Judgement

1940- 1941- IA - 68- 83

Appeal (No. 62 of 1939) from a decree of the High Court (July 16, 1936), which had reversed a majority decree of the Sikh Gurdwara Tribunal constituted under the Sikh Gurdwaras Act (Punjab Act VIII. of 1925) (November 18, 1935).

The following statement of facts is taken from the judgment of the Judicial Committee The dispute in this case related to an area of 28 kanals and 1 marla (nearly three acres) situated in the village of Kot Fateh Khan, in the Attock district of the Punjab. Within that area lay the tomb (samadh) of a Hindu ascetic, Baba Than Singh, who was said to have died in or about 1793. That tomb had long been held in veneration, and had become a Udasi shrine (dehri or deri) before the Punjab came under British rule. The tomb of his disciple, Chet Ram, lay near to that of Than Singh, but the religious institution was known as the Deri Baba Than Singh. It would appear to have been in enjoyment of one, if not two, jagirs or assignments of revenue dating from Sikh times. At its head there had been a long succession of mahants, and in the area now in question had lived the sadhus connected with the institution, as well as the mahant. A langar, or free kitchen, with certain buildings attached thereto, had also been maintained there. The various compounds or closes comprised in the area were referred to in the judgments and decrees of the courts in India as ihatas Nos. 179 to 230, those being the numbers given to them in the khasra abadi register of 1862 at the first regular settlement.

The village was said to have been founded in the 16th century by an ancestor of the first respondent, Lieutenant Sardar Mohammad Nawaz Khan (herein called the respondent). Its inhabitants, apart from those connected with the shrine, were Muslim cultivators and one or two kamins, e.g., the blacksmith, the carpenter. At the first regular settlement in 1862 the proprietors consisted of a number of members of the respondents family, but in or about 1882 a partition was made between three branches of the family. By that, the village was divided into three portions, called Abadi Kot Khas, Abadi Kot Bala and Abadi Deri Baba Than Singh. The last portion was included in the share which fell to the respondents predecessor. It included the land in suit, which was separated from that part of the village Kot Khas, in which the cultivators and kamins lived, by some thirty yards or more of cultivated land.

The respondent was a minor when, in 1903, he succeeded to the property on the death of his father, and from 1903 to 1924 the Court of Wards was in charge of his estate. Since 1924 the respondent had had the management of his own property, and had asserted rights, as proprietor of the village, over the area in question which were now contested by those interested in the shrine. It was not now disputed by the respondent that the sites of the two samadhs must be treated as having been dedicated to the religious institution, and that the langar buildings belonged to it permanently. But he contested the appellants claim on behalf of the shrine that the whole area of twenty-eight kanals and one marla, together with the various houses thereon, was in the same position as the samadhs, and that he had no rights in it ; as also their claim that in any event the right of occupation was vested in the shrine and continued so long as the shrine existed. He claimed, moreover, certain rights by village custom in the malba, or materials, of which the houses were built, which rights were denied by the appellants.

Those matters came originally before a Tribunal constituted under the Sikh Gurdwaras Act (Punjab Act VIII. of 1925). An application having been made to have the shrine declared to be a Sikh gurdwara, the mahant objected that it was a Udasi institution and not within the Act. The respondent, by petition dated April 25, 1931, objected that the area claimed as belonging to the institution was his

Law. Rep. 68 Ind. App. 83 ( 1940-