A suit for an injunction to restrain a person from transferring or creating any charge on the property of a religious endowment is not barred by limitation.

N.K.Kapoor, J.

1. This is plaintiffs regular second appeal against the judgment and decree of the Additional District Judge reversing the judgment and decree of the trial Court thereby dismissing the suit of the plaintiff.

2. Briefly put, there is a Dharamsala Bonia at Hoshiarpur which belongs to the Bairagi sect. It was under the Mahantship of Mahant Janki Dass who was a Bairagi Sadhu. He had been in its lawful possession and managing the Dharamsala till he died in the year 1988. Plaintiff laid claim to the Mahantship on the death of Mahant Janki Dass on the basis of will-cum-nomination deed dated 18.2.1923 duly executed by Mahant Janki Dass and this way be become Mahant of the Dera Alawalpur. Since the property in dispute was attached to the Bairagi Dera of Alawalpur so the plaintiff had the legal right to be in its possession and manage the same. Sarju Dass-defendant was appointed vide writing dated 30.9.1926 by Mahant Janki Dass for rendering the service to the Mahant of the Dera and for which he was entitled to food, clothing and maintenance etc. It is the case of the plaintiff that defendant had been rendering accounts to Mahant Janki Dass and after his death to the plaintiff and so his status was as that of Karjun/agent. It is subsequently that he became dishonest and started proclaiming himself as owner of the suit property. Hence the suit. Seeking relief of perpetual injunction restraining Sarju Dass @ Bhagti from alienating the suit property by way of sale, mortgage, gift, lease or will as well as from creating charge or encumbrance in respect thereto.

3. Defendant contested the suit interalia stating that he was Chela of Mahant Janki Dass and was appointed as Mahant by the Bheikh/Sewaks on 31.3.1940, and a writing was duly executed on 31.3.1940 and ever since then he is in possession of the property and managing the same as Mahant. Execution of will-cum-nomination dated 18.2.1928 by Mahant Janki Dass in favour of the plaintiff was denied. It was further averred that there was no custom providing for nomination of the successor Mahant by way of will. According to the defendant, it is Bheikh/Sewaks who have the final authority to appoint/nominate him. Defendant, however, denied that he was a Karkun/agent. On the pleadings of the parties following issues were framed :-

1. Whether the plaintiff is the Chela of Mahant Janki Dass and that after the death of Mahant Janki Dass the plaintiff became Mahant of Dharamsala Bonia ? OPP.

2. Whether the suit is within limitation? OPP.

3. Whether the plaintiff is in possession of the suit property? OPP.

4. Whether the plaintiff is entitled to the injunction as prayed ? OPP.

5. Relief.

4. Trial decided issues No. 1 to 4 in favour of the plaintiff and so decreed the suit as prayed for.

5. In appeal the lower appellate Court examined the matter on facts as well as law and came to the conclusion that the plaintiff failed to prove that he succeeded to the title of Mahantship as per writing i.e. will-cum-nomination deed dated 18.2.1928 and since this claim set up by the plaintiff had been resisted by the defendant in the earlier suit between the parties the present suit having been filed on October 10, 1981 i.e. more than 3 years since the plaintiffs title to the Mahantship was disputed was thus barred by limitation. Accordingly, lower appellate Court reversed the findings of the trial Court on issue No. 2.

6. Examining the documents i.e. will-cum-nomination deed dated 18.2.1928, certified/photo copy of Muzharnama dated 22.10.1938 and the order dated 19.7.1939 with regard to the grant of succession certificate the lower appellate Court came to the conclusion that these documents too did not prove the case of the plaintiff. According to the lower appellate Court will-cum-nomination deed was produced in a suit bearing No. 276 of 1946. Plaint in that suit was rejected and so it was open to the plaintiff to take back the original document and produce the same in the present case. But