1
"REPORTABLE"
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1767 OF 2002
Shiromani Gurudwara Prabandhak Committee .... Appellant
Versus
Mahant Prem Dass .... Respondent
JUDGMENT
V.S. SIRPURKAR, J.
1. An appellate judgment delivered by the Division Bench of Punjab &
Haryana High Court, allowing an appeal under Section 34 of the Sikh
Gurdwaras Act, 1925 (hereinafter referred to as `the Act’ for short),
upsetting the judgment passed by the Sikh Gurdwaras Tribunal (hereinafter
referred to as `the Tribunal’ for short) is challenged before us by Shiromani
Gurudwara Prabandhak Committee (hereinafter referred to as `SGPC’ for
short). While the Tribunal had declared an institution allegedly known as
“Gurdwara Sahib Gurdwara Bhagat Bhagwan” to be a Sikh Gurdwara, by
the aforementioned judgment of the High Court, the said Institution was
declared not to be a Sikh Gurdwara. It was instead held that the Institution
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was used as a “Dera” of Bhagat Bhagwan and was, in fact, an “Udasi Faqir
institution”, and as such, was not a Sikh Gurdwara. It is this judgment,
which is challenged before us.
2. One Hamir Singh and 57 others, residents of Village Ladda, Tehsil
Maler Kotla, District Sangrur, Punjab, filed an application to the Punjab
Government under Section 7 of the Act for a declaration that an institution
allegedly known as “Gurdwara Sahib Gurdwara Bhagat Bhagwan”, being a
Sikh Gurdwara. It was alleged that the said Institution owned 389 bighas
and 10 biswas of land, which was situated in villages Ladda and Dhuri and
that some of the said lands were covered by the buildings. On the basis of
this application, a notification No. 557-G.P.-61-H.G. dated 9.6.1961 was
published in the Government Gazette by the Punjab Government in terms
of Section 7(3) of the Act, and the notice of the same was also served on
one Mahant Mangal Dass on 6.7.1961. This Mahant Mangal Dass was a
Chela of Mahant Bishan Dass, who was claimed to be a hereditary office-
holder. He moved a petition dated 25.2.1963 under Section 8 of the Act
before the State Government of Punjab, claiming that the Institution was
“Dera Bhagat Bhagwan” and was being wrongly described as “Gurdwara
Sahib Gurdwara Bhagat Bhagwan” in the aforementioned application by
Hamir Singh and 57 others. It was pointed out that the said “Dera Bhagat
Bhagwan” was located at Revenue Estate Ladda, Tehsil Maler Kotla,
District Sangrur, Punjab. It was asserted that it was not a Sikh Gurdwara
as claimed in the application, but was an “Udasi Faqir institution”. It was
further claimed by Mahant Mangal Dass that after the death of his Guru
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Mahant Bishan Dass, he being the Chela, was appointed as Mahant of this
Dera in accordance with the Udasi rites and, therefore, in charge of the
Dera for the last 42 years and further that he was managing the Institution
till that date. It was further alleged that out of the lands described in the
original application, land admeasuring 32 bighas and 12 biswas comprised
in Khasra Khewat No. 303/496 and 497 as detailed in Jamabandi for the
year 1958-59, situated at Village Ladda and the house located at Dhuri
town, was his personal property and did not belong to the “Dera Bhagat
Bhagwan”. It was also pointed out that the petitioner Hamir Singh & 57
others were mostly fictitious persons and had moved the application with
ulterior motives and, therefore, the notification issued under Section 7(3) of
the Act by the State Government, was illegal and void. The State
Government in turn, forwarded this application to the Tribunal for its
adjudication under Section 14 of the Act.
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
4
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:
“(i) Whether the petition is a hereditary office-holder?
(ii) Whether the institution is a Sikh Gurdwara under Clause (ii),
(iii) or (iv) of Section 16(2) of the Act?”
The Tribunal treated Issue No. 1 as a preliminary issue and held vide order
dated 9.3.1965, that the petitioner was a hereditary office-holder, there
being sufficient oral evidence to support the same.
4. Mahant Prem Dass in his capacity as a Chela of Mahant Mangal
Dass had filed a Writ Petition, being Writ Petition No. 367 of 1966 before
the High Court, for quashing the notification dated 9.6.1961. However, that
Writ petition was not pressed and was disposed of by the order dated
17.8.1971. It was conceded that the Petition was covered by the Full
5Bench Judgment of the High Court in Mahant Lachhman Dass & Ors. Vs.
State of Punjab reported in II L.R. 1968 (2) Punjab & Haryana 499. It
was pointed out to the Court that an appeal against the said judgment was
still pending in the Supreme Court and a clear statement was made that
the counsel was not conceding regarding correctness of the Full Bench
Judgment. However, since the High Court felt bound by the said
Judgment, the Writ Petition was dismissed.
5. The Tribunal, thereafter proceeded with the trial in which the only
issue was as to whether the institution is a Sikh Gurdwara under Clause
(ii), (iii) or (iv) of Section 16(2) of the Act.
6. Regarding this Issue, the SGPC conceded that Section 16(2)(ii) was
not attracted, and that claim was not pressed by the SGPC. The SGPC,
however, persuaded its case under Section 16(2)(iii) & (iv) of the Act. The
Tribunal came to the conclusion that the term “Dera” and “Gurdwara” were
interchangeable terms and were used as such. The Tribunal further held
in its order dated 10.10.1973 that the existence of Mahant and that Mahant
was Udasi, was immaterial. The Tribunal, ultimately held that the
Institution was a Sikh Gurdwara, considering its history, to the effect that
Bhagat Bhagwan, in whose name the Institution stood, though was initially
a Sanyasi, but had become a Sikh after meeting the seventh Guru, Guru
Har Rai and continued to live as a Sikh Missionary preaching Sikh religion.
The Tribunal, therefore, came to the conclusion that since Bhagat
Bhagwan himself was a Sikh, the Institution which was established in his
6memory, would remain a Sikh Institution, even if some of the Mahants
deviated from Master’s path and described themselves as Udasis. It was,
therefore, held that the Institution fell within the ambit of Section 16(2)(IV)
of the Act, and as such, was a Sikh Gurdwara. The objection petition filed
under Section 8 by Mahant Mangal Dass was, therefore, dismissed. The
Judgment of the Tribunal was not unanimous, inasmuch as one of the
three Members of the Tribunal Shri A.L. Bahri had differed with the
conclusions drawn by the majority and held that it was not proved that the
Institution was ever used as the public place of worship of Sikhs or even at
the time of issuing of notification in the year 1961. It was further held that
the objection petitioner had successfully proved that the institution was
established by Shri Surat Ram and that the Muafi was also granted in the
name of Shri Surat Ram and since times immemorial, the Institution had
been under the management of Udasi Mahants, which had been so
described in several documents. It was also held by Shri Bahri that the
succession to the Office of Mahant had been from Guru to Chela and idol
of Baba Siri Chand, Ball of Ashes and Smadhs were the objects, which
were being worshipped in the Institution. The Learned Member also further
held that the mere fact that `Guru Granth Sahib’ was kept or recited in the
Institution, would not make it a Sikh Gurdwara.
7. A First Appeal No. 45 of 1974 came to be filed before the High Court
by Mahant Prem Dass, who was a Chela of Mahant Mangal Dass and had
succeeded him after his death. The Division Bench of the High Court
rejected the Appeal and held that Mahant Mangal Dass had never claimed
7to be “hereditary office-holder” nor was there any averment regarding his
being a “hereditary office-holder”, and since the respondent Mahant
Mangal Dass has failed to prove himself as “hereditary office-holder” and
had also failed to state about the custom of inheritance, the petition under
Section 8 itself, was not competent. It must be stated here that the High
Court did not go into the merits of the matter.
8. A Special Leave Petition was preferred before this Court by Mahant
Prem Dass, who had succeeded Mahant Mangal Dass. This Court by its
order dated 8.12.1994 allowed the Civil Appeal and the matter was
remanded to the High Court to dispose of original First Appeal No. 45 of
1974 on merits and in accordance with law. This order of this Court is
extremely important and we would refer to the same in the subsequent part
of this judgment. After the matter came back to the High Court, the same
was dealt with in details by the High Court, and ultimately, the High Court
allowed that appeal by the impugned judgment dated 2.7.2001. It was held
by the High Court that the respondent Mahant was a hereditary office-
holder. On merits, and on reconsideration of documentary and oral
evidence, the High Court further came to the conclusion that the Institution
was not a Sikh Gurdwara, but was a Udasi Dera, called “Dera Bhagat
Bhagwan”. It is this judgment, which has fallen for consideration before us,
now.
9. Shri Jaspal Singh, Learned Senior Counsel appearing on behalf of
the appellant, firstly, contended that during the pendency of the Writ
Petition before the High Court, the SGPC had taken an objection that the
8Objection Petition filed by Mahant Mangal Dass under Section 8 was not
maintainable, since in that Petition, Mahant Mangal Dass had not alleged
that he was a hereditary office holder of the Institution in question. The
Learned Senior Counsel pointed out that while the matter was pending
before the Tribunal, Mahant Mangal Dass had applied for amendment of
his Objection Petition under Section 8 and had tried to introduce following:-
“The petitioner is a hereditary office-holder. The rule of
succession in this Dera is that the Chela succeeds the Guru
after his death. The custom of the Dera from the beginning is
that the Guru has a right to nominate his successor out of the
Chela and in the absence of such nomination, the Chela
succeeds with the approval of the Bhekh.”It is further pointed out by the Learned Senior Counsel that when this
application was moved before the Tribunal, the Tribunal felt that there was
no need to amend the Petition, since the averments already made in the
Objection Petition clearly indicated that Mahant Mangal Dass was claiming
to be a hereditary office-holder and the mere absence of the specific
expression in the averment, did not matter. However, when the matter
came for the first time before the High Court, the objection was taken by
the appellant – SGPC that the Petition under Section 8 was not competent
on account of absence of specific averment by Mahant Mangal Dass that
he was a hereditary office-holder. The High Court had also dismissed the
appeal, holding that in the absence of specific averment, Mahant Mangal
Dass had not locus-standi to file an Objection Petition under Section 8 of
the Act. The Learned Senior Counsel, therefore, invited out attention to the
order of this Court, whereby, the appeal filed by Mahant Mangal Dass was
9allowed. The Learned Senior Counsel then pointed out at the specific
observations made by this Court to the following effect:-
“If the High Court felt that the Tribunal was not right in refusing
the amendment, the proper course was to allow the
amendment and thereby, cure the defect and then decide the
matter on merits, since the evidence was already before it.
We, therefore, set aside the order of the High Court by
allowing this appeal and remit the matter to the High Court for
disposal of the appeal on merits.”The Learned Senior Counsel further pointed out that when the
matter went back to the High Court and High Court decided the matter,
disagreeing with the majority view of the Tribunal by holding that the
Institution was not a Sikh Gurdwara, the High Court, however, did not
consider the question of amendment, which was refused by the Tribunal
nor the issue regarding Mahant Mangal Dass being hereditary office-
holder, was ever decided. According to the Learned Senior Counsel, if this
Court had remanded the matter to High Court for disposal of appeal on
merits, the High Court was, therefore, bound to decide the issue initially
framed by the Tribunal regarding the hereditary office-holder’s status of
Mahant Mangal Dass. According to the Learned Senior Counsel, the order
of this Court could not be treated to mean that the order of the Tribunal on
that issue, was to be treated as final. It was pointed out that SGPC had
specifically challenged the finding in the first round before the High Court
and High court had allowed that objection and had dismissed the petition
under Section 8 holding that there was no specific averment regarding the
petitioner being a hereditary office-holder. The Learned Senior Counsel,
10therefore, contended very strenuously that even if this Court had allowed
the Special Leave Petition against the order of the High Court and had
directed the High Court to decide the appeal on merits, the High Court had
to decide both the issues. According to the Learned Senior Counsel, this
Court had left open the issue whether Mahant Mangal Dass was a
hereditary office-holder. According to the Learned Senior Counsel, that
issue, therefore, remained undecided and leaving that issue undecided, the
High Court clearly had breached the remand order of this Court. The
Learned Senior Counsel further argued that under Section 8 of the Act, the
Objection Petition could be filed only and only if Mahant Mangal Dass was
a hereditary office-holder and, therefore, the question of his status went to
the very root of the matter. The Learned Senior Counsel urged that since
the High Court has not given any finding on that issue, the matter needs a
remand.
10. The Learned Senior Counsel further argued that Mahant Mangal
Dass had not only filed the Objection Petition under Section 8, but had also
filed a Writ Petition under Article 226 of the Constitution of India,
challenging the validity of the notification and the said Writ Petition was
dismissed by the High Court by a speaking order and after notice to the
parties. The Learned Senior Counsel, therefore, argued that if the Writ
Petition was dismissed after notice to the parties by a speaking order,
hence the order dated 17.8.1971 passed by the High Court, dismissing the
Writ Petition operate as Res-Judicata and, therefore, the matter could not
have been allowed to proceed further.
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11. The Learned Senior Counsel then argued that though Mahant
Mangal Dass had claimed to be hereditary office-holder on the basis of a
custom, since there was no specific issue framed on the existence of the
custom, the SGPC was gravely prejudiced, inasmuch as, it could not lead
the evidence on the issue.
12. As regards the second issue regarding the status of the Institution as
a Gurdwara, the Learned Senior Counsel extensively criticized the
appreciation by the High Court of the documentary, as well as the oral
evidence. He pointed out that the original donee Suram Ram was not
mentioned as an Udasi Faqir in Exhibits P-1 to P-7 and R-10 to R-13 and,
therefore, those documents could not be relied upon to hold that he was an
Udasi Faqir. Similarly, the Learned Senior Counsel suggested that those
who succeeded Surat Ram, could not be held to be Udasi Sadhus. Exhibit
P-2, P-4, P-5, P-6 and P-7 were extensively dealt with by the Learned
Senior Counsel to show that these documents were self-serving
documents, made during the lifetime of Mahant Mangal Dass and in none
of them, the Sadhus mentioned in Exhibit P-5 Pedigree-table, were
described as Udasis. The Learned Senior Counsel, therefore, urged that
that the appreciation of evidence by the High Court of the documentary
evidence, was perverse. The Learned Senior Counsel, therefore, urged
that mere description of a person as a Chela could not lead to the
conclusion that he succeeded his predecessor on account of his being a
Chela.
12
13. Inviting our attention to the oral evidence, the Learned Senior
Counsel urged that the evidence led on behalf of Mahant Mangal Dass
PW-1, Kishan Singh PW-2, Mokand Singh PW-3, Kehar Singh PW-4 and
Karam Parkash PW-5 was extremely suspicious and could not be relied
upon by the High Court. Various so-called admissions and statements in
the witness were relied upon by the Learned Senior Counsel to hold that
the evidence could not have been relied upon. The Learned Senior
Counsel pointed out that the use of the word “Dera” for the Institution was
also of no use to the Mahant, as the word “Dera” was synonymous with the
word “Gurdwara”. He further pointed out that the holy book `Guru Granth
Sahib’ was always kept open in the Institution, the land for which was
donated by Maharaja Ala Singh. The Learned Senior Counsel further
argued that Mahant Bishan Dass, in his application for being appointed as
the Mahant of the Dera, had described himself as “Bihangam Sadh” and
not “Udasi Sadh” and had assured the authorities that `Guru Granth Sahib’
was being recited in the Dera as before. The Learned Senior Counsel
further suggested that in his statement, Mahant Bishan Dass had never
suggested that there were any other objects of worship in the Dera besides
`Guru Granth Sahib’. It was further commented that there was no
succession from Guru to Chela in this Institution and in fact, while
recommending the appointment of Chela Bhagat Ram, it was emphasized
that he knew “Gurumukhi” very well and was well versed in performing the
`path’ (recitation) of Guru Granth Sahib. According to the Learned Senior
Counsel, the High Court missed all these facts. The Learned Senior
13Counsel also urged that the documents did not show any reference to any
other object of worship like Gola Sahib, Smadhs and pictorial images of
Baba Siri Chand, and it clearly emerged from the documents that the `Guru
Granth Sahib’ was the only object of worship there. He pointed out that
even the evidence of Mahant Mangal Dass was silent on there being a
Smadhs, Gola Sahib or pictorial images. Similar comments were made in
respect of the evidence led on behalf of Mahant Mangal Dass in support of
the objection. The Learned Senior Counsel heavily relied on the oral
evidence led on behalf of SGPC and more particularly, on RW-8 Jang
Singh, RW-9 Sadhu Singh, RW-10 Sarwan Singh, who were the local
people and also the persons in authority and who had insisted that the only
object of worship in the Institution was `Guru Granth Sahib’ and that the
Sikh Festivals Puranmashi and Kartik were celebrated there. Reference
were also made to evidence of RW-11 Balwant Singh, RW-12 Chota
Singh, RW-13 Inder Singh, as also RW-14 Nachhatar Singh, who all
asserted about the Sikhs visiting the Gurdwara and celebrating the Sikh
Festivals. Evidence of RW-15 Ishar Singh was also relied upon to suggest
the celebration of the birth and death anniversary of the first Guru of Sikhs
and Shrads of the first and the tenth Guru of Sikhs took place in the
Institution. It was urged that despite the unchallenged testimony of the
witnesses from the village itself and the adjoining villages, the High Court
had erred in rejecting the evidence, on the ground that the mere keeping of
`Guru Granth Sahib’, by itself, would not make the Institution, a Gurdwara.
14The Learned Senior Counsel further suggested that the High Court had
misread the evidence of PW-6 regarding the placement of Smadhis.
14. Lastly, arguing on Clause (iv) of Section 16(2), the Learned Senior
Counsel referred to the historical aspect and the six historical works such
as:-
(i) The Sikh religion by Max Arthur Mecauliffe (ii) Shri Gurpartap Suraj Granth (iii) Twarikh Guru Khalsa (iv) Udasi Sikhan Di Vithia (v) Guru Udasis Mat Darpan and (vi) MahankoshHeavy reliance is placed on page 288 of the 4th Volume of the Sikh
Religion by Mecauliffe, whereby, a Story appears about Bhagwan Gir.
According to this Story:-
“Bhagwan Gir went to visit the Guru in Kiratpur, who advised
him to proceed to Dehra Baba Nanak and join the Udasi there.
It was suggested that Baba Siri Chand, the elder son of Guru
nanak had established sect of Udasis. It reveals from the
Story that the Mahant at Dera Baba Nanak Mihr Chand was
the great grandson of Baba Nanak, who advised Bhagwan Gir
and initiated him into Sikhism and gave him the name Bhagat
Bhagwan. It was this Bhagwan Gir, who then traveled, but
without any success. He came back to Mihr Chand to report
his failure, when he was told by Mihr Chand that he should
have received initiation from Guru Har Rai, who was the real
Guru and advised him to go to the Guru and crave for his
blessings. Thus, Bhagat Bhagwan went to Guru Har Rai and
started weeping in repentance. He was then cheerfully
pardoned by the Guru and he was directed to go the
Hindustan and reform its people.”15
According to the Learned Counsel, this Bhagat Bhagwan was an
inspiration behind the Institution, in whose name the Institution was named
as “Dera Bhagat Bhagwan”. Similarly, the Learned Counsel also relied on
`Gurpartap Suraj Granth’, which also has given the history of Bhagat
Bhagwan, originally known as Bhagwan Gir, Sanyasi. It gives similar
history as given in Mecauliffe’s book of history. The Learned Senior
Counsel also relied on other text books and pointed out that the Tribunal
had taken note of all these authorities to work in its majority judgment and
had rightly held the Institution to be a Gurdwara. The Learned Senior
Counsel also heavily relied on the evidence of two Sikh historians, namely,
Dr. Ganda Singh RW-16, Shamsher Singh RW-17, as also on the evidence
of Randhir Singh RW-18. The Learned Senior Counsel also commented
upon the High Court, rejecting such weighty oral evidence.
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
16Sikh 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.
16. The Learned Counsel pointed out that as regards the first argument
by Shri Jaspal Singh regarding first issue of hereditary office-holder, the
issue stood concluded by this Court’s judgment and it could not now be
17reopened. The Learned Counsel also argued that this stand was not
argued before the High Court nor was any application moved by the SGPC
before the High Court to that effect, after the remand made by this Court
and, therefore, this issue could not be gone into now. The Learned
Counsel further suggested that in view of the ruling of this Court in Uttam
Das Chela Sunder Das Vs. Shiromani Gurdwara Parbandhak
Committee, Amritsar reported in 1996 (5) SCC 71, the issue will not now
be allowed to reopened.
17. As regards the establishment and user of the institution, the Learned
Counsel took us through the documents, to which we have already made
reference and urged that the High Court was correct in relying on the old
records, wherein, there is a clear reference to Mahant Brahm Dass as a
Faqir Udasi. The Learned Counsel pointed out that it was clearly
established and rightly so followed by the High Court that there was a
custom of succession from Guru to Chela.
18. Regarding oral evidence also, the Learned Counsel heavily relied on
the evidence tendered by objector and assailed the evidence led on behalf
of the SGPC. Lastly, the learned counsel asserted that the Judgment of
the High Court dismissing the writ petition filed by Mangal Dass could not
be held as Res Judicata.
19. The Division Bench of the High Court, in its well-considered
judgment, went on to record the history of the Marathon litigation, which
began right from 1960 by way of an application filed by Hamir Singh and 57
18others. After dealing with the facts in general regarding the history, the
High Court noted the basic two contentions on behalf of the respondent
Mahant Prem Dass. These contentions were:-
(i) that the majority decision of the members of the
Tribunal that Institution in question is a Sikh Gurdwara is
not only against the weight of evidence adduced on
record, but is based on conjectures drawn by
misreading of the evidence; and
(ii) that the conclusion drawn in the majority judgment that
both Bhagat Bhagwan and Baba Surat Ram were Sikh
Saints is in conflict with their other findings recorded in
the judgment.
Referring to a decision in Lachhman Das & Others Vs. Atma
Singh & Others reported in AIR 1935 Lahore 666, the High Court noted
that before an Institution can be declared as a Sikh Gurdwara, it must be
proved:-
(i) that the Institution was established for the use of Sikhs
for the purpose of public worship and was actually so
used.
(ii) that it was being used by the Sikhs for public worship,
both before and at the time of presentation of the
petition under Section 16(2)(iii).
19
The High Court was, undoubtedly, right in its observations, since
sub-Sections (iii) & (iv) has common factors and that is the establishment
of the Institution by Sikhs for the purpose of worship and its continuous use
by Sikhs for public worship. The High Court also referred to another
decision of this Court in Shiromani Gurdwara Prabandhak Committee,
Amritsar Vs. Mahant Kirpa Ram & Ors. Reported in AIR 1984 SC 1059,
wherein, it was held that it must not only be established that the Institution
was established for use by Sikhs for the purpose of public worship, but
further it must be established that it was used for such worship by Sikhs
before and at the time of presentation of the petition. The High Court then
commented upon Section 16(2)(iii). The High Court also noted that the
burden to prove necessary requirement was on the person, who asserts
the Institution to be a Sikh Gurdwara. The High Court also further noted
that the original applicants, namely, Hamir singh & 57 Others had not
entered the Witness Box, nor had they produced any evidence, oral or
documentary.
20. The High Court then went on to discuss, firstly, the documentary
evidence regarding Muafi and the proceedings in respect of Muafi
contended in Revenue Office Volume-VII of the year 1932 B.K. (1875
A.D.), wherein, Surat Ram was shown as a grantee, while Maharaja Sahbi
Ala Singh is recorded as grantor. The total land donated to the Institution
mentioned is 464 Bighas 16 Biswas and that the 44 Bighas and 15 Biswas
of land, which was found in excess of the original grant, was recommended
20to be forfeited while the rest of the land measuring 420 Bighas 16 Biswas
was suggested to be continued with “Dera” in question for its upkeep. The
order passed by Dewan in this behalf was also referred to, along with the
order of Wazir Sahib and the order of Hazoor Anwar. The other
documents referred to were the Jamabandi (Exhibit P-2) for the year 1962-
63 B.K. (1905-06 A.D.) of Village Ladda, Tehsil Maler Kotla, District
Sangrur, wherein, under the Column of ownership, it was noted “Dera
Bhagat Bhagwan Ba-Ihtmam (under the management of) Brahm Sarup
Chela Brahm Basant Sadh Udasian”. Exhibit P-4, which was a pedigree-
table, was also referred to by the High Court along with Exhibit P-5, which
is a copy of Revenue Inquiry File. Exhibit P-5 mentions the names of
Muafidars, who had been in possession from the date of grant of Muafi.
The names read thus:-
(i) Surat Ram (ii) Bhola Ram (iii) Sham Dass (iv) Narain Dass (v) Brahm Dass (vi) Brahm Basant (vii) Brahm Sarup (viii) Bishan DassThis document Exhibit P-5 is of date 23.6.1906 A.D. The High Court
also noted Exhibit P-3, which was a mutation of inheritance sanctioned in
21favour of Mahant Mangal Dass Chela Bishan Dass on the death of Bishan
Dass Chela Brahm Sarup. It was noted that this mutation was sanctioned
on 28.6.1919 A.D. This document clearly showed that for the first time,
Mahant Mangal Dass Chela Bishan Dass took over the management of
Institution, and it was he, who had find the objection under Section 8 of the
Act. Thus, the High Court noted that he was the 9th Mahant in the order of
succession. After his death, he was represented by his Chela Mahant
Prem Dass. It was further noted from Exhibit P-1 dated 13.1.1909 that it
was during the regime of Maharaja Bhupinder Singh that Muafi was
granted in favour of Dera Bhagat Bhagwan and at that time, the “Dera” was
under the management of Mahant Bishan Dass. The High Court also
referred to the document Exhibit R-11, which is a Statement of Mahant
Bishan Dass, wherein, it was maintained that his Guru had enjoyed the
Muafi of the land in terms of the order dated 23.6.1906 of the
Commissioner and that his Guru had died and had left behind two Chelas,
namely, himself and one other called Malook Dass, who was blind. He had
also further undertaken to remain of a good character and carry on the
conditions of the Muafi. It was in this Statement that the existence of Guru
Granth Sahib, remaining open in the Dera, was mentioned. It was pointed
out in the Statement further that the “Dera” was of celibate Sadhus. The
High Court also further referred to Exhibits R-12 and R-13, which were the
Statements of some connected persons, wherein, it was wouchsafed that
the Muafi land situated in Village Ladda belonged to Mausooma
Dharmshala Sadhuans, and which was under the management of
22deceased Brahm Sarup. Exhibit P-6 was also referred to, which related to
the substitution of the new entry, being a mutation relating to the rights of
Shamlat Deh Hasad Rasad Khewat/Khewna Mazkoor. The mutation was
in favour of Chela Bishan Dass. Exhibit P-7 another pedigree-table, which
substantiated the case of the objections. The other document, which was
referred to by the High Court, was Exhibit P-8, which was the mutation in
respect of the land gifted by Ralla Jat in favour of Dera Bhagat Bhagwan.
Exhibit R-1 was also referred to, being Statement of Mahant Mangal Dass,
who considered Amar Dass Chela Bhagat Ram to be fit person for the
management of Dera Ladda. Exhibit R-14, which was referred to later on
was also a pedigree-table, mentioning the name of Brahm Sarup followed
by Bishan Dass Chela Mangal Dass. It was also noted by the High Court
at that juncture that the Tribunal had not considered the documents R-4 to
R-9. The High Court, therefore, deduced that the original Muafi was made
to Surat Ram and secondly, the Muafi was given to Surat Ram in his
personal capacity and it continued to remain in possession of his successor
Chelas undisturbed without changing the character of Muafi and it is only
for that reason, that the rights of Brahm Dass Faqir, who continued in
possession of the Dera and the land, were not interfered with. Thirdly, the
High Court came to the conclusion that the Institution, throughout was
described in Exhibit R-10 as Dera, which was established by Baby Surat
Ram after the grant of Muafi in his favour. The High Court also noted that it
was after the settlement in the year 1962 B.K. that the Dera was described
as Dera Bhagat Bhagwan.
23
21. The High Court did note the arguments on behalf of the SGPC that
there was a reference to the Sawara Guru Granth Sahib remaining open in
this Dera. Relying again on Shiromani Gurdwara Prabandhak
Committee, Amritsar Vs. Mahant Kirpa Ram & Ors. Reported in AIR
1984 SC 1059 (cited supra), the High Court held that the Tribunal had
ignored the other evidence like the Statement of Mahant Mangal Dass
made as Exhibit R-1 and had wrongly held that that factor alone could be
held decisive in holding that the Institution was a Gurdwara. The High
Court also noted that the documents referred to like Exhibit R-11, were
very old documents, beginning from 1907 and in other documents like P-15
to P-17, the land was recorded as Dera Bhagat Bhagwan under the
management of Mahant Bishan Dass. It was noted by the High Court that
it is totally inconceivable that the authorities would have allowed to
described it as a “Dera”, if actually it was a Sikh Gurdwara. The High Court
also went on to consider Jamabandi Exhibit P-18 for the year 1957-58
before coming to this conclusion. The High Court also held on the basis of
Exhibits P-5, P-7 and P-14 that the succession was from Guru to Chela.
Lastly, the High Court referred to the documents Exhibits P-1, P-2, P-3, P-4
to P-7 and R-10 to R-18 to establish that not only was original donee Surat
Ram an Udasi Faqir, but, the subsequent Chelas also, who followed him
and who were Mahants of the Dera in question, were Udasi Sadhus.
22. The High Court has considered the mutation record right upto 1976
and ultimately came to the conclusion that on the basis of the documentary
24evidence, it was clear that the Institution was a Dera of Udasi Mahants and
was being consistently recorded as such. The High Court also refuted an
argument that it was a common feature in many Sikh Gurdwaras that
Mahant of Udasi Sect were managing the same as held in Bishan Dass
Vs. Gurbax Singh reported in AIR 1934 Lahore 63, Prem Dass Vs. Labh
Singh & Ors. Reported in AIR 1934 Lahore 130 and Gulab Dass Vs.
Fauza Singh reported in AIR 1937 Lahore 826. However, the High Court
held that for that reason, the Institution could not be held a Sikh Gurdwara.
The second argument that there was a persecution of Sikhs by the
Mohammdean Rulers and, therefore, the Udasi Mahants were managing
the Sikh Gurdwaras, was also rejected by the High Court, being against the
weight of the evidence on record. The High Court ultimately held in respect
of the documentary evidence that the cumulative effect of the documentary
evidence, left no manner of doubt that the Institution was an Udasi
Institution.
23. We must, at this juncture, refer to the findings of the High Court as
regards the oral evidence led by the parties, as the major portion of the
High Court’s judgment is devoted to the appreciation of the oral evidence.
We have already referred to the comments made by the Shri Jaspal Singh,
Learned Senior Counsel, appearing on behalf of the Appellant, as also Shri
P.K. Palli, Learned Senior Counsel appearing on behalf of the respondent.
We must appreciate that the High Court has gone into intricate details of
the evidence. Commenting on the evidence of PW-1 Mahant Mangal
25Dass, the High Court noted that his claim, i.e., `Baba Surat Ram was the
original founder of the Dera and after Surat Ram, the succession had
always been from Guru to Chela’, has gone unchallenged. He had also
asserted that he was nominated to the Gaddi one week before the death of
Mahant Bishan Dass by the assembly of Udasi Bhekh and on the 7th day
after the death of Mahant Bishan Dass, a turban was presented to him in
token of installation by the Bhekh in the presence of village community. It
must be noted that he remained a Mahant for good long 46 years. The
tradition of appointing a Chela was also deposed to by PW-2 Kishan Singh,
PW-3 Mokand Singh, PW-4 Kehar Singh, as also PW-5 Karan Parkash.
As if this was not sufficient, Pritam Singh, who was examined as RW-1 on
behalf of the SGPC, also supported the stand of the petitioner that Dera
was of Udasi fraternity and the succession was from Guru to Chela. The
High Court has appreciated the evidence of RW-2 Bahal Singh, RW-3
Hamir Singh and RW-5 Balwant Singh and ultimately recorded a finding
that the Institution was an Udasi Dera and the succession to this Institution
was from Guru to Chela.
24. Commenting on the evidence of PW-6 Nachhattar Gir Chela Sarasti
Gir and PW-7 Chhota Singh, the High Court noted that there were
Smadhs, Gola Sahib and Idol of Baba Siri Chand as objects of worship in
the Dera and there used to be Gita Parkash and recitation of other books in
the Dera. At the same time, there was no regular Parkash of Guru Granth
Sahib, though it was kept in the Dera. The assertion by PW-7 Chhota
26Singh was also noted that there were 10 to 11 Smadhs in the Dera and that
there used to be worships of Idols and Ashes in the Institution. This
witness has also stated that Ashes in the form of Dhooni were collected at
one place in that Dera. Similarly, PW-8 Mohinder Singh had testified that
Dera of Bhagat Bhagwan was of Udasi Sadhus and that there was idol of
Bhagat Bhagwan, Gola Sahib and Smadhs, which were being worshiped in
that Institution. The High Court noted that this claim of PW-8 Mohinder
Singh remained unchallenged. The High Court also commented upon the
evidence of PW-9 Hira Singh, as also the evidence of PW-10 Lekh Ram,
who were Brahmin by Caste. They both had deposed about bowl of Ashes
in front of the Idol on a table. The High Court has also spoken about
Smadhs located across the Phirney and also noted that Guru Granth Sahib
was recited in the Institution occasionally. PW-9 Hira Singh had also
asserted that there was no Nishan Sahib (Flag) in the Institution. PW-10
Lekh Ram had specifically asserted, as noted by the High Court, that the
Institution was not meant for display of Guru Granth Sahib, and PW-11
Mahant Sewa Ram Dass, who was the Mahant of Dera Jaswanda of Udasi
Samprada of Bhagat Bhagwan, claimed that he had been visiting the Dera
for last 20 years and he saw the idol of Baba Siri Chand and also further
asserted that Gola Sahib and Smadhs were being worshiped in that Dera.
He also asserted that five other Smadhs were also located under one roof.
He had also never seen Nishan Sahib (Flag) in the Dera nor he had ever
seen Guru Granth Sahib, being ever worshiped in that Dera. Evidence of
PW-12 Bhagat Ram was also commented upon, which was to the same
27effect regarding 5-6 Smadhs, being there under one roof and there being
no Nishan Sahib (Flag) in the said Institution. Similarly, evidence of PW-13
Kartar Singh, who was a Draftsman, was also referred to, who asserted
that there was one Smadh in Site Plan (Exhibit P.13-A) in respect of a
separate building, which was only one feet away from the Dera. The
witnesses, who were examined by the respondent, were then referred to by
the High Court, who were RW-8 to RW-15, being RW-8 Jang Singh, RW-9
Sadhu Singh, RW-10 Sarwan Singh, RW-11 Balwant Singh, RW-12
Chhota Singh, RW-13 Inder Singh, RW-14 Nachhattar Singh, and RW-15
Ishar Singh. One of these witnesses, PW-9 had never gone inside the
Institution and could not give the details of the number of rooms. There
was obvious contradiction in the evidences of RW-10 Sarwan Singh and
RW-11 Balwant Singh as regards the `Parkash Asthan’. Significantly, PW-
11 admitted the existence of Smadhs. One of the witnesses, RW-13 Inder
Singh admitted in the cross-examination that he had visited the Institution-
in-dispute only once and that the Parkash of Holi Guru Granth Sahib was
performed in a room located on the first floor, which was the case of
nobody. His evidence was in direct contradiction with the evidence of RW-
14 Nachhattar Singh. The High Court then commented on the findings by
the Tribunal by referring to those findings and ultimately, came to the
conclusion that the majority members of the Tribunal had misdirected
themselves while appreciating the oral evidence on record and had totally
ignored the relevant evidence while arriving at conclusion that Institution
was a Sikh Gurdwara within the purview of Section 16(2)(iii) of the Act. In
28support of this, the High Court went on to record its reasons, whereby, the
High Court held that the evidence of the respondent, itself suggested that
the Institution was an Udasi Dera and the succession to the Institution was
from Guru to Chela. Regarding the Parkash of Guru Granth Sahib, the
High Court noted that it was not a regular feature and it was only
occasionally being done, but that by itself, would not establish that it was a
Sikh Gurdwara. Commenting upon the evidence of RW-8 to RW-15, the
High Court found that their versions could not be relied upon due to inter-se
contradictions in their versions regarding the placement of Guru Granth
Sahib. The High Court found that they have given their own versions,
which are contradictory to each other. The High Court also found that
some of the claims that there was an Idol of Baba Siri Chand, Gola Sahib
and Smadhs in the Dera and they were being worshiped in the Dera, have
gone unchallenged and, therefore, those claims deserved acceptance.
25. The High Court noted that in Pritam Dass Mahant Vs. Shiromani
Gurdwara Prabhandhak Committee reported in AIR 1984 SC 858, the
distinctive features of the Sikh Gurdwaras were described. They are that
there is no idol worshiped in a Gurdwara and the central object of worship
is Guru Granth Sahib. The pattern of worship is reading of the holy hymns
followed by their explanation by some learned man and then singing of
some passages from the holy Granth, the first being Katha and the second
being Kirtan. The High Court noted the second feature to be the
congregational worship such as Japji, Jaap, Rehras, Kirtan Sohila Sangat
29and that is normally done daily. The third feature of the Gurdwara is the
Nishan Sahib (a yellow Flag of Sikhism flying from it), which serve as a
symbol of Sikh persons. This Nishan Sahib enables travellers, whether
they are Sikhs or not, to know that the hospitality is available at this place.
There has to be a kitchen, where food can be prepared (Langar).
Sometimes, Gurdwara could also be a clinic. However, its pivotal point is
the place of worship and the main room would be the one in which Guru
Granth Sahib is installed and where community gathers for diwan.
Therefore, in Para 14 in the said judgment, as noted by the High Court, this
Court held that the sine-qua-non for an institution being a Sikh Gurdwara is
that there should be established Guru Granth Sahib and the worship of the
same by the congregation, as also the Nishan Sahib. The High Court,
therefore, noted that the claim of the SGPC could not be accepted on
account of the four facts, they being:-
(a) There are Smadhs on the premises of the Institution.
(b) There are idols and photos of Hindu deities and also of Baba
Siri Chand.
(c) Bhai Bhathu was an Udasi Saint. (d) Succession was from Guru to Chela.It was on this account that the High Court ultimately recorded a
finding that the respondent could not prove their case under Section 16(2)
(iii) to the effect that the Institution in question was established for the use
30of Sikhs for the purpose of worship and was used by the Sikhs for public
worship, both before and at the time of presentation of the petition.
26. Regarding the claim under Section 16(2)(iv), the High Court correctly
noted that it was essential to prove that the Institution was established in
the memory of Sikh martyr, Saint or historical person and further that the
said Institution was used for public worship by Sikhs before and at the time
of presenting the petition under Sub-Section (ii) of Section 7(1) of the Act.
The High Court had already held that it was not proved that the Institution
was used for public worship by Sikhs before and at the time of presenting
the petition. In that view, the mere fact that the Institution was established
in the memory of a Sikh martyr or a Saint, would not by itself, be enough to
answer the issue under Section 16(2)(iv) in favour of the appellant.
However, the High Court did not stop at that and discussed the historical
aspect in great details. Insofar as that part is concerned, the High Court
noted that it was a common case that this Institution was established in
memory of Bhagat Bhagwan. The High Court, therefore, posed itself a
question as to whether Bhagat Bhagwan was a Sikh Saint or an Udasi
Saint. The High Court, therefore, went into the historical aspect, as was
done by the Privy Council in the Case of Hem Singh & Ors. Vs. Basant
Das & Anr. (cited supra). The High Court made a reference to Page 288,
Volume-IV of the book titled “The Sikh Religion” by Max Arthur Macauliffe
and noted the story, which we had already referred to in the earlier part of
the judgment. According to the story Bhagat Bhagwan met Mahant Mehar
31Chand at Dera Baba Nanak and got “Satnam Mantra” and Udasi Dress
from him, but since he was unsuccessful in his mission, he returned to
Baba Mehar Chand, who directed him to the 7th Guru, and after meeting
the 7th Guru, he started preaching Sikh religion. The High Court also made
a reference to the history given by the minority member of the Tribunal
from a book known as “Udasi Sikhan di Vithya”, published in 1959, and
more particularly, Pages 185-216, as also another Book called “Mahima
Parkash”,written by Baba Sarup Dass Bhalla. It is suggested that the
history given was almost the same, as given in the book “Suraj Parkash”.
The genealogical table of the family of Bhagat Bhagwan, as it appeared in
“Udasi Sikhan di Vithya”, was also referred to and a reference was also
made to the book “Udasi Mat Darpan”, compiled in the year 1953 by Baba
Brhma Nand Udasi. A reference was made to Pages 91-98, giving the
description of Bhagwan Gir. A story was then quoted as to how Bhagwan
Gir was deeply impressed by miracle shown by Dharam Chand Ji and how
he could see the Goddess `Hinglaj’ and that he decided to change his
name and became a Chela of Dharam Chand Ji. The minority member
found, as was noted by the High Court, that the pedigree table in “Udasi
Sikhan di Vithya” did not tally with the pedigree table mentioned in the
Revenue Record, which carry the presumption of correctness under
Section 44 of the Land Revenue Act. The minority member also noted that
the book “Udasi Sikhan di Vithya” was published by SGPC in 1959 A.D. It
was also noted by the minority Member that even in this Book, Bhagat
Bhagwan was described as Udasi Sadhu. Secondly, the minority Member
32of the Tribunal found that the detailed account relating to Bhagat Bhagwan
in the books “Sikh Religion”, published and compiled in 1883, “Suraj
Parkash” and “Mahima Parkash”, was similar, however, it was not indicated
anywhere that he had become Sikh or a disciple of the 7th Guru. The
minority Member had also found that in “Mahima Parkash” and “Suraj
Parkash”, there was nothing to suggest that Bhagat Bhagwan preached
Sikhism. It was also found from the book “Guru Tirath Sangrahey”
compiled in 1883, that there was no reference to any Bakhshish, being
given to Bhagwan Gir by Guru Har Rai Ji. The Learned minority Member
also found that though, according to “Udasi Mat Darpan”, Bhagat Bhagwan
became a Chela of Baba Siri Chand, it might be not a correct history, as
Baba Siri Chand had already expired before 1644 A.D., when Guru Har Raj
Ji got the Gaddi. However, the Learned Member deduced that from that
alone, it could not be said that Bhagat Bhagwan became Sikh by meeting
Guru Har Rai Ji. Lastly, the Learned Member held that the followers of
Bhagat Bhagwan had formed a separate Udasi Sect, which suggests that
Bhagat Bhagwan did not preach Sikhism. The minority Member then
referred to a decision of Lahore High Court in case of Baba Ishar Das Vs.
Dr. Mohan Singh and Others reported in AIR 1939 Lahore 239, wherein,
it was held that the followers of Bhagat Bhagwan had claimed him to be
Udasi, as far back as in the year 1938. The High Court accepted these
findings of the minority Member of the Tribunal.
33
27. The High Court, then referred to the approach of the majority
Members of the Tribunal, which was based on the Books “Siri Guru Panth
Parkash” and “Twarikh Guru Khalsa”. The High Court had given the whole
story, which took place in 1707 B.K., according to which Bhagat Gir
Gusain, Mahant of Bodh Gaya, while going for Darshan of Jawalamukhi
alongwith his followers and other Mahants, heard about the fame of the
Guru and met him. He saw Guru Ji as an exact figure of Vishnu Ji and fell
at the feet of Guru Ji and prayed for being accepted as Sikh. A further
reference was also made to the story that from that very moment, Bhagat
Gir became to be known by the name of Bhagat Bhagwan and his
companions all became Sadhus of Guru Ghar and that they had 360 Deras
in Patna District and the main seat of Bhagat Bhagwan was in Danapur.
Bhagat Bhagwan did not go to Jawalamukhi and then after meeting Bedi
Mehar Chand, went back to his own country-side. The High Court, then
quoted the finding by the majority Member, in which reference was made to
“Mahan Kosh”, wherein, it was mentioned that Baba Dharam Chand, the
grandson of Baba Guru Nanak was borne in 1523 A.D. and died in 1618
A.D. The finding also makes a reference to Page 225 of the Book
“Darpan” by Pandit Brahma Nand and goes on to hold in the following
fashion:-
“In other words, Bhagat Bhagwan and other members of his
contingent all became converts to Sikh religion and, thereafter
acted as preachers and missionaries of their new faith.”
3428. A reference is then made by the High Court to the finding by the
majority members of the Tribunal, based on Sixth Bakhshishes mentioned
by the author of “Guru Udasin Mat Darpan” stated at pages 521-524,
where, a claim was made that the Bakhshishes were of the Udasi order.
The Division Bench held that the conclusion was drawn despite the fact
that no reference was made to the writers, who had provided the basis for
the note. A reference was then made to the attempt made by the majority
members of the Tribunal to explain the observations recorded to the effect:-
"these Bakhshishes were conferred more or less indiscriminately".Lastly, the High Court recorded a finding that the conclusion drawn
by the majority members of the Tribunal that Bhagat Bhagwan after
receiving blessings from Sixth Guru, became a Sikh historical person and
Sikh Saint, was based on misreading of historical data extracted from the
books and cases.
29. Thereafter, the High Court proceeded to consider a few cases like
Ram Parshad & Ors. Vs. SGPC, Amritsar & Ors. reported in AIR 1931
Lahore 161 and held on the basis of the observations made therein that
the conferment of the Bakhshishes was not given any prominence to arrive
at a conclusion as to whether the Institution was a Gurdwar established for
the use of Sikhs. It was further noted that in this case, the Dera of Prithi
Sahib was not a Sikh Gurdwara. The High Court, then considered the
decision in Brahm Das Vs. Tarlok Singh & Ors. reported in AIR 1937
35Lahore 273 and held that it had no similarity with the facts of the present
case. The case of Baba Ishar Das & Ors. Vs. Dr. Mohan Singh & Ors.
reported in AIR 1939 Lahore 239 was also considered with reference to
the observations made in that case and also the Privy Council decision in
Hem Singh & Ors. Vs. Basant Das & Anr. reported in 1936 Privy
Council Page 93, and came to the conclusion that on the basis of what
had been held in these cases, the present Institution was an Udasi
Institution and Sikhs had nothing to do with it. The High Court further
commented:-
“The significance of the above judgment cannot be ignored
because it was judicially accepted as far back as in 1939 that
the stand of the followers of Bhagat Bhagwan that he was an
Udasi was correct.”Ultimately, the High Court came to the conclusion:-
“Under the circumstances, we have no hesitation to hold that
the historical date and above judicial pronouncement negate
the conclusions arrived at by the majority members of the
Tribunal.”The High Court then again went on to consider the oral evidence led
on behalf of the SGPC and that of RW-16 Dr. Ganda Singh, RW-17
Shamsher Singh and RW-18 Randhir Singh, who were claimed to be the
experts in the Sikh history. The claim of RW-16 Dr. Ganda Singh was that
Baba Siri Chand was the founder of Udasi Bhekh and Baba Gurditta was
the only Chela of Baba Siri Chand, who was the eldest son of Guru
Hargobind. The witness stated that Baba Guruditta had four Chelas,
36namely, Baba Phul, Baba Almast, Baba Gobind and Baba Hasna and that
there were four Dhunas known after these Chelas. According to him, Baba
Almast had established a Dera in Nainital District called as Nanak Matta,
as Guru Nanak had visited that place, so also other Chelas of Baba
Guruditta had established Deras in other Districts. Of course, the witness
could not give the details of those other three Deras. The witness relied on
the books, i.e., Glossory of Castes and Tribes Vol. III pages 479-80,
Macauliffe’s Sikh Religion Vol. IV Pages 288-89, Gurpartap by Bhai Vir
Singh Vol. IX Pages 3574-79, Gurpartap Vol. V Page 1331 and Bhai
Randhir Singh’s work known as “Udasi Sikhan Di Vithia”, published by
SGPC. However, the High Court has referred to the cross-examination of
RW-16 and noted his admission that he had not written any historical book
on Udasis and had also not seen any painting of Baba Bhagat Bhagwan
and, therefore, could not say whether Bhagat Bhagwan had long Kesh
(hairs) and grew beard. He also admitted that Bhagat Bhagwan might
have had Chelas, but, he could not come across their names in any book,
except Bhai Randhir Singh’s book, and he could not recollect the names of
those Chelas. He categorically admitted that:-
“I cannot say whether Bhagat Bhagwan was an Udasi by faith
and I cannot give details how he received his spiritual
perception from Guru Har Rai and Baba Mehar Chand and
then again from Guru Har Rai.”
He also admitted that he had not come across any writing of Bhagat
Bhagwan nor did he know where Bhagat Bhagwan died. It is on this
ground, that the High Court rejected the testimony of Dr. Ganda Singh.
37
30. Referring to the evidence of RW-17 Shamsher Singh, the High Court
referred to the cross-examination, wherein, he admitted that he could not
say if Bhagwan Bhagwan was going for Darshan of the Devi, when he met
Baba Siri Chand. He claimed that Baba Siri Chand died before the time of
the 7th Guru and he could not refer to any history book in which the meeting
of Bhagat Bhagwan with Baba Siri Chand was recorded. He also admitted
that he had not seen the Institution in dispute nor he could say that who
had established the Institution and when. The High Court, therefore,
discarded his testimony. As regards the evidence of RW-18 Randhir
Singh, the High Court noted that he had not seen the Institution in dispute
and further commented that he did not agree with the decision taken by the
High Court that Udasis were Sikhs. This witness had also admitted that he
had not seen any writings of Bhagat Bhagwan and, therefore, the High
Court refused to place any reliance on the evidence of this witness. As
regards the other oral evidences led on behalf of the SGPC, namely, RW-1
to RW-7, none of them had stated that the Institution had any connection
with Bhagat Bhagwan, excepting RW-8 Jang Singh, who maintained that
Bhagat Bhagwan had become Sikh and used to preach the doctrine of Sikh
faith. Referring to the evidence of RW-9 Sadhu Singh, RW-10 Sarwan
Singh, RW-11 Balwant Singh, RW-12 Chhota Singh, RW-13 Inder Singh,
as also RW-14 Nachhatar Singh, the High Court rejected their evidences
on merits. As regards the witness Nachhatar Singh, his evidence was
discarded on the ground that he was itself a member of the SGPC and
was, therefore, an interested witness. The High Court again referred to the
38
evidence of the witnesses examined on behalf of the petitioners and came
to the conclusion that on the date of presentation of the petition, the
Institution was used as Dera of Bhagat Bhagwan and was an Udasi
Institution and not a Sikh Gurdwara. The High Court, thus allowed the
appeal.
31. We have deliberately noted the findings of the High Court, as the
High Court has gone into the details of the documentary evidence, oral
evidence, as also the historical background of the Institution.
32. Shri Jaspal Singh, Learned Senior Counsel, appearing on behalf of
the appellants SGPC tried to take us through the evidence, however, in our
limited task, it would not be for us now to re-appreciate the whole evidence,
oral, as well as documentary. The extent of evidence, which was led
before the Tribunal and discussed by the High Court, was voluminous and
in our opinion, the High Court has correctly appreciated the same. The
High Court has also dealt with the logic and the reasonings given by the
Tribunal and has pointed out as to how the majority opinion of the Tribunal
went wrong in holding this Institution to be a Sikh Gurdwara. We must
record our satisfaction at the detailed approach of the High Court to the
evidence, both oral, as well as, documentary, as also the historical
document, as was presented before the Tribunal.
33. Referring to the oral evidence, the only complaint of the Learned
Senior Counsel was that the evidence of scholars like Dr. Ganda Singh,
Shamsher Singh and Randhir Singh was not given weight by the High
39
Court. In our opinion, the criticism is not correct. The High Court has not
only referred to the evidence of these three witnesses, but has dealt with,
in great details and has given its reasons as to why the evidence of these
three witnesses could not be accepted. The most important fact that
strikes us is the total apathy shown by the original applicants (57 in Nos.),
none of whom came in support of the application or for opposing the
objection filed by Mahant Mangal Dass. Again, insofar as the oral evidence
led on behalf of the respondent, the same was dealt with in details by the
High Court and, therefore, we would not take up the task of re-appreciating
the said evidence. Considering the overall treatment given by the High
Court to that evidence, we are of the clear opinion that the High Court has
not committed any error in drawing the inferences on the basis of oral
evidence led on behalf of Mahant Mangal Dass. We are also satisfied with
the approach of the High Court in appreciating the oral evidence led on
behalf of SGPC and the reasons given by the High Court to reject the
same. After all, as per the established law, the parameters of Section 16
(2) (iii) and (iv) of the Act were bound to be proved. The High Court has
gone in great details systematically in appreciating the evidence in the light
of the provisions of Section 16(2) (iii) and (iv) of the Act.
34. We would revert back to the comments made by Shri Jaspal Singh,
Learned Senior Counsel, appearing on behalf of the appellant, specifically
in relation to the appreciation of evidence aspect, in the further course of
our judgment. However, we do not find any reason to take a different view,
40
in view of the detailed findings by the High Court on the evidence and we
endorse the same.
35. This takes us to the specific points raised by the Learned Senior
Counsel, which we propose to deal with specifically. The Learned Senior
Counsel urged that Mahant Mangal Dass had earlier challenged the
notification dated 9.6.1961 under Section 7 of the Act by filing a Writ
Petition under Article 226 of the Constitution of India, challenging the
validity of the said notification. That was Writ Petition No. 36 of 1966 and it
was dismissed by the High Court by a speaking order and after notice to
the parties. The Learned Senior Counsel, therefore, argued that the said
dismissal judgment dated 17.8.1971 would operate as res-judicata and
hence, the notification would become final. We do not agree with the
contention raised, firstly because this contention was not raised even
before the Tribunal or thereafter, in the appeal filed before the Division
Bench of the High Court. It is for the first time that the said contention is
raised which is not permissible. This is apart from the fact that even on
law, the contention is not correct, as the challenge to the notification was
not on merits. Under the scheme of the Act, under Section 7 (1), if a
petition, seeking to have a Gurdwara declared to be a Sikh Gurdwara,
comes by fifty or more Sikh Worshippers of a Gurdwara, the same is
forwarded to the appropriate Secretary of the Government with the
necessary details of the property, as provided in the sub-Section 2 thereof.
The State Government publishes the same in the manner provided in
41
Section 7(3) of the Act and is also obliged to serve notices to the persons
shown in the list, who are in possession of the properties included in the list
of properties under Section 7(2) of the Act. This is obviously with the
purpose to provide an opportunity to the persons interested in the said
property. It is then that Section 8 comes into play, under which a petitioner
can raise objection, however, he has to be a hereditary office holder or
such objection can be raised by twenty or more worshippers, who have to
assert that the Gurdwara in respect of which the notification is published
under Section 7(3) of the Act, is not a Sikh Gurdwara. Once such
objection is raised by either a hereditary office holder or by twenty or more
worshippers, then the further process begins of deciding the issue as to
whether such Gurdwara or Institution is a Sikh Gurdwara, for which a
Tribunal is provided in the Act. The Tribunal then gives an opportunity to
lead the evidence and proceeds to decide after a full trial, as to whether a
particular institution is a Gurdwara or not. That is on the basis of the
evidence led before the Tribunal. The Writ Petition which was filed, was
challenging the validity of the said notification. The notification was
ultimately held to be valid on the basis of the Full Bench judgment of the
Punjab & Haryana High Court, as decided in Mahant Lachhman Dass &
Ors. Vs. State of Punjab reported in II L.R. 1968 (2) Punjab & Haryana
499. Now, if the notification is held to be valid, that by itself, would not
defeat the claim of the respondent because the said notification is merely a
first step to decide as to whether a particular institution is a Gurdwara or
42
not. A full fledged trial then proceeds and it is only then, an institution is
declared as a Sikh Gurdwara. It is, therefore, obvious that even if the
notification is held to be valid, that only legalizes the further procedure
before the Tribunal. We are dealing with a situation, where the said
notification was held to be valid in the sense that the State Government
had validly and correctly issued the notification, but that by itself, did not
confer the status of a Sikh Gurdwara on the institution covered in the said
notification under Section 7(3) of the Act. The argument, therefore, must
be rejected.
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
43
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
44
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.
37. Shri Jaspal Singh, Learned Senior Counsel for the appellant also
further contended that there should have been an issue on the custom, by
which Mahant Mangal Dass claimed to be a hereditary office holder. The
Learned Senior Counsel argued that there was no specific issue framed on
the existence or otherwise of such custom. In our opinion, the criticism is
incorrect. In fact, the question was well covered in the first issue. This
takes us to the other contentions raised on the first issue. Shri Jaspal
Singh contended that in effect, the first issue was not decided by the High
Court at all. We fail to understand the implication of the argument. In fact,
we have quoted the High Court judgment extensively only to show that the
High Court has considered regarding the status of Mahant Mangal Dass
45
being a hereditary office holder and a major portion of the High Court’s
judgment is devoted to that question. We are satisfied with the
appreciation of the evidence on that question.
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,
46
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.
39. As regards the requirement of the strict pleading regarding the
objector being a hereditary office holder, this Court in Uttam Das Chela
Sunder Das Vs. Shiromani Gurdwara Parbandhak Committee,
Amritsar (cited supra) in para 32, has held:-
“32. ….The High Court fell into an error in construing the
pleadings under Section 8 on the strict standards set out
in Hari Kishan Case. When the appellant had placed
the line of succession from Guru to Chela, he
automatically meant that he was basing his claim on
custom and usage, reflective from such long course of
conduct and traditions.”
This would water down the requirement of the strict pleadings and
the question of a specific plea regarding the petitioner being a hereditary
office holder, would also to be pushed to the background.
47
40. Shri Jaspal Singh, Learned Senior Counsel for the appellants then
severely commented upon the findings of the High Court and tried to
suggest that the documentary evidence was wanting or at least was not
sufficient to hold in favour of the respondent on issue No. 2. The oral
evidence led on behalf of the respondent was severely criticized by the
Learned Senior Counsel along with the documentary evidence. The
Learned Senior Counsel also urged that the evidence was not sufficient to
hold that the succession in this Institution was from Guru to Chela and that
it was an Udasi Institution. It was also tried to be urged that even if Mahant
Mangal Dass or his predecessors were held to be Udasis, it could not be
destructive for the case of the SGPC, since the Udasis have always been a
feature common to many Sikh Gurdwaras. The Learned Senior Counsel
then relied on the ruling in the case of Bishan Dass Vs. Gurbax Singh
(cited supra). In that judgment, there is a clear finding that the Institution
was founded by the inhabitants of the Sikh village for their own benefit and
the same was carrying on religious and charitable tasks and further, the
purpose for which the Institution was founded, was the worship of Granth
Sahib. This authority would be of no consequence, since the factual
situation is different and there are clear findings on the fact that this was an
Udasi Institute and that the succession was from Guru to Chela as per the
proved custom. It was also tried to be impressed upon us that the High
Court was swept away, as the Institution was described as a Dera and that
it was contraindicative of the Institution being a Gurdwara. The Learned
48
Senior Counsel invited our attention to the judgment in the case of
Shiromani Gurdwara Prabandhak Committee, Amritsar Vs. Mahant
Kirpa Ram & Ors. (cited supra). In fact, this judgment was heavily relied
upon by Shri Palli, Learned Senior Counsel for the respondent, also as this
judgment is totally against the appellant herein. Like in the present case,
the two identical issues were framed in this case also, however the Court
endorsed that there was no evidence to show that the Institution was
established for the use of Sikhs for the purpose of public worship. It was
also observed that Udasis formed an independent Sect, they do venerate
Sikh scriptures and, therefore, in the Institution of Udasi Sect, one can
visualize reading of Granth Sahib or veneration of Sikh scriptures, but, that
itself is not decisive of the character of the Institution. The High Court also
observed that on the contrary, where the succession was from Guru to
Chela and those Gurus were followers of Udasis faith and the Institution
was known as Dera of Udasi Bhekh and they followed some of the
practices of Hindu traditional religion, such things were completely
destructive of the character of the Institution as Sikh Gurdwara. In our
opinion, the High Court had correctly relied upon this authority. There is no
doubt that there is a reference in Para 13 to the following effect:-
“‘Dera’ in many cases was synonymous with `Gurdwara’, a
description of the institution as Dera of Udasi Bhekh would
certainly have a distinct connotation showing that it was an
Udasi institution as recognized by the highest State
authorities.”
49
The contention that the High Court was swept away because of the
reference of this Institution as a `Dera’, therefore, clearly appears to be
incorrect. On the other hand, this authority would go long way in
establishing that where Institution is established by Udasis, where there
was a Guru and Chela Custom and where it is not proved that the
Institution was established by the Sikhs for the Sikh worship and it
continued to be so till the date of the Notifiction, the Institution could not be
said to be Gurdwara. In the present case, all the factual material led before
the Court suggests in favour of the respondent.
41. Shri Palli, Learned Senior Counsel invited our attention to the fact
that before the High Court, it was conceded by the appellant that there was
no evidence to indicate as to on which date and in which area, the
Institution was established. He also invited our attention to the earliest
document, which was Exhibit R-10, which was as old as 1932 B.K. = 1875
A.D. Shri Palli, therefore, pointed out that the subsequent documents also
mention the word `Dera’ and sustain the case of the respondent that the
Institution got the grants from the Maharajas and the record was as old as
about 113 years, suggesting that it was an Udasi Institution. The other
documents have also been referred to by Shri Palli in details, to which we
have already made reference earlier. The voluminous documentary
evidence, as also the oral evidence, which has been thoroughly discussed
by the High Court, in our opinion, was sufficient to hold that the Institution
was not a Gurdwara, but an Udasi Institution.
50
42. Shri Jaspal Singh, Learned Senior Counsel for the appellant also
extensively commented on the documentary evidence and tried to suggest
that the High Court’s treatment of this documentary evidence was not
satisfactory in view of the detailed discussion by the High Court of the
documentary as also the oral evidence and further, in view of the fact that
we, ourselves, are convinced of the truthfulness of the claim by the
respondent, we have no hesitation in accepting the plea put forward by the
respondent. It was tried to be suggested that: (1) Guru Granth Sahib has
been the only object of worship; (2) no documents made any reference to
any other object of worship like Ball of Ashes (Gola Sahib), Smadhs and
pictorial images of Baba Siri Chand in the objection petition under Section
8 of the Act; (3) there is no mention of Ball of Ashes (Gola Sahib), Smadhs
and pictorial images of Baba Siri Chand; and (4) Mahant Mangal Dass had
nowhere stated as a witness that there were Ball of Ashes (Gola Sahib),
Smadhs and pictorial images and that those objects or anyone of them
were the object of worship. We have already referred to the
aforementioned oral evidence led on behalf of the respondent and we are
convinced that none of these four factors can be said to be established in
favour of the appellant. In our opinion, therefore, insofar as the question of
establishment of the Institution and the practices therein are concerned,
the High Court is absolutely right in recording its findings. It would be only
repetition on our part to refer to the oral evidence or for that matter, the
documentary evidence all over again and we desist from doing it. In our
opinion, the judgment of the High Court is absolutely correct, insofar as this
51
issue is concerned. Lastly, Shri Jaspal Singh urged that the Institution was
clearly proved to be covered under Section 16(2)(iv) of the Act. The
Learned Senior Counsel urged that there was no reason to disbelieve the
historical facts contained in the 6 treatise, which were authored by the
authorities of Sikh religion. In fact, our attention was invited to a decision
reported in the case of Ram Parshad & Ors. Vs. SGPC, Amritsar & Ors.
(cited supra), wherein the book Sikh religion by Max Arthur Macauliffe has
been described as the best authority of all in Sikh history. The story, which
we have already referred to in the earlier part of the judgment from
Macauliffe treatise, as also the various incidents described in Gurpartap
Suraj Granth were relied on by the Learned Senior Counsel, so also the
incidents as described in Udasi Sikhan Di Vithia and Guru Udasis Mat
Darpan were relied and reiterated by the Learned Senior Counsel. The
Learned Senior Counsel also urged that the oral evidence of the scholars
like RW-16 Dr. Ganda Singh, RW-17 Shamsher Singh and RW-18 Randhir
Singh should not have been lightly set aside by the High Court.
43. As regards these oral evidences, Shri Palli, Learned Senior Counsel
for the respondent, however, strongly urged that RW-16 had not made any
research on the life and history of Bhagat Bhagwan nor he had written
anything about him. He pointed out that in his evidence, RW-16 had
admitted that he did not know who was Guru Bhagat Gir and he could not
say whether Bhagat Bhagwan was Udasi by faith. He did not even know
about the death of Bhagat Bhagwan. Insofar as RW-17 is concerned, Shri
52
Palli pointed out that this witness had not visited the Institute, he did not
even know about the 300 Kendras established by Bhagat Bhagwan. As
regards the last witness RW-18, who was the author of Udasi Sikhan Di
Vithia, the Learned Senior Counsel urged that this book was published by
none else, but the appellant SGPC and it was authored by the witness in
the year 1959 on the eve of the application of the Act to the concerned
area. The Learned Senior Counsel, therefore, urged that insofar as the
evidence of these three witnesses was concerned, the High Court was
right. Though it will not be our task to re-appreciate the evidence, the
approach by the High Court to the evidence of the witnesses is
undoubtedly correct, therefore, we would not give more importance to the
oral evidence led by these witnesses, claiming themselves to be the
scholars of Sikh faith. At any rate, we would give more weight to the
documentary evidence, which has been brought on record and which
documents are as old as about 113 years. In fact, from those documents,
a detailed discussion of which is to be found in the earlier part of this
judgment, as also the judgment of the High Court, it is clear that this
Institution was an Udasi Institution in the memory of Bhagat Bhagwan and
owes its name to Bhagat Bhagwan. Even if that is so, there is no evidence
to suggest that this Institution was in the memory of Bhagat Bhagwan. It
may be that the Institution is called Dera Bhagat Bhagwan, but what is
more important is the documentary evidence regarding the grant of land to
Shri Surat Ram and thereafter, the succession from Shri Surat Ram right
up to Mahant Mangal Dass, which has been painstakingly established by
53
the respondent. Once the Institution is held to be an Udasi Dera with the
features like Smadhs, Gola Sahib etc., being in existence in the said
Institution, further, once it is established that the order of succession was
governed by a custom that is from Guru to Chela, there is no question of
our going into the historical aspect and when we compare the historical
aspect with the hard evidence led on the record, we would choose to prefer
the evidence so led. Insofar as the historical reference is concerned, Shri
Palli pointed out that the High Court had not only discussed this aspect, but
had given good reasons. It was pointed out that there were some incorrect
references, for example, in Udasi Sikhan Di Vithia, it was mentioned that
Bhagat Gir, who later became Bhagat Bhagwan, had met 7th Guru. The
Learned Senior Counsel argued that this cannot be historically correct, as
Guru Har Rai, the 7th Guru was born in 1631 A.D. and died in 1666 A.D.
and, therefore, Bhagat Bhagwan could not have been met him. Shri Palli
also heavily relied on the authority reported in AIR 1939 Lahore 239 Baba
Ishar Das Vs. Dr. Mohan Singh and Others, which judgment was noticed
by the High Court. We have seen the judgment. It undoubtedly supports
the respondent. Shri Palli further urged that the High Court had relied upon
the book Guru Tirath Sangrahey, which mentions that Bhagat Bhagwan
was neither a Sikh saint nor a historical person, rather he joined the Udasin
Sect, got the Udasin dress and initiation from Mehar Chand, the great
grandson of the first Guru. The Learned Senior Counsel pointed out that
same account is given even in the book Sikh Religion by Macauliffe. The
54
Learned Senior Counsel also pointed out that the SGPC had miserably
failed to bring on record any writing of Bhagat Bhagwan as a Sikh saint. It
also had failed to point out any Institution, set up by Bhagat Bhagwan or his
followers to be a Sikh Gurdwara, though in the historical accounts, it was
stated that he had created about 300 Institutions. From this, the Learned
Senior Counsel urged that the High Court was absolutely right in coming to
the conclusion that the Institution was not a Sikh Gurdwara, but an Udasi
Dera.
44. In our opinion, Shri Palli is undoubtedly correct in his criticism. We
have also gone through the details of the evidences, though it was not our
task to re-appreciate the evidence. As we have already held, we are fully
satisfied with the findings recorded by the High Court. To conclude the
matter, we hold:-
1. that in view of the Exhibit R-10, the Institution was
established prior to 1665 A.D. by an Udasi Faqir Surat
Ram, who had received donation from the Ruler of the
then Patiala State and the said Institution then was
governed by a chain of Udasi Mahants without break in
the tradition of the succession from Guru to Chela and
Mahant Mangal Dass was in the same tradition.
2. that the Institution was only known as a Dera or Dera
Sadhan or Mausooma Dharamshala Sadhan and it gave
the impression that it was a charitable Institution for poor
55faqirs and travellers, as also offered shelters to them
and the Mahants, who governed the Institution, were
noble persons.
3. that there is voluminous documentary evidence to show
the grant of Muafi (remission) of revenue. The land was
already granted to the Udasi Faqir in his personal
capacity and he had become the owner thereof and the
Institution was used by Udasi Faqirs and Sadhus, which
is clear from the reference in the revenue papers to the
effect “Well of Sadhus or Well of Mahantawala” etc.
4. that there is ample evidence to establish the pedigree
tables as Khandan Sadh Udasin and Patti Sadh Udasin.
5. that there is no evidence that this was a Sikh Institution
from its inception till today or the Sikhs had any say in
the matter of appointment of Mahants.
6. Significantly, there is no evidence of there being a
regular Granthi in the Institution there existed even a
Nishan Sahib. There was no further evidence that the
Sikh religious ceremonies were ever held or there is
Katha or Parvachan in a congregation.
7. that it is established from the evidence that Guru Granth
Sahib, though was kept, did not have a fixed place for its
Parkash and the versions on the placement of Guru
Granth Sahib is contradictory.
56
8. that even a single worshipper out of the original 57
applicants, ever turned up to support the cause of the
appellant.
9. that there was clear evidence that there was Gola
Sahib, Murti of Baba Siri Chand, Smadhs of earlier
Mahants and other objects of worship like photographs
etc. and Guru Granth Sahib was only kept as a book of
reverence.
10. that Baba Siri Chand, who was the son of the first Sikh
Guru, was an Udasi and Udasi Sect grew up parallel
with the Sikh religion.
11. It is further established that all through, the Institution
continued as an Udasi Institution.
45. We are, therefore, convinced that the appeal filed has no merits and
must be dismissed with costs. It is accordingly dismissed with costs.
………………………………..J.
(Tarun Chatterjee)
………………………………..J.
(V.S. Sirpurkar)
New Delhi;
February 24, 2009.
57