Case: Kesar Singh Vs. Balwant Singh

1. The suit out of which the present appeal arises has had a chequered history. It was filed as far back as June 1943, the plaintiff being S. Balwant Singh thereinafter referred to as the respondent). The main defendants were Kesar Singh and Jaswant Singh of whom Kesar Singh will be referred to as the appellant hereinafter. The suit was with respect to a house known as bunga Maharaja Sher Singh which is situate outside the tank around Sri Harmandir Saheb (hereinafter referred to as the Golden Temple) in Amritsar. The case of the respondent was that he and his uncle who was made a defendant to the suit were managers of this bunga which was wakf property and that they and their ancestors had been in possession of it throughout. There were proceedings before the Sikh Gurdwaras Tribunal established under the Sikh Gurdwaras Act No. VIII of 1925 (hereinafter referred to as the Act) in 1933 with respect to this bunga. The proceedings arose because a claim was put forward that the bunga was the property of the Golden Temple. In those proceedings the appellant and the other defendant claimed the bunga. The respondent also made a claim to the bunga. The proceedings were all consolidated and it was decided that the bunga was not the property of the Golden Temple the claims of the appellant and the other defendant were also dismissed and the tribunal held that the respondent and his uncle had the right to manage and supervise the bunga and were its managers. There were appeals to the High Court from that decision by the appellant and the other defendant which were dismissed with the result that the status of the respondent and his uncle as determined by the tribunal was upheld. Thereafter the respondent along with his uncle filed a declaratory suit against the appellant and the other defendant. In that suit they were ordered to file a suit for possession. Consequently the present suit was filed for possession and ejectment of the appellant and the other defendant2. The case for ejectment was based on the ground that the appellant and the other defendant were in possession of the bunga without any right. They had been asked to deliver possession to the respondent but refused to do so and continued to treat the bunga which was wakf property as their personal property. The respondent therefore did not desire to keep the appellant and the other defendant as servitors to look after the bunga as they were claiming rights adverse to the wakf and consequently prayed for their ejectment and delivery of possession of the bunga to him and his uncle3. The suit was resisted by the appellant and the other defendant and it was contended that the respondent was not a descendant of Maharaja Sher Singh and was therefore not entitled to the management of the bunga. It was also denied that the bunga was wakf property. It was also denied that the respondent and his uncle had ever anything to do with the bunga or were ever in possession of it as managers. It was further alleged that any decision of the tribunal against the appellant had no effect as the tribunal had no jurisdiction to give any decision and in any case the tribunal had given no decision in favour of the respondent and his uncle. Further even if any decision was given in favour of the respondent and his uncle by the tribunal, it was not binding on the appellant as he was no party to those proceedings. It was also claimed that the appellant was the owner of the bunga and in any case even if the bunga was wakf property the appellant was its hereditary manager and was entitled to its possession and could not be ejected by the respondent. Finally, adverse possession was claimed against the respondent who was alleged to have never, been in possession within 12 years before the suit was filed and in any case as the respondents application under S. 25A of the Act had been dismissed in July 1935, he had no right to file a suit for possession thereafter4. On these pleadings, eight issues were framed by the trial Court, which are as below:-1. Whether the bunga in dispute is a wakf property founded by Maharaja Sher Singh, or any descendant of Maharaja Sher Singh?2. Is the plaintiff a descendant of Maharaja Sher Singh, and is, therefore, entitled to get possession of the bunga in dispute as a manager?3. Is the plaintiff entitled to bring this suit alone?4. Is the suit within time?5. Is the suit barred under S. 92, Civil Procedure Code?6. Are the defendants debarred from denying the plaintiffs title in view of the judgment of the Lahore High Court and the decision of the Sikh Gurdwaras Tribunal?7. Has the plaintiff relinquished his right and what is its effect?5. In the trial Court, the parties agreed that the decision might be given only on issues 3 to 7 and issues Nos. 1 and 2 might be left undecided. Consequently, the trial Court proceeded to decide issues 3 to 7 only. It held on issue No. 3 that the respondent was entitled to bring the suit alone. On issue No. 4, the trial Court held that the suit was barred by time. Issue No. 5 was not pressed and was, therefore, decided against the appellant. On issue No. 6 the trial Court was of the view that it was not necessary to give any finding on it in view of the finding on the question of limitation, even so it held that the defendants were debarred from denying the plaintiffs title in view of the judgment of the Lahore High Court and the decision of the tribunal. On issue No. 7 it held that in view of the decision of the tribunal and judgment of the High Court it could not be said that the respondent had relinquished his rights. In the result, the suit was dismissed on the ground of limitation6. The respondent then went in appeal to the Punjab High Court. The High Court held on the question of limitation that the suit was not barred by time. It then referred to the decision of the tribunal which had held that the bunga was wakf property founded by Maharaja Sher Singh and held that this decision of the tribunal was binding and conclusive. It was of the view that the question whether the respondent was the descendant of Maharaja Sher Singh and therefore entitled to obtain possession of the bunga which was the subject-matter of issue No. 2 should have been decided. It, therefore, accepted the appeal and set aside the order of the trial Court on the question of limitation and remanded the case for the decision of issue No. 2 as framed by the trial Court and further framed two additional issues and directed the trial Court to decide them also. These additional issues were :-1. Was Jaswant Singh a bungai or a servitor of the plaintiff and defendant No. 3 or their ancestors?2. Can the plaintiff dispossess the defendants on any of the grounds specified in Para. 4 of the plaint?7. On remand the trial Court held against the respondent on issue No. 2. Its finding was that it had not been proved that respondent was the descendant of Maharaja Sher Singh and therefore, entitled to get possession of the bunga in dispute as manager. On the first additional issue the trial Court found that the appellant and the other defendant were servitors or bungai. On the second additional issue it was found that a bungai or servitor if he denies the title of the rightful owner on whose behalf he manages the property forfeits his rights to retain the property or to continue as servitor, and as the appellant and the other defendant had set up a title adverse to the respondent, they would be liable to ejectment on the grounds specified in Para. 4 of the plaint, if the respondent is the rightful owner, whether as trustee or otherwise, of the bunga8. On receipt of these findings, the appeal was heard again, this time by another Bench of the High Court. The High Court pointed out that issue No. 6 had not been decided on the earlier occasion and took the view that if issue No. 6 were decided in favour of the respondent it would not be necessary to go into the question whether the respondent was the descendant of Maharaja Sher Singh and, therefore, entitled to sue for ejectment. The High Court, therefore, addressed itself to the decision of issue No. 6 and held that in view of the judgment of the Lahore High Court and the decision of the tribunal, the appellant and the other defendant were debarred from denying the respondents title as a descendant of Maharaja Sher Singh. In that view of the matter it held that the suit must succeed as the question of limitation had been decided against the appellant and the other defendant and it was not open to go into the question whether the respondent was a descendant of Maharaja Sher Singh and, therefore, entitled to maintain the suit. The appeal was, therefore, allowed and the suit was decreed. The appellant then applied for leave to appeal to this Court, which was granted; and that is how the matter has come up before us9. The appeal came up for hearing before this Court in 1958. This Court then took the view that it was difficult to decide the appeal satisfactorily without having a finding on the essential issue, namely, whether the plaintiff was a descendant of Maharaja Sher Singh and, therefore, entitled to get possession of the bunga in dispute as a manager. This Court, therefore, directed the High Court to record a finding on issue No. 2 and also on the two additional issues framed by the High Court when the remand was made on an earlier occasion

Reasoning:
10. Before we go into the effect of the findings now submitted by the High Court on the direction of this Court, it is in our opinion necessary to decide issue No. 6, for if that issue is decided in favour of the respondent it will not be open to the appellant or the other defendant to question that the respondent was the descendant of Maharaja Sher Singh and consequently had the right to maintain the suit12. It is clear, therefore, from the scheme of the Act that it gives jurisdiction to the tribunal to decide all claims to properties which are claimed to be the properties of a Sikh Gurdwara mentioned in Sch. I to the Act. It is true that where a property is notified in the list under S. 3 each person who has claim to that property has to make a separate claim on his own behalf which is forwarded to the tribunal for decision. It is clear, however from the provisions of S. 15 that where a tribunal is dealing with a property which is claimed to belong to a Sikh, Gurdwara and in respect of which counter claims have been made by other persons, it has jurisdiction to decide to whom that property belongs, whether to the Sikh Gurdwara or to an, other person claiming it and for that purpose it can consolidate the proceedings resulting from different claims to the same property so that all disputes with regard to that property can be decided in one consolidated proceeding. Further it has the power under S. 15 to inquire by public advertisement or otherwise if any person desires to be made a party to any proceeding and may join in any proceeding any person who it considers ought to be made a party thereto. Where, therefore, a number of claims have been made under S. 5 to the same property which is claimed under S. 3 to belong to a Sikh Gurdwara the tribunal can consolidate all such claims under S. 15 and treat all the claims as one proceeding. Where, therefore, the tribunal consolidates the claims in one proceeding each claimant even though he had made a claim for himself as against the Sikh Gurdwara would be entitled under S. 15 to contest the claim not only of the Sikh Gurdwara but of any other person who is making a rival claim to the property as against the Sikh Gurdwara. It is also clear from S. 25A that in deciding the claims made under S. 5 it is open to the tribunal not only to decide whether the property to which claims have been made belongs to the Gurdwara but also to decide whether it belongs to any of the claimants. It seems, therefore, that the Act has given full power to the tribunal to decide between the rival claims of the Sikh Gurdwara and other claimants under S. 5 and empowers it not only to give a decision as to the rights of the Sikh Gurdwara but also of other claimants. Further there is provision in S. 34 of the Act for appeal to the High Court by any party aggrieved by a final order passed by a tribunal in matters decided by it under the provisions of the Act. The words in S. 34(1) are very wide and where claims are consolidated in one proceeding under S. 15 and the claim of the Gurdwara and the rival claims of various claimants under S. 5 with respect to one property are decided in a consolidated proceeding; it is clear that any party who was party to the consolidated proceeding would be entitled to appeal against the order of the tribunal if it went against it and was in favour of the Sikh Gurdwara or of any other claimant in the consolidated proceeding. Section 36 thereafter bars a suit in any Court to question any decision of a tribunal in exercise of any powers vested in it by or under the Act. Section 37 bars any Court from passing any order or granting any decree or executing wholly or partly any order or decree, if the effect of such order, or decree or execution would he inconsistent with any decision of a tribunal or any order passed on appeal therefrom under the provisions of the Act. It is not in dispute that this bunga was notified under S. 3 of the Act as property claimed by the Golden TempleThis is clear from an earlier part of the decision of the tribunal where in dealing with the question of ownership of Balwant Singh, it has remarked that "it is hard to see that Balwant Singh has any personal or private rights over the bunga in the presence of his father Raghbir Singh". Though, therefore the respondent was held by the majority of the tribunal not to have rights in himself because his father was alive, the tribunal never the less went into the question of the rights of Maharaja Sher Singhs descendant at the instance of Balwant Singh treating him as a representative of the descendants. This is also clear from the form in which the issue No. 3 was framed, namely, "Was the bunga in dispute built by Maharaja Sher Singh, ancestor of Balwant Singh petitioner in 1629, and has been in his possession? What rights has he been exercising over it?" It is clear, therefore, that before the tribunal Balwant Singhs claim as a descendant of Maharaja Sher Singh was not challenged by the appellant or the other defendant; and the tribunal found in favour of the descendants of Maharaja Sher Singh at the instance of Balwant Singh. It was in our opinion open to the appellant and the other defendant to challenge this finding in favour of the descendants of Maharaja Sher Singh at the instance of Balwant Singh under S. 34 of the Act as all the claims were consolidated under S. 15 and treated as one case relating to one property. But though the appellant and the other defendant went in appeal to the High Court they do not seem to have challenged the finding of the tribunal in favour of the descendants of Maharaja Sher Singh. Further the Golden Temple also went in appeal, but it also did not challenge the decision in favour of the descendants of Maharaja Sher Singh. That decision has, therefore, become final and according to that decision the descendants of Maharaja Sher Singh are the managers of this bunga. That decision was given at the instance of the respondent whose claim in those proceedings based on his being a descendant of Maharaja Sher Singh was never challenged on the ground that he was not the descendant of Maharaja Sher SinghIf, therefore, the Court now holds at the instance of the appellant or the other defendant that the respondent is not the descendant of Maharaja Sher Singh it will be questioning the decision of the tribunal and passing an order or granting a decree which would be inconsistent with the decision of the tribunal. Sections 36 and 37 bar any such order or decree by the court and therefore the appellant and the other defendant are naturally debarred from raising a point the decision of which is barred under Ss. 36 and 37 of the Act. We are therefore of opinion that the view taken by the High Court in its judgment after remand on issue No. 6 is correct and it is not open to the appellant to raise the question whether the respondent is a descendant of Maharaja Sher Singh and as such entitled to maintain the present suitWe agree with the High Court however that a careful reading of paras 3 and 4 of the plaint shows that the respondents case was that he and his uncle were managers of the bunga as descendants of Maharaja Sher Singh and that the appellant and the other defendant were in possession as their servants or servitors. But as these servants had started denying the title of the respondent and his uncle they do not want to keep them any longer in their service. They therefore filed the suit for ejectment of these servants and for possession of the property. The High Court therefore was right in the view it took that it was a case of permissive possession arising in favour of the appellant and the other defendant. Whatever may be the position about the actual possession, it appears from the decision of the tribunal that the claim of the appellant and the other defendant before the tribunal in 1933 was that they were bungais i. e. servitors; and this was also the view of the High Court in the appeal from the decision of the tribunal where the High Court said that "no doubt Kesar Singh, his father and grandfather have been Bungais of the bunga, but there is no reliable evidence of their having set up a title adverse to the institution or that the nature of this bunga is exceptional." Similarly Jaswant Singh also claimed to be a mere bungai before the tribunal by virtue of his father being adopted by Natha Singh who was undoubtedly a bungai.In these circumstances, from the decision of the tribunal in favour of the respondent in 1933, it appears that no hostile title adverse to the respondent was ever set up by the appellant and the other defendant before that decision. In consequence it cannot be said that adverse possession over 12 years has been established before June 1, 1943 when the present suit was filed As originally the possession of the appellant and the other defendant was clearly permissive, there can be no question of the application of Art. 142 in the present case and the appellant could only succeed if he could prove adverse possession under Art. 144 for over 12 years. The decision of the High Court on the question of limitation is correctIt is enough to say that though this point was raised in the written statement no issue was framed with respect to it by the trial court. When the matter was raised in the High Court on the first occasion it held that as no issue had been framed and no evidence had been led by the parties as to whether the cause of action was or was not the same and no copy of the plaint in the earlier proceeding had been filed the question whether the present suit was barred by virtue of O. IX R. 9 of the Code of Civil Procedure could not be gone into and it must be held that it was not barred under O. IX R. 9.In view of what the High Court has said we are of opinion that it is not open to the appellant to raise this point before us when he had failed to get an issue framed on it and no evidence was led in that behalf18. As the appellant cannot challenge that the respondent is the descendant of Maharaja Sher Singh the respondent would have a right to maintain the suit. Further as the appellant and the other defendant are servitors and they have undoubtedly set up a title after the decision of the tribunal adverse to the respondents right as found by the tribunal, the respondent is entitled to eject the appellant and the other defendant, for servitors cannot claim to remain in possession after they set up an adverse title with respect to the property of which they are servitors. In view of our decision on issue No. 6, it is unnecessary to consider issue No. 2 on which a finding was called for by this Court by its interlocutory judgment in 1958.