In the absence of a Chela, a Gurbhai is entitled to succeed to the Gaddi of a Dera in Punjab only if there is a custom to that effect.

Judgment

AYYANGAR, J.:- The tenability of the appellant s claim to possession of certain properties belonging to the Dera of Sanyasi Sadhus in Mauza Kharak Tahsil Hansi, District Hissar in Punjab is the subject-matter of this appeal which is before us on a certificate of fitness granted by the High Court of the Punjab.

2. The appellant claimed the properties as the successor of the last Mahant of the Dera Kishan Puri who died on February 15, 1951. The fortunes of the litigation started by the appellant have greatly fluctuated. His suit was decreed by the learned trial Judge, was dismissed by the first appellate Court, was again decreed by a learned single Judges of the Punjab High Court on second appeal but this judgment has again been reversed on Letters Patent appeal and the suit directed to be dismissed. On a certificate of fitness granted by the High Court the matter is now before us.

3. The last Mahant of this Dera-Kishan Puri died on February 15, 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 intering 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, evidence was recorded on an issue as to whether Neki Puri was a Chela of Kishan Puri - the last Mahant and a finding was recorded on this question adverse to the claim of Neki Puri. An appeal against this judgment was dismissed and that decree has now become final.

4. the suit for declaration and injunction having been dismised, Brahma Nand Puri -the appellant-brought the suit out of which this appeal arises, in the Civil Court at Hissar for a decree for possession of the properties moveable and immoveable belonging to the Dera. The suit being on the basis of the plaintiff s title, this was formulated thus :

"5. According to custom regarding succession of the Dera and the Riwaj-i-Am of Deras the plaintiff being Gurbhai was entitled to Gaddi, as he is the eldest Chela of Shanker Puri and the people of the village and the Bhekh appointed him as Mahant after performing all the ceremonies on the 17th day of the death of Shri Kishan Puri and made him occupy the Gaddi of dera of Kharak."

An alternative basis for the title was also put forward in paragraph 8 in these terms :

"8. If for any reason it is held that after the death of Shri Kishan Puri, the plaintiff was not appointed as Mahant of the Dera, even then according to the custom regarding succession of the Dera and Riwaj-i-Am, the plaintiff is entitled to become Mahant of the Dera as he is the Gurbhai of Kishan Puri deceased. It was held in the previous case that according to the Riwaj, in the absence of a Chela his (deceased Mahant s) Gurbhai becomes Mahant of a Dera." In the Written Statement that was filed by Neki Puri two defences were raised : (1) that Neki Puri was a Chela and he had been appointed to succeed Kishan Puri by the Bhekh and other villagers. In other words, he put forward a preferential title based on Chelaship followed by an appointment by the Bhe