Hemant Gupta, J. - (1.) The defendant is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court whereby suit for possession of suit land was decreed in appeal.
(2.) The plaintiffs have filed a suit for possession in respect of the property described in Para No. 5 of the plaint on the ground that Gaddi Dadu Dawara is religious and char -bitable Gaddi. It was set up by Mahant Satya Ram Dass about 200 years back at Kalanaur. The property was acquired on the basis of money donated by the followers. The last Mahant was Mahant Nitya Nand who died without leaving any Chela and, therefore, the plaintiff being Chela of Gurbhai of Nitya Nand was appointed Mahant by Bheks and Sewaks according to prescribed ceremonies and, therefore, sought possession of the suit land as owner on the basis of title. In the said suit, the defendants raised a plea that they have perfected their little by way of adverse possession. The plea of maintainability of the suit was also raised. The defendants denied the right of the plaintiff as Mahant after the death of Mahant Nitya Nand and, in fact, relied upon Will dated 4.8.1963 executed by Mahant Nitya Nand in favour of defendant No. 1.
(3.) Issue No. 1 was to the effect whether plaintiff is owner of the suit property. The learned trial Court on issue No. 1 has returned a finding that the previous judgment and decree in a suit for injunction operate as res judicata and consequently dismissed the suit. However, the learned first Appellate Court reversed the finding holding that in terms of the orders passed by this Hon'ble Court reversed the finding holding that in terms of the orders passed by this Hon'ble Supreme Court, previous judgment is not to come in the way of the plaintiff in filing a suit for possession. After returning such finding, the learned first Appellate Court relied upon Clause 16 of Exhibit PX which deals with the procedure meant for appointment of incumbent to return a finding that in case there is no nomination, the suitable male disciple would be appointed by the Bhek with the consent of Sampradayacharya and in case of difference of opinion, the consent of Sampradayacharya would be final. Thus, it was found that either the successor is to be nominated by the outgoing Mahant or he is to be appointed by the Sadhu Samaj but there is no procedure of testamentary succession. The learned first Appellate Court found that the procedure as mentioned by the plaintiff in Para No. 7 of the plaint has not been disputed by the defendants. The first Appellant Court considered the testimony of the plaintiff Mahant Jamna Dass PW1 and testimony of PW3 Ramudass Chela Ram Dass, PW5 Dhanpat, PW6 Badlu Ram and DW8 Gaja Nand. The Court also considered the writing of Chhadarposhi conducted on 27.12.1963 i.e. 17th day of the death of Mahant Nitya Nand and photographs to return a finding the Mahant Jamna Dass was duly appointed as successor Mahant of the said Gaddi after the death of Mahant Nitya Nand. The Court also considered the claim of the defendants of testamentary succession vide Exhibit D -2 and found that such Will is of no consequence as per custom of Gaddi.;