Judgment

B. K. MUKHERJEA, J. This appeal is directed, against a judgment and decree of a Division Bench of the Punjab High Court, dated the 30th April 1952, by which the learned Judges reversed, on appeal, a decision of the Subordinate Judge, First Class, Jullundur dated the 31st May 1948, passed in Suit No. 131 of 1947.

The facts material for our present purpose may be briefly stated as follows: There is a Thakardwara or religious institution belonging to the Ram Kabir sect of Hindu Bairagis situated at Mouza Jamsher within the district of Jullundur. One Kishore Das was admittedly the last Mahant of the Thakardwara, who died on the 4th of April 1945. On the 31st March 1945, that is to say just four days before his death, Kishore Das granted a lease in respect of 645 Kanals of land, appurtenant to the endowment, for a period of 10 years in favour of defendants respondents 1 and 2 at an annual rental of Rs.1,500 only. The suit, out of which this appeal arises, was instituted by Sital Das, who is the appellant before us, in the Court of the Subordinate Judge, First Class Jullundur on 2nd January 1946 making the two lessees, mentioned above, parties defendants, for recovery of possession of the lands comprised in the lease, on the allegation that Sital Das was the legally appointed Mahant of the Thakardwara after the death of Kishore Das and that the lease, executed by the latter, was illegal and inoperative by the latter, was illegal and inoperative on grounds, inter alia that it was a colourable transaction, executed without consideration and not supported by legal necessity.

Sital Das was admittedly not a disciple of Kishore Das, the last Mahant, and he based his claim as superior of the institution solely on the ground that he was duly appointed as Mahant by the Bhek of the assembly of Bairagi Mahants of the same order, to which Kishore Das belonged, along with Sewaks or worshippers of the Thakardwara itself.

2. In the plaint, as it was originally framed, two other persons were joined as co-plaintiffs along with Sital Das; one of them was Mahant Hira Das who purported to be the head of a Bairagi institution at Sahri, said to be the parent institution of the Thakardwara in dispute, and the other was Sadhu Ram Das, whose disciple Sital Das is and who claimed to belong to the same spiritual fraternity as Kishore Das.

It was stated in paragraph 4 of the plaint that these two persons had obtained the consent of the Advocate-General under section 92 of the Civil Procedure Code to file a suit under that section in respect of the properties of the Jamsher Thakardwara, alleged to be improperly alienated by Kishore Das, and the reason for joining them as co-plaintiffs along with Sital Das was that in case the court held that Sital Das was not a validly appointed Mahant, the other two plaintiffs would be able to continue the suit, as persons interested in the endowments, against the lessees.

3. On the 28th March 1946 the trial judge made an order to the effect that as plaintiff No. 1 was alleged to be the lawfully appointed Mahant, plaintiffs 2 and 3 could not claim to have simultaneously the same rights with him and the joinder of plaintiffs in this form was likely to create confusion and embarrass the trial of the suit; and the plaint therefore should be amended, and either the plaintiff No. 1 alone, or plaintiffs 2 and 3 together, should appear as claimants. In pursuance of this order, the plaint was amended and the names of plaintiffs 2 and 3 were deleted from the record. The amended plaint was filed on the 17th of April 1946.

4. The defendants 1 and 2 filed their written statement on the 28th March 1946, the same day on which the order for amendment of the plaint was passed by the Subordinate Judge, and the contentions raised by them in their written statement were substantially of a three-fold character.

It was contended, in the first place, that it was not the plaintiff but one Ishar Das who was the legal Mahant and administrator o