Lal Singh Didar Singh vs Guru Granth Sahib and Others

Kartar Singh Campbellpuri, J.—The facts & circumstances which led to this protracted litigation may shortly be stated as follows:

By a registered deed dated 29-9-1977 Atma Rarn: & Hari Das, Chelas of Kahan Das sold agricultural land measuring 29 bighas & 3 biswas situated in village Dooburji tehsil Payal in favour of Dulla & Radhawa. Lal Singh pltf.-applt. filed a suit for possession by preemption wherein it was stated in the very first Para, of the plaint that the property related to a Dera & the vendors Atma Ram & Hari Das were not competent to alienate the property. In the column of relief it was, however, prayed that a decree for possession by pre-emption be granted in his favour on payment of Rs. 1,580 the amount which was actually paid. The record reveals that a decree was granted in favour of Lal Singh on 30-4-1981 & in pursuance of the decree the applt. entered into possession of the property on 25-12-1981 but it so transpired that soon after this an order was issued from the office of the Deorhi Mualla that the property in question was the property of a Dera & an entry in the revenue record be made accordingly. In pursuance of this order emanating from Deorhi Mulla the proceedings were started by the revenue authorities against Lal Singh & he was actually dispossessed on 30-2-1986. This suit for possession was instituted by Lal Singh a decade after on 12-8-1996 & it was alleged inter alia that he was the owner of the property & had been wrongfully dispossessed. The suit was resisted by the Committee in charge of the Dara & it was contended that the property belonged to the religious institution & that Atma Ram & Hari Das were only the Managers on behalf of the Dera Udasian situated in village Dooburji & as such they were not competent to alienate the property in favour of Dulla & Badhawa & consequently the pltf. too who was succossorein-interest of the original vendees could not derive any title sheer by getting a decree for pre-emption. The pleadings gave rise to the following issues:

Is the suit within time? O.P.

Has the Ct. no jurisdiction to try & decide the suis?

Is the pltf. owner of the land & therefore entitled to get its possession & to get the entries in the revenue record corrected?

Is Sardar Sahib Deorhi Mualla a necessary party to this suit, it so, what is the effect of his not being impleaded?

Is the Farman-i-Shahi dated 18-4-1021 applicable to the present suit, if so what is its effect?

Was the land in suit waqf property of Dera Udasinn of which institution Hari Das & Atma Ram were managers.

Could not the Managers sell the waqf property in dispute to Dulla & Badhawa?

The trial Ct. after recording the evidence adduced by both sides & on the appreciation of the legal contentions raised in the suit decreed the pltf.''s suit but on appeal the same was set aside by the learned Dist. J. & the suit was dismissed. The pltf.-applt. preferred a second appeal in this Ct. & the case came up before a-Single Judge in Chambers who upheld the finding of the Dist. J. but issued a certificate for further appeal on letters patent side.

Now the decision on all other issues excepting 3 & 6 has been set at rest & was not re-agitated in this Ct. before us & the contention'' put in a narrow compass centred round issue 6 as to whether the property in question was secular or waqf. In this connection the argument of the learned Counsel for the applt. was that the property, as entered in the revenue record was in the name of Atma Ram & Hari Das m their individual capacities & they had been dealing with the property as such. The learned Counsel further argued that the finding of the learned Judge in Chambera was mainly based on certain admissions of the pltf. made firstly in the pre-emption suit & secondly in the present suit contrary to law inasmuch as these admissions were gratuitous & were made unnecessarily in an erroneous manner. In order to appreciate the argument for & against it is necessary to quote the actual words stated in these admissions & to deal with them separately. The one contained In the plaint filed by the pltf. in a suit for possession by pre-emption is at p. 51 of the record & reads as follows:

Masumeeyan Atma Ram wa Hari Das Chela Kahan Das Sadh Sakna Dooburji Bauyan Mudaylum 2 ne batarikh 29th poh 77 arezi zari tadadi 29 bighas 3 biswas mumber Khasra 284 barooaye tasdiq rajistri baliwz 2500 ropaya badast doola wa Wadhawa Pisran Bajadur Mushtrian mudayalanumber 1 bagarz 920 ropaya zere rahin sabqa asal hai aur 1580 ropaya farzi hai aur eh arazl deri ki hai aur baiyan ko haq bae hasil na tha.

Now the learned Counsel admitted that according to this averment made in the plaint the land belonged to the Dara, but contended that it was equally unintelligible as to why & how it was essential for the pltf. to make this averment when he sought to pre-empt the property on payment of certain amount. The counsel maintained accordingly that this admission having been made in an erroneous manner when it was not required carried no value in the eye of law. The argument was further stressed that admissions are to be read as a whole & when considered & interpreted in the light of the relief claimed in the plaint this averment appears to have been misconceived & was not acted upon in the decree for pre-emption passed in his favour & consequently the same was not admissible in evidence. Reliance wag placed on Abdul Gani and Another Vs. Nabendra Kishore Roy and Others, Balwant Singh v. Khan Bahadur AIR 1930 Lah. 6 : 119 I.C. 727 and Budhu Ram v. Uttam Chand AIR (15) 1928 Lah. 726 : 109 I.C. 26 & it was vehemently urged that an admission cannot operate unless the decision is based on that admission. In Abdul Gani and Another Vs. Nabendra Kishore Roy and Others, their Lordships dealt with Section 115, Evidence Act, as well as with the plea of res-judicata & it was held that an admission in a previous suit could not operate as estoppel in subsequent suit unless the decision in the previous suit was based upon the admission. This dictum obviously was laid down on entirely different facts. In that case the validity of the waqfnama was in issue & it was stressed that the same had already formed the subject of litigation in a former suit & the decision in the case could not be re-opened & the issue reagitated in the subsequent suit. Their Lordships held that the decision of 1923 did operate as res judicata & that the view taken by the learned Dist. J. was right. I need hardly add that this authority has no direct bearing on the facts of this case. Of the Lahore authorities, their Lordships in Sita Ram v. Pir Bakhsh AIR 1931 Lah. 6 : 130 I.C. 406 held that a decree holder making an erroneous admission in appln, accompanied by an affidavit is entitled to retract from that admission. In this cafe, the decree-holder in the course of execution proceedings retracted & explained the erroneous nature of his affidavit & the Ct. allowed him to withdraw.

In Budhu Ram v. Uttam Chand AIR 1928 Lah. 726 : 109 I.C. 26 it was held that the admission if gratuitous can be withdrawn at any time & therefore such a confession, though against the interest of the party making it, is of no value. In this case, the mtgor, had admitted that the transaction in question was tantamount to sale & question arose as to what was the real intention of the parties & in determining that, their Lordships made certain observations in regard to the value of admission. Both these authorities are clearly distinguishable & have no bearing on the point at issue & thus do not support the conclusion sought to be derived from these legal precedents by the applt''s counsel. The counsel next contended that Lal Singh was not confronted with the previous statement & as such the same was not admissible in evidence under the provisions of Section 145, Evidence Act. Now the legal position under the provisions of Section 145, Evidence Act, no doubt is that evidence in previous suit does not prove anything & it ought to be put to the witness, but it is not so in the tease of admissions where the party making the admission is required to explain & rebut the same & unless & until that is satisfactorily done the fact admitted must be taken to be established The proposition equally applies to an admission in a signed pleading & there can be no doubt that under the provisions of the Evidence Act an admission or affidavits made by a party in a prior litigation would be regarded as an admission in a subsequent action though it is capable of rebutual. In the light of this principle the only question which is to be considered is whether this admission has been proved to have been made under circumstances which should detract the value of the admission & it should not be now acted upon. Evidently it was for the maker of the admission to come into the witness-box where the objection was taken at the very early stages & explain as to what led him to make this admission. In the absence of any such explanation the value of this admission is rather enhanced. Mt. Bibi Kaniz Ayesha and Another Vs. Mojibul Hassan Khan and Others, wherein it was held that where a deft, does not give any evidence in rebuttal a previous statement which he had made in earlier proceedings can be put in evidence as an admission made by him & would be admissible against him.

Adverting to the other admission made in the present suit the pltf. in Clause (1) of his plaint has stated as under:

Eh ke arazi tadadi 19 bigha 3 biswa khata wa khasra anwan waqs raqba mauja dooburji talqa Payal malkiati dera Feqir Udasian beahtmani Atma Ram wa Haridass Chala Kahan Dass bahissa rabar thee. Jinnon ne barooe itqal No. 332 munfasala 13 Magh 1978 bahaq Musamian Doola wa Badhawa Pisran Bahadur Qaum Jat Sakin Dooburji bebissa brabar biliwz mublig 2500 ropalya barooae rajistri moharrira 29 Poh 1977 bai kar dee jaisa ke mulhaza intqal mashmoola se zahir hoga.

The stand taken by the pltf. regarding this admission was that this para., as it stands on the record, was inadvertantly written in the first instance, but was scored off by the petn. writer before the plaint was presented in Ct. & as such it does not form a part of the plaint. On the other hand the defts. reaps contended that this cutting was designedly made subsequently after the remand order & in support of this assertion a copy of the original plaint Ex. C.W. 1/3 issued by Ct. along with the summons to the defts. was also placed on the record purporting to have been signed by Lal Singh pltf. himself & written by the same scribe Gajja Ram petn. writer. In this copy of the plaint, the writing in question is quite infact. In addition to this L. Atma Ram Advocate also put in an affidavit, to the effect that so far as he remembered the original plaint was just in accordance with the copy & para. (1) was not scored off before the case was remanded. Gajja Ram petn. writer also supported this when examined by the Ct. But the plt. despite the affidavit of Mr. Atma Ram neither filed any counter affidavit nor chose to come into the witness box to controvert the stand taken up by the (sic). He, however, exmined an export to rebut all this direct evidence, whose evidence cannot be accepted in face of the copy Ex. C.W. l/3 & it would be going too far to say that an expert who has generally a certain amount of unconscious bias in favour of the party examining him is more reliable than the witnesses of fact as the petn. writer & the counsel of the party are. The expert evidence moreover is open to considerable danger when is relates to the state of a writing or regarding bare initials as the case here is. In my opinion the copy of the original plaint produced by the deft. clinches the matter beyond any manner of doubt & the point needs no further elaboration. In the result the admissions of the pltf. in the absence of any explanation or any convincing evidence forthcoming that it was false & untrue is binding on him & I hold accordingly.

The other contention raised by the learned Counsel for the applt. was to the effect that the property in dispute was never dedicated to the Dera & in view of the face that Atma Ram & Hari Das were entered as proprietors in the column of ownership in the revenue record the property did not lose the secular character notwithstanding of the gratuitous admissions made by Lal Singh under inexplicable circumstances. The argument precisely was that in the absence of any evidence that the property was dedicated to the shrine it could not he held that it belonged to the Dera & the mere (sic) of the pltf. made erroneously were not sufficient to dispossess him when he had in good faith got the property through Ct. decree. The counsel also urged that although succession continued from Guru to Chela yet it was not sufficient to raise any presumption that the property belonged to a religious institution. Reliance was placed on two P.C. authorities reported in AIR 1938 195 (Privy Council) & AIR 1939 201 (Privy Council) Now the question as to whether the property descended from the Guru to Chela establishes the religious nature of a property, was considered by their Lordships of the P.C in both these authorities & although it was held that the fact that the properties have descended from Guru to Chela does not necessarily lead to the conclusion that a property when acquired by a Mahant loses its secular character & partakes of religious character, yet the dictum laid down in these authorities was only to the extent that if the property was held by a Mahant as his private property the mere circumstance that it had subsequently descended from Guru to Chela would not warrant the presumption that it was a religious property. It, therefore, follows that the acquisition of property by a Mahant as his private property must be proved before any presumption on the basis of descent from Guru to Chela be considered. Now in this case, it is significant to note that the property in dispute was initially donated to Mahant Bhagwan Das by the proprietors of Patti Dher as evidenced from the dictates of Kafiat Dehi Ex. D.W. 1/A & in the absence of any plea much less evidence that the Mahants at any time acquired this property with some income of their own & for their exclusive use & not for the Dera, the question of self-acquisition of private property does not arise. The incumbents of the Dera moreover were termed Mahant throughout & as managers & trustees of a religious institution by no stretch of reasoning they could appropriate the property & defeat the trust by assuring their right on the property (sic) by getting their names entered in the column of ownership as proprietors in the revenue record. In this repect furthermore the deposition of Mahant Kahan Das predecessor in interest of Atma Ram & Hari Das is also noteworthy. The operative portion of this statement dated 8-12-42 in free English rendering is to the effect that the amount of Muafi was being received by the Mahant from more than one generations & that Guru Granth Sahib was being opened & worshipped in the Dera & that the produce of the land was being spent on free Jangar set up for feeding the travellers who happened to come to the Dera & that succession of Mahant was from Guru to Chela.

Mahant Kahan Das in his statement has also given the names of his ancestors & the padigree-table prepared with the help of this statement shows that the property never devolved upon any one but a recognised Chela. The applt''s counsel, however, contended that Atma Ram & Hari Das were dealing with the property as their own as evidenced from the mtge. deed Ex P.W. 2/1 as well as sale deed Ex. P.W. 2/2 brought on the record. On the perusal of these deeds it appears that the property was alienated for legal necessity which was duly recited. & in the sale deed it is specifically mentioned that the necessity arose on account of the new construction of the Dera & for the payment of laud-revenue. Now it is an undisputed proposition that the property attached to a religious institution can also be alienated for valid necessity & consequently these transactions entered into by Mahant furnish no proof that the property was being treated as a private property. At any event, without incurring the risk of repetition I am of the opinion that the gift made in favour of Mahant Bhagwan Das is a complete reply to the argument of the applt''s counsel that the property vested in the Dera & it was not the private property of the Mahants. On the legal aspect also, the dictum laid down in the P.C. authorities & Ors. relied upon by the learned Counsel for the applt. only establish the proposition that the mere fact that a person who acquired the property in dispute is an ascetic does not establish that he acquired the property for religious institution, though it is a circumstance that ought to be taken into consideration in determining whether it is religious or secular. The ratio decidendi of all the authorities examined on this point & the reasoning underlying is that a man''s religious opinion or profession do not make him incapable in law of holding property. It would be a different matter when an incumbent of a religious institution even he be an ascetic comes forward & claims that he purchased a certain property with an income which he did not derive from the Dera but no such plea has been raised in this case. In view of the above discussion I am, therefore, of the considered opinion that the burden shifted to the pltf. applt. to establish that the property was the private property of Atma Ram & Hari Dass in the presence of the evidence furnished by the Kafiat Dehi that this property was gifted away to Bhagwan Das their anscestor in his capacity as a Mahant. In addition to this, some oral evidence was also adduced on behalf of the deft. comprising over several witnesses who have definitely stated that the property in dispute related to Dera Udasian situated in village Duburji. On the bais of this evidence direct as well as circumstantial I have no hesitation in holding that it has been amply established on the record that the property in dispute was not the personal property of Hari Das & Atma Ram & the pltf. in consciousness of this fact had more than once i.e. in the previous suit of pre-emption as well as in the present suit admitted that the property belonged to the Dera & in the absence of unexplained admissions of the pltf., the irresistible conclusion is that the property belonged to the religious institution'' & the vendors were not competent to dispose of the same. It is indeed unfortunate that the pltf. who got the property by pre-emption on payment of a large amount of money should suffer but he was dealing with the property which to all intents & purposes was attached to the Dera & the risk that he incurred has ultimately recoiled upon him.

Finally the learned Counsel for the applt. faintly argued that Dulla & Ors. purobased the property from an ostensible owner & the pltf. got the property in good faith for consideration, & he could not be dispossessed. Reference was made to Section 41, T.P. Act but the difficulty, however, is that this plea was never taken in the pleadings much less in the grounds of appeal & Mr. Jagan Nath ultimately did not press it. I am furthermore of the opinion that Section 41 lays down a particular case of general rule of estoppel & its intention is that an owner of property who induces some one to accept the transfer of that property by leading him to believe that somebody else is the owner is estopped from setting up his own ownership. But if the property vested in a religious institution no such estoppel can operate against the institution as held in Ratan Sen alias Ratan Lal Vs. Suraj Bhan and Others,

In the result the appeal fails on both counts & the same is dismissed with costs.

Teja Singh C.J.

It was urged before us by the applt''s counsel that the suit property was recorded in the revenue papers in the names of Atma Ram & Hari Dass & it was their private property. The resp''s counsel, on the other hand, argued that the property belonged to the Dera. The main evidence upon which reliance was placed on behalf of the resps. consisted of the admissions made by the pltf applt. in the plaints of a previous suit & the present suit. That the plaint of the previous suit was properly proved cannot be denied. It was admitted by the applt''s counsel that what was mentioned in the previous plaint constituted an admission by the pltf. that the land belonged to the Dera, but he urged that since the admission was gratuitous it had no value in law. He cited a few authorities in support of his contention but as has been pointed out by my learned brother none of them helped him. Section 21, Evidence Act, lays down that admissions are relevant & may be proved as against the person who makes them or his representatives in interest. Section 31 is to the effect that admissions are not conclusive proof of the matters admitted but they may operate as estoppels under the provisions contained in the Act. The effect of both these sections is that when an admission is proved against a party a presumption arises that the matters to which the admission relates are true & the burden of proving that they are not true lies upon the person who made the admissions. There is consensus of opinion that the onus to show that an admission is untrue is on the person who wishes to get rid of it. The fact that the admission was gratuitous does not affect this rule & all that can be said is that if proved to be erroneous it can be withdrawn by the person who makes it & will not operate as estoppel. Moreover in the present case, I am not convinced that the admission contained in the plaint of the previous suit was gratuitous. A mere perusal of the whole plaint would make it clear that to start with the intention of the pltf. was to make out that since the land belonged to the Dera, Atma Ram & Hari Dass had no power to alienate it & consequently the sale made by them was void but later on he changed his mind & instead of suing to have the sale declared void he decided to pre-empt the sale. In any case, as I have already observed, the pltf. could not get rid of the admission merely by alleging that it was not necessary for him to make it & since he did make it he is bound by it, unless he can show that it was erroneous & in this he has entirely failed. The same remarks apply to the admission contained in the plaint of the present suit & I agree with my learned brother in holding that that admission was also amply proved.

I concur with my learned brother in finding that on the evidence adduced in this case there can be no doubt that succession here has been from Guru to Chela. As it appears from the observation appearing in the judgment of the Ct. below this fact was conceded by the applt''s counsel in that Ct. It was argued before us on the authority of a P.C. case, that the mere fact that a certain property has been descending from Guru to Chela does not establish that it belongs to an institution. This is no doubt correct but in the present case apart from the rule of descent we have the plft''s. own admissions that the land was the property of the Dera. In addition there is evidence that the land was gifted to Mahant Bhagwan Dass by the proprietors of Patti Dher. This means that be did not acquire it with any private fund. Taking into consideration the fact that in the earliest revenue records in which mention of the gift is made i.e., the Kaifiat Dehi, Bhagwan Dass is described as a Mahant, it is legitimate to assume that the gift was made to him in the capacity of the Mahant & consequently it was meant to be a donation to the Dera rather than to him in his personal capacity. In any way, the simple factum of the gift taken together with the plff''s. admissions & the rule of succession from Guru to Chela constitutes sufficient data on the strength of which it must be held that the land was the property of the Dera.

the only other point urged before us by the applt''s counsel was that he was pretected by the principles underlying Section 41, T.P. Act, but as has been rightly held by my learned brother, this plea was not taken in the Cts. below & being a plea based on mixed questions of fact & law it cannot be allowed at this stage. Consequently, I concur that the appeal mast fail & dismiss it with costs.