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3. The Tribunal served notice of the petition, bearing No. 164 of 1963 to SGPC and the other respondents in terms of the provisions under Section 15 of the Act. Very significantly, Hamir Singh and 57 other respondents, who had moved the original application, never turned up to support the application or oppose the claim of Mahant Mangal Dass, Chela of Mahant Bishan Dass. The litigation was, therefore, carried on only at the instance of SGPC, who claimed the said Institution to be a Sikh Gurdwara. A written statement dated 29.7.1963 was filed by the SGPC and it was claimed that the said Institution was a Sikh Gurdwara, as it was established for the use of Sikhs, and was used as a place of public worship by Sikhs all along in terms of the provisions of Section 16(2)(iii) of the Act. It was additionally claimed by way of amendment that the Institution was established in the memory of Sikh Guru Bhagat Bhagwan. It was further claimed by way of subsequent amendment that the Institution was a Sikh Gurdwara because of the traditional visits of the first and sixth Gurus to the Institution, so that the Institution came within the purview of Section 16(2)(ii) of the Act. The last amendment was dated 1.6.1964. On 3.6.1964, Mahant Mangal Dass also moved an application under Order 6 Rule 17 CPC for amendment of the petition under Section 8 of the Act, to the effect that he was a hereditary office-holder. However, by its order dated 4.8.1964, this application of amendment was rejected by the Tribunal. The Tribunal struck two Issues:

15. As against this, Shri Palli, Senior Advocate appearing on behalf of the respondent, supported the judgment of the High Court and pointed out that initially, Issue No. 1 was treated as preliminary issue and on appreciation of evidence led by the parties, the Tribunal vide order dated 9.3.1965 had unanimously held that the succession to the Gaddi of Mahantship is proved from Guru to Chela and all the Mahants had been Udasi Sadhus, and SGPC had not challenged this order, though an appeal is provided under the Act. The Learned Counsel went on to argue that SGPC possibly realizing the importance of the decision on Issue No. 1, then moved an application for amendment that the Institution was also a Sikh Gurdwara under the provisions of Section 16(2)(ii) of the Act, as having been established to commemorate the visit of the first and sixth Gurus of Sikhs, which claim was given up. SGPC again moved a second application, seeking amendment to take up the plea tha the Institution had been established in the memory of Sikh Saint and historical person, namely, Bhagat Bhagwan and was used for public worship before and at the presentation of the petition under Section 7 of the Act. The Learned Counsel pointed out that initially, the SGPC had claimed that the Institution had been established for use by Sikhs for the purposes of public worship and was used for such worship by the Sikhs before and at the time of presentation of the petitioner, however, the SGPC had also to prove its continuous user from the date of its establishment till the date of notification, as held in Hem Singh & Ors. Vs. Basant Das & Anr. reported in 1936 Privy Council Page 93. According to the Learned Counsel, the SGPC had miserably failed to prove the same. The Learned Counsel suggested that the High Court was absolutely right in holding, on the basis of documentary and oral evidence, that the SGPC had miserably failed to prove the continuous and present exclusive user by the Sikhs nor had it been able to prove that this Institution was established in the memory of any Sikh Saint.

36. The Learned Senior Counsel then urged that on the question as to whether Mahant Mangal Dass was a hereditary office holder, no opportunity was given to the SGPC to prove that he was not such an office holder. The Learned Senior Counsel urged that on this issue, in the first round of litigation, the Punjab & Haryana High Court had dismissed the whole objections raised by Mahant Mangal Dass on the ground that he had not claimed himself to be a hereditary office holder of the institution. The Learned Senior Counsel further pointed out that that judgment of the High Court was set aside by this Court with the observations, which we have quoted in para 9 of this judgment. Even a cursory look at those observations would convince us that this Court had already closed that issue. In fact, when Mahant Mangal Dass had filed an amendment application, the Tribunal had felt that there was no need to amend the petition, since the averments made in the objection petition had clearly indicated that Mahant Mangal Dass had claimed himself to be a hereditary office holder. It so happened that the High Court, however, took the view that Mahant Mangal Dass had not specifically claimed himself to be a hereditary office holder in precise words and, therefore, his objections under Section 8 of the Act, were not maintainable. It is only on that short ground that the High Court had dismissed the appeal, which order was passed against the judgment of the Tribunal. On an appeal, this Court set aside that order and held that if the High Court had felt the Tribunal was not right in refusing the amendment, it should have allowed the amendment and cure the defect and then decide the matter on merit, since all the evidence was available before the High Court. This Court, therefore, set aside the order of the High Court and remitted the matter for disposal of the appeal on "merits". It is, therefore, clear that this Court had directed the High Court to decide the appeal on merits and not on the technical question as to whether there was a declaration by Mahant Mangal Dass of his status as a hereditary office holder. We are, therefore, convinced that the question of the status of Mahant Mangal Dass was put to the rest by this Court. However, even if we were to accept the contention raised by the Learned Senior Counsel for the appellant, we do not find such contention having been raised before the High Court that Mahant Mangal Dass was not a hereditary office holder or at least had not claimed to be the one. We have very carefully gone through the judgment of the High Court. It is totally silent about any contention. The Learned Senior Counsel very fairly conceded that such issue was not raised by the High Court, however, he pointed out that it was the duty of the High Court to go into that issue or at least give an opportunity to the appellant SGPC to oppose the amendment. There is not even a whisper before the High Court to that effect also. In fact, after the remand, it is clear that the SGPC had never bothered to raise the issue before the High Court. Shri Palli, Learned Senior Counsel appearing on behalf of the respondent pointed out that at no point of time was this contention ever canvassed before the High Court. It will, therefore, not be possible for us to entertain the contention raised by the Learned Senior Counsel for the appellant that any prejudice was caused to the SGPC by the High Court, not providing any opportunity to introduce an amendment in reply to the stand taken that Mahant Mangal Dass was a hereditary office holder since such opportunity was never sought for.

38. Opposing the contentions of Shri Jaspal Singh, Shri Palli, Learned Senior Counsel appearing on behalf of the respondent pointed out that the Tribunal, vide order dated 9.3.1965, had unanimously held that succession to the Gaddi of Mahantship was proved from Guru to Chela and all the Mahants had been Udasi Sadhus and Mahant Mangal Dass had fulfilled the requirements of the provisions of the Act and was held to be hereditary office holder. Shri Palli pointed out that this order was not appealed against. Shri Palli pointed out that it is then that the appellant SGPC introduced an amendment and claimed the institution to be a Sikh Gurdwara even under the provisions of Section 16(2)(ii) of the Act (which stand was of course given up later on). Not only that, but the SGPC moved a second application, seeking amendment to take the plea that the institution had been established in the memory of Sikh Saint and historical person, namely, Bhagat Bhagwan and was used for public worship before and at the time of presentation of the petitioner under Section 7 of the Act. According to the Learned Senior Counsel, this was necessitated because the finding that the succession to the Gaddi of Mahantship in the institution was from Guru to Chela and that Mahant Mangal Dass was a hereditary office holder, would have proved fatal to the claim of the SGPC that this institution was a Sikh Gurdwara. According to the Shri Palli, it is, therefore, totally a new claim was made under Section 16(2)(iv) that this institution was in the memory of a Sikh Saint and historical person, namely, Bhagat Bhagwan. Our attention was drawn by Shri Palli to the decision of the Privy Council in the Case of Hem Singh & Ors. Vs. Basant Das & Anr. reported in 1936 Privy Council Page 93 (cited supra), holding that the burden to prove a particular institution a Sikh Gurdwara, lies on the person, who claims it to be a Sikh Gurdwara. The Learned Senior Counsel further rightly argued that thereby, the SGPC was seeking to change its initial claim that this institution was established for the use of Sikhs for the purpose of public worship and was also used for such worships by Sikhs before and at the time of presentation of the petition under Section 7(1) of the Act.