of the plaint, if the respondent  is the  rightful owner, whether as trustee or otherwise, of the bunga.      On receipt  of these findings, the appeal was heard again,  this time  by another  Bench of  the High Court,  The High Court pointed out that issue No. 6    had  not  been  decided  on  the  earlier occasion and  took the  view that  if issue  No. 6 were decided  in favour of the respondent it would not be  necessary to  go into the question whether the respondent was the descendant of Maharaja Sher Singh and therefore entitled to sue for ejectment. The High  Court therefore  addressed itself to the decision of 331 issue No.  6 and held that in view of the judgment of the  Lahore High  Court and the decision of the tribunal, the  appellant and  the other  defendant were debarred  from denying the respondent’s title as a  descendant of  Maharaja Sher  Singh. In that view of  the matter  it held  that the  suit  must succeed as  the question  of limitation  had  been decided  against   the  appellant  and  the  other defendant and  it was  not open  to  go  into  the question whether  the respondent  was a descendant of Maharaja  Sher Singh  and therefore entitled to maintain  the   suit.  The  appeal  was  therefore allowed and  the suit  was decreed.  The appellant then applied  for leave  to appeal  to this Court, which was  granted; and that is how the matter has come up before us.      The appeal  came up  for hearing  before this Court in  1958. This Court then took the view that it   was    difficult   to   decide   the   appeal satisfactorily without  having a  finding  on  the essential issue, namely, whether the plaintiff was a descendant  of Maharaja Sher Singh and therefore entitled to get possession of the bunga in dispute as a  manager. This  Court therefore  directed the High Court  to record a finding on issue No. 2 and also on  the two  additional issues  framed by the High Court  when the remand was made on an earlier occasion. The  appeal has  now come up for hearing again after  the findings of the High Court, which are that  the respondent has not been proved to be the descendant of Maharaja Sher Singh and that the appellant  and   the  other   defendant  were   in possession of the bunga as bungais or sewadars and that they  were liable  to ejectment  because they had denied  the title  of the  rightful  owner  on whose behalf  they were  managing the property. In effect the  High Court  confirmed the  findings of the trial court on remand.      Before we  go into the effect of the findings now submitted  by the  High Court on the direction

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of this  court, it  is in our opinion necessary to decide issue  No. 6,  for if that issue is decided in favour of 332 the  respondent   it  will  not  be  open  to  the appellant or  the other defendant to question that the respondent was the descendant of Maharaja Sher Singh and  consequently had  the right to maintain the suit.  That brings  us to the consideration of the effect of the decision of the tribunal and the judgment  of  the  Lahore  High  Court  in  appeal therefrom,  which   in   its   turn   requires   a consideration of the provisions of the Act.      The Act  was passed to provide for the better administration of  certain Sikh  Gurdwaras and for inquiries into  matters and settlement of disputes connected therewith.  Section 3  (1)  of  the  Act provides for forwarding by any Sikh or any present office-holder of  a Gurdwara, specified in Sch. I, of a  list of  all rights,  titles or interests in immovable properties  situate in Punjab and in all monetary endowments  yielding recurring  income or profit received  in  Punjab  which  he  claims  to belong, within  his  knowledge,  to  the  gurdwara along with the name of the person in possession of any such  right, title  or interest.  On receiving such lists,  the State  Government has to publish, inter alia,  under s. 3 (2) a consolidated list in which all  rights, titles  and interests  in  such properties  as  are  described  in  sub-s.(1)  are included and  also to  send by  registered post  a notice of  the claim  to each of the persons named therein as  being in  possession  of  such  right, title or  interest. Section  5 (1)  then  provides that  any   person  may   forward  to   the  State Government a  petition claiming  a right, title or interest in  any such  property included  in  such consolidated list  within a  certain time  of  its publication. Sub-section  (3) then  lays down that if no claim is made under s. 5 (1) within the time limited  thereby,   the  State   Government  shall publish a  notification  declaring  that  no  such claim has  been made  with respect to the property notified under  s. 3  (1). Sections  7 and 10 make similar provisions with respect to gurdwaras which are not included in Sch. I to the Act; but we 333 are not  concerned with them in the present appeal for the  Golden Temple  is included  in Sch. I and ss. 3  and 5 apply to it. Section 12 then provides for setting  up of  a tribunal.  Section 14  gives power to  the State  Government to  forward to the tribunal all  petitions received  by it  under the provisions of  s. 5  and other  sections  and  the tribunal has  to  dispose  of  such  petitions  in accordance with the provisions of the Act. Section 15 is important and may be read in extenso-           "(1) In disposing of any matter in which      it has  jurisdiction a tribunal may order any      dispute arising  therefrom to be dealt within      one  proceeding   separately  or   more  such      disputes than  one to  be dealt  with in  one      proceeding, and  may, by public advertisement      or otherwise,  enquire if  any person desires      to be made a party to any proceeding, and may

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    join in  any proceeding  any  person  who  it      considers ought to be made a party thereto.           (2) The tribunal may order any person to      submit within  a fixed  time a  statement  in      writing setting forth the nature of his claim      or objection and the grounds thereof.           (3) If  any person  fails to comply with      an  order  passed  under  the  provisions  of      subsection (2)  and duly notified to him, the      tribunal may  decide the  matter  in  dispute      against him,  provided that  the tribunal may      at any  time extend  the time  fixed  by  its      order for  the submission of the statement if      the  person   satisfies  it   that   he   had      sufficient  cause   for  not  submitting  the      statement within the time fixed.           (4) A  tribunal may  pass any such order      as to  costs of a proceeding as a court might      pass under  the provisions  of  the  Code  of      Civil Procedure, 1908." 334 Then comes  s. 25A  which lays  down that  when it has been  decided under  the provisions of the Act that a  right,  title  or  interest  in  immovable property belongs  to a  notified Sikh Gurdwara, or any  person,   the  Committee   of  the   Gurdwara concerned  or   the  person   in  whose  favour  a declaration has  been made may, within a period of one year from the date of the decision or the date of the constitution of the Committee, whichever is later, institute a suit before a tribunal claiming to be  awarded possession  of the  right, title or interest in  the immovable property in question as against the  parties to the previous petition, and the tribunal  shall, if  satisfied that  the claim relates to  the right,  title or  interest in  the immovable property  which has  been held to belong to the  Gurdwara, or to the person in whose favour the declaration  has been  made, pass a decree for possession accordingly. Section 26 then inter alia lays down that when it has been decided, under the provisions of  the Act,  that a  right,  title  or interest  in   immovable  property  belongs  to  a Notified Sikh  Gurdwara or  when a right, title or interest in  such property  has been included in a list published  under the  provisions of s. 5 (3), the  Collector   of  the  district  in  which  the property is  situated shall,  on application being made to  him on  this behalf and after making such enquiry as  he may  deem proper  into the  fact of such decision  or inclusion,  cause an entry to be made in  the records-of-rights,  if  any,  of  the estate in which the property is situated recording the gurdwara  as the  owner of the right, title or interest in  accordance with the provisions of the Punjab Land  Revenue Act,  1887. Section  28  then provides for  a suit  for possession in respect of properties in  which no  claim has been made under s. 5  or s.  10. Section  34 (1)  gives a right of appeal to the High Court to any party aggrieved by a final  order passed  by the tribunal determining any matter  decided by  it under the provisions of the Act.  Section 36  and 37 are important and may be read in extenso. 335

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         "36. No  suit shall  lie in any court to      question anything  purporting to  be done  by      the State  Government or  by  a  tribunal  in      exercise of  any powers  vested in  it by  or      under this Act."           "37. Except  as provided  in this Act no      court shall  pass  any  order  or  grant  any      decree or execute wholly or partly, any order      or decree,  if  the  effect  of  such  order,      decree or  execution  would  be  inconsistent      with any decision of a tribunal, or any order      passed  on   appeal  therefrom,   under   the      provisions of this Part."      It is  clear therefore from the scheme of the Act that  it gives jurisdiction to the tribunal to decide all  claims to properties which are claimed to be  the properties of a Sikh Gurdwara mentioned in Sch.  I to  the Act.  It is  true that  where a property in  notified in  the list under s. 3 each person who  has a  claim to  that property  has to make a  separate claim  on his own behalf which is forwarded to  the tribunal  for  decision.  It  is clear however  from the  provisions of  s. 15 that where a  tribunal is dealing with a property which is claimed  to belong  to a  Sikh Gurdwara  and in respect of  which counter claims have been made by other persons,  it has  jurisdiction to  decide to whom that  property belongs,  whether to  the Sikh Gurdwara or  to any  other person  claiming it and for  that   purpose   it   can   consolidate   the proceedings resulting from different claims to the same property  so that  all dispute with regard to that property  can be  decided in one consolidated proceeding. Further  it has  the power under s. 15 to inquire by public advertisement or otherwise if any person  desires to  be made  a  party  to  any proceeding and  may join  in  any  proceeding  any person who  it considers  ought to be made a party there to.  Where therefore a number of claims have been made under s. 5 to the same property which is claimed under s. 3 336 to belong  to a  Sikh Gurdwara  the  tribunal  can consolidate all  such claims under s. 15 and treat all the  claims as one proceeding. Where therefore the  tribunal   consolidates  the  claims  in  one proceeding each claimant even though he had made a claim for  himself as  against the  Sikh  Gurdwara would be entitled under s. 15 to contest the claim not only  of the  Sikh Gurdwara  but of  any other person who is making a rival claim to the property as against  the Sikh  Gurdwara. It  is also  clear from s. 25A that in deciding the claims made under s. 5 it is open to the tribunal not only to decide whether the  property to  which claims  have  been made belongs  to the  Gurdwara but  also to decide whether it  belongs to  any of  the claimants.  It seems therefore  that the Act has given full power to the tribunal to decide between the rival claims of the  Sikh Gurdwara and other claimants under s. 5 and  empowers it  not only to give a decision as to the  rights of  the Sikh  Gurdwara but  also of other claimants.  Further there is provision in s. 34 of  the Act for appeal to the High Court by any party aggrieved  by a  final  order  passed  by  a

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tribunal  in  matters  decided  by  it  under  the provisions of  the Act. The words in s. 34 (1) are very wide and where claims are consolidated in one proceeding under  s.  15  and  the  claim  of  the Gurdwara and the rival claims of various claimants under s.  5  with  respect  to  one  property  are decided in  a consolidated proceeding, it is clear that any  party who  was party to the consolidated proceeding would be entitled to appeal against the order of  the tribunal  if it  went against it and was in favour of the Sikh Gurdwara or of any other claimant in  the consolidated  proceeding. Section 36 thereafter bars a suit in any court to question any decision  of a  tribunal in  exercise  of  any powers vested  in it  by or under the Act. Section 37 bars  any  court  from  passing  any  order  or granting any  decree or executing wholly or partly any order  or decree, if the effect of such order, or decree or execution would be 337 inconsistent with  any decision  of a  tribunal or any order  passed on  appeal therefrom  under  the provisions of the Act.      It is  on this scheme of the Act that we have to see whether it is open to the appellant and the other defendant  to  raise  the  question  in  the present  suit  that  Balwant  Singh  was  not  the descendant of  Maharaja Sher  Singh and  therefore not entitled  to maintain  the present suit. It is necessary for this purpose to examine the order of the tribunal which was made on June 22, 1933, by a majority of  two to one. It is not in dispute that this bunga  was notified  under s. 3 of the Act as property  claimed   by  the  Golden  Temple.  This notification led  to four  claims with  respect to this bunga,  namely, by  Jaswant Singh  who was  a party to  the suit  from which  the present appeal has arisen,  Darbara Singh and others with whom we are  not  concerned,  Kesar  Singh  appellant  and Balwant    Singh    respondent.    The    tribunal consolidated all  the four  claims under  s. 15 of the  Act   and  dealt   with  the  matter  in  one proceeding. The  case of Jaswant Singh was that he was in possession of the first storey of the bunga by virtue  of his  perpetual rights  of possession and management  in  the  bunga  as  bungai.  Kesar Singh’s case  was that he was in possession of two rooms on the first and second floors of the bunga. He did  not define  what his  right was but denied that the  bunga was wakf. Balwant Singh’s case was that the  bunga was  built by  his  ancestors  for spiritual and  wordly benefit  of their  offspring and  was   in  his  possession  and  that  of  his ancestors  and   should  be  declared  to  be  the property of  his family. All these three claimants denied that  the Golden  Temple had  any  kind  of right in the bunga.      In the  consolidated proceeding therefore the tribunal had  to decide  firstly whether the bunga was the  property of  the  Golden  Temple.  If  it decided that,  all the  claims  would  necessarily fall 338 through. But if it held that the bunga was not the property of the Golden Temple it had to adjudicate

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on the  respective claims  of Jaswant Singh, Kesar Singh and Balwant Singh. By majority, the tribunal held that  the bunga  was not  the property of the Golden Temple. It therefore had to decide to which of the  three claimants  under s.  5, if  any, the bunga could  be held  to belong.  It negatived the claims of  Kesar Singh  and Jaswant  Singh. As  to Balwant Singh’s  claim it  held by a majority that Balwant Singh  had no personal or private right in the bunga. It further held that the bunga was wakf property dedicated  to the  pilgrims to the Golden Temple and  that the  descendants of Maharaja Sher Singh were  the managers of the bunga. It is clear from the  decision of the majority of the tribunal that the  descent of  Balwant Singh  from Maharaja Sher Singh  was not  disputed before  the tribunal either by the Golden Temple or by any other party. It  is  clear  therefore  that  the  tribunal  had jurisdiction to decide the rights to the bunga, as it was  one of the properties notified under s. 3. It had  also the  jurisdiction  to  determine  all claims made under s. 5 and it consolidated all the claims into  one proceeding and decided the rights of the  claimants and  the Golden  Temple in  that Proceeding. Now  the respondent  was  claiming  in those proceedings  that he  was the  owner of  the bunga as  the descendant  of Maharaja  Sher Singh. Neither the  Golden Temple nor the other claimants seem  to   have  challenged   the  claim   of  the respondent before  the tribunal on the ground that he was not a descendant of Maharaja Sher Singh and therefore had  no right to maintain the claim. The whole proceeding before the tribunal was conducted on the  basis that the respondent was a descendant of Maharaja  Sher Singh  and the only question was whether as  such descendant  he had a right to the property. The  tribunal  nagatived  his  claim  of ownership of  the bunga  and held that it was wakf property under  the management  of the descendants or Maharaja Sher Singh. 339 It has  been urged  that the order of the tribunal does  not  mention  in  the  operative  part  that Balwant Singh  was entitled to manage the property as the  descendant of Maharaja Sher Singh and this shows that though the tribunal was of opinion that the  descendants   of  Maharaja  Sher  Singh  were entitled to  manage the bunga it was not accepting Balwant Singh’s claim as such descendant and there was thus  no decision  in favour of Balwant Singh. We cannot  accept this  contention, for if Balwant Singh was not a descendant at all of Maharaja Sher Singh and  if this  point was  raised  by  anybody before the tribunal his claim would have failed on the simple  ground  that  he  was  nobody  to  put forward the  claim of  the descendants of Maharaja Sher Singh.  The reason  why the tribunal used the words "that the descendants of Maharaja Sher Singh are managers  of the  bunga" appears to be that at that time  the father  of Balwant  Singh was alive and in  the presence  of his  father Balwant Singh could not  claim a  right  to  manage  the  bunga. Therefore the tribunal used neutral words, namely, "the  descendants   of  Maharaja  Sher  Singh  are managers of  the  bunga",  instead  of  mentioning

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Balwant Singh as the manager of the bunga. This is clear from  an earlier part of the decision of the tribunal where  in dealing  with the  question  of ownership of  Balwant Singh,  it has remarked that "it is  hard to  see that  Balwant Singh  has  any personal or  private rights  over the bunga in the presence of  his  father  Raghbir  Singh".  Though therefore the  respondent was held by the majority of the  tribunal, not  to have  rights in  himself because  his   father  was   alive  the   tribunal nevertheless went  into the question of the rights of  Maharaja   Sher  Singh’s  descendants  at  the instance  of  Balwant  Singh  treating  him  as  a representative of  the descendants.  This is  also clear from  the form  in which the issue No. 3 was framed, namely, "was the bunga in dispute built by Maharaja Sher  Singh, ancestor  of  Balwant  Singh petitioner in 1629, and has been in his possession ? What  rights as he been exercising over it ?" It is 340 clear therefore  that before  the tribunal Balwant Singh’s claim  as a  descendant of  Maharaja  Sher Singh was  not challenged  by the appellant or the other defendant;  and the tribunal found in favour of the  descendants of  Maharja Sher  Singh at the instance of  Balwant Singh.  It was in our opinion open to  the appellant  and the other defendant to challenge  this   finding   in   favour   of   the descendants of Maharaja Sher Singh at the instance of Balwant Singh under s. 34 of the Act as all the claims were  consolidated under  s. 15 and treated as one  case relating  to one property. But though the appellant  and the  other  defendant  went  in appeal to  the High Court they do not seem to have challenged the  finding of  the tribunal in favour of the descendants of Maharaja Sher Singh. Further the Golden Temple also went in appeal; but it also did not  challenge the  decision in  favour of the descendants of  Maharaja Sher Singh. That decision has therefore  become final  and according to that decision the  descendants of  Maharaja Sher  Singh are the  managers of this bunga. That decision was given at  the instance  of  the  respondent  whose claim in  those proceedings  based on  his being a descendant  of   Maharaja  Sher  Singh  was  never challenged on  the ground  that  he  was  not  the descendant of Maharaja Sher Singh.      The question therefore that arises is whether in view  of ss.  36 and 37 of the  Act it would be open to  any court  now to  give a  decision which will  go  against  what  has  been  held  in  that decision of the Tribunal. If a court cannot give a decision which  would go  against the  decision of the Tribunal  in 1933,  it would  obviously be not open to  a party to those proceedings to raise any question  which   would   have   the   effect   of questioning the  decision of the Tribunal. Section 36 bars  any court  from questioning anything done by a  Tribunal in exercise of the powers vested in it by  or under the Act. Section 37 bars any court from passing any order 341 or granting  any decree  or  executing  wholly  or partly any  order or  decree if the effect of such

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order, decree  or execution  would be inconsistent with any  decision of  the tribunal  or any  order passed on appeal therefrom under the provisions of the Act.  Now the  decision of  the tribunal which became final as it was not appealed from either by the Golden Temple or by the appellant or the other defendant was  that the  bunga was  wakf  property under  the   management  of   the  descendants  of Maharaja Sher Singh and this decision was given at the instance  of the  respondent  who  claimed  in those proceedings  to be  a descendant of Maharaja Sher  Singh   and  this  claim  of  his  to  be  a descendant  of   Maharaja  Sher  Singh  was  never disputed. If  therefore the Court now holds at the instance of  the appellant  or the other defendant that the  respondent  is  not  the  descendant  of Maharaja Sher  Singh it  will be  questioning  the decision of  the tribunal  and passing an order or granting a decree which would be inconsistent with the decision  of the  tribunal. Section  36 and 37 bar any  such order  or decree  by the  court  and therefore the  appellant and  the other  defendant are naturally  debarred  from  raising  point  the decision of which is barred under ss. 36 and 37 of the Act. We are therefore of opinion that the view taken by  the High  Court in  its  judgment  after remand on  issue No.  6 is  correct and  it is not open  to  the  appellant  to  raise  the  question whether the respondent is a descendant of Maharaja Sher Singh  and as  such entitled  to maintain the present suit.      This brings us to the question of limitation, which was decided by the High Court on the earlier occasion when the remand was made. The case of the appellant in  that connection  is that  he was  in adverse possession and the respondent had been out of possession  for over  12 years  before the suit was filed in 1943 and therefore the suit should be dismissed as barred under Art. 144 as well as Art. 142 342 of the Limitation Act. The appellant contends that the plaint  itself shows  that the  respondent had been dispossessed  more than  12 years  before the present suit was filed and therefore the suit must fail on  the ground  of limitation.  We agree with the High  Court however  that a careful reading of paras. 3  and 4  of  the  plaint  shows  that  the respondents case  was that  he and  his uncle were managers of  the bunga  as descendants of Maharaja Sher Singh  and that  the appellant  and the other defendant were  in possession as their servants or servitors. But  these servants had started denying the title  of the respondent and his uncle they do not want to keep them any longer in their service. They therefore  filed the  suit for  ejectment  of these servants and for possession of the property. The High  Court therefore was right in the view it took that  it was  a case of permissive possession arising in  favour of  the appellant and the other defendant. Whatever  may be the position about the actual possession, it appears from the decision of the tribunal  that the  claim of the appellant and other defendant  before the  tribunal in  1933 was that they  were bungais  i.e. servitors;  and this

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was also  the view of the High Court in the appeal from the  decision of  the tribunal where the High Court said  that "no doubt Kesar Singh, his father and grandfather  have been  Bungais of  the bunga, but there  is no reliable evidence of their having set up  a title adverse to the institution or that the  nature   of  this   bunga  is   exceptional." Similarly Jaswant  Singh also claimed to be a mere bungai before the tribunal by virtue of his father being adopted by Natha Singh who was undoubtedly a bungai. In  these circumstances  from the decision of the  tribunal in  favour of  the respondent  in 1933, it  appears that no hostile title adverse to the respondent  was ever  set up  by the appellant and the  other defendant  before that decision. In consequence  it   cannot  be   said  that  adverse possession over 12 years has been established 343 before June  1, 1943  when the  present  suit  was filed.  As   originally  the   possession  of  the appellant and  the  other  defendant  was  clearly permissive,  there  can  be  no  question  of  the application of  Art. 142  in the  present case and the appellant could only succeed if he could prove adverse possession  under Art.  144  for  over  12 years. The  decision of  the  High  Court  on  the question of limitation is correct.      Lastly, it  is urged  that the respondent had applied under  s. 25A  to the tribunal but allowed that  suit   to  be   dismissed  for  default  and therefore it  was not  open to  him  to  file  the present suit  for possession.  It is enough to say that though  this point  was framed in the written statement no  issue was  framed with respect to it by the  trial court. When the matter was raised in the High  Court on the first occasion it held that as no  issue had  been framed  and no evidence had been led by the parties as to whether the cause of action was  or was not the same and no copy of the plaint in  the earlier  proceeding had  been filed the question  whether the  present suit was barred by virtue  of O.IX.  r. 9.  of the  Code of  Civil Procedure could  not be  gone into  and it must be held that  it was not barred under O. IX. r. 9. In view of  what the  High Court  has said  we are of opinion that  it is  not open  to the appellant to raise this  point before  us when he had failed to get an  issue framed on it and no evidence was led in that behalf.      As the  appellant cannot  challenge that  the respondent is  the  descendant  of  Maharaja  Sher Singh  the   respondent  would  have  a  right  to maintain the  suit. Further  as the  appellant and the other  defendant are  servitors and  they have undoubtedly set  up a  title after the decision of the tribunal adverse to the respondents’s right as found by  the tribunal, the respondent is entitled to eject  the appellant  and the  other defendant, for servitors cannot claim to remain in possession after they set up an adverse title with respect to the property of 344 which they  are servitors. In view of our decision on issue  No. 6,  it is  unnecessary  to  consider issue No.  2 on  which a finding was called for by

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this Court by its interlocutory judgment in 1958.      The appeal therefore fails; there would be no order as to costs.                                  Appeal dismissed.