RAGHUNATH DAS Vs. GANESH DAS

JUDGEMENT

(1.) This appeal has arisen out of a suit brought by the plaintiff appellant for a declaration of his right as mahanth of the Kabirpanthi Math, situate in muhalla Ghasi Katra, city Gorakhpur, in succession to the preceding mahanth Malhu Das. Ganesh Das, defendant 1, is a rival claimant to the gaddi while the other defendants were transferees of certain properties alleged to belong to the math but wrongfully transferred by Mahanth Malhu Das.

(2.) The plaintiff appellant, who claims to be the disciple of Khelawan Das, a disciple of Malhu Das and who is described in the proceedings as grand chela of Malhu Das, has been engaged in litigation for about 15 years. He had instituted with the permission of the District Judge, Gorakhpur, a suit under the Religious and Charitable Endowment Act against Mahanth Malhu Das (1) for removal of Malhu Das from the office of mahanth, (2) for certain alienations made by him in favour of the present defendants 2 to 6 being declared invalid, and (3) for appointment of himself as a mahanth in succession to Malhu Das. The first two reliefs were granted. As regards the 3rd, it was held that the Court had no power to appoint the plain tiff as mahanth. Accordingly it was refused. Three appeals were filed from the decision of the Subordinate Judge, one by the plaintiffs, a 2nd by the transferees and the 3 by Malhu Das. During the pendency of the appeals Malhu Das died on 12 December 1921. Ganesh Das, present defendant 1, claimed to be his chela and entitled to have his name brought on the record in place of Malhu Das. He was opposed by the plaintiff, who denied that Ganesh Das was the chela of Malhu Das. Accordingly, an issue was remitted to the Court of first instance for a finding on this question. Eventually, it was held that Ganesh Das was not the chela of Malhu Das. Two out of the three appeals already mentioned ended without the questions arising therein being decided on the merits. Malhu Das's appeal was declared to have abated, as no one entitled to claim as his legal representative had applied within limitation for substitution of his name in place of Malhu Das, Ganesh Das's application having been dismissed. The plaintiff's appeal was virtually withdrawn, as it was dismissed on his statement that he had been installed as a roahanth by other mahanths and the gentry of the town after the decree of the trial Court removing Malhu Das from the office of mahanth. The only appeal which was heard and decided by this Court was that of the transferees. As against them, the judgment of the first Court was upheld. In the meantime, Ganesh Das succeeded in obtaining mutation of names after the death of Malhu Das. The present suit was instituted on 2 August, 1923 against Ganesh Das and the transferees, who had been unsuccessful before the Subordinate Judge and this Court, for declaration of his right as mahanth and for recovery of the properties in possession of the unsuccessful transferees, namely, defendants 2 to 6.

(3.) The plaintiff relied on a custom obtaining in all Kabirpanthi Maths and also in the math in question, under which, on the death or removal of a mahanth a successor is installed by other mahanths of Kabirpanth Maths and the gentry of the neighbourhood, such successor being either the disciple or disciple of the disciple of the preceding mahanth. The plaintiff alleged that he had been installed after Malhu Das's removal under the decree passed by the Court of first instance in the suit under the Religious and Charitable Endowment Act. The Subordinate Judge, before whom the suit had been instituted, dismissed it on the preliminary ground that the plaintiff failed to establish that he had been installed as alleged by him. On appeal, the Additional District Judge set aside the decree of the Court of first instance, holding that the plaintiff had established his installation, as alleged by him. Accordingly, the suit was remanded under Order 41, Rule 23, Civil P.C. for a decision on all the questions arising in the case, specially the issue relating to the custom, on which the trial Court had expressed no opinion. On 15 December 1924, the Additional Subordinate Judge decreed the plaintiff's suit in full. Ganesh Das, defendant 1, preferred an appeal. The transferee defendants, except Manohar Sahu who filed a separate appeal acquiesced in the decision of the trial Court. Both the appeals were heard by the learned District Judge of Gorakhpur, who allowed them by his judgment of 19 March 1928 and dismissed the plaintiff's suit. The plaintiff has filed two appeals in this Court. The present appeal is against the decree of the lower appellate Court passed in the appeal preferred by Ganesh Das, while second appeal No. 597 of 1928 is from the decree passed by him in the appeal preferred by the transferee. In so far as the learned District Judge found that Ganesh Daa was not the chela of Malhu Das, a cross objection has been filed by Ganesh Das impugning that finding. We may say at once that no arguments have been addressed to us in support of the cross ob-. jection, directed as it is against a finding of fact. It must therefore fail, and the finding of the learned District Judge that Ganesh Das, defendant 1, was not the chela of Mahanth Malhu Das is accepted by us in discussing the merits of the case so far as they relate to the plaintiff's appeal.