TMI Blog1964 (11) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, 1951. Immediately on his death disputes seem to have arisen as regards the succession to 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 into possession of the properties belonging to the Dera basing his title thereto on an 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 the successor of the deceased Kishan Puri by virtue of a title as the Gurbhai of the deceased, brought a suit for a declaration regarding his title and for an injunction restraining Neki Puri from interfering with his possession Neki Puri, as stated earlier, claimed that he was in possession of the properties and asserted a title to such possession by being a Chela who had been appointed by the Bhekh. An issue was raised in the suit as to whether it was the plaintiff or the defendant who was in possession of the properties and on a finding recorded that Neki Puri was in possession, the suit for a mere declaration and injunction was held to be not maintainable and was, therefore, dismissed. Incidentally, however, evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shan Puri ?, (2) Was Neki Puri appointed by the Bhekh ? It was admitted by Brahma Nand Puri that a Chela had a right superior to a Gurbhai and therefore if these two issues were found in favour of Neki Puri the plaintiff's suit had admittedly to fail., (3) Was the plaintiff appointed by the Bhekh ? No serious attempt was made to establish that the plaintiff had been appointed by the Bhekh and hence the 4th question that arose was whether there was a custom by which a Gurbhai could succeed to the Mahantship of this institution without an appointment by the Bhekh as pleaded in paragraph 8 of the plaint extracted earlier. On these four matters the learned trial Judge recorded the following findings : (1) that Neki Puri had not been proved to be the Chela of the last Mahant., (2) No definite finding was recorded on the second point but the trial Judge was of the opinion that there was no proof that the Bhekh could appoint as Mahant a person who was not either a Chela or a Gurbhai or that they actually did so in the present case., (3) A definite finding was recorded that the plaintiff was not appointed by the Bhekh., (4) Without recording a finding on the custom set up by the plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrectness of this decision that is challenged before us by the appellant. Two points were urged before us by Mr. Chatterjee-learned Counsel for the appellant. The first was that under the law applicable to Deras in the Punjab that is to say apart from any special custom, a Gurbhai was entitled to succeed 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 required to sustain that plea, such a custom had been established by the evidence adduced by the appellant in the present case. Pausing here, we might mention that Mr. Chatterjee referred us to the circumstance that during the pendency of the appeal in this Court Neki Puri had died and that certain others who, he stated, had even less claims to a Mahantship were in possession of the property and that seeing that the appellant was admittedly a Gurbhai it would be most inappropriate that his rights 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 one for ejectment he has to succeed or fail on the title that he establishes and if he cannot succeed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court held in Sital Das v. Sant Ram A.I.R. 1954 S.C. 606 that the usage required an appointment by the fraternity before a person could become a Mahant. On the basis, therefore, of the passage in Rattigan's Digest, which we have extracted, it appears to us that the first of the submissions made by Mr. Chatterjee cannot be upheld. In fact, the tenor of para 5 of the plaint we have extracted earlier itself shows a consciousness on the part of the plaintiff himself that he considered that an appointment by the Bhekh was necessary to clothe him with the title to the Gaddi besides his status as a Gurbhai. No doubt the plaintiff was a Gurbhai but he had not established that he had been appointed by the Bhekh or fraternity. In the absence of such appointment under the law and apart from any special custom pertaining to this institution the appellant could claim no title to the Gaddi, by his being a Gurbhai. This takes us to the second point urged by Mr. Chatterjee that on the evidence the plaintiff had made out the special custom pertaining to this institution that no appointment by the Bhekh was necessary before a Chela or Gurbhai could succeed to the Gaddi. We have been taken throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e : (1) that it is lacking in particulars as regards the instances, and (2) there is nothing stated as to whether even in the instances referred to, there was no recognition, appointment or confirmation by the Bhekh which according to Rattigan is part of the customary law of the Punjab as the source of title for the Mahantship. We are, therefore, not prepared to hold that the appellant has established the custom which he put forward in paragraph 8 of his plaint in derogation of the ordinary law viz., that without an appointment by the Bhekh or fraternity a Chela or, in his absence, a Gurbhai succeeds to the headship of a Dera. The plaintiff's suit was, therefore, in our opinion, properly dismissed. Mr. Naunit Lal, learned counsel for the respondent urged that the learned Single Judge was in error in reversing the finding of the first appellate 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 concurred in the views expressed by the learned Single Judge as regards the defects in the judgment of the first appellate Court on its findings on this issue. Learned Counsel submitted that the learned S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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