Munshi Dass vs Mal Singh And Mal Dass And Ors. on 8 August, 1977 Equivalent citations: AIR1977SC2002, (1977)4SCC65, 1977(9)UJ555(SC) Author: N.L. Untwalia Bench: N.L. Untwalia, P.N. Shinghal JUDGMENT N.L. Untwalia, J. 1. There is a Dharamshala situated in village Kaddon, District Patiala in the State of Punjab. A part of the same institution was another Dera or Dharamshala situate at Jasra Tehsil near Ludhiana. 2. The fact that one Bishan Dass, Chela of Prem Dass was the Mahant of this institution at the end of the 19th century is not in dispute. Bishan Dass had four Chelas: (1) Parmanand, (2) Narain Dass, (3) Atma Ram and (4) Ram Dass. Although Narain Dass was his junior most Chela, Bishan Dass because of his incapacity and ill-health made Narain Dass the Mahant during his life time. Shortly thereafter the other three Chelas died one after the other. It appears that Narain Dass also died during the life time of Bishan Dass. One Ganga Ram was the Chela of Narian Dass. Ganga Ram was appointed the Mahant with the approval of Bishandass. This fact is evidenced by the Mutation Order of the Revenue Authority passed on 10-3-1908, Ext. P-2. After the death of Ganga Ram, Sobharam became the Mahant. It is not clear from the records of this case as to when Ganga Ram died and when Sobha Ram became the Mahant and how. What is clear, however, is that parties are not at variance so far. Sobha Ram died on the 31st January, 1961 in a Hospital at Ludhiana. According to the case of original defendant No. 1 respondent, Mal Dass, Sobha Ram had executed a Will in his favour on the 16th of January, 1961, a fortnight before his death. Mal dass claimed to have been installed as a Mahant in succession to Sobha Ram shortly after his death i.e. on 12-2-1961. A dispute, however, cropped up between Pritam Dass a senior Chela of Mahant Sobha Ram and Mal Dass. This led to a proceeding under Section 145 of the CrPC between Pritam Dass and Mal Dass concerning the properties of the institution at Kaddon as well as Jasra. In the proceedings a compromise was entered into between the said two contesting parties. Under the terms of the compromise the Dharamshala and the properties at Kaddon were allotted to Mal Dass and Pritam Dass got the Jasra Dera and its properties. The Revenue Authority eventually made a Mutation Order on the 14th of February, 1962, Ext. D 13 in favour of Mal Dass recording his name in respect of the Kaddon properties. Munshi Dass- the appellant in this appeal claims that he was also the Chela of Mahant Sobha Ram and was duly installed as a Mahant on the 5th of November, 1961 as evidenced by the Bahi entry, Ext. P-1. On the l6th of April, 1962 he filed the suit giving rise to this appeal for possession of the Dharamshala and the properties appertaining to it on the basis that he was the Munshi Dass vs Mal Singh And Mal Dass And Ors. on 8 August, 1977  1 duly installed Mahant of the said institution. Originally Mal Dass alone was impleaded as a defendant to the suit. He filed his written statement on the 17th May, 1962, inter alia, taking the plea of nonjoinder of Pritam Dass. Thereupon, an amended plaint was filed by the appellant on the 21st May, 1962 adding in the original plaint a new paragraph to implead Pritam Dass as defendant No. 2. Pritam Dass filed his written statement on the 25th August, 1962. 3. Oral and documentary evidence was adduced by the parties before the Trial Court which had framed several issues in the suit for trial The Trial Court decreed the suit of the appellant on 28-3-1963 holding that the appellant was the Chela of Sohba Ram and was a duly installed Mahant. Mal Dass was held not to be entitled to the properties on the basis of the alleged Will or otherwise. The Trial Court did not accept his case that was the Mahant. Mal Dass filed a regular first appeal in the High Court. The High Court allowed the appeal on 23-5-1967 and defeated the appellant on the ground that he did not succeed in proving by any legal evidence that he was the Chela of Mahant Sobha Ram or that he was the duly installed Mahant according to the alleged custom, there being no adequate or satisfactory evidence to prove it. In accordance with the law as prevalent then the judgment of the High Court being one of reversal and the valuation test having been satisfied, certificate for appeal to this Court was granted as a matter of course. Thus come this appeal. 4. Mr. P. P. Juneja appearing in support of the appeal after placing the history and the facts of the case, the relevant and the necessary portion of which has been extracted above, urged the following points: (1) That the view of the High Court that the appellant did not succeed in proving that he was the Chela of Sobha Ram by any legal or sufficient evidence is erroneous. (2) That the High Court has misdirected itself on the question of the custom governing the succession to the Dharamshala in question. The plaintiff had pleaded the custom and had adduced good evidence in support of it. Original respondent No. 1 Mal Dass (He died during the pendency of the appeal in this Court and his legal representative was substituted. For the sake of convenience, however, hereinafter in this judgment Mal Dass will be referred to either by his name or as the respondent), did not in his written statement specifically deny the custom pleaded by the plaintiff nor did he plead a different one. He did not adduce any evidence in support of a different custom. (3) The High Court was also wrong in deciding the issue of Mahantship against the appellant whereas it ought to have held that the finding of the Trial Court that he was the duly installed Mahant was correct. 5. Mr. S. K. Mehta, learned Counsel for the respondent combated the argument of the appellant's counsel. 6. In our opinion the finding of the High Court apropos the appellants's claim of being the Chela of Shobha Ram is unassailable. Relying upon the decision of this Court in Dolgobinda Parieha v. Nimai Munshi Dass vs Mal Singh And Mal Dass And Ors. on 8 August, 1977  2 Outran Misra the High Court has correctly held that the evidence of PWs. 1,2,3,4,5,6 & 8 does not fulfill the test of Section 50 of the Evidence Act. Their evidence was placed be fore us and we also found it to be so. The evidence as adduced from the testimony of the witnesses aforesaid was legally worthless and did not satisfied the tests of the opinion evidence. The evidence of P.W. 7, however, purported to be a direct evidence in that the said witness claimed to be present when the appellant was initiated as a Chela of Sobha Ram. But the evidence of the solitary witness was neither trustworthy nor sufficient to prove that Munshi Dass had been taken as the Chela of Sobha Ram. One of the factors of substratum of the custom to claim Mahantship thus became absent. Unless he was proved to be the Chela, he could not claim that according to the custom governing the succession to the office of management of the Dharamshalla, he could be instal led as a Mahant. 7. Coming to the question of custom, we find that the appellant had pleaded the alleged custom in paragraphs 10 and 12 of his plaint as originally instituted on the 16th of April, 1962. The respondent in paragraph 10 and 12 of his written statement had denied the allegations made in those two paragraphs. None of the facts pleaded in paras 10 and 12 of the plaint was specifically and separately dealt with by the respondent in his written statement. In the circumstances the denial in the written statement was sufficient and put the plaintiff to prove the fact of custom by cogent and reliable evidence. The decisions of this Court in Badat and Co. v. East India Trading Co. and Surendra Nath Birba v. Stephen Court Ltd. AIR 1966 SC 1861 are clearly distinguishable and do not help the appellant in this regard as was sought to be argued on his behalf. An elbow rate discussion to point out the distinction is not called for. On the question of the pleading of the parties the case seems to have proceeded on a wrong assumption that paragraphs 10 and 12 of the plaint incorporating the pleading of custom were added in the amended plaint filed after the filing of the written statement by the respondent. It is not so. On careful scrutiny we found the correct facts to be as narrated by us above. 8. To prove the factum of custom, no oral evidence was adduced. Learned Counsel for the appellant placed reliance upon the Mutation Order, Ext. P-2 of the year 1908. The High Court has rightly pointed out that there are recitals of two successions in that order-one of Narain Dass succeeding1. Bishan Dass and the other of Ganga Ram succeeding Narian Dass. Both are not identical. No facts are stated in Ext. P-2 to show that Narain Dass was made Mahant in accordance with the alleged custom. The only instance is the installation of Ganga Ram in succession to Narain Dass. But the one instance given in Ext. P-2 and the other, an earlier instance given there in not falling in line with it, could not prove the custom. There was no other evidence either oral or documentary given by the plaintiff. It was not shown how Bishan Dass succeed Prem Dass or how Sobha Ram was installed as the Mahant after the death of Ganga Ram. 9. For the reasons given in the judgment of the High Court, with which we respectfully agree, no reliance could be placed upon Ext.P-1 the entry in the Bahi in support of the appellant's claim of having been installed as the Mahant on the November 5, 1961. Even the Trial Court did not feel confident to place much reliance upon the said entry. In disagreement with the findings and the view of the Trial Court and for cogent reasons the High Court did not accept the oral evidence adduced by the plaintiff on the point of his having been installed as a Mahant by the bhekh or by the consent of Zamindars or the villagers of village Kaddon. We find ourselves in agreement with the Munshi Dass vs Mal Singh And Mal Dass And Ors. on 8 August, 1977  3 views of the High Court in this regard and do not consider it necessary to repeat all that has been said in its judgment. 10. We also think that the High Court was justified in attaching some importance to the fact that shortly after the death of Mahant Sobharam, a dispute cropped up between Pritamdass and Maldass leading to a proceeding Section 145 Cr. PC and eventually a Mutation Order in his favour in February, 1962 on the basis of a compromise entered into in the criminal proceeding. It does not stand to reason that Munshi Dass would not be aware of the said dispute and could smoothly get himself installed as a Mahant in November, 1961. He did not succeed in getting possession either the office of the Mahant or the properties of the institution even for a day. He straightway filed the suit In April, 1962 to establish his claim and to recover possession of the property. In such a situation the High Court is right in saying that even if it be assumed that the respondent did not establish his right and title to the office or the properties of the institution, no decree for possession could be made against him when the appellant singularly failed to establish various factors which were the basis of his claim. 11. In the result we find that the judgment of the High Court is correct and cannot be interfered with in this appeal. The appeal is accordingly dismissed with costs. Munshi Dass vs Mal Singh And Mal Dass And Ors. on 8 August, 1977  4