Punjab-Haryana High Court
Raghav Dass Chela vs Rajinder Parkash And Another on 14 December, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla
Regular Second Appeal No. 2194 of 2000 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Regular Second Appeal No. 2194 of 2000
Date of Order: 14th December, 2012
Raghav Dass Chela ....Appellant
Versus
Rajinder Parkash and another
..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
Present: Mr.Ashish Aggarwal, Senior Advocate, with
Mr. Kulwant Singh, Advocate,
for the appellant.
Mr. Sumeet Goyal, Advocate
for the respondents.
RAJIVE BHALLA, J.
The appellant challenges judgment and decree dated 10.05.2000 passed by the Additional District Judge, Kaithal, accepting the appeal filed by the respondents, setting aside the judgment and decree dated 30.01.1997, passed by the Additional Civil Judge (Senior Division), Kaithal, and as a consequence decreeing their suit for permanent injunction and delivery of possession.
The plaintiffs/respondents, including one Amar Nath (since deceased), filed a suit under Order 1 Rule 8, in various capacities:-
i.e., in their individual capacity, as members of the Khandan Kanungoan Sabha (Regd.), on behalf of Thakur Dwara Kanungo (a temple) (through its worshipers/manager) Kaithal and as members of the Khandan Kanungo, for issuance of permanent injunction to Regular Second Appeal No. 2194 of 2000 -2- restrain the defendant/appellant, who claims to be the Mahant of the Thakur Dwara, from interfering in property, belonging to Thakur Dwara Kanungoan, Kaithal. During pendency of the suit Amar Nath, plaintiff no.1 passed away and his name was deleted from the array of parties. By way of an amendment in the plaint, the plaintiffs were allowed to add a prayer for grant of a decree for possession, of properties, belonging to the Thakur Dwara.
The plaintiffs/respondents pleaded that land measuring 664 kanals and 2 marlas belongs to Thakur Dwara Kanungoan, Kaithal, (plaintiff no.3). Shri Ram Manohar Dass, Chela Ajudya Dass, the Mohtmim of the temple, has passed away on 26.11.1987.
The right to appoint his successor, as per established custom, vests in members of Khandan Kanungoan. The members of Khandan Kanungoan have, by their decision dated 07.12.1987, authorised, Khandan Kanungo Sabha (Regd.) through Ved Parkash to manage the properties of the temple, till such time as a suitable person is appointed as Mahant. In support of their plea that an established custom empowers the Khandan Kanungo alone, to appoint a Mahant, the plaintiffs/respondents relied upon a judgment and decree dated 25.03.1983, Ex.P3 and mutation no.932, dated 01.07.1942, Ex.P-6. The plaintiffs further pleaded that the deceased Mahant had no right to appoint or nominate any person as his successor much less as a Mahant whether by a Will or otherwise. It was further pleaded that the defendant/appellant, who claims to be a Chela of the deceased Mahant and now the Mahant, has no right to manage the affairs and properties of the Thakur Dwara or to claim Regular Second Appeal No. 2194 of 2000 -3- that he has been appointed as Mahant on the basis of a Will, executed by late Mahant Ram Manohar Dass.
The defendant/appellant filed a written statement admitting that the suit land belongs to the Thakur Dwara Kanungo but denied that the plaintiffs, the Khandan Kanungo or the Khandan Kanungo Sabha (Regd.) have any right, whether by way of any established custom or otherwise, to appoint a Mahant or to even manage the affairs and properties of the Thakur Dwara. The appellant pleaded that, late Mahant Ram Manohar Dass, appointed the appellant as his Chela and before his demise executed a Will, appointing/nominating the appellant as Mahant of the Thakur Dwara. The appellant further pleaded that the suit is another attempt, on the part of the plaintiffs, to usurp the properties of the Thakur Dwara. An earlier attempt to usurp the properties of the Thakur Dwara, by Amar Nath, the deceased plaintiff no.1, was that Amar Nath etc., obtained a judgment and decree dated 11.05.1972 in civil suit No.704 of 1972, regarding properties of the Thakur Dwara but this judgment and decree was set aside in Civil Suit No.312 of 1978 filed by Mahant Ram Manohar Dass and properties of the Thakur Dwara were restored to the Thakur Dwara through its Mahant Ram Manohar Dass. It was also pleaded that the plaintiffs filed another suit, this time for removal of Mahant Ram Manohar Dass and for rendition of accounts. The suit was dismissed as withdrawn, on 14.10.1976, when it was fixed for final arguments. It was further pleaded that as the defendant is managing the affairs of the temple and its properties, as the Mahant, since 26.11.1987, the suit should be Regular Second Appeal No. 2194 of 2000 -4- dismissed.
The plaintiffs filed a replication controverting averments in the written statement by reiterating the averments made in the plaint.
After considering the pleadings, the evidence adduced and the arguments addressed, the trial court framed the following issues:-
"1. Whether the member of Khandan Kanungoan Kaithal have right to appoint Mohtamim of the Thakur Dwara Kanungoan, Kaithal?OPP
2. Whether the plaintiff no.3, through plaintiff no.4 is in possession of the suit land, if so to what effect?OPP
3. Whether the suit is malafide as per the averment made in preliminary objection no.1?OPD
4. Whether Ram Manohar has executed a valid will in favour of the defendant and if so to what effect?OPD 4-A. Whether the defendant took the possession during the pendency of the suit and if so to what effect?OPP
5. Relief."
The trial court dismissed the suit by holding that the respondents have failed to prove any established custom that confers a right upon Khandan Kanungo or Khandan Kanungo Sabha (Regd.) to appoint a Mahant. It was also held that the judgment Ex.P-3 does not operate as resjudicata as the dispute relating to the right to appoint a Mahant was not directly or substantially in issue in Regular Second Appeal No. 2194 of 2000 -5- that suit. The mutation, Ex.P-6, was rejected on the ground that it merely records information about appointment of a Mahant and, therefore, does not prove that the Khandan Kanungo or Khandan Kanungo Sabha (Regd.) has the right to appoint a Mahant.
Aggrieved by dismissal of their suit, the plaintiffs- respondents filed an appeal. The first appellate court accepted the appeal, set aside judgment and decree passed by the trial court and decreed the suit by holding that the judgment Ex.P3, operates as resjudicata. The first appellate court also relied upon mutation Ex.P- 6 to hold that the Khandan Kanungo has the right to appoint the Mahant. The first appellate court also held that the appellant could not claim appointment as Mahant on the basis of the will executed by the late Mahant and, therefore, is not the validly appointed Mahant. The first appellate court directed the respondents to appoint a Mahant within three months.
Counsel for the appellant-defendant submits that the impugned judgment is illegal, perverse, arbitrary and contrary to law. The only evidence, adduced by the respondent, to prove their right to manage the properties of the Thakur Dwara are judgment Ex. P3, mutation Ex. P6, a writing Ex.P-5 and the oral deposition of Amar Nath. The judgment Ex.P-3, arises from a suit filed by the then Mahant and does not operate as resjudicata as the dispute relating to the right to appoint a Mahant was neither directly nor substantially, in issue. The dispute in Ex.P3 was whether decree obtained by the respondents, against properties of the Thakur Dwara is legal and valid. The court did not frame any issue about the right of Khandan Regular Second Appeal No. 2194 of 2000 -6- Kanungo or Khandan Kanungo Sabha (Regd.) to appoint a Mahant, nor were parties alive to such an issue. The finding recorded in Ex.P3 that Khandan Kanungo has a right to appoint a Mahant does not operate as resjudicata. The mutation Ex.P-6 merely furnishes information about appointment of a Mahant and is, therefore, irrelevant. The first appellate Court has misread the plaint, the written statement and the replication, in Ex.P3, as they do not contain any averment that right to appoint a Mahant vests with the Khandan Kanungo or the Khandan Kanungo Sabha (Regd.). It is further submitted that by use of the words "might not strictly operate as resjudicata" the first appellate court has indicated that it was not sure about the nature of the decree. A judgment that does not operate as resjudicata, ceases to be relevant and has to be ruled out of consideration.
It is further argued that the plaintiffs-respondents were required to prove the identity of members of Khandan Kanungo, its constitution, its membership, and the source of its power to appoint a Mahant. The respondents were then required to prove that this right was transferred to Khandan Kanungo Sabha (Regd.). It is further submitted that, even if it is presumed that the Khandan Kanungo had a right to appoint a Mahant, there is no evidence as to how this right was passed on to the Khandan Kanungo Sabha (Regd.). The document Ex.P5 does not set out the members of the Khandan Kanungo as to who authorised the Khandan Kanungo Sabha(Regd.) to appoint a Mahant. The trial court has rightly held that the plaintiffs- respondents have failed to prove any custom or usage that the Regular Second Appeal No. 2194 of 2000 -7- Khandan Kanungo or Khandan Kanungo Sabha (Regd.) has a right to appoint a Mahant. The first appellate court, however, disregarded this fundamental flaw in the evidence, ignored findings recorded by the trial court, has misread the pleadings in the earlier suit and illegally proceeded to set aside the judgment passed by the trial Court, allowed the appeal and decreed the suit.
It is further argued that the first appellate court has misread mutation Ex.P-6. The mutation merely records that members of Khandan Kanungo have furnished information to a revenue officer, that Ram Manohar Dass has been appointed as a Mahant. Ex.P-6 does not record that the Mahant has been appointed by Khandan Kanungo. The onus to prove the existence of a custom or usage, empowering the Khandan Kanungo to appoint a Mahant and, thereafter, that Khandan Kanungo transferred this right to Khandan Kanungo Sabha (Regd.), rested upon the plaintiffs-respondents. The respondents have failed to adduce any legal evidence to establish any settled custom or usage empowering Khandan Kanungo to appoint the Mahant or that the Khandan Kanungo transferred this right to the Khandan Kanungo Sabha (Regd.). It is submitted that in view of the errors of law committed by the first appellate court, the following substantial questions of law arise for adjudication:-
"1. Whether onus to establish a custom or usage lies upon the person who alleges such a custom or usage and whether the first appellate Court has rightly held that such a custom stands proved?
2. Whether the first appellate court had misread the Regular Second Appeal No. 2194 of 2000 -8- pleadings and the issues in the prior suit, while holding that the judgment Ex.P-3, operates as resjudicata"?
3. Whether the first appellate court could have reversed the judgment and decree passed by the trial court without reversing the finding that there is no evidence to establish the membership, the powers the nature of Khandan Kanungo and their power to appoint a Mahant?
Counsel for the plaintiffs-respondents, on the other hand, submits that findings recorded by the first appellate court do not suffer from any error or raise a substantial question of law. The first appellate court has rightly placed reliance upon the judgment Ex.P-3 and the mutation Ex.P-6. The judgment Ex.P3, records a positive finding that Khandan Kanungoan has the right to appoint a Mahant and, therefore, prohibits the appellant from asserting to the contrary. It is further submitted that the dispute in Ex.P3 was whether Mahant Ram Manohar Dass, the then Mahant, had been removed from the office of Mahant. Inherent in a decision of this dispute was adjudication of the mode and manner of his appointment and as a consequence, the right of Khandan Kanungo and Khandan Kanungo Sabha (Regd.) to appoint a Mahant. The absence of a specific issue on this point is irrelevant as parties were alive to the issue, led evidence and addressed arguments. The finding recorded in Ex.P3, that Khandhan Kanungo, has a right to appoint a Mahant operates as res-judicata. It is argued that though the trial court has held that the Regular Second Appeal No. 2194 of 2000 -9- respondents have failed to prove the constitution, the membership etc. of Khandan Kanungoan Sabha (Regd.), the entire evidence was adduced, considered and adjudicated in the judgment Ex.P3. The mutation Ex. P6, clearly establishes that Ajudhya Dass was appointed as the Mahant, by members of the Khandan Kanungoan. In the absence of any evidence to the contrary, the first appellate court rightly decreed the suit.
I have heard counsel for the parties, perused the record, the impugned judgments, the substantial questions of law and carefully considered the arguments .
The dispute, in the present case, relates to the right to appoint the Mahant of the Thakur Dwara and would essentially depend upon the custom that governs appointment of a Mahant, whether the respondents have been able to prove a custom that empowers Khandan Kanungo to appoint a Mahant, whether the power to appoint a Mahant, was transferred to Khandan Kanungo Sabha (Regd.), whether the right to appoint a Mahant was directly and substantially in issue in the former suit that led to the judgment Ex.P3, whether the judgment Ex.P-3 operates as resjudicata and whether the learned District Judge has misread pleadings in the prior suit while holding that Ex.P3 operates as resjudicata.
The plaintiffs/respondents, who are Rajinder Parkash, for himself and as representative of members of "Khandan Kanungoan", the Thakur Dwara through Rajinder Parkash and Amar Nath (since deceased) and "Khandan Kanungo Sabha (Regd.) allege that an Regular Second Appeal No. 2194 of 2000 -10- existing custom/usage empowers the "Khandan Kanungo" alone to appoint a Mahant and for the said purpose primarily rely upon judgment and decree Ex.P3 and mutation Ex.P6. The plaintiffs also allege that the right of "Khandan Kanungoan" to appoint a Mahant was transferred to Khandan Kanungo Sabha (Regd.) vide decision of the Khandan Kanungo dated 07.12.1987, Ex.P-7. The appellant, on the other hand, denies the existence of any such custom or usage, and alleges that the judgment Ex.P-3 does not operate as resjudicata as the question as to the right to appoint the Mahant was neither directly nor substantially in issue in the earlier suit and further asserts that the right to appoint, his successor, vests in a Mahant.
Before considering whether any substantial question of law arises for consideration, it would be appropriate to answer, whether onus to establish a custom or a usage relating to the prevailing mode to appoint a Mahant lies upon the appellant/defendant or the plaintiffs-respondents.
The State of Punjab, (the Thakur Dwara though situated in the State of Haryana was originally situated in undivided Punjab), does not have any established or codified rule of succession to the office of a Mahant? Each institution has its own peculiar rule of succession. If the grantor has laid down a particular rule of succession the rule has to be given effect to but if the grantor has not laid down a rule of succession, the custom or usage followed by a particular institution shall prevail. The office of Mahant is usually elective and not hereditary, but a Mahant may nominate a successor subject to its confirmation by his fraternity, commonly known as the Regular Second Appeal No. 2194 of 2000 -11- Bhekh. A person who alleges a particular custom or usage would be required to prove such a custom or usage, as a question of fact. A reference in this regard may be made to judgments of Hon'ble Supreme Court reported as Mahant Bhagwan Bhagat v. Girija Nandan Bhagat, AIR 1972 SC 814, Amar Parkash and others v. Parkasha Nand and others, AIR 1979, SC 845, and Brahma Nand Puri v. Neki Puri since deceased represented by Mathra Puri and another, AIR 1965 SC 1506.
It would be necessary to reproduce an extract from the judgment reported as Brahma Nand v. Mathra Puri (supra), as it refers to the nature of succession to the office of Mahant in the State of Punjab:-
"9. Taking the first point urged by Mr. Chatterji, we do not consider that learned Counsel is justified in his submission that under the law as obtains in the Punjab Gurbhai is entitled to succeed without reference to an appointment by the Bhekh or the fraternity. In Rattigan's Digest of Customary Law the position as regards religious institutions in the Punjab is thus stated :
"There is no general law applicable to religious institutions in this Province, and each institution must be deemed to be regulated by its own custom and practice. There are, however, certain broad propositions which judicial decisions have shown to have received very general recognition, Regular Second Appeal No. 2194 of 2000 -12- and these propositions are embodied in the following paragraph :-
84. The members of such institutions are governed exclusively by the customs and usages of the particular institution to which they belong.
85. The office of Mahant is usually elective and not hereditary. But a Mahant may nominate a successor subject to confirmation by his fraternity."
From paragraph 85 it would follow that the office of Mahant being usually elective and not hereditary anyone who lays claims to the office on the basis of a hereditary title resting on Chelaship simpliciter or Gurbhaiship simpliciter must establish it. (See also Jiwan Das v. Hira Das, AIR 1937 Lah 311).
Though, no doubt, the usage of one institution is no guide to that of another, it may be mentioned that in regard to the succession of the Mahantship, of a Thakurdwara belonging to the Ram Kabir Sect of Hindu Bairagis in district Jullundur in the Punjab this Court held in Sital Das v. Sant Ram, AIR 1954 SC 606, that the usage required an appointment by the fraternity before a person could become a Mahant.
The general principle set out in Mahant Bhagwan Bhagat v. Girija Nandan Bhagat (supra) , reads as follows:-
"The general law as to succession to Mahantship is Regular Second Appeal No. 2194 of 2000 -13- now well settled by innumerable decisions of the Judicial Committee of the Privy Council and some decisions of this Court. It will be enough to quote some passages from Mukharji's book on the Hindu Law of Religious and Charitable Trusts. The learned author states:
"Once a Mutt is established, succession to headship takes place within the spiritual family according to the usages that grow up in a particular institution".
"The primary purpose of a Mutt....is to encourage and foster spiritual learning by maintenance of a competent line of teachers who impart religious instructions to the disciples and followers of the Mutt and try to strengthen the doctrines of the particular school or order of which they profess to be adherents".
At page 269:
"In a Mutt....it is the custom or practice of a particular institution which determines as to how a successor is to be appointed".
Three aspects have to be borne in mind in connection with the question of succession to the office of a Mahant.
"The first is that if the grantor has laid down any particular rule of succession, that is to be given Regular Second Appeal No. 2194 of 2000 -14- effect to. Secondly, in the absence of any grant the usage of the particular institution is to be followed; and in the third place, the party who lays claim to the office of a Mohunt on the strength of any such usage must establish it affirmatively by proper legal evidence. The fact that the defendant is a trespasser would not entitle the plaintiff to succeed even though he be a disciple of the last Mohunt, unless he succeeds in proving the particular usage under which succession takes place in the particular institution".
"Generally speaking, the Mutts are divided into three classes according to the different ways in which the heads or superiors are appointed. These three descriptions of Mutts are Mourasi, Panchayati and Hakimi. In the first, the office of the Mohunt is hereditary and devolves upon the chief disciple of the existing Mohunt who moreover usually nominates him as his successor; in the second, the office is elective, the presiding Mohunt being selected by an assembly of Mohunts. In the third, the appointment of the presiding Mohunt is vested in the ruling power or in the party who has endowed the temple...
In a Mourasi Mutt the chela or disciple of the last Mohunt succeeds to the office....when there are Regular Second Appeal No. 2194 of 2000 -15- more chelas than one the eldest generally succeeds but a junior chela may succeed if he is found more capable and if he is selected by the last Mohunt as his successor.......
In various institutions the custom is that in order to entitle a chela to succeed, he must be appointed or nominated by the reigning. Mohunt during his lifetime or shortly before his death and this may be done either by a written declaration or some sort of testamentary document. In other cases again, the nominee is formally installed in the office and some sort of recognition is accorded to him by the members of the particular sect either during the lifetime of the last Mohunt or when the funeral ceremonies of the latter are performed."
"When the Mohunt has the right to appoint his successor, he may exercise the right by an act inter vivos or by will".
"In a Mourasi Mutt it is possible for the Mohunt to make over the endowment during the lifetime to his chela whom he appoints as a successor".
"In many cases when a successor is appointed by Mohunt, he is installed in office with certain ceremonies. This cannot be deemed to be essential".
The rule of succession, therefore, depends upon the nature Regular Second Appeal No. 2194 of 2000 -16- of a religious institution, its customs or its usage and would necessarily have to be proved, as a fact, by the person, who alleges such a custom or usage. A Mahant may nominate his successor subject to its confirmation by the fraternity commonly, known as a "Bhek" . The mode and manner of such nomination may vary from institution to institution and may in a given circumstance, be made by way of written document and even a Will. The first question is answered accordingly.
As referred to in the narrative of facts, the plaintiffs- respondents allege the existence of a custom or a usage confering the right to appoint the Mahant upon the Khandan Kanungo and claim that this right was passed on to the Khandan Kanungo Sabha (Regd.). The onus to establish that this right vested in the Khandan Kanungo as a prevailing usage or custom and was, thereafter, passed on by the Khandan Kanungo, to Khandan Kanungo Sabha (Regd.), lies upon the plaintiffs/respondents.
Admittedly, the record is devoid of any pleading or evidence about any particular mode of succession, set down by the founders of Thakur Dwara to the office of Mahant. The Thakur Dwara, was, admittedly, founded by a body of individuals collectively called the "Khandan Kanungo". The plaintiffs/respondents claim that "Khandan Kanungo" has the right to manage the affairs of the "Thakur Dwara"
and, therefore, to appoint a Mahant but do not claim that the right to appoint a Mahant was conferred upon Khandan Kanungo by the person or persons who set up the temple or dedicated property to the temple. The plaintiffs, in fact, claim that this right was conferred by a Regular Second Appeal No. 2194 of 2000 -17- Mahant in his will, dated 23.01.1874, authorising Khandan Kanungo to appoint a Mahant thereby admitting that the right to nominate/appoint his successor vested in the Mahant before he transferred it to "Khandan Kanungo" as recorded in the judgment and decree Ex.P-3. The respondents have not produced the will dated 23.01.1874 or any evidence by producing any member of the Khandan Kanungo, that such a right exists. The respondents have failed to adduce any evidence, as to the nature of Khandan Kanungo, the identity of its member, its constitution, its rules and regulations. The plaintiffs/respondents, claim to represent the Khandan Kanungo, the Khandan Kanungo Sabha (Regd.) and worshipers of the temple.
The plaintiffs/respondents rely, almost, entirely upon judgment dated 25.03.1983, Ex.P-3, mutation no.932, Ex.P-6 and a writing Ex.P-7, to assert that as the Additional Civil Judge (Senior Division), Kaithal, has in Ex.P3, recorded a finding that Khandan Kanungo has the right to appoint a Mahant, the judgment operates as resjudicata and prohibits the appellant from claiming any right to the contrary. The plaintiffs/respondents also claim that mutation Ex.P-6, records the appointment of a Mahant by Khandan Kanungo thereby establishing the existence of custom or usage conferring the right to appoint the Mahant upon Khandan Kanungo. The respondents also allege that the Khandan Kanungo has, vide Ex.P-5, authorised Khandan Kanungo Sabha (Regd.) through Ved Parkash to manage the affairs of the temple, as an interim arrangement, till appointment of a regular Mahant. In a sum and substance, this is Regular Second Appeal No. 2194 of 2000 -18- the evidence led by the plaintiffs/respondents.
The appellant, on the other hand, claims that he is the, duly appointed, Chela of the deceased Mahant, a fact that is not denied by the respondents and that before his demise Mahant Ram Manohar Dass executed a will nominating the appellant as the Mahant and is, therefore, the duly appointed Mahant of the Thakur Dwara.
The trial court perused the judgment Ex.P-3 and held that, though, judgment dated 25.03.1983, Ex.P3, has recorded a finding that Khandan Kanungo is empowered to appoint a Mahant, it does not operate as resjudicata as the right to appoint a Mahant was neither directly nor substantially in issue in this suit and, therefore, the finding as to the right of Khandan Kanungo to appoint a Mahant does not operate as resjudicata in the present suit. The trial court discarded Mutation No.932 Ex.P-6 by holding that it merely furnishes information, to a revenue officer about the appointment of Ram Manohar Dass as the Mahant but does not record his appointment as a Mahant by Khandan Kanungo. The trial court also rejected the so called resolution Ex.P-5 whereby Khandan Kanungo is alleged to have empowered Khandan Kanungo Sabha (Regd.) to manage the affairs of the Thakur Dwara and to appoint the Mahant.
The trial court also negatived the plaintiffs/respondents' plea on the ground that they have failed to prove the identity of members of "Khandan Kanungo", its constitution, its powers or any evidence to prove that the Khandan Kanungo had a right to manage the affairs of the Thakur Dwara and as a consequence a right to Regular Second Appeal No. 2194 of 2000 -19- appoint the Mahant. The trial court made a pointed reference to the fact that the only witness produced by the plaintiffs/respondents, Amar Nath could not disclose the names of members of the Khandan Kanungo. The trial court also held that there is no evidence to indicate that Khandan Kanungo Sabha (Regd.) was authorised by Khandan Kanungo, to appoint the Mahant or that the Khandan Kanungo transferred its right, if, at all, there was any such right available to the Khandan Kanungo Sabha (Regd.). The trial Court dismissed the suit by holding that the respondents have failed to prove any custom or usage that empowered Khandan Kanungo or the Khandan Kanungo Sabha (Regd.) to appoint the Mahant.
The first appellate court, on the other hand, has relied upon judgment Ex.P-3 and mutation Ex.P-6 to hold that the Khandan Kanungo Sabha (Regd.) has a right to appoint the Mahant. The first appellate court has held that the judgment Ex.P-3 operates as resjudicata and has affirmed the right of Khandan Kanungo to appoint the Mahant.
The finding, recorded by the first appellate court, that Ex.P-3 operates as resjudicata, in my considered opinion, is legally untenable and rather reveals an abject failure on the part of the first appellate court to peruse the plaint, the written statement, the replication,i.e., Ex.D32, Ex.D34, and Ex.D35, respectively, filed in the prior suit. The first appellate Court has not only misread these pleadings, but has, while holding that Ex.P3 operates as resjudicata, ignored the principle of resjudicata, namely, that a finding in a former suit pressed into service, in a later suit should have been directly Regular Second Appeal No. 2194 of 2000 -20- and substantially in issue in the prior proceedings. It would, therefore, be appropriate to refer and examine in detail the nature of the dispute, in civil suit no.312 of 1978, and the pleadings, so as to demonstrate that the first appellant Court has misread pleadings in the earlier suit and while holding that judgment Ex.P3 operates as resjudicata, committed a substantial error of law. Before proceeding to do so, it would be necessary to refer to, in brief, to the background of the dispute, that led to the passing of the judgment Ex.P-3.
The Khandan Kanungo and Khandan Kanungo Sabha (Regd.) are, admittedly, two different entities, the former apparently a loose association of individuals, which may have set up the Thakur Dwara and the latter a registered society bearing the name Khandan Kanungo Sabha (Regd.). The plaintiffs/respondents have not produced any evidence to prove the membership of Khandan Kanungo or Khandan Kanungo Sabha (Regd.). In fact, the learned trial court has considered this deficiency as a significant factor while dismissing the suit but the first appellate court has failed to consider or reverse this finding.
Amar Nath (since deceased), the original plaintiff no.1, filed a suit against the Thakur Dwara, through Ved Parkash, without impleading Mahant Ram Manohar Dass, as a party and obtained a collusive decree dated 11.05.1972 whereby it was declared that 4/5th share in the suit land vests in Sitian Khandan Kanungoan, Kaithal, Neem Nath Khandan Kanungoan, Kaithal, Gawshala Khandan Kanungoan, Kaithal and Samadh Baba Garib Dass Khandan Regular Second Appeal No. 2194 of 2000 -21- Kanungoan, Kaithal through Ved Prakash, in essence depriving the Thakur Dwara of its properties. A dispute , therefore, arose between Amar Nath etc. on the one side and Mahant Ram Manohar Dass on the other side with respect to ownership of the property.
Mahant Ram Manohar Dass filed a suit for declaration, on behalf of the Thakur Dwara, claiming that the Thakur Dwara is owner in possession of land measuring 644 kanals and 2 marlas and decree dated 11.05.1972, obtained by Amar Nath etc. is a nullity. The defendants, who are plaintiffs/respondents in the present suit, pleaded that properties of the Thakur Dwara vest in the Khandan Kanungoan Sabha (Regd.), through its President Ved Parkash, and as Mahant Ram Manohar Dass has been removed, he has no authority to represent the Thakur Dwara. A perusal of the plaint, the written statement, the replication, the relief claimed and the issues cast reveal that the dispute was whether decree dated 11.05.1972 is legal and valid and whether the Mahant has been removed from his office. The plaint in the prior suit, Ex.D-32, the written statement Ex.D-34, and the replication, Ex.D-35, do not contain any averment whether on the part of the plaintiffs or the defendants, therein, that Khandan Kanungo has or does not have a right to appoint the Mahant or that the Khandan Kanungo has transferred its right to appoint a Mahant to Khandan Kanungo Sabha (Regd.). The written statement, Ex.D-34, was filed on behalf the defendants, in that suit, namely, (1) Satiam Khandan Qanun Goyan Kaithal, (2) Neem Nath Khandan Qanun Goyan Kaithal, (3) Gaushala Khandan Qanun Goyan Kaithal, (4) Samadh Baba Gabi Dass Khandan Qanun Goyan Regular Second Appeal No. 2194 of 2000 -22- Kaithal, through Shri Amar Nath s/o Shri Banarsi Dass, resident of Kaithal, and (5) Shri Ved Parkash son of Shri Chandu Lal, President, Khandan Qanun Goyan Sabha (Registered), resident of Mohalla Qanun Goyan, Kaithal, District Kurukshetra (the underlining is by the Court). The plaintiffs in the present suit are Amar Nath, deceased and Ved Parkash. A relevant extract from the written statement filed by the defendants in Civil Suit No.312 of 1978, through Amar Nath (deceased) and Ved Parkash, who are the plaintiffs in the present suit, reads as follows:-
"1. That para no.1 of the plaint is correct as far as the naration of the fact that there is a Thakurdwara Kanungoyan situated at Kaithal is concerned but now the Thakurdwara is owner of the land to the extent of 1/5th share only. The description and details of the land is not given correctly. There is no khasra No.11/1 or Rect. No.7. It is no.11/2. In Rect. No.21 Khasra No.11 has been ommitted in the plaint. Khasra No.11 was to be included. There is no Rect. No.19 as given in this para. Thakurdwara Kanungoyan situated at Kaithal was the owner of the land and the same fact had been hled by the Hon'ble Chief Court Punjab dated 5th March, 1896. The plff. no.2 is not admitted to be the Muntazim or Mohtamim of the said Thakurdwara.
2. XX XX XX Regular Second Appeal No. 2194 of 2000 -23-
3. That the contents of para no.3 of the plaint are not correct and the same are denied. The possession, custody and management of the Thakurdwara and its properties now vest in the Khandan Kanungoyan Sabha (Regd.) through its President Sh. Ved Parkash s/o Sh. Chandu Lal r/o Mohalla Khandan Kanungoan Kaithal. Plff. no.2 had no interest or concern with the management of the Thakurdwara and its property.
4. That the contents of para no.4 of the plaint are not correct and the same are denied. Now the defts. no.1 to 4 along with Thakurdwara Kanungoan Kaithal are the owners of the property in suit. The allegation made in this para of the plaint are against facts. Deft. No.1 to 4 are in existence and are quite genuine and bonafide claimants of the property. They have been declared as such owners in possession by competent court vide decree dated 11th May, 1972 in suit no.704 of 1972 passed by Sh. S.R.Bansal HCS Sub Judge II Class, Kaithal. Copy of the decree sheet is already on the court file. The other contents of para no.4 of the plaint are not correct and the same are denied.
5. XX XX XX
6. The contents of para no.6 of the plaint are quite Regular Second Appeal No. 2194 of 2000 -24- wrong and the same are denied.
(i) Plff. No.2 has no concern and locus so far as the management of the Thakurdwara is concerned.
He has no interest or right in the property in dispute. The deft No.5 had full and legal rights to manage the affairs and properties of the Thakurdwara and he had every legal right to represent, Thakurdwara Kanungoan as he is the president of Khandan Kanungoyan Sabha (Regd.) who is the managing body of the Thakurdwara Kanungoan Kaithal.
(vi) The contents of para no.6(vi) of the plaint are wrong. There is no force in the allegations taken and made in para no.6(vi). Plff. No.2 was not the mohtamim or Muntazim or otherwise connected with the control and management either with the Thakurdwara or its properties. Thakurdwara Kanungoan Kaithal was duly managed and looked after by the deft. Khandan Kanungoan Sabha (Regd.) through its President."
A perusal of the written statement Ex.D-34, makes it abundantly clear that while traversing averments in the plaint, filed by the then Mahant, the defendants therein who are essentially the plaintiffs/respondents in the present suit have not pleaded specifically or otherwise, by reference to any fact, that Khandan Kanungo or Khandan Kanungo Sabha (Regd.) has the right to Regular Second Appeal No. 2194 of 2000 -25- appoint a Mahant. A perusal of the issues framed would reveal that no issue was framed with respect to the right of Khandan Kanungo to appoint a Mahant. It is, therefore, apparent that the question about the right to appoint a Mahant was not directly or substantially in issue in the prior suit. The dispute in the prior suit, pertained to the legality of a decree obtained by the respondents (the defendants therein), whether the then Mahant was authorised to manage the affairs of the Thakur Dwara, and whether he continued to hold the office of Mahant. The dispute regarding the legality of the decree could have been without recording any finding on the right to appoint a Mahant. The question as to the right to appoint a Mahant and the mode and manner of his appointment was neither germane nor essential nor directly and substantially in issue for adjudication of the suit. It, therefore, belies comprehension as to how the first appellate court could have held that the pleadings reveal that the right to appoint a Mahant was directly and substantially in issue in the prior suit. The first appellate court, after a brief discussion as to the nature of the dispute has dealt with, the written statement, in the following terms:-
"From the pleadings of the previous litigation, it was clear that even appointment of Ram Manohar Dass as Mohtmim/Muntzim was in dispute regarding which issue no.1 enumerated above was struck. The learned Sub Judge (copy of judgment Ex.P-3) had held that members of Khandan Kanungo had the authority to appoint the Regular Second Appeal No. 2194 of 2000 -26- Mohtmim/Muntzim and Ram Manohar Dass was the Muntzim and Mohtmim of the Thakur Dwara and he was duly appointed by the members of Khandan Kanungoan which fact was also mentioned in the mutation no.932 dated 1.7.1942, copy Ex.P6. Therefore, the finding of the learned Sub Judge Ist Class, Kaithal, that Khandan Kanungaon had the power to appoint the Muntzim or Mohtmim to manage the properties was never Obiter-dicta nor an erroneous decision. It was a decision recorded on the pleadings of the parties and after going through the evidence. All the documents placed before the court were taken into consideration. Even copy of registration certificate of the Sabha and copy of rules and regulation of Khandan Kanungaon were placed on the record."
It appears that while recording these findings, the first appellate court did not peruse the pleadings, particularly averments in the written statement or the issues with due care for otherwise it would have immediately discerned the absence of any plea that Khandan Kanungo has a right to appoint a Mahant. A reference by the first appellate court, in the impugned judgment, that issue no.1 was struck with respect to the right to appoint a Mahant or in an attempt to read into issue no.1, a dispute regarding the right to appoint the Mahant or should it be said a blatant misreading of issue no.1. The issues framed by the Sub Judge Ist Class, Kaithal, are as Regular Second Appeal No. 2194 of 2000 -27- follows:-
"1. Whether plaintiff no.2 is the Muntzim and Mohtmim of plaintiff no.1?OPP
2. Whether plaintiff no.2 has been in possession of entire property of plaintiff no.1?OPP
3. Whether decree dated 11.5.1972 in suit no.704 of 1982 is not binding on the rights of plaintiffs, as alleged in para no.6 of plaint?OPP
4. Whether the suit is not maintainable as alleged?OPD
5. Whether the suit is barred by law?OPD
6. Whether the suit is malafide?OPD
7. Whether plaintiff no.2 has no locus standi to file the present suit?OPD
8. Relief."
A perusal of the issues framed reveals that issue no.1 is, whether plaintiff no.2 (i.e., the then Mahant), is Muntzim and Mahant. The Court did not frame any issue on the right of Khandan Kanungo or Khandan Kanungaon Sabha (Regd.) to appoint a Mahant. The first appellate Court made an attempt to read into issue no.1, the right to appoint or an authority to appoint the Mahant and, therefore, committed an error of jurisdiction. The respondents, however, appear to have led evidence on the right of Khandan Kanungo to appoint a Mahant and for the said purpose pressed into service an alleged Will Ex.D-1, executed by a Mahant, on 23.01.1874 in support of an argument that the Khandan Kanungo had a right to Regular Second Appeal No. 2194 of 2000 -28- appoint a Mahant. The learned Civil Judge, vide judgment and decree dated 25.03.1983, Ex.P3, held that as Mahant Ram Manohar Dass has been managing the affairs and properties of the Thakur Dwara since 1942, Ved Parkash had no right to suffer decree dated 11.5.1972, with respect to the properties of the Thakur Dwara or on its behalf, which are to be managed by the Mahant. The judgment and decree dated 11.05.1972 was, therefore, set aside and the property was restored to the Thakur Dwara through its Mahant, Ram Manohar Dass. However, while decreeing the suit, the trial court made the following observations:-
"I have given my anxious though to the rival contentions of the parties. A perusal of Ex.D1 Will dated 23.01.1874 clearly shows that Khandan Qanun Goyan was vested with the power to appoint Muntzim and Mohtmim to manage the properties of plaintiff No.1. This position is further confirmed by the entries in the jamabandi for the year 1942-43 Ex.P24 through which plaintiff No.2 was appointed as Muntzim and Mohtmim by Khandan Qanun Goyan. The perusal of further revenue record Ex.P21 to Ex.P22 and Ex.P23 clearly shows that the plaintiff no.2 has been acting as Muntzim and Mohtmim of plaintiff no.1. The defendants have not placed on record any order of the competent court through which the plaintiff no.2 was removed from the said Regular Second Appeal No. 2194 of 2000 -29- Montzimship or Mohtmimship. Thus, he has right to function as such through his life time or till he is removed by the competent court. It may be made clear that it stands equally established from the evidence, referred to above, that Khandan Qanun Goyan has the power to appoint a Muntzim and Mohtmim to manage the properties of plaintiff no.1 on the death of plaintiff no.2 or in case the plaintiff no.2 is removed by the competent court. In the result issue Nos.1, 2, 6 and 7 are decided in favour of the plaintiffs and against the defendants."
The finding reproduced above is relied by the respondents to support their plea that as it has already been held that the Khandan Kanungo has the right to appoint the Mahant, this finding operates as resjudicata, in the present suit. Having set out the facts in the manner, in which they have been dealt with by the Courts below, it would be necessary to examine and deal with the plea of resjudicata.
A plea of resjudicata applies where an issue, which is directly and substantially in issue in a former suit, has already been decided by a court of competent jurisdiction between the same parties or between parties under whom they or any of them claim similar relief. An incidental or collateral issue on a matter that was not directly or substantially in issue, in a prior suit, even if commented upon does not operate as resjudicata. The key to an understanding of the doctrine of "resjudicata" are the words "directly and substantially in Regular Second Appeal No. 2194 of 2000 -30- issue" which inher a fact pleaded by one party, denied or admitted by the other, the framing of an issue on the facts, in dispute, the leading of evidence, followed by a final adjudication by a court of competent jurisdiction. A plea of resjudicata, has to, therefore, be examined on the anvil of (a) whether any such plea was raised and controverted in the prior suit; (b) whether any issue was framed with regard to the plea so raised; (c) whether any evidence was led by parties on the issue(s) so framed; (d) whether any finding was recorded on the pleadings or the issue; and (e) whether this dispute was necessary for a proper and complete adjudication of the dispute. The absence of any one of these ingredients would negate the defence of res judicata. It is equally true that mere absence of an issue where a plea has been raised, evidence has been led and arguments addressed, would not negate such a finding, where parties were alive to the controversy. A simple test to determine whether a fact was directly or substantially, in issue in an earlier suit, is to ascertain whether the earlier suit could have been decreed or decided without considering the dispute that may be said to operate as resjudicata. If, a Court concludes that the earlier suit could not have been decided without decision on the matter, in dispute, such a finding would necessarily, be directly and substantially in issue in the former suit and operate as resjudicata, even if pleadings were deficient or no issue was framed. It would be appropriate to make reference to a judgment of the Hon'ble Supreme Court in Sajjadanashin Sayed Md. B.E.Edr.(D) by LRs. v. Musa Dadabhai Ummer and others, 2000(3) Supreme Court Cases, 350, so as to place the conclusions Regular Second Appeal No. 2194 of 2000 -31- recorded in their correct perspective:-
11. The words `collaterally or incidentally in issue' have come up for interpretation in several common law jurisdictions in the context of the principle of resjudicata. While the principle has been accepted that matters collaterally or incidentally in issue are not ordinarily res judicata, it has however been accepted that there are exceptions to this rule.
The English, American, Australian and Indian Courts and Jurists have therefore proceeded to lay down certain tests to find out if even an earlier finding on such an issue can be res judicata in a later proceeding. There appears to be a common thread in the tests laid down in all these countries.* We shall therefore refer to these developments.
12. It will be noticed that the words used in Section 11 CPC are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only 'collaterally or incidentally' in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue.
Regular Second Appeal No. 2194 of 2000 -32-
13. As pointed out in Halsbury's Laws of England (Vol.
16, para 1538) (4th Ed), the fundamental rule is that a judgment is not conclusive if any matter came collaterally in question (R Vs. Knaptoft Inhabitants (1824) B & C 883; Heptulla Bros Vs. Thakore 1956(1) WLR. 289 (297)(PC); or if any matter was incidentally cognizable(Sanders (otherwise Saunders) Vs. Sanders (otherwise Saunders) 1952 (2) All ERR p. 767 at 771).
14. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter the principal issue. The expression 'collaterally or incidentally' in issue implies that there is another matter which is 'directly and substantially' in issue (Mulla, CPC 15thEd., p.104). Difficulty in distinguishing whether a matter was directly in issue or collaterally or incidentally in issue and tests laid down in various Courts:
15. Difficulty in this area of law has been felt in various jurisdictions and therefore some tests have been evolved. Halsbury says ( Vol.16, para 1538) (4th Ed.) that while the general principle is clear, "difficulty arises in the application of the rule in determining in each case what was the point decided and what was the matter incidentally Regular Second Appeal No. 2194 of 2000 -33- cognizable, and the opinion of Judges seems to have undergone some fluctuations".
16. Spencer Bower and Turner on 'The Doctrine of Resjudicata' ( 2nd Ed, 1969) (p.181) refer to the English and Australian experience and quote Dixon, J. of the Australian High Court in Blair Vs. Curran ( 1939)62. CLR. 464 ( 553) to say: "The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision on judgment, or necessarily involved in it as its legal justification or foundation, from matters which, even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation of a groundwork of the judgment". The authors say that in order to understand this essential distinction, one has always to inquire with unrelenting severity is the determination upon which it is sought to find an estoppel so fundamental to the substantive decision that the latter cannot stand without the former. Nothing less than this will do. It is suggested by Dixon J that even where this inquiry is answered satisfactorily, there is still another test to pass: viz. whether the determination is the Regular Second Appeal No. 2194 of 2000 -34- 'immediate foundation' of the decision as opposed to merely "a proposition collateral or subsidiary only, i.e. not more than part of the reasoning supporting the conclusion". It is well settled, say the above authors, "that a mere step in reasoning is insufficient. What is required is no less than the determination of law, or fact or both, fundamental to the substantive decision".
18. In India, Mulla has referred to similar tests (Mulla, 15th Ed.p.104). The learned author says: A matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter 'directly and substantially' in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was 'directly and substantially' in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was 'necessary' to be decided for adjudicating on the principal issue and was decided, it would have to be treated as 'directly and substantially' in issue and if it is clear that the judgment was in fact based upon that Regular Second Appeal No. 2194 of 2000 -35- decision, then it would be res judicata in a latter case. (Mulla, p.104) One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue (Ishwar Singh Vs. Sarwan Singh: AIR 1965 SC 948 Mohd.S.Labbai Vs. Mohd. Hanifa: AIR 1965 SC 1569). We are of the view that the above summary in Mulla is a correct statement of the law."
It appears that the first appellate court confused the challenge to the right of Mahant Ram Manohar Dass to manage the affairs of the Thakur Dwara, (the temple) with the plea that he has been removed with the alleged right of Khandan Kanungo to appoint a Mahant. The dispute in Ex.P3, was whether Ved Parkash, President of Khandan Kanungo Sabha (Regd.) could suffer a consent decree, on behalf of the Thakur Dwara, whether the Mahant had been removed from the office of Mahant and not by any stretch of imagination the right of Khandan Kanungo to appoint Mahant Ram Manohar Dass. Though, one may urge that inherent in such a dispute is the right to appoint the Mahant, but the question before this court is not whether such a plea is inherent or raised by inference but whether it was directly or substantially in issue; whether requisite pleadings were filed, whether the dispute was put into issue, whether parties led evidence and whether the suit could be decided without deciding the issue of a right to appoint a Mahant.
The absence of any pleading or any issue framed, in the Regular Second Appeal No. 2194 of 2000 -36- prior suit, about the right of Khandan Kanungo to appoint the Mahant, in my considered opinion leaves no ambiguity, that in the prior suit, the question of the right to appoint a Mahant was not directly or substantially in issue. The trial court has, therefore, rightly held that the finding recorded in Ex. P3 that the Khandan Kanungo has a right to appoint a Mahant was neither directly nor substantially, in issue, in Civil Suit No.312 of 1978 and, therefore, Ex. P-3 does not operate as resjudicata. The first appellate court, however, committed an error of law by misreading the pleadings, particularly, the written statement, ignoring the issues framed in the prior suit and drawing an inference from non existent pleadings.
The first appellate court committed yet another error. After holding that Ex.P-3 operates as rejudicata, it proceeded to hold that though Ex.P-3 ".....might not strictly operate as resjudicata......but it is a strong circumstance in favour of the respondents.......". The use of the expression "might not strictly operate as resjudicata" discloses the confusion in the appellate court's mind that led it to accept the appeal. The finding is not legally tenable as courts do not use such expressions and cannot record a finding that neither affirm nor reject a plea. Ex.P-3, in my considered opinion, does not operate as resjudicata and cannot be pressed into service to hold that the respondents have proved the existence of a custom or usage that entitles them to urge that the right to appoint a Mahant vests in the Khandan Kanungo or in the Kandan Kanungo Sabha (Regd.).
Apart from the fact that no such dispute was directly or substantially, in issue, the question relating to the power to appoint a Regular Second Appeal No. 2194 of 2000 -37- Mahant, was neither germane nor essential for deciding the dispute in that suit. The first appellate Court misread the pleadings in the prior suit, erred in its understanding of the principle of resjudicata, confused the entire issue by relying upon judgment Ex.P-3, thus, giving rise to a substantial question of law, which is answered, in the above stated terms, against the plaintiffs/respondents.
The other evidence is the mutation, Ex.P-6, and the oral deposition of Amar Nath, the original plaintiff no.1. The mutation Ex.P-6 does not record that the Mahant has been appointed by the Khandan Kanungo, however, it merely records that members of the Khandan Kanungo have furnished information to a revenue officer that Mahant Ram Manohar Dass has been appointed as the Mahant. Ex.P-6, therefore, does not establish any custom or usage to appoint a Mahant, as pleaded by the respondents. The oral deposition of Amar Nath, to say the least, is devoid of any substance as while deposing he was unable to name the members of the Khandan Kanungo, and, in fact, expressed ignorance about its nature, its constitution and, thus, about its very existence. It is, therefore, apparent that the plaintiffs/respondents have failed to discharge the onus placed upon them to prove the existence of an established custom or usage that entitles the Khandan Kanungo to appoint a Mahant.
The plaintiffs/respondents also allege that vide resolution Ex.P-5 the Khandan Kanungo authorised the Khandan Kanungo Sabha (Regd.) to manage the affairs of the temple as an interim measure. A perusal of document, Ex.P-5, reveals that it has been Regular Second Appeal No. 2194 of 2000 -38- recorded on the letter head of Khandan Kanungo Sabha (Regd.). A meeting of the Khandan Kanungo Sabha (Regd.) was convened on 15.04.1988 where the Khandan Kanungaon, allegedly, allowed the Khandan Kanungo Sabha (Regd.) Kaithal to make interim arrangements for management of the Thakur Dwara and its properties. The resolution does not bear the signature of any of the members of the Khandan Kanungo or the Khandan Kanungo Sabha (Regd.) and does not record the presence of members of Khandan Kanungo or Khandan Kanungo Sabha (Regd.). The so called resolution appears to be an attempt, on the part of the respondents, to once again usurp properties of the Thakur Dwara. It would be necessary, at this stage, to reiterate that the respondents have failed to produce any evidence about the membership, the constitution and the nature of Khandan Kanungo. The respondents appear to have fabricated a resolution that the Khandan Kanungo authorised the Khandan Kaungo Sabha (Regd.) to manage the affairs and properties of the Thakur Dwara. In the absence of any credible evidence as to a particular mode of appointment to the office of Mahant, settled by the grantors, it is not possible to hold with any degree of certainty, the particular mode of appointment to the office of Mahant , i.e., Khandan Kanungo or that any such right was even transferred by Khandan Kanungo to the plaintiff-Khandan Kanungo Sabha (Regd.). The learned first appellate court ignored the contents of Ex.P-5 and, therefore, committed a substantial error in recording its finding. The third question of law is answered accordingly.
Regular Second Appeal No. 2194 of 2000 -39-
In view of what has been stated hereinabove, the appeal is allowed, the judgment and decree passed by the first appellate court is hereby set aside and the judgment and decree passed by the trial court, ordering dismissal of the suit of respondents, is hereby restored with no order as to costs.
December 14th, 2012 (RAJIVE BHALLA) nt JUDGE