SHIROMANI GURUDWARA PRABANDHAK COMMITTEE v. MAHANT PREM DASS

Citation: [2009] 2 S.C.R. 1099

Court: Supreme Court of India

Bench: TARUN CHATTERJEE, V.S. SIRPURKAR

Case summary

SHIROMANI GURUDWARA PRABANDHAK COMMITTEE v. MAHANT PREM DASS.pdf

Judgment text

[2009] 2 S. C. R. 1099 ~ SHIROMANI GURUDWARA PRABANDHAK COMMITTEE , V. ' MAHANT PREM DASS Civil Appeal No. 1767 of 2002 FEBRUARY 24, 2009 (TARUN CHATTERJEE AND V. S-. SIRPURKAR, JJ. ) Sikh Gurdwaras Act, 1925: ~ -f Sections 7(3), 8, 16(2), 34-lnstitution known as Gurdwara Sahib Gurdwara Bhagat Bhawan held to be a Sikh Gudwara by the Sikh Gurdwaras Tribunal - High Court held that the institution was used as Dera of Bhagat Bhawan and was in ~ fact an Udasi Faqir Institution and as such was not a Sikh Gurdwara - On appeal, Held: Having gone throUgh the details of the evidences, it is seen that the findings recorded by the ~ -' High Court are correct - All through the institution continued as an Udasi Institution. The Sikh Gurdwaras Tribunal held the institution known as Gurdwara Sahib Gurdwara Bhagat Bhawan to be a Sikh Gurdwara. On appeal, the High Gourt held the institution as a Dera of Bhagat Bhagwan and was in fact an Udasi Faquir Institution and as such was not a Sikh Gurdwara.

Hence the appeal. ... Dismissing the appeal, the Court HELD : 1. In view of the Exhibit R-10, it is clear that the Institution was established prior to 1665 A. O. by an Udasi Faqir Surat Ram, who had received donation from the Ruler of the then Patiala State and the said Institution then was governed by a chain of Udasi Mahants without break in the tradition of succession from Guru to Chela ... , "'->{ and Mahant Mangal Dass was in the same tradition. [Para 44] [1143-C] 2. The Institution was only known as a Dera or Dera ~ Sadhan or Mausooma Dharamshala Sadhan and it gave _,(_ the impression that it was a charitable Institution for poor faqirs and traveJlers, as also offered shelters to them and the Mahants, who governed the Institution, were noble persons. [Para 44] [1143-D] 3. There is voluminous documentary evidence to show the grant of Muafi (remission) of revenue.

The land was already granted to the- Udasi Faqir in his personal ~ capacity and he had become the owner thereof and the Institution was used by Udasi Faqirs and Sadhus; which is clear from the reference in the revenue papers to the t- I effect "Well of Sadhus or Well of Mahantawala" etc. [Para ·· 44] [1143-F] ~ 4. There is ample evidence to establish the pedigree tables as Khandan Sadh Udasin and Patti Sadh Udasin. [Para 44] [1143-G] ~ 5. There is . no evidence that this was a Sikh Institution from· its inception till today or the Sikhs had any say in the matter of appointment of Mahants. [Para 44] [1143-H] " ; 6. Significantly, there is no evidence of there being a ' 1 regular Granthi in the Institution, there existed even a Nishan Sahib. There was no further evidence that the Sikh ). religious ceremonies were ever held or there is Katha or Parvachan in a congregation. [Para 44] [1144-A) 7.

It is established from the evidence that Guru Granth Sahib, though was kept, did not have a fixed place for its Parkash and the versions on the placement of Guru Granth Sahib is contradictory. [Para 44] [1144-B] 8. Even a single worshipper out of the original 57 ~,.... applicants, ever turned up to support the cause of the appellant. [Para 44] [1144-C] "' 9. There was clear evidence that there was Gola Sahib, Murti of Baba Siri Chand, Smadhs of earlier i V. MAHANT PREM DASS. Mahants and other objects of worship like photographs etc. and Guru Granth Sahib was only kept as a book of reverence. [Para 44] [1144-D] 10. Baba Siri Chand, who was the son of the first Sikh Guru, was an Udasi and Udasi Sect grew up parallel with 8 the Sikh religion. [Para 44] [1144-E] 11. It is further established that all through, the Institution continued as an Udasi lnstitution. [Para 44] [1144-F] Hem Singh & Ors. Vs. Basant Das & Anr. 1936 Privy Council 93; Uttam Oas Che/a Sunder Das Vs.

Shitomani Gurdwara Parbandhak Committee, Amritsar 1996 (5) SCC 71; Shiromani Gurdwara Prabandhak Committee, Amritsar Vs. Mahant Kirpa Ram & Ors. AIR1984 SC 1059 and Pritam Dass Mahant Vs. Shiromani Gurdwara Prabhandhak Committee AIR 1984 SC 858 - referred to. Mahant Lachhman Dass & Ors. Vs. State of Punjab, II L. R. 1968 (2) Punjab & Haryana 499; Lachhman Das & Others Vs. Atma Singh & Others AIR 1935 Lahore 666; Bishan Dass , Vs. Gurbax Singh AIR 1934 Lahore 63, Prem Dass Vs. Labh Singh & Ors. AIR 1934 Lahore 130; Guiab Dass Vs. Fauza Singh AIR 1937 Lahore 826; Baba lshar Das Vs. Or. Mohan j Singh and Others AIR 1939 Lahore 239; Ram Parshad & Ors. Vs. SGPC, Amritsar & Ors. AIR 1931 Lahore 161 and Brahm Das Vs. Tarlok Singh & Ors. AIR 1937 Lahore 273 - referred to. Case Law Reference II L. R.

1968 (2) Punjab & Haryana 499 referred to Para 4 1936 Privy Council 93 referred to Para 15 1996 (5) sec 11 referred to Para 16 AIR 1984 SC 1059 referred to Para 19 AIR 1935 Lahore 666 referred to Para 19 AIR 1934 Lahore 63 referred to Para 22 AIR 1934 Lahore 130 referred to Para 22 AIR 1937 Lahore 826 referred to Para 22 AIR 1984 SC 858 referred to Para 25 AIR 1939 Lahore 239 referred to Para 26 AIR 1931 Lahore 161 referred to Para 29 AIR 1937 Lahore 273 referred to Para 29 CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1767 of 2002 - From the Judgement and Order dated 02. 07. 2001 of the Hon'ble High Court of Punjab & Haryana at Chandigarh in F. A. O. 45 of 74. Jaspal Singh, Sr. Adv. Mehul Sharma, Madhu Moolchandani, Advs. with him for the Appellants. P. K. Palli, Sr. Adv. , A. V. Palli, Atul Sharma, Rekha Palli, Advs. with him for the Respondent. The Judgement of the Court was delivered by V. S. SIRPURKAR, J. 1.

An appellate judgment delivered by the Division Bench of Punjab & Haryana High Court, allowing an appeal under Section 34 of· the Sikh Gurdwaras Act, 1925 (hereinafter referred to as 'the Act' for short), upsetting the judgment passed by the Sikh Gurdwaras Tribunal (hereinafter referred to as 'the Tribunal' for short) is challenged before us by Shiromani Gurudwara Prabandhak Committee (hereinafter referred to as 'SGPC' for short). While the Tribunal had declared an institution allegedly known as "Gurdwara Sahib Gurdwara Bhagat Bhagwan" to be a Sikh Gurdwara, by t. he aforementioned judgment of the High Court, the said Institution was declared not to be a Sikh Gurdwara. It was instead held that the Institution ~. was used as a "Dera" of Bhagat Bhagwan and was, in fact, an "Udasi Faqir institution", and as such, was not a Sikh Gurdwara. It is this judgment, which is challenged before us. 2.

One Hamir Singh and 57 others, residents of Village Ladda, Tehsil Maler Kotla, District Sangrur, Punjab, filed an application to the Punjab Government under Section 7 of the Act for a declaration that an institution allegedly known as "Gurdwara Sahib Gurdwara Bhagat Bhagwan", being a Sikh • Gurdwara. It was alleged that the said Institution owned 389 bighas and 10 biswas of land, which was situated in villages Ladda and Dhuri and that some of the said lands were covered by the buildings. On the basis of this application, a notification No. 557-G. P. -61-H. G. dated 9. 6. 1961 was published in the Government Gazette by the Punjab Government in terms of Section 7(3) of the Act, and the notice of the same was also lo served on one Mahant Mangal Dass on 6. 7. 1961. This Mahant Mangal Dass was a Chela of Mahant Bishan Dass, who was claimed to be a hereditary office-holder. He moved a petition dated 25. 2.

1963 under Section 8 of the Act before the State Government of Punjab, claiming that the Institution was "Dera Bhagat Bhagwan" and was being wrongly described as "Gurdwara Sahib Gurdwara Bhagat Bhagwan" in the aforemenHoned application by Hamir Singh and 57 others. It ;;_ was pointed out that the said "Dera Bhagat Bhagwan" was located at Revenue Estate Ladda, Tehsil Maler Kotla, District Sangrur, Punjab. It was asserted that it was not a Sikh Gurdwara as claimed in the application, but was an "Udasi Faqir institution". It was further claimed by Mahant Mangal Dass that after the death of his Guru Mahant Bishan Dass, he being the Chela, was appointed as Mahant of this Dera in accordance with the --\ Udasi rites and, therefore, in charge of the Dera for the last 42 J. years and further that he was managing the Institution till that date.

It was further alleged that out of the lands described in the original application, land admeasuring 32 bighas and 12 biswas comprised in Khasra Khewat No. 303/496 and 497 as detailed .. in Jamabandi for the year 1958-59, situated at Village Ladda i and the house located at Dhuri town, was his personal property and did not belong to the "Dera Bhagat Bhagwan". ltwas also pointed out that the petitioner Hamir Singh & 57 others were mostly fictitious persons and had moved the application with ulterior motives and, therefore, the notification issued under Section 7(3) of the Act by the State Government, was illegal and void. The State Government in turn, forwarded this application·to the Tribunal for its adjudication under Section 14 ~ of th~Act. 3. The Tribunal served notice of the petition, bearing No. 164 of 1963 to SGPC and the other respondents in terms of the provisions under Section 15 of the Act.

Very significantly, Hamir ~ Singh and 57 other respondents, who had moved the original . application, never turned up to support the application or oppose the claim of Mahant Mangal Dass, Chela of Mahant Bishan Dass. The litigation was, therefore, carried on only at the instance of SGPC, who claimed the said Institution to be a Sikh Gurdwara. A written statement dated 29. 7. 1963 was filed by the SGPC and it was claimed that the said Institution was a ' ' Sikh Gurdwara. , as it was established for the use of Sikhs, and was used as a place of public worship by Sikhs all along in terms of the· provisions of Section 16(2)(iii) of the Act. It was additionally claimed by way of amendment that the Institution J was established in ·the memory of Sikh Guru Bhagat Bhagwan.

It was further claimed by way of subsequent amendment that the Institution was a Sikh Gurdwara because of the traditional visits of the first and sixth Gurus to the Institution, so that the lnstituti6n came within ·the purview of Section 16(2)(ii) of the Act. The last amendment was dated 1. 6. 1964. On 3. 6. 1964, Mahant Mangal Dass also moved an application under Order 6 Rule 17 CPC for amendment of the petition under Section 8 of f.. the Act, to the effect that he was a hereditary office-holder. . However, by Its order dated 4. 8. 1964, this application of amendment was rejected by the Tribunal. The TribuRal struck . tWo Issues: "(i) Whether the petition is a hereditary office- . \ holder? (ii) Whether the institution is a Sikh Gurdwara under Clause (ii), (iii) or (iv) of Section 16(2) of the Act? " The Tribunal treated Issue No. 1 as a preliminary issue and held vide order dated 9. 3.

1965, that the petitioner was hereditary o~ice-holder, there being sufficient oral evidence to support the same. 4. Mahant Prem Dass in his capacity as a Chela of Mahant Mangal Dass had filed a Writ Petition, being Writ Petition No~ , 367 of 1966 before the High Court, for quashing the notificatipn dated 9. 6. 1961. However, that Writ petition was not pressed and was disposed. of by the order dated 17. 8. 1971. It was conceded that the Petition was covered by the Full Bench Judgment of the High Court in Mahant Lachhman Dass & Ors. Vs. State of Punjab reported in II L. R. 1968 (2) Punjab & Haryana 499. It was pointed out to the Court that an appeal against the said judgment was still pending in the Supreme Court and a clear statement was made that the counsel was not ·· conceding regarding correctness of the Full Bench Judgment However, since the High Court felt bound by the said Judgment, ~ the Writ Petition was dismissed. 5.

TheTribunal, thereafter proceeded with the trial in which F, the only issue was as to whether the institution is a Sikh Gurdwara under Clause (ii), (iii) or (iv) of Section 16(2) of the Act. 6. Regarding this Issue, the SGPC conceded that Section 16(2)(ii) was not attracted, and that claim was not pressed by the SGPC. The SGPC, however, persuaded its case under ' Section 16(2)(iii) & (iv) of the Act. The Tribunal came to the -- .. \ conclusion that-the term "Dera" and "Gurdwara" were interchangeable terms and were used as such. The Tribunal further held in its order dated 10. 10. 1973 that the existence of Mahant and that Mahant was Udasi, was immaterial. The Tribunal, ultimately held that the Institution was a Sikh Gurdwara, J.

considering its history, to the effect that Bhagat Bhagwan, in whose name the Institution stood, though was initially a Sanyasi, but had 'become a Sikh after meeting the seventh Guru, Guru Har Rai and continued to live as a Sikh Missionary preaching Sikh religion. The Tribunal, therefore, came to the conclusion that since Bhagat Bhagwan himself was a Sikh, the Institution which was established in his memory, would remain a Sikh Institution, even if some of the Mahants deviated from Master's ~ path and described themselves as Udasis. It was, therefore, held that the Institution fell within the ambit of Section 16(2)(1V) of the Act, and as such, was a Sikh Gurdwara. The objection petition filed under Section 8 by Mahant Mangal Dass was, / therefore, dismissed. The Judgment of the Tribunal was not unanimous, inasmuch as one of the three Members of the Tribunal Shri A. L.

Bahri had differed with the conclusions drawn by the majority and held that it was not proved that the Institution )\ was ever used as the public place of worship of Sikhs or even . . . . at the time of issuing of notification in the year 1961. It was further held that the objection petitioner had successfully proved that the institution was established by Shri Surat Ram and that the Muafi was also granted in the name of Shri Surat Ram and since times immemorial, the Institution had been under the management of Udasi Mahants, which had been so described in several documents. It was also held by Shri Bahri that the . 4: succession to the Office of Mahant had been from Guru to Chela and idol of Baba Siri Chand, Ball of Ashes and Smadhs were the objects, which were being worshipped in the Institution. The Learned Member also further held that the mere fact that 'Guru Granth Sahib' was kept or recited in the Institution, would not make it a Sikh Gurdwara. 7. A First Appeal No.

45 of 1974 came to be filed before )- ,.... the High Court by Mahant Prem Dass, who was a Chela of Mahant Mangal Dass and had succeeded him after his death. The Division. Bench of the High Court rejected the Appeal and held that Mahant Mangal Dass had never claimed to be . _ SHIROMANI ~URUDWARA PRABANDHAK COMMITTEE 1107 V. MAHANT PREM PASS. [V. S. SIRPURKAR, J. ] "hereditary office-holder" nor was there any averment reg'arding his being a "hereditary office-holder", and since the respondent Mahant Mangal Dass has failed to prove himself as "hereditary office-holder" and had also failed to state about the custom of inheritance, the petition under Section 8 itself, was not competent. It m. ust be stated here that the High Court did not go into the merits of the matter. 8. A Special Leave Petition was preferred before this Court by Mahant Prem Dass, who had succeeded Mahant Mangal : ·Dass.. This Court by its o~der dated 8,12.

1994 allowed the Civil ·Appeal and the matter was remanded to the High Court to dispose of original First Appeal No. 45 of 1974 on merits and . · in accordance with law. This order of this Court is extremely important and we would refe~ to the same in the subsequent · part of this judgment. After the matter came back to the High Court, the same was dealt with in details by the High Court, and ultimately, the High Court allowed that appeal by the impugned judgment dated 2. 7. 2001. It was held by the High Court that the respondent Mahant was a hereditary office-'holder. On merits, and on reconsideration of-documentary and oral evidence, the High Couit further came to the conclusion that the Institution was·. ·E not aSikh Gurdwara, but was a Udasi Dera, called "Dera Bhagat Bhagwan". It is this judgment, which has fallen for consideration before us, now. 9.

Shri Jaspal Singh, Learned Senior Counsel appearing on behalf of the appellant, firstly, contended that durrng the pendency of the Writ Petition before the High Court, the SGPC · had taken an objection that the Objection Petition filed by Mahant Mangal Dass under Section 8 was not maintainable, since in that Petition, Mahant Mangal Dass had not alleged that he was a hereditary office holder of the Institution in question. The Learned Senior Counsel pointed out that while the matter was pending before the Tribunal, Mahant Mangal Dass had applied for amendment of his Objection Petition under Section 8 and had tried to introduce following:- . A "Th. e petitioner is a hereditary office-holder. The rule of ). succession in this Dera is that the Chela succeeds the ~- . Guru. after his death.

The custom of the Dera from the beginning is that ·the Guru has a right to ·nominate his successor out of the Chela and in the absence of such nomination, the Chela succeeds with the approval of the Bhekh. " It is further pointed out by the Learned Senior Counsel ·. that when this application was moved before the Tribunal, the ~ Tribunal felt that there was no need to amend the Petition, since the averments already made in the Objection Petition clearly indicated that Mahant Mangal Dass was claiming to be a . hereditary office-holder and the mere absence of the specific expression in the averment, did not matter. However, when the · matter came for the first time before the High Court, the objection was taken· by the appellant - SGPG that the Petition under . ,. ' \ Section 8 was not competent on account of absence of specific averment by Mahant Mangal Dass that he was a hereditary office-holder.

The High Court had also dismissed the appeal, holding that in the absence of specific averment, Mahant Mangal Dass had not locus-standi to file an Objection Petition under Section 8 of_the Act. The_ Learned Senior Counsel, therefore, invited out attention to the order of this Court, whereby, the appeal filed by Mahant Mangal Dass was allowed. The Learned . 4. Senior Counsel then pointed out at the specific observations made by this Court to the following effect:- "If th~ High Court felt that the Tribunal was not right in refusing the amendment, the proper course was to allow the amendment and thereby,· cure the defect and then decide the matter on merits, since the evidence was )already before it. We, therefore, set aside the order of the High Court by allowing this appeal and remit the matter to >- . ~...... the High Court for disposal of the appeal on merits. " The Learned Senior Counsel further pointed out that when the matter went back to the High Court and High Court decided -\ V.

MAHANT PREM DASS. [VS. SIRPURKAR, J. ] the matter, disagreeing with the majority view of the Tribunal by ... i holding that the Institution was not a Sikh Gurdwara, the High --1 Court; however, did not consider the question of amendment, which was refused by the Tribunal nor the issue regarding Mahant Mangal Dass being hereditary office-holder, was ever decided. According to the Learned Senior Counsel, if this Court had remanded the matter to High Court for dispos. al of appeal on merits, the High Court was, therefore, bound to deCide the issue initially framed by the Tribunal regarding the hereditary . ;. office-holder's status of Mahant Mangal Dass. According to the Learned Senior Counsel, the order of this Court could not be treated to mean that the order of the Tribunal on that issue, was ! to be treated as final.

It was pointed out that" SGPC had specifically challenged the finding in the first round before the High Court and High court had allowed that objection and had dismissed the petition under Section 8 holding that·there was -> no specific averment regarding the petitioner being a hereditary 'I J, office-holder. The Learned Senior Counsel, therefore, contended ~ very strenuously that even if this Court had allowed the Special Leave Petition against the order of the High Court and had directed the High Court to decide the appeal on merits,the High Court had to decide both the issues. According to the Learned Senior Counsel, this Court had left open the issue whether Mahant Mangal Dass was a hereditary office-holder. According to the Learned Senior Counsel, that issue, therefore, remained > ____,. undecided. and leaving. that issue undecided, the High Court clearly had breached. the remand order of this Court.

The Learned Senior Counsel further argued that under Section 8 of the Act; the Objection Petition could be filed only and only if --- 226 of the Constitution of India, challenging the validity of the . ,. notification and the said Writ Petition was dismissed by the High • Court by a speaking order and after notice to the parties. The Learned Senior Counsel, therefore, argued that if the Writ Petition was dismissed after notice to the parties by a speaking · order, hence the order dated 17. 8. 1971 passed by the High Court; dismissing the Writ Petition operate as Res. -Judicata and; therefore, the. matter could not have been allowed to proceed l . -- ~ furthe~. 11. The Learned Senior Counsel then argued that though I ,. -- Mahant Mangal Dass had claimed to be hereditary office-holder ) on the basis of a custom, since there was no specific issue framed on the existence of the custom, the SGPC was gravely :~ prejudiced, inasmuch as, it could not lead the evidence on the I';•. ' issue.

"" ~ 12. As regards the second issue regarding the status of the Institution as a Gurdwara, the Learned Senior Counsel n 11e--- . extensively criticized the appreciation by the High Court of the documentary, as well as the oral evidence. He pointed out that . ,f the original donee Suram Ram was not mentioned as an Udasi Faqir in Exhibits P-1 to P-7 and R-10 to R-13 and, therefore, ~ those documents could not be relied upon to hold that he was >---an Udasi Faqir. Similarly, the Learned Senior Counsel suggested . t. rthat those who succeeded Surat Ram, could not be held to be t:- Udasi Sadhus·. Exhibit P-2, P-4, P-5, p. ;5 and P-7 were l ·extensively dealt with bythe Learned Senior Counsel to show Ir-- \that these documents were self-serving documents, made during )- ) the lifetime of Mahant Mangal Dass and· in none of them, the Sadhus mentfoned in Exhibit 'P-5 Pedigree-table, were J described as Udasis.

The Learned Senior Counsel, therefore, I I urged that that the appreciation of evidence by the High Court ! - )> - 20, The High Court then went on to discuss, firstly, the ) , documentary evidence regarding Muafi and the proceedings in ... respect of Muafi contended in Revenue Office Volume-VII of \ the year 1932 B. K. (1875A. D. ). wherein, Surat Ram was shown as a grantee, while Maharaja Sahbi Ala Singh is recorded as A·'grantor. The total land donated to the Institution ment. ioned is 464 Bighas 16 Biswas and that the 44 Bighas and 15 Biswas_ of land, which was. found in excess of the original grant, was. recommend_ed to be forfeited while the rest of the lanq measuring 420 Bighas 16 Biswas was suggested to. be continued with "Dera". in question for· its upkeep. The ofder passed by Dewan in this behalf was also referred to, along ,with· the order of Wazir Sahib and· the order ofHazoor Anwar. The. other documents referred to were the Jamabandi (Exhibit P-2) for the year 1962-63 B. K.

(1905-06A. D. ) of Village Ladda, Tehsir .. Maler Kotla, District Sangrur, wherein, under the Column of · ownership, it was noted· "Dera Bhagat Bhagwan Ba-lhtmam (under the management of} Brahm Sarup Chela Brahm Basant Sadh Udasian". ~xhibit P-4, which was a pedigree-table, was also referred to by the High Court along with Exhibit P-5, which is a copy of Revenue Inquiry File. Exhibit P-5 mentions the + names of Muafidars, who had been in possession from the date of grant of Muafi. The names read thus:- (i) Surat Ram . (ii) Bhola Ram (iii) Sham Dass -. .. . . (iv) Nanain Dass (v) Brahm Dass . (vi) Brahm Basant (vii) Brahm Sarup (viii) Bi. shan Dass . . This document. Exhibit p:. 5 is of date 23. 6. 1906A. D. "Fhe '. · .... '. " High Cqurt also noted Exhibit P-3, which was a mutation of inheritance sanctioned in favour of Mahant Mangal'Dass Chela Bishan Dass on the death of Bishan Dass Chela Brahm Saru'p. It was noted that this mut_ation was sanctioned ·an 28. 6. 191B tc A. O.

This document clearly showed that for the first time, Mahant -+ Mangat Dass Chela Bishan Dass took over the management of Institution, and it was he, who had find the objection under Section 8 of the Act. Thus, the High Court noted that he was the 1 9 Mahant in the order of succession. After his death, he was represented by his Chela Mahant Prem Dass. It was further noted from Exhibit P-1 dated 13. 1. 1909 that it was during the regime of Maharaja Bhupinder Singh that Muafi was granted in favour of Dera . Bhagat Bhagwan and at that time, the "Dera" A was under the management of Mahant Bishan Dass. The High Court also referred to the document Exhibit R-11, which is a Statement of Mahant ! 3ishan Dass, wherein, it was maintained A-that his Guru had enjoyed the Muafi of the land in terms of the ~· order dated . 23. 6. 1906 of the Commissioner and that his Guru had died and had left behind two Chelas, namely, himself and one other called Malook Dass, who was blind.

He had also further underta'ken. to remain of a good character and carry on the conditions ofthe Muafi. It was in this Statement that the existence of Guru Granth Sahib,. remaining open in the Dera, was mentioned. it was pointed out in the Statement further that the "Dera" was of celibate Sadhus. The High Court also further ref~rred to Exhibits R-12 and R-13, which were the Statements of some connected persons, wherein, it was wouchsafed that the Muafi fand situated in Village Ladd a belonged to Mausooma Dharmshala Sadhuans, and which was,under the management ~ of deceased Brahm Sarup. Exhibjt P-6 was also referred to, which refated to the substitution of the new entry, being a mutation relating to the rights of Shamlat Deh Hasad Rasad Khewat/ Khewna Mazkoor. The mutation was in favour of Che·Ja Bishan Dass. Exhibit P-7 another pedigree-table, which substantiated the case of the objections.

The other document, which was referred to by the High Court, was Exhibit P-8, which was the mutation in respect of the land gifted by Ralla Jat in favour of ~ ~ Dera Bhagat Bhagwan. Exhibit R-1 was also referred to, being . _ Statement of Mahant Mangal Dass, who consider~dAmarDass Chela Bhagat Ram to be fit person for the management of Dera Ladda. Exhibit R-14, which was referred to later on was also a SHIROMANI GURUDWARA PRABANDHAK COMMITTEE 1'119 V. MAHANT PREM DASS. [VS. SIRPURKAR. J. ] pedigree-table, mentioning the name of Brahm Sarup followed k by Bishan Dass Chela Mangal Dass. It was also noted by the High Court at that juncture that the Tribunal had not considered the documents R-4 to R-9.

The High Court, therefore, deduced that the original Muafi was made to Surat Ram and secondly, the Muafi was given to Surat Ram in his personal capacity and it continued to remain in possession of his successor Chelas undisturbed without changing the character of Muafi and it is only for that reason, that the rights of Brahm Dass Faqir, who .. continued in possession of the Dera and the land, were not interfered with. Thirdly, the High. Court came to the conclusion that the Institution, throughout was described in Exhibit R-10 as Dera, which was established by Baby Surat Ram after the grant of Muaft in his favour. The High Court also noted that it was after the settlement in the year 1962 B. K. that the Dera was described as Dera Bhagat Bhagwan. 21. The High Court did note the arguments on behalf of the SGPC that there was a reference to the Sawara Guru Granth Sahib remaining open in this Dera. Relying again on Shiromani Gurdwara Prabandhak Committee, Amritsar Vs.

Mahant Kirpa Ram & Ors. Reported in AIR 1984 SC 1059 (cited supra), the High Court held that the Tribunal had ignored the other evidence like the Statement of Mahant Mangal Dass made as Exhibit R-1 and had wrongly held that that factor alone could be held decisive in holding that the· Institution was a Gurdwara. The High Court also noted that the documents referred to like Exhibit R-11, were very old documents, beginning from 1907 and in other documents like P-15 to P-17, the land was recorded as Dera Bhagat Bhagwan under the management of Mahant Bishan Dass. It was noted by the High Court that it is totally inconceivable that the authorities would have allowed to described it as a "Dera", if actually it was a Sikh Gurdwara. The .. High Court also went on to consider Jamabandi Exhibit P-18 for the year 1957-58 before coming to this conclusion. The High Court also held on the basis of Exhibits P-5, P-7 and P-14 that .. the succession was from Guru to Chela. Lastly, the High Court ' .

referred to the documents Exhibits P-1, P-2, P-3, P-4 to P-7 f and R-10 to R'-18 to establish that not onlY;was original donee . Surat. Ram an Udasi Faqir, but, the subsequent Chelas also, who followed himand who were Mahants of theDera in question, · were Udasi Sadhus. . 22. The High Court has considered the mutation record right upto. 1976 and ultirnately came to the conclusion that on the basis of the documentary evidence, it was clear that the Institution was a Dera of U. dasi Mahants and was being consistently recorded as such. The High Court also refuted an argument that it was a common· feature in many Sikh Gurdwaras that Mahant ~f Udasl Sect were managing the same·as held in Bishan Dass Vs, Gurbax Singh reported in AIR 1934 Lahore 63, Prem Dass Vs. Labh Singh & Ors. Reported in AIR 1934 Lahore 130 and Guiab Dass Vs. Fauza Singh reported in o· AIR 1937 Lahore 826. However, the High Court held thatfor that reason, the Institution could not be held a Sikh Gurdwara.

The second argument that there was a persecution of Sikhs by the Mohammdean Rulers and, therefore, the Udasi Mahants were managing the Sikh_ Gurdwaras, was . also rejected by the _E_ High Court, being. against the weight of the evidence o. n record. The High. Court ultimately held. in respect of the documentary evidence that the . cumutative effectof. the documentary evidence, left ·no manner of. doubt that the Institution was an Udasi Institution. · -. _23.. we must, ~t thi. s juncture, ref~r to the, findings of the Hig~ Court as regards the oral evidence led by the parties, a~ ttie rriajor portion of th~ High Court'sfudgme'nt ls'c'. levoted to the appreciation oftne oral evid~_nce. \fVe nave already refe'rred to the. comments made by the Snri Jaspal Singh, Learned Senior G. Cour'ls. el, appearing on behalf ofth. e Appellant, as·a·1so Shri P. K. ; Palli,, Learned Senior G6unse'1 appearing on behalf of the ~ respondeht.

We must appreciate that the High Court has gone _··into· intricate details of the· ~vidence,. Commenting on, the. ' evidence of P\(V-1 Mahant Mangal qass, the j-iigh Court noted -H ·that his· claim, i. e. , 'Baba Surat Ram was the original founder of the Dera and after Surat Ram, the succession had always been from Guru to Chela', has gone unchallenged. He had also asserted that he was nominated to. the Gaddi one week before the death of Mahant Bishan Dass by the assembly of Udasi th . Bhekh and on the 7 day after the death of Mahant Bishan Das$. , a turban was presented to him in token of installation by the Bhekh in the presence of village community. It must be noted that he remained a Mahant for good long 46 years. The tradition 6f _appointing a Chela was also deposed to by PW-2' Kishan Singh, PW-3 Mokand Singh, PW-4 Kehar Singh, as also PW-5. Karan Parkash.

As if this was not sufficient, Pritam Singh, who was examined as RW-1 on behalf of the SGPC, also supported the stand of the petitioner that Dera was of Udasi fraternity and · the succession was from Guru to Chela. The High Court has.. appreciated th. e evidence of RW-2 Bahal Singh, RW-3 Hamir Singh and RW-5 Balwant Singh and ultimately recorded a finding that the Institution was an Udasi Dera and the succession to this Institution was from Guru to Chela. 24. Commenting on the evidence of PW-6 Nachhattar Gir Chela Sarasti Girand PW-7 Chhota Singh, the High Court noted that there were Smadhs, Gola Sahib and Idol of Baba Slri Chand as objects of worship in the Dera and there used to be Gita Parkash and recitation of other books in the Dera. At the same time, there was no regular Parkash of Guru Granth Sahib, though it was kept in the Dera.

The assertion by PW-7 Chhota Singh was also noted that there were 10 to 11 Smadhs in the Dera and that there used to be worships of Idols and Ashe_s in the Institution. This witness has also stated that Ashes in the form of Dhooni were collected at one place in that Dera. Similarly, PW- 8 Mohinder Singh had testified that Dera of Bhagat Bhagwan was of Udasi Sadhus and that there was ido. 1 ofBhagat Bhagwan, Gola Sahib and Smadhs, which were being worshiped in that Institution. The High Court noted that this claim of PW-8 Mohinder Singh remained unchallenged. The High Court also commented upon the evidence of PW-9 Hira Singh, as also the evidence of PW-10 Lekh Ram, who were Brahmin by Caste. They both had deposed about bowl of Ashes in front of the Idol ori a table. The High Court has also spoken about Smadhs located across the Phirney and also noted that Guru Granth Sahib was recited in the Institution occasionally.

PW-9 Hira Singh had also asserted that there was no Nishan Sahib (Flag) in the Institution. PW-10 Lekh Ram had specifically asserted, as noted by the High Court, that the Institution was not meant for display of Guru Granth Sahib, and PW~11 Mahant Sewa Ram Dass, who was the Mahant of Dera Jaswanda of Udasi Samprada of Bhagat Bhagwan, claimed that he had been visiting the Dera for last 20 years and he saw the idol of Baba Siri Chand and also further asserted that· Gola Sahib and Smadhs were being worshiped in that Dera. He also asserted that five other Smadhs were also located under one roof. He had also never seen Nishan Sahib (Flag) in the . Dera nor he had ever seen Guru Granth Sahib, being ever worshiped in that Dera. Evidence of PW-12 Bhagat Ram was also commented upon, which was to the same effect regarding 5-6 Smadhs, being there under one roof and there being no Nishan Sahib (Flag) in the said Institution.

Similarly, evidence of PW-13 Kartar Singh, who was a Draftsman, was also referred to, who asserted that there was one Smadh in Site Plan (Exhibit P. 13-A) in respect of a separate building, which was only one feet away from the Dera. The witnesses, who were examined by the respondent, were then referred to by the High Court, who were RW-8 to RW-15, being RW-8 Jang Singh, RW-9 Sadhu Sin~i. :k,, RW-10. Sarwan Singh, RW-11 Balwant Singh, RW-12 Chhota Singh, RW-13 lnder Singh, RW-14 Nachhattar Singh, and RW- 15 lshar Singh. One of these witnesses, PW-9 had never gone inside the Institution and could not give the details of the number of rooms. There was obvious contradiction in the evidences of RW-10 Sarwan Singh and RW-11 Balwant Singh as regards· the 'Parkash Asthan'. Significantly, PW-11 admitted the existence of Smadhs.

One of the witnesses, RW-13 lnder Singh admitted in the cross-examination that he had visited the Institution-in-dispute only once and that the Parkash of Holi Guru Granth Sahib was performed in a room located on the first floor, V MAHANT PREM DASS. [VS. SIRPURKAR, J. ] which was the case of nobody. His evidence was in direct . + contradiction with the evidence of RW-14 Nachhattar Singh. The High Court then commented on the findings by the Tribunal by referring to those findings and ultimately, came to the conclusion that the majority members of the Tribunal had misdirected themselves while appreciating the oral evidence on record and had totally ignored the relevant evidence while arriving at conclusion that Institution was a Sikh Gurdwara within the purview "• of Section 16(2)(iii) of the Act.

In support of this, the High Court J went on to record its reasons, whereby, the High Court held that I the evidence of the respondent, itself suggested that the Institution was an Udasi Dera and the succession to the Institution was from Guru to Chela. Regarding the Parkash of Guru Granth . i Sahib, the High Court noted that it was not a regular feature and it was only occasionally being done, but that by itself, would not establish that it was a Sikh Gurdwara. Commenting upon the evidence of RW-8 to RW-15, the High Court found that their versions could not be relied upon due to inter-se contradictions in their versions regarding the placement of Guru Granth Sahib. The High Court found that they have given their own versions, which are contradictory to each other. The High Court also found that some of the claims that there was an Idol of Baba Siri Chand, · Gola Sahib and Smadhs in the Dera and they were being worshiped in the Dera, have gone unchallenged and, therefore, ...

those claims deserved acceptance. . 25. The High Court noted that in Pritam Dass Mahant Vs. Shiromani Gurdwara Prabhandhak Committee reported in AIR 1984 SC 858, the distinctive features of the Sikh Gurdwaras were described. They are that there is no idol worshiped in a Gurdwara and the central object of worship is Guru Granth Sahib. The pattern of worship is reading of the holy hymns followed by their explanation by some learned man and · ... then singing of some passages from the holy Granth, the first being Katha and the second being Kirtan. - The High Court noted the second feature to be the congregational worship such as Japji, Jaap, Rehras, Kirtan Sohila Sangat and that is normally done daily. The third feature of the Gurdwara is the Nishan Sahib (a yellow Flag of Sikhism flying from it), which serve as a symbol of Sikh persons. This Nishan Sahib enables travellers, whether they are Sikhs or not; to know that the hospitality is available at this place.

There has to be a kitchen, where food can be prepared (Langar). Sometimes, Gurdwara could also be a clinic. However, its pivotal point is the place of worship and the main room would be the one in which Guru Granth Sahib is installed and where community gathers for diwan. Therefore, in Para 14 in the said judgment, as noted by the High Court, this Court held that the sine-qua-non for an institution being a Sikh Gurdwara is that there should be established Guru Granth Sahib and the worship of the same by the congregation, as also the Nishan Sahib. The High Court, therefore, noted that the claim of the SGPC could not be accepted on account of the four facts, they being: 0 (a) There are Smadhs on the premises of the Institution. . ~ (b) There are idols and photos of Hindu deities and also of Baba Siri Chand. (c) Bhai Bhathu was an Udasi Saint. (d) Succession was from Guru to Chela.

It was on this account that the High Court ultimatefly recorded a finding that the respondent could not prove their case under Section 16(2)(iii) to the effect that the Institution in question was established for the use of Sikhs for the purpose of worship and was used by the Sikhs for public worship, both before and at the time of presentation of the petition. 26. Regarding the claim under Section 16(2)(iv}, the High Court correctly noted that it was essential to prove that the Institution ·was established in the memory of Sikh martyr, Saint or historical person and further that the said Institution was used for public worship by Sikhs before and at the time of presenting the petition under Sub-Section (. ii) of Section 7(1) of the Act. The High Court had already held that it was not proved that the Institution was used for public worship by Sikhs before and at the time of presenting the petition.

In that view, the mere fact that the Institution was established in the memory of a Sikh martyr or a Saint, would not by itself, be enough to answer the issue under SeGtion 16(2)(iv) in favo"ur of the appellant. However, the . : . High . Court did not stop at . that and discussed the historical 9spect in. great details. Insofar as that part is concerned, the High Court noted that it was a common case that this lnsti. tution . was established in memory of Bhagat Bhagwan: The High Court, therefore, posed itself a question a$ towhether Bhagat Bhagwan was a Sikh Saint or an Udasi Saint. The High Court, therefore, went into the historical aspect, as was done by the Privy Council in·the·Case·of Hem Singh & Ors. Vs. Basant Das & Ahr. (cited supra). The High Court made a reference to Page 288, Volume-IV ofthe book titled 'The Sikh Religion" by Max Arthur Macauliffe and noted the story, which we had already referred to in the earlier part of the judgment.

According to the story Bhagat Bhagwan met Mahant Mehar Chand at Oera Baba Nanak and' got "Satnam Mantra" and Udasi Dress from hini, but since he was unsuccessful in his mission, he returned to Baba MeharChand, who directed him to the 7jh Guru, and after meeting_ the ~th Guru, he started preaching Sikh religion. The High Court also made a reference to the history given by the minority member of the Tribunal from a book known as "Udasi· Sikhan di Vithya", published in ·1959, and more particularly, Pages 185-216, as also another Book called "Mahima Parkash",written by Baba Sarup Dass Bhalla. It is suggested that the h. istory given was almost ,the same, as given in the book "Suraj Parkash". The genealogical table of the family of Bhagat Bhagwan, as . it appeared in"Udasi Sikhan di Vithya", was also referred to and a reference was also made to the book "Udasi Mat Darpan", compiled in the year 1953 by Baba Brhma Nand Udasi.

A reference was made to Pages 91-98, giving the description of Bhagwan Gir. A story was then quoted as to how Bhagwan Gir was deeply impressed by miracle shown by Dharam Chand Ji and how he could see the Goddess 'Hinglaj' and that he decided to change his name and became a Chela ·- - 1126 SUPREl'viE COURT REPORTS [2009] 2 S. C. R. of Dharam. Chand Ji. The minority member found, as was noted 1 by the High·Court, that the pedigree table in "Udasi Sikhan di ~ Vithya" did not tally with the pedigree table mentioned in . the Revenue Record, which carry the presumption of correctness under Section 44 of the Land Revenue Act. The minority member also noted that the book "Udasi Sikhan di Vithya" was published by SGPC in 1959A. D. ltwas also noted by the minority Member that even in this Book, Bhagat Bhagwan was c:! escribed as Udasi Sad. hu. Secondly, the minority Member of the Tribunal 1found that the detailed account relating to Bhagat Bhagwan in the books "Sikh Religion", .

published and compiled in 1883, ... "Suraj Parkash" and "Mahima Parkash", was similar, however, it was not indicated anywhere that he had become Sikh or a disciple of the ih Guru. The minority Member had also found . . ~ that in "Mahima Parkash" and "Suraj Parkash", there was nothing . to suggest that Bhagat Bhagwan preached Sikhism. It was also found from the book "Guru Tirath Sangrahey" compiled in 1883, .. that there was nci reference to any Bakhshish, being given to Bhagwan Gir by Guru Har Rai Ji. The Learned minority Member also found that though, according to "Udasi Mat Darpan", Bhagat Bhagwan became a Chela of Baba Siri Chand, it might be not · a correct history, as Baba Siri Chand had already expired before 1644 A. O. , when Guru Har Raj Ji got the Gaddi. However, the Learned Member deduced that from that alone, it could not be said that Bhagat Bhagwan became Sikh by meeting Guru Har '°' Rai Ji.

Lastly, the Learned Member held that the followers of Bhagat Bhagwan had formed a separate Udasi Sect, which I-' suggests that Bhagat Bhagwan did not preach Sikhism. The ~ minority Member then referred to a decision of Lahore High - Court in case of Baba lshar Das Vs. Dr. Mohan Singh and Others reported in AIR 1939 Lahore 239,wherein, it was held that the followers of Bhagat Bhagwan had claimed him to be Udasi, as far back as in the year 1938. The High Court accepted +- '{" ~ validly and correctly issued the notification; but that by itself, did not canter the status of a Sikh Gurdwara on the institution covered in the said notification under Sedion 7(3) of the Act. The argument, therefore, must be rejected. 36. The Learned Senior Counsel then urged that on the question as to whether Mahant Mangal Dass was a hereditary office holder, no opportunity was given to the SGPC to prove that he was not such an office holder.

The Learned Senior Counsel urged that on this issue, in the first round of litigation, the Punjab & Haryana High Court had dismissed the whole objections raised by Mahant Mangal Dass on the ground that he had not claimed himself to be a hereditary office holder-of the institution. The Learned Senior Counsel further pointed out ) that that judgment of the High Court was set aside by this Court . with the observations, which we have quoted in para 9 of this judgment. Even a cursory look at those observations would convince us that this Court had already closed that issue. In fact, • when Mahant Mangal Dass had filed an amendment application, the Tribunal had felt that there was no need to amend the petition, since the averments made in the objection petition had clearly indicated that Mahant Mangal Dass had claimed himself to be ... a hereditary office holder.

It so happened that the High Court, however, took the view that Mahant Mangal Dass had not specifically claimed himself to be a hereditary office holder in precise words and, therefore, his objections under Section 8 of the Act, were not maintainable. It is only on that short ground that the High Court had dismissed the appeal, which order was passed against the judgment of the Tribunal. On an appeal, this Court set aside that order and held that if the High Court had felt ~. the Tribunal was not right in refusing the amendment, it should have allowed the amendment and cure the defect and then decide the matter on merit, since all the evidence was available before the High Court. This Court, therefore, set aside the order of the High Court and remitted the matter for disposal of the appeal on "merits".

It is, therefore, clear that this Court had directed the High Court to decide the appeal on merits and not on the technical question as to whether there was a declaration "- > by Mahant Mangal Dass of his status as a hereditary office holder. We are, therefore, convinced that the question of the status of Mahant Mangal Dass was put to the rest by this Court. However, even if we were to accept the contention raised by V. MAHANT PREM DASS. [VS. SIRPURKAR, J. ] the Learned Senior Counsel for the appellant, we do not find such contention having been raised before the High Court that Mahant Mangal Dass was not a hereditary office holder or at least had not claimed to be the one. We have very carefully gone through the judgment of the High Court. It is totally silent about any contention.

The Learned Senior Counsel very fairly conceded that such issue was not raised by the High Court, however, he pointed out that it was the duty of the High Court to go into that issue or at least give an opportunity to the appellant ' SGPC to oppose the amendment. There is not even a whisper before the High Court to that effect also. In fact, after the remand, it is clear that the SGPC had never bothered to raise the issue before the High Court. Shri Palli, Learned Senior Counsel appearing on behalf of the respondent pointed out that at no point of time was this contention ever canvassed before the High Court. It will, therefore, not be possible for us to entertain the contention raised by the Learned Senior Counsel for the --'· appellant that any prejudice was caused to the SGPC by the High Court, not providing any opportunity to introduce an amendment in reply to the stand taken that Mahant Mangal Dass was a hereditary office holder since such opportunity was never sought for. 37.

Shri Jaspal Sing~, Learned Senior Counsel for the appellant also further contended that there should have been • an issue on the custom, by which Mahant Mangal Dass claimed to be a hereditary office holder. The Learned Senior Counsel argued that there was no specific issue framed on the existence or otherwise of such custom. In our opinion, the criticism is incorrect. In fact, the question was well covered in the first issue. This takes us to the other contentions raised on the first issue. Shri Jaspal Singh contended that in effect, the first issue was not decided by the High Court at all. We fail to understand the ;> I implication of the argument. In fact, we have quoted the High Court judgment extensively only to show that the High Court has considered regarding the status of Mahant Mangal Dass being a hereditary office holder and a major portion of the High Court's judgment is devoted to that question. We are satisfied with the appreciation of the evidence on that question. 38.

Opposing the contentions of Shri Jaspal Singh, Shri Palli, Learned Senior Counsel, appearing on behalf of the respondent pointed out that the Tribunal, vide order dated 9. 3. 1965, had unanimously held that succession to the Gaddi of Mahantship was proved from Guru to Chela and all the Mahants had been Udasi Sadhus and Mahant Mangal Dass had fulfilled the requirements of the provisions of the Act and ) was held to be hereditary office holder. Shri Palli pointed out that this order was not appealed against. Shri Palli pointed out that it is then that the appellant SGPC introduced an amendment and claimed the institution to be a Sikh Gurdwara even under the provisions of Section 16(2)(ii) of the Act (which stand was of course given up later on).

Not only that, but the SGPC moved a second application, seeking amendment to take the plea that the institution had been established in the memory of Sikh Saint and historical person, namely, Bhagat Bhagwan and was used for public worship before and at the time of presentation of the petitioner under Section 7 of the Act. According to the Learned Senior Counsel, this was necessitated because the finding that the succession to the Gaddi of Mahantship in the institution was from Guru to Chela and that Mahant Mangal Dass was a hereditary office holder, would have proved fatal to the claim of the SGPC that this institution was a Sikh Gurdwara. According ·to the Shri Palli, it is, therefore, totally a new claim was made under Section 16(2)(iv) that this institution was in the memory of Sikh Saint and historical person, namely, Bhagat Bhagwan. Our attention was drawn by Shri Palli to the decision of the Privy Council in the Case of Hem Singti & Ors. Vs. Basant Das & Anr.

reported in 1936 Privy Council Page 93 (cited supra), holding that the. burden to prove a particular institution a Sikh ~ Gurdwara, lies on the person, who claims it to be a Sikh Gurdwara. The Learned Senior Counsel further rightly argued that thereby, the, SGPC was seeking to change its initial claim that this institution was established for the use of Sikhs for the purpose of public worship and was also used for such worships by Sikhs before and at the time of presentation of the petition under Section 7(1) of the Act. 39. As regards the requirement of the strict pleading regarding the objector being a hereditary office holder, this Court in Uttam Das Che/a Sunder Das Vs. Shiromani Gurdwara Parbandhak Committee, Amritsar (cited supra)- in para 32, has held:- I ~ "32..... The High Court fell into an error in construing the pleadings under Section 8 on the strict standards set out in Hari Kishan Case.

When the appellant had placed the line of succession from Guru to Chela, he automatically meant t~at he was basing his claim on custom and usage, reflective from such long course of conduct and traditions. " I This would water down the requirement of the strict pleadings and the question of a specific plea regarding the petitioner being a hereditary office holder, would also to be pushed to the background. 40. Shri Jaspal Singh, Learned Senior Counsel for the appellants then severely commented upon the findings of the High Court and tried to suggest that the documentary evidence was wanting or at least. was not sufficientto hold in favour of the respondent on issue No. 2. The oral evidence led on behalf of the respondent was severely criticized by the Learned Senior Counsel along with the documentary evidence.

The Learned Senior Counsel also urged that the evidence was not sufficient to hold that the succession in this Institution was from Guru to Chela and that it was an Udasi Institution. It was also tried to be urged that even if Mahant Mangal Dass or his predecessors were held to be Udasis, it could not be destructive for the case ~ ~ of the SGPC, since the Udasis have always been a feature common to many Sikh Gurdwaras. The Learned Senior Counsel then relied on the ruling in the case of Bishan Dass Vs. Gurbax Singh (cited supra). In that judgment, there is a clear finding that the Institution was founded by the inhabitants of the Sikh ' village for their own benefit and the same was carrying on religious and charitable tasks and further, the purpose for which the Institution was founded, was the worship of Granth Sahib.

This @uthority would be of no consequence, since the factual situation is different and there are clear findings on the fact that this was an Udasi Institute and that the succession was from Guru ti::> Chela as per the proved custom. It was also tried to be impressed upon us that the High Court was swept away, as the Institution was described as a Dera and that it was contraindicative of the Institution being a Gurdwara. The Learned Senior Counsel invited our attention to the judgment in the case of Shiromani Gurdwara Prabandhak Committee, Amritsar Vs. Mahant Kirpa Ram & Ors. (cited supra). In fact, this judgment was heavily relied upon by Shri PaIii, Learned Senior Counsel for the respondent, also as this judgment is totally against the appellant herein.

Like in the present case, the two identical issues were framed in this case also, however the Court endorsed that there was no evidence to show that the Institution was established for the use of Sikhs for the purpose of public worship. It was also observed that Udasis formed an independent Sect, they do venerate Sikh scriptures and, therefore, in the Institution of Udasi Sect, one can visualize reading of G ranth Sahib or veneration of Sikh scriptures, but, that itself is not decisive of the character of the Institution. The ,,, High· Court also observed that on the contrary, where the succession was from Guru to Chela and those Gurus were followers of lJdasis faith and the Institution was known as Dera of Udasi Bhe'kh and they followed some of the practices of Hindu traditional religion, such things were completely destructive of the character of the Institution as Sikh Gurdwara. In our opinion, the High Court had correctly relied upon this authority.

There is no doubt that there is a reference in Para 13 to the following effect:- ~ 'f". 'I '"Dera' in', many cases was synonymous with 'Gurdwara', a description of the institution as Dera of Udasi Bhekh would certainly have a distinct connotation showing that it was an Udasi institution as recognized by the highest State ' authorities. " The contention that the High Court was swept away because of the reference of this Institution as a 'Dera', therefore, clearly appears to be incorrect. On the other hand, this authority would go long way in establishing that where Institution is established by Udasis, where there was a Guru and Chela Custom and where it is not proved that the Institution was \ ... established by the Sikhs for the Sikh worship and it continued to be so till the date of the Notifiction, the Institution could not be said to be Gurdwara. In the present case, all the factual material led before the Court suggests in favour of the respondent. 41.

Shri Palli, Learned Senior Counsel invited our attention to the fact that before the High Court, it was conceded by the appellant that there was no evidence to indicate as to on which _. date and in which area, the l_nstitution was established. He also invited our attention to the earliest document, which was Exhibit R-10, which was as old as 1932 B. K. =1875 A. O. Shri Palli, therefore, pointed out that the subsequent documents also mention the word 'Dera' and su. stain the case of the respondent that the Institution got the grants from the Maharajas and the record was as old as about 113 years, suggesting that it was an Udasi Institution. The other documents have also been A referred to by Shri Palli in details, to which we have already .. made reference earlier.

The voluminous documentary evidence, as also the oral evidence, which has been thoroughly discussed by the High Court, in our opinion, was sufficient to hold that the Institution was not a Gurdwara, but an Udasi Institution. 42. Shri Jaspal Singh, Learned Senior Counsel for the appellant also extensively commented on the documentary evidence and tried to suggest that the High Court's treatment of ; contained in the 6 treatise, which were authored by the authorities of Sikh religion. In fact, our attention was invited to a decision reported in the case of Ram Parshad c! s Ors. Vs. SGPC, Amritsar & Ors. (cited supra), wherein the book Sikh religion by Max Arthur Macauliffe has been described as the best authority of all in Sikh history. The story,. which we have already referred to in the ~arlier part of the judgment from Macauliffe treatise, as also the various incidents described in Gurpartap { ..

Suraj Granth were relied on by the Learned Senior Counsel, so also the incidents as described in Udasi Sikhan Di Vithia and Guru Udasis Mat Darpan were relied and reiterated by the Learned Senior Counsel. The Learned Senior Counsel also SHIROMANI GURUDWARA PRABANDHAKCOMMITTEE 1141 urged that the oral evidence of the scholars like RW-16 Dr. ' Ganda Singh, RW-17 Shamsher Singh and RW-18 Randhir Singh should not have been lightly set aside by the High Court. 43. As regards these oral evidences, Shri Palli, Learned Senior Counsel for the respondent, however, strongly urged that RW-16 had not made any re·search on the life and history of Bhagat Bhagwan nor he had written anything about him. He pointed out that in his evidence, RW-16 had admitted that he did not know who was Guru Bhagat Gir and he could not say "" whether Bhagat Bhagwan was Udasi by faith. He did not even know about the death of Bhagat Bhagwan.

Insofar as RW-17 is · concerned, Shri Palli pointed out that this witness had not visited · the Institute, he did not even know about the 300 Kendras established by Bhagat Bhagwan. As regards the last witness RW-18, who was the author of Udasi Sikhan Di Vithia, the Learned Senior Counsel urged that this book was published by none else, but the appellant SGPC and it was authored by the witness in the year 1959 on the eve of the application of the Act to the concerned area. The Learned Senior Counsel, therefore, urged that insofar as the evidence of these three witnesses was concerned, the High Court was right. Though it will not be our task to re-appreciate the evidence, the approach by the High Court to the evidence of the witnesses is undoubtedly correct, .. ... therefore, we would not give more importance to the oral evidence led by these witnesses, claiming themselves to be the scholars of Sikh faith.

At any·rate, we would give more weight F, to the documentary evidence, which has been brought on record and which documents are as old as about 113 years. In fact, · from those documents, a detailed discussionof which is to be found in the earlier part of this judgment, as also the judgment of the High Court, it is clear that this Institution was an Udasi .. ,. -ii Institution iii the memory of Bhagat Bhagwan and owes its name to Bhagat Bhagwan. Even if that is so, there is no evidence to suggest that this Institution was in the memory of Bhagat Bhagwan. It may be that the Institution is called Dera Bhagat Bhagwan, but what is more important is the documentary , ~ t- evidence regarding the grant of land to Shri Surat Ram and 1 thereafter, the succession from Shri Surat Ram right up to Mahant Mangal Dass, which has been painstakingly established by the respondent. Once the Institution is held to be an Udasi Dera with the features like Smadhs, Gola Sahib etc.

, being in existence in the said Institution, further, once it is established that the. order of succession was governed by a custom that is from Guru to Chela, there is no question of our going into the historical aspect arid when we compare the historical aspect . ,, with the hard evidence led on the record, we would choose to prefer the evidence so led. Insofar as the historical reference is concerned, Shri Palli pointed out that the High Court had, not . l only discussed this aspect, but had given good reasons. It was pointed out that there were some incorrect references, for example, in Udasi Sikhan Di Vithia, it was mentioned that Bhagat Gir, who later became Bhagat Bhagwan, had met 7th Guru. The Learned Senior Counsel argued that this cannot be ,I. _ historically correct, as Guru Har Rai, the ih Guru was born in 1631 A. O. and died in 1666 A. O. and, therefore, Bhagat Bhagwan could not have been met him. Shri Palli also heavily re.

lied on the authority reported in AIR 1939 Lahore 239 Baba lshar Das Vs. Dr. Mohan Singh and Others, which judgment . was noticed by the High Court. We have seen the jud. gment. It undoubtedly supports the. respondent. Shri Palli further urged that the High Court.. had relied upon the bo_ok Guru Jirath .. Sangrahey, which mentions that Bhagat Bhagwan was neither Sikh saint nor a historical person, rather he joined the Udasin Sect, go. t the Udasin dress and initiation from Mehar Chand, the great grand. son of the first Guru. The Learned Senior Counsel pointed out that same account is given even in the book Sikh Religion by . Macauliffe. The Learned. Senior Counsel also pointed out that the SGPC had miserably failed to bring on record any writing of Bhagat Bhagwan as a Sikh saint. It also ... . r' j . had failed to point out any Institution, set up by Bhagat Bhagwan I- • or his.

followers to be a Sikh Gurdwara, though in the historical accountS, it was stated that he had created about 300 Institutions. From this, the Learned Senior Counsel urged that the High Court ~ I )- - SHIROMANI GURUDWARA PRABANDHAK COMMITIEE 1143 was absolutely right in coming to the conclusion that the Institution was not a Sikh Gurdwara, but an Udasi Dera. 44. In our opinion, Shri Palli is undoubtedly correct in his criticism. We have also gone through the details of the evidences, though it was not our task to re-appreciate the evidence. As we 9, have already held, we are fully satisfied with the findings recorded by the High Court. To conclude the matter, we hold:- . 1. that in view of the Exhibit R-10, the Institution was ~established prior to 1665 A. O.

by ari Udasi Faqir Surat Ram, who had received donation from the Ruler c, of the then Patiala State and the said Institution then was governed by a chain of Udasi Mahants without break in the tradition of the succession from Guru to Chela and Mahant Mangal Dass. was in the same tradition. D' 2. that the Institution was only known as a Dera or Dera Sadhan or Mausooma Dharamshala Sadhan and it gave the impression that it was a charitable Institution for poor faqirs and travellers, as also offered shelters to them and the Mahants, who governed the Institution, were noble persons. 3. that there is voluminous documentary evidence to ;j show the grant of Muafi (remission) of revenue. The land was already granted to the Udasi Faqir in his personal capacity and he had become the owner thereof and the Institution was used by Udasi Faqirs and Sadhus, which is clear from the reference in the revenue papers to the effect "Well of Sadhus or Well of Mahantawala" etc. 4.

that there is ample evidence to establish the pedigree . ; ~ tables as Khandan Sadh Udasin and Patti Sadh Udasin. 5. that there is no evidence that this was a Sikh Institution from its inception till today or the Sikhs had any say in the matter of appointment of Mahants. f .. -- 1- I \. - ~ 6. Significantly, there is no evidence of there being a I regular Granthi in the Institution there existed even a Nishan Sahib. There was no further evidence that the Sikh religious ceremonies were ever held or there is Katha or·Parvachan in a congregation. '. , 7. that it is established from the evidence that Guru Granth Sahib, though was kept, did not have a fixed place for its Parkash and the versions on the . , placement of Guru Granth Sahib is contradictory. 8. that even a single worshipper out of the original 57 \--applicants, ever turned up to support the cause of · the appellant. 9..

that there was clear evidence that there was Gola Sahib, Murti of Baba Siri Chand, Smadhs of earlier Mahants and other objects of worship like ... photographs etc. and Gur·u Granth Sahib was only kept as a book of reverence. 10. that Baba Siri ·Chand, who was the son of the first Sikh Guru, was an Udasi and Udasi Sect grew up parallel with the Sikh religion. 11. It is further established that all through, the Institution continued as an Udasi Institution. " 45. We are, therefore, convinced that the appeal filed has .. no merits and must be dismissed with costs. It is accordingly dismissed with costs. ).. G. N. Appeal dismissed. . -t· . ,. t