Committee of Management of Bunga Sarkar and Others vs Sardar Raghbir Singh and Others

Kapur, J.—This is a Plaintiffs'' appeal against the decree of the Sikh Gurdwara Tribunal dated 19-12-1940, and relates to a Bunga known as Bunga Sarkar (Maharaja Ranjit Singh.)

In a list put in u/s 3, Sikh Gurdwaras Act of 1925, hereinafter called the Act, at tho instance of the old Shiromani Gurdwara Parbandhak Committee (non-statutory) certain properties were claimed as belonging to Harmandir Sahib which is a Sikh Gurdwara mentioned in Schedule 1. In that list properties relating to Bunga Sarkar were given at Nos. 306 to 310 and those relating to Bunga Mai Mallan were givon at Nos. 311 to 316. u/s 5 of the Act, two applications were filed, ono by S. Balwant Singh No. 1448 dated 8-3-1928, and the other by S. Raghbir Singh No. 1449 dated 10-3-1928, in which tho respective claim was of ownership of tho Bungas. S. Balwant Singh claimed 1/3rd share in Bunga Mai Mallan and S. Raghbir Singh. 1/3rd in that Bunga, the remaining 1/3rd being with some others. In Bunga Sarkar S. Raghbir Singh claimed the whole.

After the case had gone on for some time before the Tribunal, the parties entered into a compromise on 6-2-1930, and two deeds of compromise wore executed and decrees passed in accordance with them. The compromise with S. Raghbir Singh is marked as P. 1A and is printed at p. 1 of the printed paper book vol. II. The parties, to this compromise were S. Raghbir Singh and the Managing Committee of Gurdwaras within tho limits of the Municipal Committee, Amritsar, and the Shiromani Gurdwara Parbandhak Committee. The terms of tho compromise were as follows:

(1) Out of tho property in dispute, shown in plan, P. 1, the portion A, B, C., Kaf, D.E., Lam (torn) F. 1 is admitted by the Petitioner as wakf Bunga for the Yatries (pilgrims) to Sri Durbar Sahib, Amritsar, subject to the conditions stated hereinafer. But (torn) Qaf, Fe, Min, B.I.C.I. Ain. Ghain has nothing to do with the Bunga and (torn)...of the Petitioner.

(2) The Bunga A.I.B.C., Kaf, D, E, Lam, Mim, Fe, Qaf, F I, shall remain under tho management of tho Petitioner and his heirs and representatives.

(3) Repairs to this Bunga shall be effected by the Petitioner and his heirs and representatives. They shall not make any alterations in the building of tha Bunga on the side of the Parkarman.... (torn)...without the permission of the Looal Managing Committee of tho Gurdwara, Durbar Sahib.

(4) The portion of the Bunga Lam, Mim, Fe, Qaf, F. I, E. I, D. I, Kaf, D, E, is at present let out. It is meant for this purpose. The Petitioner and his heirs and representatives shall be competent to let out this, portion as before and keep the rent with themselves in lieu of repairs to the Bunga. They shall not be liable to render any account.

(5) Nothing shall be done in the Bunga in violation of the tenets of Sikhism and the sanctity of the Durbar Sahib and . . . (torn) (no) . . . Bungai of immoral character shall be kept therein. If the Bungai misbehaves, the Petitioner shall, on a complaint being made by the Managing Committee of Sri Sardar Sahib . . . (torn). . . turn him out provided that he is satisfied regarding his misconduct. The Sri Guru Granth Sahib.... (torn) ...shall be recited there.

(6) The Yatries to Sri Durbar Sahib shall put up in such . . . (torn) ...of the Bunga as is deemed proper by the Petitioner and his heirs and representatives or their agents with the latter''s permission. The Petitioner and his heirs and representatives may give any portion they like to the Bungai and the agent for their residence and themselves put up there according to their requirements.

(7) The Petitioner and his heirs and representatives shall not be competent to alienate the Bunga to anybody by mortgage or sale or in any other way.

(8) The portion C, Z, X, Y, W, Lam, E, D, Kaf, is used as passage to Sri Durbar Sahib. There is a Kothri for shoes at the place X and a keeper of the shoes sits there. That place shall remain under the management and possession of the Managing Committee of Sri Durbar Sahib...(torn).... Three tenants of the Petitioner sit in the portion C, Z, X, Y, W, Lam, E, D, Kaf. The Petitioner and his heirs and representatives shall be competent to recover rent from them, but shall.... (torn) (not?)...locate more than three tenants there. As regards tho rent recovered from them the condition embodied in para No. 4, shall hold good...(torn). As regards tho portion Lam, Mini, B.I, C.I, G, F.W, it has been settled between tho parties that if in case No. 1448- Sardar . . . (torn) v. the Mamaging Committee etc., it is held that the whole or a part, of this property is not Wakf, but is the personal...(torn)...of the owners, the Petitioner''s claim to 1/3rd share shall be decreed and he . . . (torn) . . . owner of this share, that if case No. 1448 is decided against Sardar Balwant Sing (sic), (i.e.) tho whole of this portion or a part thereof is held to be the property of Sri...(torn).... Wakf property for the use of Yatries, all the conditions laid down in . . . (torn).... 2, 3, 5, and 7 above, shall apply to the Petitioner''s share to that extent.

The parties shall bear their own costs.

It is, therefore, prayed that judgment may be passed accordance with the terms of this compromise

And it is signed by S. Raghbir Singh and his advocates, Mr. Mahesh Dass and Mr. Man Singh, (sic)Ganga Singh as General Agent of the Managing Committee of Gurdwaras, Amritsar, and by Mr. Charan Singh, Advocate, for both the objectors. A similar compromise was entered into between S. Balwant Singh and the two objectors and it is only necessary to give the first two conditions of this compromise as the others are more or less common with the compromise with Sardar Raghbir Singh. This again is signed by S. Balwant Singh, Ganga Singh as General Agent of the Managing Committee of the Gurdwara Sir Durbar Sahib, Amritsar, and by Mr. Charan Singh, Advocate for both the objects. The first two conditions are:

(1) Out of the property in dispute shown in plan, P-l, filed in case No. 1449 u/s 5, the portion Lam, Mini, B.I.C, G.F, W, is admitted by the Petitioner to be Wakf Bunga for the Yatries (pilgrims) to Shri Durbar Sahib, Amritsar, on conditions given hereinafter and that the Petitioner''s share therein is only 1/3rd.

(2) The 1/3rd share in the Bunga with boundaries given in para. No. 1 shall remain under the management of the Petitioner, his heirs and representatives.

On 24-10-1926, u/s 7 of the Act, a potition was made to the Government by 55 Sikhs claiming that Bunga Sarkar was a Sikh Gurdwara (p. 120 of vol. 2 of the printed paper book).

The petition is in the following words:

Petition u/s 7, para. 1, Sikh Gurdwaras Act VIII [8] of 1925.

The Petitioners beg to state as under:

We the Petitioners whose signatures are given hereinafter aro followers of and believers in Sikhism and are worshippers of Gurdwara Bunga Sarkar (Maharaja Ranjit Singh) situate at Amritsar Tahsil and District Amritsar. We pray that the aforesaid Gurdwara may be declared a Sikh Gurdwara. We submit this application u/s 7, para. 1, Sikh Gurdwaras Act, VIII [8] of 1925. A list of the property as required under Clause (ii) of the said section is attached hereto.

After the signatures of 55 sikhs, the petition is signed in English by Mr. Bhagat Singh, Secretary, Law Department, Shiromani Gurdwara Parbandhak Committee. To this is attached in form No. l, under Rule 4, a list of property of the Gurdwara u/s 7(2), Sikh Gurdwaras Act, VIII [8] of 1925 as follows:

Name of the Gurdwara: Bunga Sarkar Maharaja Ranjit Singh Sahib.

In Parat (List) No. 1. The address and boundaries of the Gurdwara:

In Parat (List) No. 2 are given the right, title or interest of tho immovable property.

A notification was issued on 18-2-1930, in tho following terms:

Homs Department Central (Gurdwaras).

NOTIFICATION.

The18th February 1930.

No. 33/1577-G. In pursuance of the provisions of Sub-section (3) of Section 7, Sikh Gurdwaras Act, 1925, the Punjab Government (Ministry of Local Solf-Governmont) hereby publish a petition forwarded under the provisions of Sub-section (1) of the said section in respect of the Gurdwara specified below, together with the list of rights, titles and interests in properties claimed to belong to tho Gurdwaras received therewith:

Name of Gurdwara. Renvenue Estate. Tahsil. District

Bunga Sarkar (Maharaja Ranjit Singh Sahib) Amritsar Amritsar Amritsar

This was notified on 18-2-1930, u/s 7(3) of the Act. A petition u/s 8 No. 1137, was filed by the presect Defendants 3 to 5 and another No. 2161 u/s 10. On 5-4-1930, S. Raghbir Singh also put in a petition u/s 10 of the Act wherein he submitted as follow:

(3)(c)That the dispute relating to the property now claimed in the notification under reference has already been decided between tbe Petitioner and Sardar Balwant Singh on the one hand and the Shiromani Gurdwara Parbandhak Committee and Committee of Management of Gurdwara Sri Harmandar Sahib (Darbar Sahib), Amritsar, on.the other, by means of a compromise duly signed and attested on 5-2-1930 and 6-2-1930, respectively, in terms of which decrees were passed by the Tribunal on 6-2-1930.

He also submitted, in view of tho compromise and the decree passed thereon the matter was res judicata and he denied tho claim of Section 7 Petitioners with regard to the properties which were mentioned in the Notification and he claimed that he was in possession in his own right. This was petition No. 2162.

On the same day a similar petition u/s 10 was filed by S. Balwant Singh. No. 2164.

On 4-11-1935, the Gurdwaras held that

in petitions Nos. 2162 and 2164 S. Raghbir Sing, and S. Balwant Singh were respectively entitled to those interests of management and those proprietary rights which were vested in them in respect of the various buildings depicted on the plan Ex. P. 6, by the two decrees, dated 8-2-1930, in petitions Nos. 1448 and 1449.

It may be noted that both parties relied for proof solely on the two compromises and the decrees in which those compromises were embodied. Against this, appeals were taken to the Lahore High Court which were heard by Jai Lal and Abdul Rashid JJ., and I would give the following quotation from the judgment of Jai Lal J., dated 16-6-1936 with which Rashid J. agreed (Ex. D-10 printed at p. 88 of the printed paper book vol. l):

The only question, therefore, that needs decision in these appeals is whether the direction given by the Sikh Gurdwaras Tribunal as to the management by Sardar Raghbir Singh and Sardar Balwant Singh of the two Gurdwaras declared by them to be Sikh Gurdwaras within the meaning of the Sikh Gurdwaras Act and the properties found by them to be appended to them is or is not legal.

The learned Judge went, on to say:

There may or may not be force in this contention, but in my opinion it was no function of the Gurdwaras Tribunal to decide on an application made u/s 10 by the Respondents that they shall manage the properties appended to the Gurdwaras by virtue of the compromise. It is true that the Appellants were no parties to tho compromise, but at the same time it must be remembered that they have nothing to do with the management of the Gurdwaras, The question of management arises only between the two Respondents before us and the Committee appointed under Sub-section (2) of Section 85 and we express no opinion in this case whether the Committee constituted under that section can now successfully resist the right of the Respondents to manage the Gurdwaras and the properties appended thereto, owing to the previous compromises, according to which it is claimed the matter must be held to be determined between the Committee and the Respondents. On these appeals in my opinion, the order should be that the direction given by the Sikh Gurdwaras Tribunal as to the right of the Respondents to manage the two Gurdwaras and the properties appended thereto was not within the competence of the Tribunal and should form no part of their final order. It does, not follow from this that the Respondents are not entitled to manage the Gurdwaras and their properties. As I have already stated that is a matter which must be settled, if necessary, between the Committee constituted nmder Sub-section (2) of Section 85 and the Respondents.

And finally the learned Judge said:

With these observations I would accept appeal so as to declare that the portion of the decree of the Sikh Gurdwaras Tribunal which has declared the Respondents'' right to manage the Gurdwaras and the properties appended thereto is illegal and Shall form no part of the deoree granted by the Tribunal; the rest of the decree of the Sikh Gurdwaras Tribunal stands, that is to say, the properties which have been declared to be the personal properties of Sardar Raghbir Singh and Sardar Balwant Singh shall remain their properties and the properties which have been declared to be appended to the two Gurdwaras shall remain the properties of the two Gurdwaras. It may be mentioned here that throughout in this judgment I have mentioned the existence of two Gurdwaras. This is owing to the manner in which the parties presented their respective pases. The real position, found by the Tribunal seems to be that there is only one Sikh Gurdwara, the Bunga Sarkarwala and that Bunga Mai Mallan has no separate existence as a Gurdwara but is a well-known part of Bunga Sarkarwala.

On 3-3-1937, a notification under provisions of Section 17 of the Act was issued in, regard to Bunga Sarkarwala in the following terms:

No. and date of notification u/s 7(3) of the Act. (2) No. 33/1577-G., dated 18-2-1930 Name of the Gurdwara.

Bunga Sarkar (Maharaja Ranjit Singh), (as described in the orders of the HighCourt in Civil Regular F.A. Nos. 67 and 68 of 1935 dated 16-6-1936, in petitions u/s 10(1) of the Sikh Gurdwaras Act).

On 25-2-1938, a suit was filed for possesion by the Committee of Management of Gurdwaras of Bunga Sarkarwala and other Gurdwaras situate within the municipal limits except Gurdwara Sri Akal Takht Sahib through Phumman Singh its mukhtar against S. Raghbir Singh and S. Balwant Singh and Defendants 3 to 5 with whom we aro not concerned in this tills proceeding. In the heading of the plaint the is described as u/s 25A, Sikh Gnrdwaras Act, for possession of the Gurdwara building marked as AI, B, C, Z, X, Y, W, F, G, O, CI, BI, Min, Fe, Kaf, FI, AI, and bounded as under North: Bazar Mai Swean and portion of the Bunga. South: Street. East: Parkarman Darbar Sahib. West: Bazar Clock Tower.

The Petitioner committee alleged tfc Bunga Sarkarwala (Maharaja Ranjit Singh) was declared Sikh Gurdwara by means of a notification which has been given above, that by a decree of 4-11-1935, the building described in the heading of the plaint was declared the property of Gurdwara Bunga Sarkarwala, a finding hich was upheld by the High Court; that the Plaintiff according to the Act was the Committee of Management of the said Gurdwara; but it was not in possession of the Gurdwara building and the prayer was for possession of the Gurdwara building as detailed above in tho heading of the plaint.

A joint written statement was filed on behalf of S. Raghbir Singh and S. Balwant ingh who pleaded that there were two Bungas, Bunga Sarkar and Bunga Mai Mallan, and S. Raghbir Singh was the sole owner of the former and of Bunga Mai Mallan tbe owners were S. Raghbir Singh l/3rd, S. Balwant Singh 1/3rd and others l/3rd; that the Plaintiff had no right to sue for possession of the property; that even if the Plaintiff had the right to sue the whole dispute between the Defendants and Shiromani Gurdwara Parbandhak Committee and the Committee of Management of Gurdwaras constituted u/s 35(2) of the Act had been settled in tho proceedings arising under Sections 3 and 5 of the Act by means of two compromises (which I have given in detail above). They also pleaded that as a result of the previous decision of the Tribunal tho matter was res judicata and could not be reagitated and the whole of the property must, therefore, remain in possession of the Defendants and did not vest in the Committee and that Bunga Sarkarwala was not a Sikh Gurdwara and even if there was a notification it was illegal being without jurisdiction and null and void. Paragraph 2 of the plaint was denied and it was pleaded that the Defendants had been held to be entitled to possession of the property in dispute and no declaration had been given in favour of the Plaintiffs, that the Plaintiffs were bound by the decrees passed in Petitions Nos. 1448 and 1449 and that Phuman Singh was not entitled to bring the suit. Plea of limitation was also raised.

On 8-10-1938, Mr. Iqbal Singh appearing the Defendants made a statement before issues and submitted that he wanted to raise the plea of estoppel and that as the present Plaintiffs were not parties to the petitions under Sections 7 and 10 of the Act, the decrees in those Petitions could not ''override'' the compromise entered into a Section 5 proceeding. On the same day Mr. Charan Singh on behalf of the Plaintiffs made a statement to the following effect:

The institution was declared a Sikh Gurdwara in March 1937, and the present suit having been instituted on 25-2-1938, is within time. There is no separate entity of Bunga Mai Mallan. There is only one institution commonly known as Bunga Sarkarwala and whose boundaries and limitations are given in the replication and plaint which has been declared to be a Sikh Gurdwara.

Rest of the statement is not necessary at tliis stage.

Issues were struck the same day and by an order dated 1-12-1938, another plea to the following effect was allowed to be raised by the Defendants:

That, the Plaintiff Committee is estopped from bringing the present suit by virtue of compromises filed in Court in petitions Nos. 1449 of 1928 and 1448 of 1928, which were recorded by the Tribunal under the provisions of Order 23, Rule 3, Code of Civil Procedure, and were followed by consent decrees embodying the terms of the said compromises. The consent decrees were dated 6-2-1930.

The Defendants were also asked to file an amended written, statement, but none has been found on the record although Mr. Iqbal Singh, Advocate appearing for the Respondents before us claimed that, he did file one. On the plea of estoppel, issues 8(a) and 8(b) were raised and on the same day issue 3 was split up into issues 3(a) and 3(b). The Tribunal held that the Plaintiff-committee was validly constituted and was competent to sue, that the question of tho right of possession of the property was res judicata and the plea could bo raised and that the Tribunal had no jurisdiction to pass a decree for the relief claimed because of the orders of the Tribunal in cases Nos. 1448 and 1449 of 1928 decided on 6-2-1930. They also held the suit to be within time and that Phuman Singh was authorised to file the suit, the resolution giving this authority being valid. On the question of estoppol they held in favour of the Defendants. Against this decree the Plaintiffs went up in appeal to the High Court at Lahore which has, after the partition of the Punjab, been heard in this High Court.

A preliminary objection was taken by tho Counsel for the Respondents that the appeal had abated because of the death of S. Balwant Singh whose legal representatives have not been brought on record within limitation. The Respondent S. ''Balwant Singh died on 4-l-1943, according to the Respondents in Amritsar and according to the Appellants at Raja Sansi which, we are informed, is at a distance of 5/7 miles from Amritsar. An application for bringing the legal representatives on the record was filed on 2-8-1943 under Order 22, Rules 4 and 9 and Order 32, Rule 3, Code of Civil Procedure. The affidavit in support of this application was attested on 24-7-1943. In the affidavit it is stated that the Appellants came to know about the death of the Respondent S. Raghbir (Balwant?) Singh, on 19-7-1943. The Appellants have sought to make several persons legal representatives of the deceased evidently because they were not sure as to whether Shashpal Singh is a son of Sardar Pahvant Singh or not. The Respondents have filed a long counter-affidavit stating that S. Balwant Singh died in the hospital at Amritsar which is sought to be proved by an extract from the in-patient register of the special ward of the Amritsar Victoria Jubilee Hospital, which has been produced showing that the deceased was in the hospital from 29-12-1942 to 4-1-1943. A death certificate has also been produced showing that S. Balwant Singh died on 4th January at Amritsar. The Appellants in their affidavit have not stated as to how they came to know of the death of S. Balwant Singh nor who told them about it. There was no express prayer for setting aside the abatement in the petition nor any cause shown why the time should be expended. The Advocate for tho Appellants contended in the first place that mere ignorance of the death of the Respondent was a sufficient cause within the meaning of Order 22, Rule 9, Code of Civil Procedure, and he relied on several cases in support of his contention. In none of these cases was the mere fact of the ignorance of death of the Respondent held to be a sufficient cause; there were in addition some other facts which were the reason for holding in favour of sufficient cause. The Respondent relied on Chunilal Tulsi Ram v. Amir Chand 14 Lah. 543 : AIR 1938 Lah. 356 where it was held that if Section 5, Limitation Act, applied delay of every day had to be explained and mere ignorance of death was not a sufficient cause. In B. Jagdish Bahadur v. Mahadeo Prasad 15 Luck. 580 : AIR 1941 Oudh 16 mere ignorance was held not to be sufficient cause and it was also held that the law required active prosecution and great vigilance on the part of the Appellant. In my opinion, there is nothing disclosed in the affidavit which would induce me to held that in the circumstances of this particular case sufficient cause has been made out. Whether S. Balwant Singh died in Amritsar or in Raja Sansi he was a peorson whose death must have someto the knowledge of the Appellants soon after his death and even if their affidavit is correct no reason has been shown why after coming to know of the death on 19-7-1943, no application was filed up to 2-8-1943. The Appellants relied on an order passed by Rahman J., on 30-8-1943, on tho application of the Appellants under Order 22, Rule 4, Code of Civil Procedure, which was to the following effect: "Ordered." And from this it is sought to be argued that as that learned Judge had already decided the matter this Court could not go into the matter again and decide as to the question of abatement I am unable to agree with this contention. Under chapter 3-b of the Rules and Orders, vol. v, a learned Single Judge has jurisdiction only to admit applications under Order 22, Rule 9, but not adjudicate upon them. I have no doubt that when Rahman J., made the order of 30-8-1943 he was doing nothing more than admitting the petition and the order would be subject to all just exceptions. Even if he had decided the matter it is open to the Respondent to come and show cause against the order made ex parte. That the learned Judge could not have finally decided the matter is clear from the fact that the Appellants had sought to bring on the record one of the two sets of legal representatives and Rule 5 of Order 22, CPC requires that the Court has to decide which of them is a proper legal representative and this was not done by the Court.

Fourteen day''s delay has not beea explained at all. I am unable for the reasons given above to extend time in this case. Tha appeal with regard to S. Balwant Singh must, therefore, be held to have abated, but whether as a result of this the appeal partially abates or wholly is a matter which has to be decided and for that it is necessary to go into the facte of the appeal.

Both the Appellants as well as the Respondents have confined major portion of their arguments to the compromise entered into on 6-2-1930 and the effect thereof. The Appellants submitted that they had no concern whatsoever with the petition which was submitted u/s 7 by 55 Sikhs claiming that Bunga Sarkar was a Sikh Gurdwara. The evidence discloses that Ganga Singh, D.W. 2, who was the general attorney of the Shiromani Gurdwara Parbandhak Committee before the statutory body was constituted and was the Gonoral Attonioy of the Gurdwara Committee (the Plaintiff) from its vpry inception and was also MuJchtar-i-kkat for some purposes of tho Statutory Shiromani Gurdwara Parbandhak Committee signed the application u/s 3(2). The application u/s 7 was completed by Ganga Singh D.W. 2. It was he who corrected the paratt (lists) which are attached to the application. He got the copies from the register of Muafiat and paid for them, according to his evidence, probably from the Shiromani Gurdwara Parbandhak Committee''s funds. He had been appointed by the Shiromani Gurdwara Parbandhak Committee to get petitions filed and it was in that capacity that he obtained the signatures of 55 Sikhs. This application, according to tha evidence of Mr. Bahagat Singh, D.W. 9, after being completed by Ganga Singh was sent to the office of the Shiromani Gurdwara Parbandhak Committee and was signed by, him and then sent to the then Local Government by this witness as Secretary of the Law Department of the Shiromani Gurdwara Parbandhak Committee. None of the signatories of Section 7 petition ever presented himself before this witness. The Court-fee stamps on thoso petitions were purchased out of the funds of the Shiromani Gurdwara Parbandhak Committee''. So it cannot be said that either Ganga Singh who may even subsequently have become the general, agent of the Plaintiff or the Shiromani Gurdwara Parbandhak Committee who had I general control over all the local committees including tho Plaintiff was not aware of Section 7 petition. There is evidenco that after tho present Respondents had put in their potition u/s 10 in opposition to the claim undor Section 7, the expenses for the defence were paid for by tho Plaintiff Committee. Not only this but a perusal of the record of that case shows that at no stage did any of the 55 so-called Petitioners appear before the Tribunal. The only person who was appearing was Mr. Narondar Singh, Advocate. We have seen the written statements filed in Petitions Nos. 2162 and 2104. They are Signed and verified by Mr. Narondar Singh, and there are no doubt six names in Urdu, but after seeing the original petition u/s 7(1) by the 55 Sikhs we are of the opinion that these signatures are not of any one of the Section 7 Petitioners. The names which appear on the written statements are of Petitioners who have either thumb-marked the original petition or have put their signatures in Gurniukhi characters and they are written in a manner which shows that thoy are signatures of almost ignorant persons. For these petitions expenses no doubt were not being paid by the Plaintiff-Committee but it cannot be said from this that the Plaintiffs were as innocent as they make themselves out to be. A person who became their general agent had these petitions drawn up and subsequent to the notification; expenses seem to have been paid by the Plaintiffs.

The compromise, no doubt, was entered into twelve days before the notification i.e., 6-2-1930. It was with the previous permission and consent of Master Tara Singh, D.W. 6, who was ''practically in charge of these cases as Vice President'' and, therefore, must have agreed to all the terms incorporated in the two deeds of compromise. D.W. 8, S.B. Hakam Singh, who was a member of the Plaintiff Committee, also knowof the compromise and according to him the President of the Committee was usually consulted in these matters and his previous consent taken. According to Puman Singh (D.W. 14), the attorney who filed the present suit, the Secretary of the Committee know of the compromise which had already been entered into and in spite of his knowing this he directed this witness, though verbally, to expend money for contesting Petitions Nos. 2162 and 2161 which had been filed by the present Defendants. When the appeal was filed against the order of the Tribunal in the petitions which are just mentioned above, again the money was spent by the Plaintiff. This is clear from tho evidence of D.W. 9 Mr. Bliagat Singh and of D.W. 14 Phuman Singh.

The present Defendants made every effort to have documents produced which they argued would have proved the connection of the present Plaintiff Committee with the petition u/s 7, but their efforts seem to have been unsuccessful, P.W. 2, Gurdial Singh, when asked to produce documents, did not produce them nor did D.W. 1 Harnam Singh -he did produce some-.and Sardar Ishar Singh D.W. 4 did not produce any documents although particulars of documents asked for were given in the summonses sent to him. His reply was that if there were any documents they must have been produced by Sardar Gurdial Singh P.W. 2 who, as I have said before, did not produce any. We have seen the original summons which had been sent to Gurdial Singh P.W. 2. A large number of documents are mentioned therein, but they were not produced. The complaint of the Respondents that documentary evidence which was in possession of the Plaintiffs and which the Defendants sought to be produced through the witnesses who were in the employment of the committee could not be produced seems to be justified as also their submission that every presumption should be drawn against tho Plaintiffs.

The compromise dated 6-2-1930, was arrived at after the case had proceeded before the Tribunal for 15 or 16 days, Then S. Mangal Singh, S. Haaara Singh, Jowahar Singh, Arjan Singh and Mastar Tara Singh approached D.W. 10 Narain Singh for a compromise between S. Raghbir Singh and the Plaintiffs. Tho persons above named took the witness (D.W. 10) to Raja Sansi and there the compromise was brought about. Narain Singh D.W. 10 on this point states as follows:

They took me to Raja Sansi with them. During the talk stress was laid on the point that there was a possibility of the time when any descendant of S. Raghbir Singh and S. Balwant Singh might, contrary to Sikh traditions, sell the site to a Muhammadan or a Christian for a non-Sikh institution. They enquired whether the Sardar Sahibs would tolerate such a state of things. They yielded and the compromise deeds were drafted.

D.W. 13 S. Raghbir Singh has deposed as follows on this point:

I was approaohed by Master Tara Singh, S. Charan Singh, S. Hazara Singh and others to compromise the matter. I was given to understand that possession and management of the bunga would always remain with me. However, my attention was drawn to the contingency that on some future time any of my successors might transfer the bunga to a non-Sikh and in that case great difficulty would be created. Keeping all these. things in view I was made to agree to the compromise under pressure. I would not have compromised if I had not been told that there could be danger in some future time of the transfer of the bunga to a non-Sikh by any of my successors. . . Some gentlemen approached me at Raja Sansi and requested me to effect compromise. They included Mastar Tara Singh, Sardar Hazara Singh and one or two others.

The statement of S. Balwant Singh, D.W. 11, on this point is almost similar.

From this evidence ono may safely conclude: (a) The application u/s 3(2) of the Act claiming the proporty now in dispute to belong to Sri Harmandir Sahib was filed by Ganga Singh; (b) Ganga Singh had been appointed by the Shiromani Gurdwara Parbandhak Committee to get petitions filed and it was as such that he got the potition u/s 7 sent by 55 Sikhs. Tho Parats (Lists) and other documents accompanying that petition were obtained by Ganga Singh and paid for out of the Shiromani Gurdwara Parbandhak Committee''s funds; (c) the petition was forwarded and signed by Mr. Bliagat Singh D.W. 9 who was Secretary of the Law Department of the Shiromani Gurdwara Prabandhak Committee; (d) compromise dated 6-2-1930, was entered into by Ganga Singh as General Attorney of the present Plaintiffs and was brought about at the instance of such a highly placed and resposible gentleman as Master Tara Singh and Mr. Charan Singh, who was appearing for the Shiromani Gurdwara Parbandhak Committee as well as for the present Plaintiff and was a party to this compromise; (e) whether technically it can be said that the present Plaintiffs knew of the petitions that had been filed u/s 7 or not, the Shiromani Gurdwara Parbandhak Committee did know of it and Mr. Charan Singh was appearing both for the Shiromani Gurdwara Parbandhak Committee as well for the present Plaintiffs in the proceedings u/s 5 which had been instituted at the instance of the present Defendants; (f) after tho compromise the expenses regarding the petitions of the present Defendants, Nos. 2102 and 2101, in regard to the claim of 55 Sikhs u/s 7 were paid by tho present Plaintiff Committee Not only this, they engaged Counsel and Defended the petition and at no time did any one of the Petitioners u/s 7 appear himself; (g) the present Plaintiffs were not satisfied with the order and decree passed by the Tribunal, but they also took appeals to the High Court and paid the expenses there also; (h) it appears from the evidence that the highly placed officebearers of the Committee had been frightened with unsavoury consequences if they did not proceed with the defence of the petitions, but at the same time one cannot help saying that, after the compromise to which they assented they might well have taken a different course of action.

It is under these circumstances that we have to judge the legal consequences of the compromises which had been entered into. It seoms to have been the case of the present Defendants that the Committee have committed a fraud on the Defendants by entering into a compromise with them on the one hand and in instituting proceedings u/s 7 and then in allowing those proceedings to continue and to have financed them. For the purposes of this, appeal, it is not necessary for me to go into the question of motives underlying the institution of the proceedings and the continuing of the defence of Section 10 petition on behalf of 55 Sikhs. Whether the Committee were acting bona fide or fraudulently is, to my mind, irrelevant in deciding tho question of law which arises in this case and therefore, I refrain from passing any judgment on the motives of the Plaintiffs or of the Shiromani Gurdwara Parbandhak Committee or of the gentlemen who constitute these bodies.

In the forefront of his argument, Mr. Badri Dass submitted that u/s 25A of tha Act Plaintiffs had no right to sue for possession. The scheme of the Act shows that chapter II deals with petitions to (Provincial Government) relating to gurdwaras. u/s 3(1) of the Act. "any Sikh or any present office-holder of a gurdwara specified in schedule I may forward to the Provincial Government...within 90 days from the commencement of this Act a list signed and verified by himself, of all rights, titles or interests in immoable properties situated in the Punjab inclusive of tha gurdwara and in all monetary endowments yielding, recurring income or profit received in the Punjab which lie claims to belong, within his knowledge, to the Gurdwara.

Under, Sub-section (2) on receiving a list duly forwarded under the provisions of Sub-section (1) the Provincial Govornmont has to publish a notification declaring that the Gurdwara to which it relates is a Sikh Gurdwara and publish by notifications consolidated list with all rights, titles and interest in such propertie as are described in Sub-section (1) and in Sub-section (3) notices of claims to properties entered in the consolidated list have to be sent to persons shown in possession. Section 4 gives the effect of omission to forward a list u/s 3. After a consolidated list is notified in the Gazette, u/s 5, any person may forward to the Provincial Government within 90 days from the date of the publication by notification of the consolidated list, under Sub-section (2) of Section 3, a petition claiming a right, title or interest in any property included in such consolidated list except a right, title or interest in the Gurdwara itself. And if no such claim is made, Sub-section (3) of Section 5 provides that tho Provincial Government

shall notify tbe rights, title or interest in any parties in respect of which no such claim made.

Section 6 deals with compensation with which we are not concerned. These are the provision with regard to the Sikh Gurdwaras in Schedule 1.

In regard to petitions to have a Gurdwara declared a Sikh Gurdwara and for claim to property attached to these Gurdwaras the Section is 7 which is as follows:

(1) Any fifty or more Sikh Worshipper of a Gurdwaras each of whom is more than twenty-one; years of age and was on the commencement of this Act a resident in the police station area in which the Gurdwara is situated, muy forward to the Provincial Government within one year from the commencement of this Act...a petition praying to have the Gurdwara declared to be a Sikh Gurdwara.

Tho two provisos of this section are not necessary for the purposes of this case.

7(2). A petition forwarded under the provisions of Sub-section (1) shall state the name of the Gurdwara to whioh it relates...and shall bo accompanied by a list verified and signed by the Petitioners of all rights, titles or interests in immovable properties situated in the Punjab inclusive of the Gardwara...and the petition and the list shall be in such form and shall contain such further particulars as may he prescribed. 7(3). On receiving a petition duly signed ami forwarded under the provisions of Sub-section (1) the provincial Government shall...publish it along with the accompanying list, by notification....

This section then deals with two things: (1) a claim that Gurdwara is a Sikh Gunlwara land (2) with properties which are claimed to long to this Gurdwara. As soon as these are notified, within the timo prescribed two kinds of applications can be filed, one u/s 8 which can be filed by any hereditary officeholder or any 20 or more worshippers of the Gurdwara claiming that the Gurdwara is not a Sikh Gurdwara, and the other u/s 10 which I am dealing with later. Section 9 provides that if no petition is presented u/s 8, a notification shall be published declaring the Gurdwara to be a Sikh Gurdwara and the effect of the publication of such a notification is conclusive proof of the fact that the Gurdwara is a Sikh Gurdwara and the provisions of Part III of the Act shall apply to the Gurdwara with effect from the date of the publication of the notification. So that a notification u/s 9 refers only to the institution and has nothing to do with the properties inclusive of the ''Gurdwara'' which is clear from the fact that the claim can only be made by a hereditary office-holder or by worshippers.

Section 10 of the Act deals with petitions of claim to property included in the list published under Sub-section (3) of Section 7 and is as follows:

Any person may forward to the Provincial Government...petition claiming a right, title or interest in any property included in the list so published.

Sub-section (3) of Section 10 runs as follows:

The Provincial Government shall, as soon as may be, after the expiry of the period for making a claim under the provisions of Sub-section (1) publish a notification specifying the rights, titles or interests in any properties in respect of which no such claim has been made....

These provisions, therefore, show that in the case of scheduled Gurdwaras after a consolidated list is published a person can make a claim in regard to these properties u/s 5 of the Act and that has to be adjudicated upon. In regard to Gurdwaras which are not in the schedule a claim by 50 or more Sikhs has to be made u/s 7(1) for the Gurdwara to be declared a Sikh Gurdwara and under Sub-section (2) a claim has to be made to the property claimed to be attached to such Gurdwara If it is sought to be claimed that the Gurdwara is not a Sikh Gurdwara then a hereditary office-holder or any twenty worshippers can make the claim u/s 8 and that will be adjudicated upon. Claimants u/s 8 are those who have religious affinity with the institution and not anyone else. But when the claim is to the property notified in the list then any person can put in a petition u/s 10 claiming his right, title or interest in the property and that will be adjudicated upon in accordance with the provisions of this Act which are given in chapter III.

Chapter iii deals with the appointment of and proceedings before a Tribunal. Section 12 provides for the constitution and procedure of Tribunal for the purposes of the Act and Section 14 authorises the Tribunal to dispose of petitions under Sections 5, 6, 8, 10 and 11 of the Act. Section 15 gives power to the Tribunal of joining parties to the proceedings and awarding costs. Section 16 lays down the principles on which amongst others the Tribunal will decide whether a Gurdwara claimed to be Sikh Gurdwara is or is not a Sikh Gurdwara. Five main principles are laid down in Sub-section (2) and if any ono of thorn applies the Tribunal shall docide that the Gurdwara should be declared a Sikh Gurdwara, and if the Tribunal finds that tho Gurdwara should not be declared a Sikh Gurdwara, it has under Sub-section (3) of this section to record a finding which subject to the result of an appeal to the High Court takes away the jurisdiction of the Tribunal in all matters concerning such a Gurdwara. Section 17 provides for a notification of a Sikh Gurdwara on the finding of the Tribunal and it says:

When a Tribunal lias, under the provisions of Sub-section (2) of Section16, recorded a finding that a Gurdwara should be declared to be a Sikh Gurdwara, and no appeal has been instituted against such finding or when an appeal has been instituted and dismissed...the Provincial Government shall, as soon as may be, publish a notification declaring such Gurdwara to be a Sikh Gurdwara and the provisions of Part III shall apply thereto with effect from the date of the publication of such notification.

35 Section 18 gives the presumptions in favour of a notified Sikh Gurdwara on proof of certain facts when a claim to property is made by an office-holder and in accordance with these presumptions a claim to property is to be decided, but this section does not apply to a person other than an office-holder. This section comes into operation after a Gurdwara is notified u/s 17 which necessarily must imply that the notification under this section jhas no reference to claims which may be made (by other persons in regard to properties which u/s 7(2) were claimed by signatories to Section 7(l) petition to belong to the Gurdwara.

Section 25A gives powers to the Tribunal to pass decrees for possession in favour of the Committees of Gurdwaras or other persons. This is a now section which was added to the Act of 1925 by the Punjab Act in III [3] of 1930 (Section 4) and came into effect on 1-11-]930. The section runs as follows:

25A. (1) When it has been decided under the provisions of this Act that a right, title or interest in immovable property belongs to a Notifiod Sikh Gurdwara, or any person, the Committeo of the Gurdwara concerned or the person in whose favour a declaration has been made may, within a period of one year from the date of the decision or the date of the constitution of the Committee whichever is later, institute a suit before a Tribunal claiming to be awarded possession of the right, title or interest in the immovable property in question as against tho parties to the previous petition, and the Tribunal shall, if satisfied that the claim relates to the right, title or interest in the immovable property which has been held to belong to tie Gurdwara, or to the person in whose favour the declaration has been made, pass a decree for possession accordingly.

u/s 10(1) a petition has to be filed claiming a right, title or interest in any property included in the list published under Sub-section (3) of Section 7 and u/s 25A when it is decided by a Tribunal under the provisions of this Act that a right, title or interest in immovable property belongs to Notified Sikh Gurdwara, then the Committee of the Gurdwara concerned in whose favour the declaration has been made can institute a suit before Tribunal claiming to be awarded possession of the same. The Gurdwaras Tribunal on 4-11-1935, in petition Nos. 2162 and 2164 gave a decision saying that S. Raghbir Singh and S. Balwant Singh were entitled to those interests of management and those proprietary rights which were vested in them in respect of the buildings given in the plan Ex. P-6 by the two compromise decrees dated 6-2-1930. I have already given this portion of the order in extenso. The Respondents submit that in this order the declaration, if any, was in favour of the present Defendants. It was declared that they were entitled to proprietary rights in accordance with the compromise decrees and also the right of management. There was no declaration in this order in favour of the Plaintiff Committee with regard to any immovable property.

The High Court on appeal passed the judgment which has already been quoted in extenso. The Appellants submit that the following words in this judgment.

the rest of the decree of the Sikh Gurdwaras Tribunal stands, i.e., the properties which have been declared to be tlie personal properties of S. Raghbir Singh and S. Balwant Singh shall remain their properties and the properties whioh have been declared to be appended to the two Gurdwaras shall remain the properties of the two Gurdwaras

contain a declaration in favour of the Gurdwara. In order to understand what the learned Judges did decide we have to refer back to the compromises dated 6-2-1930. In the compromise with S. Raghbir Singh a portion of the property was declared to be the personal property of S. Raghbir Singh and the rest was declared to be ''wakf Bunga'' for the pilgrims to Sri Darbar Sahib and the management was to be that of the Sardar and the repairs to be carried out by him. He and his representatives were to let out on rent certain portions of this property. Pilgrims were to use such portion of the Bunga as was deemed proper by the Sardar and his heirs, he was to appoint the Bungai who was to be dismissed by him alone even if the Committee of Sri Darbar Sahib complained against him (the Bungai) but the Guru Granth Sahib was to be recited.

As I read tho compromise, there is no part of the building which is declared to belong or to be appended to any Gurdwara. On the other hand, the position was accopted that Bunga Sarkar was no more than a resting place to be used by the pilgrims to the Golden Temple.

The compromise with S. Balwant Singh, on the other hand, did not declare any portion to belong to him. His l/3rd share of Bunga Mai Mallan as also S. Eaghbir Singh''s 1/3 rd share was declared to be a resting place for the pilgrims to the Golden Temple. The other conditions were us I have said before, the same. Reading the compromise along with the judgment of the High Court it cannot be said that any portions of these Bungas were held to be appended to Gurdwaras. The compromises do not mention any Gurdwara at all excepting the Goldon Tomple and the learned Judges were not concerned with the Golden Temple in the Section 10 petition or appeal therefrom. I must, therefore, hold that in spite of the words which have been used by Jai Lal J., Vtjhere is nothing to support the submission of the Appellants that any portion of Bunga Sarkar or Bunga Mai Mallan or both under the name of Bunga Sarkar was declared to be appended to any Gurdwara and I cannot hold that any declaration was given in favour of the notified Gurdwara Bunga Sarkar. The contention of the Respondents, therefore, that the High Court did not interfere with the proprietary rights of the present Defendants seems to be well-founded.

In Management Committee, Gurdwaras, Amritsar v. Indar Singh 15 Lah. 117 : AIR 1933 Lah. 1041 Addison J., quoted with approval the definition of ''Bungas'' given in Mehr Singh v. Sochet Singh 9 P.R. 1917 : AIR 1916 Lah. 98 which is as follows:

Bungas are hostels where pilgrims coming from various parts of India to pay a visit to the Goldon Temple stay. These hostels were founded by rich men, especially by the Eajas and were dedicated to the public as wakf property.

In regard to the right of management it was said that it was not the function of the Gurdwaras Tribunal to give a decision on this matter in a petition made u/s 10, Gurdwaras Act. This question of the management was really left open because the Petitioners u/s 7 had nothing to be with the management of the Gurdwaras, and it was left to be decided between the Committee constituted undor Sub-section (2) of Section 85 and the present Defendants. In the judgment of the High Court also there is no declaration in favour of the Plaintiffs with regard to the property now in dispute. I therefore accept the Respondents contention that whatever declaration there is, in favour of the Defendants.

In their plaint the Plaintiffs Committee lied on the notification which was issued u/s 17 which I have given above. Section 17 of the Act provides for a notification of a Sikh Gardwara on the finding to that effect by a Tribunal and specifically refers to Section 16(2) which again contains the principles on which the decision whether a Gurdwara is or is not a Sikh Gurdwara is to be based. u/s 9 a notification declaring a Gurdwara to be a Sikh Gurdwara issues when no claim u/s 8 is made and Section 17 is a provision for a notification when such a declaration is made after the claim made undor Section 8 has been adjudicated upon taking into consideration the provisions of Section 16(2). It does not deal with immovable property nor does it contemplate any boundaries to be given and indeed as I read the section I do not think it was ever intended to deal with any corporeal thing.

Indeed the scheme of the Act shows that whenever any claim is to be made with regard to immovable property whether u/s 3 or u/s 7(2) the claim is to be made to all rights, titles or interests in immovable properties inclusive of the Gurdwara and when a claim is made u/s 7(1) the claim is to the Gurdwara - an institution-that it is Sikh Gurdwara. In my opinion, ''Gurdwara'' used in Section 7(1) must relate to an institution and therefore, an incorporeal right-something in the nature of worship. After claim u/s 7(1) of the Act, u/s 8 a claim can be put in by an office-holder or 20 worshippers for a declaration that the Gurdwara is not a Sikh Gurdwara, and if no such claim is put forward a notification lias to issue u/s 9. Up to this stage tho Act does not contemplate the filing of a petition with regard to a claim to property which was in the list published u/s 7(2) of the Act. If no claim is made in regard to the institution and claim is made only to the rights, titles or interests in immovable properties inclusive of Gurdwara notified u/s 7(2) a notification will issue u/s 9 irrespective of what happens to the petition u/s 10 which contemplates a claim even to the building in which the ''Gurdwara'' may be located.

The same is also deducible from the juxtaposition of the sections in chapter 3 of the Act. Section 14 gives jurisdiction to the Tribunal to decide petitions under Sections 5, 6, 8, 10 and 11. Section 16 gives the principles according to which it lias to be decided whether a Gurdwara is a Sikh Gurdwara and if that is decided in favour of the Gurdwara being a Sikh Gurdwara a notification issues u/s 17. Section 18 lays down the principles on which claims to immovable property by office-holders have to be decided. It cannot be said that a notification u/s 17 which undoubtedly ia before and independent of Section 18 would cover something which is to be decided in accordance with a later section and which may be decided in another proceeding and later as in this case. I am, therefore, of the opinion that when the notification was issued u/s 17, it was not intended to cover any declaration which could be made in regard to immovable property including the building in which the Gurdwara is housed.

I hold, therefore, that a decision that a right, title or interest in immovable property belongs to a Sikh Gurdwara is a condition precedent to a suit u/s 25A and as there is no such decision in favour of the Plaintiffs the suit is incompetent.

The second point raised by the Respondents was that the original notification issued under Sub-section (3) of Section 7 was ultra vires of the Provincial Government inasmuch as the petition presented by the Sikh Worshippers did not fall under Sub-section (1) of Section 7.

It was submitted that: (1) A petition under Sub-section (1) of Section 7 contemplates the existence of a Gurdwara and the only relief that can be sought in that section is that the said Gurdwara be declared a Sikh Gurdwara; (2) before the Provincial Government can be asked to issue a notification u/s 7(3) there has to be in existence a Gurdwara; (3) if an institution in respect of which a petition is made under this Sub-section is not a Gurdwara in fact the petition is outside the Act and any action taken under the Act is ultra vires; (4) in tho proceedings u/s 5, Bunga Sarkar was doclared to be a resting place for the pilgrims visiting the Golden Temple, a wakf property dedicated for the use of pilgrims; and (5) after the declaration mado by the Tribunal as a result of the compromise of 6-2-1930, tho Bunga could not be a Gurdwara and therefore the notification issued on 18-2-1930 would be dehors the Act.

On these grounds it was the Respondents'' submission that the notification undor Section 7(3) of the Act could not be saidd to be under the Act.

This submission must, in my opinion, be given effect to. Tho Act is intended for the better management of the Sikh Gurdwara and the scheme shows that the intention was to provide a machinery for expeditious and cheap determination as to which of the Gurdwaras are Sikh Gurdwaras, what rights, titles, or interests in immovable property belong to such Sikh Gurdwaras, what compensation if any is to be paid to persons claiming to be hereditary office-holders.and how the management of such Sikh Gurdwaras is to be carried on. But there is one fundamental fact throughout the Act and that is that there has to be a Gurdwara before the Act or the machinery of the Act can be set into motion.

u/s 7(1) the prayer in the petition is that Gurdwara is a Sikh Gurdwara, Section 8 is for determining whether a Gurdwara is or is not a Sikh Gurdwara and Section 11 provides for claims of a hereditary office-holder to compensation if a Gurdwara is declared a Sikh Gurdwara. Section 16 prescribes the principles according to which the determination of the question whether a Gurdwara is or is not a Sikh Gurdwara is to be made and if the Gurdwara is held not to be a Sikh Gurdwara, the jurisdiction of the Tribunal is ousted and no other question except the claim of an office-bearer to restoration of office can be tried, or the Act no longer applies. u/s 17 again a notification issues if the Tribunal finds that the Gurdwara is a Sikh Gurdwara. Section 31(2) precludes the jurisdiction of a civil Court to try a claim to a Gurdwara if a notification u/s 7(3) has issued so as to allow claims to be tried in accordance with the provisions, of the Act. All these sections in my opinion come into operation only if there is in fact a Gurdwara because in every section mentioned above it is something in connection with a Gurdwara which is to be determined. If the very basis - a Gurdwara-is not there the provisions of the Act are not attracted. And if there has been a determination binding on both parties that the building is not a Gurdwara but a ''Bunga'' or a hostel for pilgrims, I fail to see how the Provincial Government can under the Act issue a notification on the petition of 50 worshippers that the Gurdwara is claimed to be a Sikh Gurdwara. If this was so it would be open to any 50 Sikhs to claim that a private residence which has nothing to do with worship of any kind is a Sikh Gurdwara and the more notification u/s 7(3) will make it one and put into motion tbe whole machinery of the Act which would be absurd if not oppressive.

And this finding that if there is no Gurdwara in fact the notification purporting to be u/s 7(3) of the Act is not under the Act is not blunted by the argument of the learned Advocate of the Appellants that this will contravene the provisions of Sub-section (5) of Setion 7 which makes the publication of a notification under the provisions of Sub-section (3) of Section 7 to be conclusive proof that the provisions of Sub-sections (1), (2) and (3) have been complied with or that it will infringe the principle underlying Section 36, which takes away the power of any Court to question anything purporting to be done by the Provincial Government or, by a tribunal, in exercise of any powers vested in it by or under the Act.

Both Sections 7(5) and 30 of the Act would be applicable and bar the jurisdiction of the Court if the action complained of is within and under the Act. But if the action complained of is done arbitrarily, carelessly or oppressively it would be outside the Act and these sections would not bar the remedy of the Defendants. In the present case, a decision had already been given u/s 5 of the Act which was binding on the parties because of tho compromise of 6-2-1930, and the notification was issued after the decision and therefore, it would be an act done outside tho Act and those sections would not be a bar.

In East Fremanlle Corporation v. Annois (1902) A.C. 213 at p. 217: 71 L.P.C. 39, Lord Macnaghten delivering the judgment of their Lordships of the Privy Council said as follows:

The law has been settled for the last hundred years. If persons in the position of the Appellants, acting in the execution of a public trust and for the public benefit do an act which they are authorised by law to do, and do it in a proper manner, though the act so done works a spceial injury to a particular individual, the individual injured cannot maintain an action. He is without remedy unless a remedy is provided by the statute. That was distinctly laid down by Lord Kenyon and Buller JJ., and their view was approved by Abbot C.J., and the Court of. King''s Bench. At the same time Abbot C.J., observed that if in doing the act authorised the trustees acted arbitrarily, carelessly or oppressively, the law in his opinion had, provided a remedy. Those words, ''arbitrarily, carelossly, or oppressively,'' were taken from the judgment of Gibbs, C.J., in Sutton v. Clarke (1815) 16 R.R. 563 : 6 Taunt 29.

In Galloway v. Corporation of London (1864) 2 De. G.J. & S. 213 at p. 229 : 46 E.R. 356 in simpler language Turner L.J., observed in a somewhat similar case that "such powers are at all times to be exercised bona fide and with judgment and discretion."

Lord Macnaghten at p. 218 of the report (1902) A.C. 213 said:

In a word the only question is, has the power been exceeded? Abuse in only one form of excess.

The Lord Chancellor in Frewin v. Lweis (1838) 48 B.B. 88 at p. 89 : 4 My. and Or. 249 giving the principles of Courts'' jurisdiction over public functionaries said as follows:

Many cases have come judicially before me, in which I have been called upon to act upon this principle; more especially in the instance of railway companics, canal companies and other bodies incorporated by acts of Parliament, as to which, while the Court avoids interfering with that which they do while keeping within the limits of their jurisdiction, it takes care to confine theni within those limits; and if under pretence of an authority whioh the law does give them to certain extent, they go beyond the line of their authority, and infringe or violate tho rights of others, they become, like all other individuals, amenable to the jurisdiction of this Court by injunction.

In Secretary of State v. Fahmidannisa Begum 17 I.A. 40 :17 cal. 590 (P.C.), the question for decision was whether the provisions of Act IX [9] of 1847 were applicable to land reformed on the site of a permanently settled estate the revenue of which has been paid without abatement since the permanent settlement. The intention and effect of Act IX [9] of 1847 were held merely to change the mode of assessment and not to extend in any way the liability to assessment so as to include in such liability land so reformed. It was therefore held that where the Board of Revenue has subjected land included in the permanent settlement to an additional assessment purporing to act under the Act the civil Court has jurisdiction to review such decision and to declare the act of the Board ultra vires. Delivering tho judgment of their Lordships of the Privy Council, Lord Herscholl said at p. 53:

Their Lordships cannot hold that the Board of Revenue can by purporting to oxercise a jurisdiction which they do not possess, make their order upon such a matter final and exempt themselves from the control of the civil Court.

See also Municipal Committee, Montgomery v. Sant Singh I.L.B. (1940) Lah. 707 : AIR 1940 Lah. 377 F.B., Lachhman Singh v. Natha Singh I.L.B. (1941) Lah. 71 : AIR 1940 Lah. 401 F.B. and K.L. Gauba v. Punjab Cotton Press Co. Ltd. ILR (l94l) Lah. 524 : AIR 1941 Lah. 234 F.B.

59-60. Relying on these cases, I am of the opinion that Sections 7(5) and 36 are no bar to the jurisdiction of the Courts in questioning the legality of a notification u/s 7 of the Act. The Provincial Government cannot oust the jurisdiction of the Courts by merely purporting to act under a statute which has no application or exercising a jurisdiction which without the existence of a Gurdwara it did not possess.

The notification u/s 7 being dehors the Act all proceedings taken and orders passed would be illegal and ultra vires and therefore the order of the tribunal dated 4-11-1935 or the judgment of the High Court on appeal dated 16-6-1936 would be ineffectual and even invalid.

Two points of res judicata and estoppel which were pressed on and decided by the tribunal against the Appellants were, so the Appellants contended, not relevant to the decision of the case u/s 25A of the Act because the two questions for decision really are a decision in favour of the notified Gurdwara that the right, title or interest belongs to the notified Gurdwara and limitation. But the Defendants rely on these two points to show that such a decision in favour of the Gurdwara was by law barred and even if it could be given the Plaintiffs could not rely upon it as they had induced the Defendants to enter into a compromise and give up rights of ownership, for a lesser right on a representation that tho Plaintiffs will not disturb their rights any further.

The submission of the Appellants on the question of res judicata was that Section 11 in terms was inapplicable because the circumstances in which the section applies are not present in this case for example the subject-matter, the parties and the title under which they are litigating are different in the two proceedings and the present suit was not triable by the former Court. And the Appellants'' Counsel referred to a Lahoro judgment Kesar Singh v. Balwant Singh AIR 1936 Lah. 645 : 166 I.C. 63. But in the view that I take, it is not necessary to decide this point as only tlie procedural sections of the CPC have u/s 12(11) of the Act been made applicable to the proceedings of a tribunal constituted under the Act and the Code applies subject to the provisions of the Act. Section 37 of the Act is a special rule of res judicata. It provides:

Except as provided in this Act no Court shall pass any order or grant any decree or execute wholly or partly any order or decree, if the effect of such order, decree or execution would be inconsistent with any direction of a tribunal or any order passed on appeal therefrom under the provisions of this part.

And the Appellants submitted that this section will not be applicable as the proceedings now were not in a Court but a ''Tribunal''. I am unable to agree that inconsistent orders or directions can be passed by the Tribunals constituted under the Act. Besides being opposed to several judgments of their Lordships of the Privy Council on the applicability of the principles of res judicata which will be quoted later, the tribunal under the Act is a Court within the meaning of that word as used in Section 37 of the Act, which has all the attributes of a Court and exercises judicial powers but is only a Court of a limited and special jurisdiction. See Pitman''s Short-hand v. Lila Ram AIR 1950 15. P.C. 181 : 52 P.L.R. 1 F.B., Shell Co. (Australia) Ltd. v. Federal Commissioner of Income Tax (1931) A.C. 275 : 100 L.J.P.C. 55; Toronto Corporation v. York Corporation (1938) A.C. 415 : 107 L.J.P.C. 43 and Labour Relation Board v. John East Iron Works Ltd. 53 C.W.N. 389 : AIR 1949 P.C. 129.

In other words, the previous findings are binding on all parties irrespective of the requirements of Section 11 and cannot be agitated in any Court.

But even if Section 11 does not in terms apply there is no reason why on general principles of res judicata, the present suit should not be held to be barred. In the famous case, Duchess of Kingstone, 2 Smith''s L.C. Edn. 13, 644 at p. 645 the following passage from the judgment of Sir William De Grey is a statement of the principles of res judicata:

From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true; first that judgment of a Court of concurrent jurisdiction, directly upon the point is, as a plea, a bar, or as evidence conclusive, between the same parties, upon the same matter, directly in question in another Court; secondly that the judgment of Court of exclusive jurisdiction, directly on the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another Court for a different purpose. But neither the judgment of a Court, of concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argumout from the judgment.

In England it has been held that if an award is good on the face of it and neither party has taken steps to impeach it, each party is prohibited from objecting to it and as to all matters which it professes to decide, it as much precludes the parties from alleging anything contrary to the award as a judgment would, on the ground that it is res judicata. See Redman''s Law of Arbitrations and Awards, p. 183. Commings v. Heard (1869) 4 Q.B. 669 : 39 L.J.Q.B. 9; Parkes v. Smith (1850) 15 Q.B. 297 : 19 L.J.Q.B. 405 and Martin v. Boulanger (1833) 8 A.C. 296: 52 L.J.P.C. 31. In the last mentioned case an action was brought by Boulanger and others claiming to be creditors and to exercise the rights of an association called the Distillerie or Guildiverie Centrale, against the heirs of Martin. The object of the action was to reopen accounts between that Association and the late Daniel Martin which had been dealt with by an award given in a former action in the Supreme Court of Mauritius in the year 1865 and to debit Martin with large sums on the ground of erroneous and fraudulent entries alleged by Boulanger and others to exist in his accounts. The heirs of Martin contended that as against the Guildiverie Contrale, and therefore as against any party claiming through that association as its creditors, these accounts were finally settled by the award of 1865, and also that they were and are correct. It was held by their Lordships of the Privy Council that he (the Judge) ought to have said that the Master was porfectly right in considering that this was res judicata; that it was settled as between the firm and Martir by Chauvin''s award, and was consequently settled as between Martin and anyone claiming under or through the firm; that the Plaintiffs being creditors, claimed under the firm within the meaning of that decision; and that consequently the award ought to be considered res judicata between them.

(sic) AIR 1930 22 (Privy Council) it was held that when a question of relationship of the parties has been decided in a probate proceeding, a subsequent suit between the same parties involving the same question is barred by tbe rules of res judicata although the words of the section are not strictly applicable. In this case it was said by Lord Darling:

The question as to what is to be considered to be res judicata is dealt with by Section 11, Code of Civil Procedure, 1908. In that section are given many examples of circumstances in which tlie rule concerning res judicala applies; but it has often been explained by this Board that the terms of Section 11 are not to be regarded as exhaustive. In Ram Kripal v. Rup Kuari 11 I.A. 37 at p. 41 : 6 All. 269 P.C. this is made clear especially in these words of Sir Barnes Peacock the binding force of such a judgment in such a case as the present depends not upon Section 13 of Act 10 [X] of 1877'' (now replaced by Section 11, Code of Civil Procedure, 1908), ''but upon general ''principles of law. If it were not binding there would oe no end to litigation''.

In Ramchandra Rao v. Ramchandra Rao 49 I.A. 129 : AIR 1922 P.C. 80, it was held that

where under the Land Acquisition Act, Section 31, Sub-section (2), a dispute as to the title to receive the compensation has been referred to the Court, a decree thereon not appealed from renders the question of title res judicata in a suit between the parties to the dispute, or those claiming under them, whether or not the decree is to be regarded as one ''in a former suit'' within the meaning of Section 11, Code of Civil Procedure, 1908.

Delivering the judgment of their Lordships, Lord Buckmaster said at p. 137:

There has in the present case been a clear decision upon the very point now in dispute which cannot be responded. The High Courts appear only to have regarded the matter as concluded to the extent of the compensation money, but that is not the true view of what occurred, for, as pointed out in Dadar Bee v. Habib Merican Noor Din (1909) A.C. 615 : 78 . L.J.P.C. 161, it is not competent for the Court, in e case of the same question arising between the same parties, to roviow a previous decision no longer open to appeal, given by another Court having jurisdiction to try the second case. If the decision was wrong it ought to have been appealed from in due time. Nor in such ciroumstaneos can the interested parties be heard to say that the value of the subject matter on which the former decision was pronounced was comparatively so trifling that it was not worth their while to appeal from it. If such a plea were admissible, there would be no finality in litigation. The importance of a judicial decision is not to be measured by the pecuniary valuo of the particular item in dispute. It has been suggested that the decision was not in a former suit, but whether this were so or not makes no difference, for it has been recently pointed put by this Board in Hook v. Administrator General of Bengal 48 I.A. 187 : "A.I.R. 1921 P.C. 11, that the principle which prevents the same case being vice litigated is of general application, and is not (sic) by the specific words of tho Code in this aspect.

In this last montioned case, Hook v. Administrator-General of Bengal 48 I.A. 187 : AIR 1921 P.C. 11 in an administration suit in the High Court during the life of the last surviving annuitant it was held that the conditions had not been fulfilled and that there was not an intestacy as to the surplus income, rejecting a contention on behalf of the next-of-kin that the gift over was invalid, as creating a porpetuity. In further proceedings in that same suit after the annuitant''s death, the next-of-kin contended that they were again entitled to raise the contention that tho gift over was invalid. The validity of the gift over was hold to be res judicata. Delivering the judgmont of their Lordships, Lord Buckmaster said :

The question as to the perpetuity had been definitely and properly before him (the Judge) on the former hearing and was, in fact, decided without any reservation, ns is made plain by the terms of the judgment itself.

It is not, and indeed; it cannot be disputed that, if that be the case, the matter has been finally settled between the parties, for the mere fact that the decision was given in an administration suit does not affect its finality. See Peareth v. Marriott (1882) 22 Ch. D. 182 : 48 L.T. 170. The appellate Court, however, took a different view, and regarding the question as still open, decided it against the Appellant, but the error in their judgment is due to the fact that they regarded the question as completely governed by Section 11, Code of Civil Procedure. That section prevents the retrial of issues that have been directly and substantially in issue in a former suit between the same parties, and this question obviously arises in the same and not in a former suit, but it does not appear that the learned Judge''s attention was called to the decision of this Board in Ram Kirpal Shukal v. Rup Kuari 11 I.A. 37 : 6 All. 269 P.C., which clearly shows that the plea of res judicata still remains, apart from the limited provisions of the Codo and it is that plea which the Respondents have to meet in tho present case.

His Lordship thou quotes the dictum of Sir Barnes Peacock which has already been quoted.

Ram Kirpal Shukul v. Mt. Rup Kuari 11 T.A. 37 : 6 ALL. 269 P.C. was a case in which the principle of res judicata was applied to execution proceedings and at p. 41 Sir Barnes ''Peacock said:

The question, if the term ''res judicata'' was intended, as it doubtless was, and was understood by the Pull Bench, to refer to a matter decided by a Court of competent jurisdiction in a former suit, was irrelevant and inapplicable to the case. Tho matter decided by Mr. Probyn was not decided in a former suit, but in proceedings of which the application in which the orders reversed by the High Court were made was merely a continuation. It was as binding betweon the parties and those claiming under them as an interlocutory judgment in a suit is binding upon the parties in every proceeding in that suit, or as a final judgment in a suit is binding upon them in carrying the judgment into execution. The binding force of such a judgment depends not upon Section 13, Act X [10] of 1877, but upon general principles of law.

In AIR 1940 116 (Privy Council) their Lordships of the Privy Council said

that in tho opinion of their Lordships the present suit is concluded on the general principle of res Judicata, by the decision in the suit of 1855 and also u/s 37, Sikh Gurdwaras Act, 1925, by the decision of the Tribunal (20-1-1930) rejecting the petition of tho Anjuman Islamia. The more circumstance that the Plaintiffs have chosen not to seek recovery of the land in dispute but ask for relief in the forms of declaration and injunction does not avail to enable them to litigate again the claim made by Kur Ahmed as Mutwalli to recover the property for the purposes of the wakf. The ground of the decision of 1855 does not affect; the question of res judicata.

Their Lordships then quote Section 37 of the Act of 1925 and go on to say:

It is sufficiently plain that if the present suit were to succeed the effect of the decree would necessarily be inconsistent with the decision of the Tribunal rejecting the petition of the Anjuman Islamia.

Applying the rule laid down in this case to the facts of the present case, I must hold that the compromise of 6-2-1930, and the decrees passed thereon would be a bar to the present claim of the Plaintiffs, and in the words of their Lordships if the present suit were to succeed the effect would necessarily be inconsistent with the decision of the Tribunal, making a declaration of wakf in favour of the present Defendants. Tho property in dispute cannot belong to a notified Sikh Gurdwara if it is trust property of which the trustees are the Defendants.

The Appellants next submitted that by virtue of Section 41 of the Act the management of this notified Sikh Gurdwara was to be administered by them and by nobody else, and therefore the possession of the Gurdwara had to be with them. Consequently, the condition in the compromise with regard to the management of Bunga Sarkar is illegal. The section runs as follows:

The management of every Notified Sikh Gurdwara shall be administered by the Committee constituted therefor; the Board and the Commissioner in accordance with the provisions of this Part.

In reply the Respondents submitted that the section was not imperative and all it meant was that when the management of any notified Sikh Gurdwara had to be carried on by the Committee constituted under the Act, the management had to be in accordance with the provisions of this part (Part III). In othor words, it is not that every notified Sikh Gurdwara has to be administered by the Committee, but when a management has to be done it has to be in accordance with Part III of the Act. Reliance was placed on a passage in Maxwell on Interpretation of Statutes, p. 374 where it is said:

Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall he complied with, it seems neither unjust nor inconvenierit to exact a righteous observance of them as essential to the acquisition of the right or authority conferred, and it is therefore probable that such was the intention of the Legislature. But when a public duty is imposed and the statute requires tl it shall be performed in a certain manner or within a certain time, or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to othors, who have no control over those exercising the duty, would result if such requirements were essential and imperative.

It may be noticed that u/s 9(2), when a Gurdwara has been notified to be a Sikh Gurdwara tho provisions of Part in become obligatory, so also u/s 17. Relying on the passage above quoted from Maxwell on Interpretation of Statutes, my opinion is that Section 41 is merely directory and is not imperative. This interpretation finds support from the fact that the Act itself contains an exception in Section 27 which provides:

(1) When on or before the commencement ot this Act any property has been dedicated or gifted to a notified Sikh Gurdwara and a trust has been created in writing for the management of such property and for the distribution of the income accruing therefrom partly to the Gurdwara and partly to another institution or to another person or to both, any trustee appointed for the purpose of such trust, or any person; having interest in such Gurdwara or any person having interest in such institution, or any beneficiary under the terms of such trust may within ninety days from the date of the publication of notification declaring such Gurdwara to be a Sikh Gurdwara, present a petition to a tribunal claiming that the trustees appointed; under the terms of the trust should continue to manage tho property and to distribute the inoome accruing therefrom according to the terms of the trust, and addition, may claim that the tribunal should determine what portion of the income should be allocated to any beneficiary.

(2) If the tribunal finds that the major portion the income accuring from the property has not been allocated under the terms of the trust to such Gardwara then, notwithstanding anything contained this Act, the tribunal shall order that such trustl shall continue to manage the property and distribute the inoome accruing therefrom according to the terms of the trust, and if the tribunal finds that the major portion of the income has been allcoated under terms of the trust to the Gurdwara, the tribunal shall order that the committee of such Gurdwara s manage the property and distribute the income ing therefrom according to the terms of the trust.

If trustees can continue the management property dedicated to a Sikh Gurdwara u/s 27, surely that is absolutely destructive of the argument of the Appellants that Section 41 of the Act is mandatory and imposes on the committee the duty of administering the management of a Sikh Gurdwara.

In Gurdit Singh v. Committee Management Gurdwara Navin Padshaki ILR (1940) Lah. 649 : AIR 1940 Lah. 266 the word ''shall'' in Section 99 of the Act was held be directory.

The importance of Section 41 of the Act according to the submission of the Respondents, is that the Plaintiff Committee is estopped from allenging the compromise of 6-2-1930. This estoppel is based on the following circumstances: (1) At the time when the previous compromise if was entered into by the office-bearers of the Shiromani Gurdwara Parbandhak Committee and permanent members of the community were consulted and gave their consent to this compromise, Mr. Charan Singh who evidently took a somewhat prominent part in bringing about the compromise was representing both the present Plaintiffs as well as the Shiromani Gurdwara Parbandhak Committee. (2) The Shiromani Gurdwara Parbandhak Committee is the body which controls and did control the, Gurdwara Committee, the Plaintiffs. It had an office which received applications u/s 7 of the Act. Not only this, in the present case, it was they who were responsible for instituting the petition u/s 7 (3). Expenses for the application were paid by the Shiromani Gurdwara Parbandhak Committee and Section 10 proceedings which arose directly out of Section 7-proceedings were carried on by the Plaintiffs and tho Shiromani Gurdwara Parbandhak Committee and the so called Petitioners neither filed any written statement nor did they appear in the case. (4) In the proceedings u/s 10, the present Defendants wanted both the Plaintiffs as well as the Shiromani Gurdwara Parbandhak Committee to be made parties but both of them refused to be made parties, as is clear from the record printed at pp. 80 and 81, vol. n and...order of the tribunal passed in those proceedings printed at pp. 66 and 07 of the printed paper book Vol. II.

The Defendants further contended that it was a fraud played on them, that on the one hand the Plaintiff-committee and the Shiromani Gurdwara Parbandhak Committee entered into a compromise with them and at the same time instigated the bringing of a petition u/s 7 by an apparently different set of persons. The device, according to the Defendants, was to get out of the compromise and then to defeat the Defendants by resort to a Section 7-petition. The Defendants submit that this amounts to an estoppel by omission. As I have said before hatever be the reasons for bringing a petition u/s 7 and for entering into a compromise it is not necessary for me to decide about the Ifnorals of the parties to the dispute. The facts �peak for themselves, and we are only concerned with the legal consequences of these facts, and am of the opinion that they amount to estoppol. The submission against this by the Appellants was that this would amount to estoppel against the statute. I cannot see how that can be so. The compromise provided that the property, Bunga Sarkarwala and Bunga Mai Mallan, was wakf property to be used by pilgrims to Shri Harmandir Sahib; that nothing was to be done in the said building which was against the tenets of the Sikh religion; that the management was to remain in the present Defendants and their heirs and representatives; their repairs were to be done by the Defendants or their representatives, but no alterations in the building on the side of Parkaman were to be carried out without the permission of the Local Managing Committee. The essential part of the compromise according to me was that the building instead of being fcho private property of the present Defendants became trust property the legal title to which, but not the beneficial interest, would vest in the present Defendants as trustees and they would exercise certain rights. I do not see how the decision on the question of ownership can in any way militate against Section 41 of the Act, nor indeed would the question of management an agreement in regard to whiah can be enforced u/s 27 of the Act. On this point, also, therefore, the Defendants are entitled to succeed. The Plaintiff committee cannot now turn round and ask for possession of the property on tho ground of its belonging to a Sikh Gurdwara when it induced the Defendants to give up their rights of ownership and as deposed by the Defendant as his own witness gave him an assuranco that the possession of the Defendants will not be disturbed.

Coming back to the question whether the Provincial Government was under the law entitled to issue a notification u/s 17, in view of what I have said I must hold that it was not. The finding that the disputed property was trust property meant for a particular object militates against fcho notification that it was a notified Sikh Gurdwara. The building had been held not to be Gurdwara at all and whether the word ''Gurdwara'' u/s 17 has reference to a corporeal or incorporeal existence, after the determination by a tribunal in a previous proceeding that the building was a private wakf, no notification u/s 17 could issue as the place has been held to be a rest house for pilgrims and not a Sikh Gurdwara. After the compromise of 6-2-1930, no notification challenging this position could issue.

It is now possible to decide whether the appeal abates as a whole or only partially. In the notification u/s 17, the mention is of Bunga Sarkar as described in the orders of the High Court in civil Regular F.A. Nos. 67 and 68 of 1936. It was held there in the judgment of Jai Lal J. with which Abdul Rashid J. agreed that

the real position found by the tribunal seems to be that there is only one Sikh Gurdwara, the Bunga Sarkarwala and that Bunga Mai Mallan has no separate existence as a Guarwava but is a well-known part of Bunga Sarkarwala.

If we hold, as indeed, we must that by the death of S. Balwant Singh and by not bringing on the record his legal representatives tho appeal against him abates the whole appeal must abate. We cannot split up tlie Gurdwara into separate parts and say that tbe appeal will abate as regards l/3rd portion of that part and will not abate as to the rest. That would be passing inconsistent decrees and the rule in Sanl Singh v. Gulab Singh 10 Lah. 7 : A. I.R. 1928 Lah. 572 F.B., will not be applicable. It cannot be said that there would not be contradictory decrees with respect to the same subject matter if we allow the appeal to proceed with regard to the rest of the property. As was said in Sant Singh v. Gulab Singh, 10 Lah. 7 : AIR 1928 Lah. 572 P.B.) by Sir Shadi Lal C.J.,

it is a matter of common sense that the Court should not be called upon to make two Inconsistent decrees about the same property, and in order to avoid conflicting decrees the Court has no alternative but to dismiss the appeal as a whole.

The next point to be decided is one of limitation. The Tribunal passed a decree in Section 10-proccedings on 4-11-1935, .by which they declared S. Raghbir Singh and S. Balwant Singh to be entitled to certain interests in the property in dispute. On 16-6-1936, tho High Court passed a decree varying tho decree of the Tribunal. Both the decision of the Tribunal as well as of the High Court have already been quoted in extenso. The contention of the Appellants is that the declaration was in their favour. I have already discussed this point that there was no such declaration but if it were held that the declaration was in their favour then u/s 25A of the Act, the Committee of the Gurdwara concerned, within a period of one year from the date of the decision or the date of the constitution of tho Committee, whichever is later, can institute a suit claiming to be awarded possession of the right, title or interest in the immovable property in question as against the parties to the previous potition. The suit in the present case was filed on 25-2-1938 which would be more than one year after the decision of the High Court appeal and the only question then would be whether the suit is within time within the clause "the date of the constitution of tho Committee." In order to determine the date of the constitution of tho Committee, reference has to be made to certain other sections of the Act Section 40 of the Act provides that therftj shall be constituted for every Notified SikbJ Gurdwara a Committee of Management. Section 85(2) says:

There shall be one committee for the Gurdwara known as the Darbar Sahib, Amritsar, and the Baba Atal Sahib, and all other Notified Sikh Gurdwaras situated within the municipal boundaries of Amritsar other than the Sri Akal Takht Sahib, and it shall consist of....

In contradistinction to this Section 86 says:

For every Notified Sikh Gurdwara other than a gurdwara specified in Section 85 a committee shall be constituted after it has been declared to be a Sikh Gurdwara under the provisions of this Act, or after the provisions, of Part iii have been applied to it under the provisions of Section 38.

Section 87 gives the constitution of committee not specifically provided for in other sections of the ''Act. Section 88 is as follows:

(1) The committee described in Sections. 85 and 86 shall; be constituted as soon as may be after the constitution of the Board, provided that no committee shall be constituted for any Gurdwara under the provisions of that Act unless and until it has beon declared to be a SikhGurdwara under the provisions of this Act....

(2) When all the members of any committee described Section 85 have been elected or coopted, as the case may be, according to the provisions of that section, the Provincial Government shall notify the faot that the committee has been duly constituted, and the date of the publication of the Notification shall be deemed to be the date of the constitution of the Committee." The submission of the Appellants is that if Sub-section (1) and (2) of Section 88 are read together the date of the constitution of the committee in the present case should be taken to be some date after the Notification was issued or at any rate the date of the publication of the Notification issued u/s 17 should be taken to be the date of the constitution of the committee, because, if the committee is to be constituted after the Notification has been issued, there cannot be a committee of management of a Gurdwara which is notified after the committed has already been constituted. But this argument does not take into consideration the words "whichever is later" in Section 25A of tho Act. If the argument of the learned Advocate were correct, then in no case can there be a committee before the decision of the case and those worda bocome redundant. But even if that was not so, in my opinion, the date of the constitution, of the committee must necessarily refer to what is given in Sub-section (2) of Section 88. The two Sub-sections of Section 88 can be harmonized in this way that for certain areas committees have under the Act, been constituted and any Gurdwara which is declared a Sikh Gurdwara is taken charge of by the committee which has already been constituted under the Act. There are also committees which are for each Notified Sikh Gurdwara separately and of these Gurdwarii committees are constituted only after they are notified. In the present case, there is no suggestion that there has been a Notification of tho constitution of a committee of management of the Gurdwara in dispute, and if we agree with the submission of the Appellants we will have to add after the second Sub-section the following words: "Except in the case of Gurdwaras falling within Section 85 (2) in which case the date shall; be the date of Notification undor Section 17.

This is not a. case of casus omissus. I do not think; we will be justified in giving effect to this submission. The Gurdwaras Tribunal have held he suit to be within time because the Gurdwara as notified to be a Sikh Gurdwara on 8-8-1937. The terminus a quo under Section. 25A of the Act is the date of the decision or the date of the institution of the committee. The suit was brought more than ono year after tho date of tho decision and the date of the constitution of the Committee was before that date. We cannot take the terminus a quo to be the date when the committee formed u/s 85(2) took charge of the Gurdwara in dispute and began; to function u/s 41 of the Act. On this ground also, in my opinion, the suit of the Plaintiffs must fail.

Another objection was takon by the Respondents that tho appeal had abated because under the Sikh Gurdwaras (Amendment) Acts, of 1944 and 1949 Section 85 of the Act (of 1925) has been amended and the Board has become the Committee of Management for the Gurdwaras situate within tho Municipal boundaries of Amritsar instead of there being a separate Committee of Management for that area. In order to get over this difficulty, Mr. Mittal has put in a power-of-attorney on behalf of the; S.G.P.C. and a petition under Order 22, Rule 10 and Section 151, Code of Civil Procedure, praying that the S.G.P.C. Amritsar, (the Board) being the Committee of Management for the Notified Sikh Gurdwaras, Bunga Sarkar and other Gurdwaras be substituted in place of the Committee which was the Plaintiff in the case. I order the substitution prayed for.

A further objection was taken by the. Respondent that this application under Order 22, Rule 10 is barred by time, as it has not been made within 90 days of the Board becoming the Committee of Management. No question of limitation'' arises because the right to apply under Rule10 of Order 22, accrues from day to day and does not become barred by lapse of time, and as stated by Mulla, an application to be added or substituted as a party undor Rule 10 has be made at any time, see Mulla''s Code of Civil Procedure, p. 950. I would, therefore, "venule this objection.

I therefore hold: (1) The compromises of 6-2-1930, and the decrees passed thereon wore between tho parties to both the proceedings u/s 5 of the Act" and Section 25A of the Act and the latter proceedings are barred if Section 37 of the Act which makes the adjudication of the Tribunal binding on all parties and in every Court and in all proceedings. (2) Even if Section 11 in terms does not apply the principles of res judicata will apply and in accordance with the cases which I have quoted the decision in the former proceedings will bar the retrial of the same issues. (3) By their own conduct, the Plaintiffs are estopped from challenging tho validity of the compromises which are binding on them. (4) u/s 25A, a committee can sue for possession if a declaration is made in favour of the Committee. No declaration has been shown to have been made in favour of the Committee and the mere fact that a Notification u/s 17 has been issued is no ground for holding otherwise. The suit was, therefore, incompetent. (5) Notification u/s 7 cannot in the circumstances of this case be held to be a notification under the Act as there was no Gurdwara in fact and in the previous proceedings it has been held that the building was a resting place for intending pilgrims and therefore not a Gurdwara and could not bo declared a Sikh Gurdwara. (6) u/s 25A, the suit should have been brought within a year of the judgment of the High Court, i.e. 16-6-1936, and it is, therefore, barred by time. It would not be within limitation on the ground of notification u/s 17, dated 3-3-1937 because no Committee was constituted after the date of the notification. (7) By the death of S. Balwant Singh the appeal abated as a whole.

The appeal, therefore, fails and is dismissed with costs throughout.

Soni, J.

I agree.