Judgment

CHINNAPPA REDDY, J.:- This appeal is directed against the judgment of the High Court of Punjab and Haryana confirming that of the Subordinate Judge 1st Class, Nabha. The respondent plaintiff filed a suit for a declaration that he was the Mahant of Dera Baba Khiali Das, Khenaura, Tahsil Nabha, District Patiala, that he was entitled to manage the properties of the Dera and that the alienations made by Mahant Krishan Das and Amar Parkash were not binding on him. It was alleged by the plaintiff that Amar Parkash who held power of attorney from Mahant Krishan Das, the previous Mahant of the Dera, had mismanaged the properties and had granted leases of lands belonging to the Dera to his mistress and his brother-in-law. Mahant Krishan Das came to know about the mis-management by Amar Parkash and cancelled the power of attorney which he had previously executed in favour of Amar Parkash. Mahant Krishan Das summoned the general assembly of the Udasi Bhekh and held a meeting, with the help of the Deputy Commissioner, Patiala and the Police on 23rd July 1961. The meeting was attended by other Mahants of Udasi Bhekh. In the general assembly of the Udasi Bhekh, Mahant Krishan Das tendered resignation of the office of Mahant on the ground of old age and ill health and appointed the plaintiff as his successor Mahant. This was accepted by all the Mahants of Udasi Bhekh. Mahant Krishan Das, treating the plaintiff as his Sadaq Chela, applied Tilak, performed Pagri ceremony with his own hand and duly installed the plaintiff as the Mahant. The visiting Mahants also performed the Pagri ceremony. Despite the installation of the plaintiff as Mahant of the Dera, Amar Parkash continued his activities and started obstructing the plaintiff from discharging his obligations as Mahant. The plaintiff, therefore, filed the suit for a declaration that he was the Mahant of the Dera and for other reliefs. The defendant Amar Parkash raised the plea that he was the Chela of Mahant Krishna Das and that Mahant Krishna Das who died on 30th December, 1961, had executed two Wills on 17th July, 1955 and 24th September, 1961, appointing him as the Mahant to succeed him. It was alleged that the proceedings which took place on 23rd July, 1961 were the result of fraud and undue influence exercised over Mahant Krishan Das.

2. On the pleadings of the parties the primary question which arose for consideration was whether the plaintiff was validly appointed as Mahant of Dera Baba Khiali Das. The learned Subordinate Judge, Nabha framed two principal issues. Issue No. 1 was:

What was the particular custom or usage prevailing in the Dera in dispute for the appointment of a Mahant on the relevant date?"

Issue No. 1-A was:

"Whether the plaintiff was validly appointed the Mahant of the Dera in accordance with the prevalent custom?"

The learned Subordinate Judge noticed that neither party pleaded or referred to any particular usage or custom for appointing a Mahant for the disputed Dera. He also noticed that the documentary evidence showed that the final appointment of Mahants for Deras in the Nabha State was required to be approved by the Ruler of the State. Leaving the matter there, the learned Subordinate Judge found that the plaintiff was duly and validly installed as Mahant of the Dera by Mahant Krishan Das in the presence of and with the approval of Udasi Bhekh. He held that the plea of fraud and undue influence raised by the defendant was not established. On those findings the suit was decreed. The first defendant Amar Parkash preferred an appeal to the High Court of Punjab and Haryana. During the pendency of the appeal the plaintiff sought an amendment of the plaint in order to enable him to expressly plead the particular custom relating to succession to the office of the Mahant of Dera Baba Khiali Das. The amendment was allowed and the High Court directed the Subordinate Judge to record additional evidence and submit a report giving his finding on the question whether the