# S.C.R. SUPREME COURT REPORTS 325 (P. B. KESARSINGH v. BALWANT SINGH GAJENDRAGADKAR, K. N. WANCHOO and

- **Citation:** [1962] Supp. 1 S.C.R. 325
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil A ppca 1 No. 34 of 1954
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-c-r-supreme-court-reports-325-p-b-kesarsingh-v-balwant-singh-gajendragadkar-k-2423
- **Pages:** 20

## Headnote

(1) S.C.R.
SUPREME COURT REPORTS 325
(P. B.
KESARSINGH
v.
BALWANT SINGH
GAJENDRAGADKAR, K. N. WANCHOO and
K. c. DAS GUPTA, JJ.)
Sikh Gurdwaro-Tribunal's decision regarding claims to
property-Binding nature- Civil Court, if can go behind-Sikh
Gurdwara& Act, 1925 (8 of 1925), ss. 25A, 36, 37.
Limitation-Adi1erse possession-PosBP.8Bion as servantsIt' hether adverse-Indian Limitation Act, 1908 (9 of 1908),
Arl8. 142, 144.
In 1933 there were proceedings before the Sikh Gurdwaras Tribunal under the Sikh Gurdwaras Act, 1925, for
d~termining whether the bunga in suit was the property of the
Golden Temple. In these proceedings K and J claimed to be
owners of the bunga and B claimed that he was the descendant
of Maharaja Sher Singh and as such was entitled to the bunga
as a manager.
The Tribunal rejected the claims of the
Golden Temple and of K and J and held that the bunga was
wakf property under the management of the descendants of
Maharaja Sher Singh. Subsequently, B brought a civil suit for
possession of the bunga by ejectment of K and J on the ground
that they being servants or servitors of the wakf had forfeited
their right of residence as they were claiming rights adverse
to the wakf.
K and J resisted the suit mainly on the grounds
that B was not competent to maintain the suit as he was not a
descendant of Maharaja Sher Singh and that they had pres•
cribed title by adverse possession.
Held, that ss. 36 and 37 of the Act barred K and J from
raising the question before the Civil Court whether B was a
descendant of Maharaja Sher Singh. The Act had given full
powers to the Tribunal to decide, not merely the claim of
the Sikh Gurdwara, but also of all the rival claimants before
it. Section 36 barred any court from questioning anything
done by the Tribunal in exercise of its powers under the Act.
Section 37 barred any court from passing any order or decree
or executing any order or decree if the effect of doing so was
inconsistent with decision of the tribunal. The decision of the
Tribunal that the bunga was wakf property and that the
descendants of Maharaja Sher Sin!(h were the managers
had becomr, final. The claim of B that he was a descendant
of Maharaja Sher Singh was never challenged before the
Tribunal and its decision was given at the instance of B.
Held, further, that the suit was not barred by limitation
either under Art. 142 or Art. 144 of the Limitation Act. Kand
1961
Nor;ember 3,
1961
Kesar Si11th
v.
Balu·a11t Singh
Wandwo J.
3::!6
SUPREME COURT REPORTS [1962] SUPP.
J ,..,ere in possession as servants or servitors and their possession
was permissive.
From the decision of the Tribunal it was
clear that no hostile title was set up by Kand J against B at
any time before the proceedings of 1933, "' such the suit
which was filed in 1943 could not be barred by limitation.
CrvIL APPELLATE J URISDIC'l"ION: Civil A ppca 1
No. 34 of 1954.
Appeal from tho judgment and decree dated
July 2, 1951, of tho Punjab High Court in Regular
:First A ppcal No. 269 of 1945.
N. S. Bindra and l/arbans Singh,
(or the
appellant.
Gopal Singh, for the reRpondents.
1961. November 3. The Judgment of the
Court was delivored by
WANCIIOO, J.-Thc suit out of which the
present appeal arises has had a chequered history.
It was filed as far back as June 1943, the plaintiff
being S. Balwant Singh (hereinafter rderred to as
the respondent). Tho main defendants were Kesa.r
Singh and Jaswant Singh, of whom Kesa.r Singh
will bu referred to as the appellant hereinafter.
Tho suit was with rospect to a house known as
bunga 1l:laharaja Sher Singh which is situate outside
tho tank around Sri Harmandir Saheb (hereinafter
referrcred to as the Golden Temple) in Amritsar.
The case of the respondent was that he and his
uncle who was made a defendant to the suit were
managers of this bunga which was wakf property and
that they and t.heir ancestors had been in possession of it throughout. There were proceedings
before the Sikh Gurdwaras Tribunal established
under the Sikh Gurdwa

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(1) S.C.R.
SUPREME COURT REPORTS 325
(P. B.
KESARSINGH
v.
BALWANT SINGH
GAJENDRAGADKAR, K. N. WANCHOO and
K. c. DAS GUPTA, JJ.)
Sikh Gurdwaro-Tribunal's decision regarding claims to
property-Binding nature- Civil Court, if can go behind-Sikh
Gurdwara& Act, 1925 (8 of 1925), ss. 25A, 36, 37.
Limitation-Adi1erse possession-PosBP.8Bion as servantsIt' hether adverse-Indian Limitation Act, 1908 (9 of 1908),
Arl8. 142, 144.
In 1933 there were proceedings before the Sikh Gurdwaras Tribunal under the Sikh Gurdwaras Act, 1925, for
d~termining whether the bunga in suit was the property of the
Golden Temple. In these proceedings K and J claimed to be
owners of the bunga and B claimed that he was the descendant
of Maharaja Sher Singh and as such was entitled to the bunga
as a manager.
The Tribunal rejected the claims of the
Golden Temple and of K and J and held that the bunga was
wakf property under the management of the descendants of
Maharaja Sher Singh. Subsequently, B brought a civil suit for
possession of the bunga by ejectment of K and J on the ground
that they being servants or servitors of the wakf had forfeited
their right of residence as they were claiming rights adverse
to the wakf.
K and J resisted the suit mainly on the grounds
that B was not competent to maintain the suit as he was not a
descendant of Maharaja Sher Singh and that they had pres•
cribed title by adverse possession.
Held, that ss. 36 and 37 of the Act barred K and J from
raising the question before the Civil Court whether B was a
descendant of Maharaja Sher Singh. The Act had given full
powers to the Tribunal to decide, not merely the claim of
the Sikh Gurdwara, but also of all the rival claimants before
it. Section 36 barred any court from questioning anything
done by the Tribunal in exercise of its powers under the Act.
Section 37 barred any court from passing any order or decree
or executing any order or decree if the effect of doing so was
inconsistent with decision of the tribunal. The decision of the
Tribunal that the bunga was wakf property and that the
descendants of Maharaja Sher Sin!(h were the managers
had becomr, final. The claim of B that he was a descendant
of Maharaja Sher Singh was never challenged before the
Tribunal and its decision was given at the instance of B.
Held, further, that the suit was not barred by limitation
either under Art. 142 or Art. 144 of the Limitation Act. Kand
1961
Nor;ember 3,
1961
Kesar Si11th
v.
Balu·a11t Singh
Wandwo J.
3::!6
SUPREME COURT REPORTS [1962] SUPP.
J ,..,ere in possession as servants or servitors and their possession
was permissive.
From the decision of the Tribunal it was
clear that no hostile title was set up by Kand J against B at
any time before the proceedings of 1933, "' such the suit
which was filed in 1943 could not be barred by limitation.
CrvIL APPELLATE J URISDIC'l"ION: Civil A ppca 1
No. 34 of 1954.
Appeal from tho judgment and decree dated
July 2, 1951, of tho Punjab High Court in Regular
:First A ppcal No. 269 of 1945.
N. S. Bindra and l/arbans Singh,
(or the
appellant.
Gopal Singh, for the reRpondents.
1961. November 3. The Judgment of the
Court was delivored by
WANCIIOO, J.-Thc suit out of which the
present appeal arises has had a chequered history.
It was filed as far back as June 1943, the plaintiff
being S. Balwant Singh (hereinafter rderred to as
the respondent). Tho main defendants were Kesa.r
Singh and Jaswant Singh, of whom Kesa.r Singh
will bu referred to as the appellant hereinafter.
Tho suit was with rospect to a house known as
bunga 1l:laharaja Sher Singh which is situate outside
tho tank around Sri Harmandir Saheb (hereinafter
referrcred to as the Golden Temple) in Amritsar.
The case of the respondent was that he and his
uncle who was made a defendant to the suit were
managers of this bunga which was wakf property and
that they and t.heir ancestors had been in possession of it throughout. There were proceedings
before the Sikh Gurdwaras Tribunal established
under the Sikh Gurdwaras Act, No. VIII of 1925,
(hereinafter referred to ae the Act) in 1933 with
respect to thiR bunga.
The proclledings arose
because a claim was put forward that the bunga
was the property of the G<Jlden Temple. In those
procoedings the a ppe II ant and the other defendant
claimed the bunga. The respondent also made a
,
•
I
..
II•
•
(ll s.c.R .
SUPREME COURT REPORTS
327
claim to the bunga. The proceedings were all
consolidated and it was decided that the bungs. was
not the property of the Golden Temple; the claims
of the appellant and the other defendant were also
dismissed and the
Tribunal
held that the
respondent and his uncle had the right to manage
and supervise the bunga and were its managers ..
There were appeals to the High Court from that
decision by the appellant and the other defendant
which were dismissed with the result that the Rtatus
of the respondent and his uncle as determined by
the Tribunal was upheld. Thereafter the respondent along with his uncle filed a declaratory suit
against the appellant and the other defendant. In
that suit they were ordered to file a suit f<;ir possession. Consequently the present suit was filed for
possession and ejectment of the appellant and the
other defendant.
·
The case for ejectment was based on the
ground that the appellant and the other defendant
were in possession of the bunga without any right.
They had been asked to deliver possession to the
respondent but refused to do so and continued to
treat the bunga, which was wakf property as their
personal property. The respondent therefore did
not desire to ke1>p
the appellant and the other
defendant as servitors to look after the bunga. as
they were clii,iming rights adverse to the wakf and
consequently prayed for their ejectment and
delivery of possession of the bunga to him and bis
uncle.
The suit was resisted l>y the appellant and the
other defendant and it was contended that the
respondent was not a descendant of Maharaja Sher
Singh and was therefore not entitled to the management of'tho bunga. It was denied that the bunga.
was wakf property. It was also denied that the
respondent and his uncle had ever anything to do
with the bunga or were ever in possession of it a.s
1901
liuar Sin1h
'·
Balwant Singh
Wanchoo J.
1161
Kt1a~ SiJTgh
..
B,-ilwa11t Sing%
Wa!khoo J,
~8 SUPREME OOURT REPORTS [1962] SUPP.
managers. It was further alleged that any decision
of the tribunal agaiust the appellant had no effect
as the tribunal had no jurisdiction to give any
decision and in any case the tribunal had given no
decision in favour of the respondent and his uncle.
Further even if any decision was given in favour of
the respondent and his uncle by the tribunal, it
was not binding on the appellant as he was no
party to those proceedings. It was also claimed
that the appellant was the owner of the bunga and
in any c11.se even if the hunga was wakf property
the appellant was it.s hereditary manager and was
entitled to it.s possession and could not bo ejected
by the respondent. Finally, adverse poBBession
was claimed against the respondent who was
alleged to have never been in po88e88ion within 12
yearR before the suit was filed and in any case as
the respondent's application under s. 25A of the
Act had been dismissed in July 1935 he had no
right to file a suit for poBSession thereafter.
On these pleadings, eight issues were framed
by the trial court, which are as below : -
I. Whether the bunga in dispute is a wakf
property founded by Maharaja Sher
Singh, or any descendant of Ma.haraja
Sher Singh?
:? . Is the plaintiff a descendant of Maharaja
Sher Singh, and is therefore entitled to get
posseBBion of tho bunga in dispute as a
manager?
3.
Is tho plaintiff entitled to bring this suit
aione? ·
4.
Is the suit within time?
5. h the suit barred under s. 92 Civil
Procedure Code!
l'. Are the dcfondant.s debarred from denying
the plaintiff's title in view of the judgment
•
/
(1) S.C.R.
SUPREME COURT REPORTS
329
of the Lahore High Court and the
decision of the Sikh Gurdwaras Tribunal?
7. Has the plaintiff relinquished his right
and what is its effect?
8. Relief?
In the trial court, the parties argeed that the
decision might be given only on issues 3 to 7 and issues
Nos. I and 2 might be left undecided. Consequently,
the trial court proceeded to decide issues 3 to 7 only.
It held on issue No. 3 that the repondent was
entitled to bring the suit alone. On issue No. 4,
thA trial court held that the suit was barred by time.
Is~ue No. 5 was not pressed and was therefore
decided against the appellant. On issue No. 6 the
trial court was of the view that it was not necessary to give any finding on it in view of the finding
on the question of limitation; even so it held that
the defendants were debarred from denying the
plaintiff's title in view of the judgment of the
Lahore High Court and the decision of the Tribunal.
On issue No. 7 it held that in view of the decision
of the tribunal and judgment of the High Court it
could not be said that the respondent had relinquished his rights. In the result, the suit was
dismissed on the ground of limitation.
The respondent then went in appeal to the
Punjab High Court. The High Court held on the
question of limitation that the suit was not barred
by time. It then referred to the deciaion of the
tribunal which had held that the bunga w-as wakf
property founded hy Maharaja Sher Singh and held
th9t this decision of the tribunal was binding and
conclusive. It was of the view that the question whether the respondent was the descendant of
Maharaja Sher Singh and therefore entitled to ob·
tain possession of the bunga which was the subject·
matter of issue No. 2 should have been decided,
It therefore accepted the a.ppeal and set aside the
order of the trial court on the question of limitation
1961
Kesar Singh
v.
Ba/want Singh
Wanchoo J,
1961
Ktsar Singh
v.
Bolwant Singh
i:·a11ohoo J.
330
SUPREME COURT REPORTS [1962] SUPP.
and remanded the e;ase for the decision of issue
No. 2 as framed by the trial court and further
framed two additional is,ues and directed the trial
co•irt to decide them also. These additional issues
were:-
I. WRH Jaswant Singh a bungai or a
servitor of the plaintiff and defendant Ko. 3
or their ancestors?
2.
Can the plaintiff dispossess the defendants on any of the grounds specified in paragraph 4 of the plaint?
..
On remand the trial court held against the
respondent on issue No. 2.
Its finding was that
lit had not been proved that the respondent was the
eescendant of Ma.haraja. Sher Singh and therefore
ntitled to get possession of th" bwiga in dispute as
manager. On the first additional issue, tho trial
court found that the appellant and the other defendant were servitors or bwigais. On the second additional iBBue it was found that a bungai or servitor
if he denies the title of tho rightful owner on whoso
behalf he manages the property forfeits his rights
to retain the property or to continue as servitor,
and as the appellant and the other defendant had
set up a title adverse to the rC!!pondent, they would
be liable to ejectment on the ground specified in
para 4 of the plaint, if the respondent is the rightful
owner, whether
a.~ trustee or otherwise, of the
bung a.
On receipt of these findings, the appeal was
heard again, this time by Pnother Benoh of the
High Court, The High Court pointed out that issue
No. 6 had not been decided on the earlier oooasion
and took the view that if issuti No. 6 were decided
in favour of the respondent it would not be neces·
eary to go into the question whether the respondent
waa the descendant of M.a.haraja Sher Singh and
therefore entitled to sue for ejectment. The High
Court therefore addrei.eed iteelf to the decision of
(I) S.C.R. SUPREME COURT REPORTS
331
issue No. 6 and held that in view of the judgment
of the Lahore High Court and the decision of the
tribunal, the appellant and the other defendant
were debarred from denying the. respondent's title
as a descendant of Maharaja Sher Singh. In that
view of the m!l.tter it held that the suit must succeed as the question of limitation had been decided
against the appellant and the oth'er defendant and
it was not open to go into the question whether
the respondent was a descendant of Maharaja Sher
Singh and therefore entitled to maintain the suit.
The appeal was therefore allowed and the suit was
decreed. The appellant then applied for leave to
appeal to this Court, which was granted; and that
is how the matter has come up before us.
The appeal came up for. hearing before this
Court in lli58.
This Court then took the view that
it was difficult to decide the appeal satisfactorily
without having a finding on the essential issue,
namely, whether the plaintiff was a descendant of
Maharaja Sher !Singh and therefore entitled to get
possession of the bunga ih dispute as a manager.
This Court therefore directed the High Court to
record a finding on issue No. 2 and also on the two
additional issues framed by the High Court when
the remand was made on an earlier occasion·.
The
appeal has.now come up for hearing again.after the
findings of the High Court, which are that the respondent has n9t been proved to be the descendant
of Maharaja Sher Singh and that the appellant and
the other defendant were in possession of the bunga
as bungais or BewadarB and that they were liable to
ejeotment because they had denied the title of the
rightful owner on whose behalf they were managing
the property. In effect the High Court confirmed
the findings of the trial court on remand.
Before we g0 into the effect of the findings
now submit~ by the HigJi Court on the direction
of this.court, it is in our opinion necessary to decide
issue No. 6, for if that issue is decided in favour of
1961
Kesar Singh
v.
Bal want Si n:h
Wanchoo J,
11161
K,1arSingh
v.
Be/want Singh
li' onchoo J.
332 SUPREME COURT REPORTS [1002] SUPP
the respondent it will not be open to the appellant
or the other defendant to question that the respondent was the descendant of J\faharaja Sher Singh
and consequently had the ri~ht to maintain the suit.
That brings us to the consideration of the effect of
the decision of the tribunal and the judgment of the
Lahore High Court in appeal therefrom, which in
its turn requires a considl•ration of the provisions of
the Act.
The Act was passed to provide for the better
administration of certain Sikh Gurdwaras and for
inquiries into matters and settlement of disputes
connPcted therewith. Section 3 ( l) of the Act
provides for forwarding by any Sikh or any present
office.bolder of a Gurdwara, specified in Sch. I,. of
a list of all rights, titles or interests in immovable
properties situate in Punjab and in all monetary
endowments yielding recurring· income or profit
received in Punjab which he claims to belong,
within his know ledge, to the gnrdwara along with
the name of the person in possession of any such
right, title or interest. On receiving such lists, the
St.'\te Government has to publish, inter alia, under
s. 3 (2) a consolidated list in which all rights, titles
and interests in such properties as are described in
sub-a. ( l) are included and also to send by registered
post a notieti of the claim to each of the persons
named therein as being in po88e8sion of such right,
title or interest. Section 5 (I) then provides that
any person may forward to the State Government a
petition claiming a right, title or interest in any
such property included in such consolidated list
within a certain. time of its publication. Sub-section
(:l) then lays down that if no claim is made under
s. 5 (I) within the time limited thereby, the State
Government shall publish a notification declaring
that no such claim has been made with respect to
the property notified under s. 3 (I). Sections 7 and
10 make similar provisioM with respect to gurdwaras
which are not included in Sch .. I to the Act; but we
••
(l) S.C.R1
SUPREME COURT REPORTS
333
are not concerned with them in the present appeal
for the Golden Temple is included in Sch. I awl ss. 3
and 5 apply to it. Section 12 then provides for
setting up of a tribunal. Section 14 gives power to
the State Government to forw:trd to the trib~nal
all petitions received by it under th•J provisions of
s. 5 and other sections and the tribunal has to
dispose of such petitions in accordance witb. the
provisions of the Act. Seeticin 15 is important and
may be read in extenso-
"(l) In disposing of any matter in which
it has jurisdiction a tribunal may order any
dispute arising therefrom to be dealt within
one proceeding separately or more such disputes than one to be dealt with in one
proceeding, and ma;r, by public advertisement
or otherwise, enquire if any person desires
to be made a party to any proceeding, and
may join in any proceeding any person who
it considers ought to be made a party thereto.
(2) The tribunal may ordAr any person
to submit within a fixed time a statement in
writing setting forth the nature of his claim or
objection and the grounds thereof.
(3) If any person fails to comply with an
order passed under the provisions of subsection (2) and duly notified to him, the
tribuna.l may decide the matter in dispute
against him, provided that the tribunal may
at any time extend the time fixed by its order
for the submission of the statement if the
person satisfies it that he had sufficient cause
for not submitting the statement within the
time fixed.
(4) A tribunal may pass any such order
as to costs of a proceeding as a court might
pass under the provisions of the Code of Civil
Prooedlll'e, 1008."
1961
Kesar Sin!h
v.
Balwant Slngh
WanchJo J,
11161
Kuar Singh
v.
Balwant Sin.~h
U'ari(hoo J.
33<1 SUPRE:\fE COURT REPORTS (1962) SUPP.
Then comes s. 25A which Jaye down that when it
has been decided under the provisions of the A ct
that a right, title or interest. in immovable property
belongs to a notified Sikh Gurdwara, or any person,
the Committee of the Gurtlwara concerned or the
person in whose favour a. declaration has bcrn matle
may, within a period of one year from the date of
the decision or the date of the eonstitution of the
Committee, whichever is la.tP.r, institute a. suit before
a. tribunal claiming to be awarded possession of the
ri~ht, title or interest in thl' immovable property
in question as against the parties to the previous
petition, and the tribunal shall, if satisfied that the
claim relates to the right, title or interest in the
in11no"able property which has been held to belong
to the Gurdwara, or to the person in whose favour
tho d!'claration has been made, pass a deoree for
possession accordingly. Section 26 then inter alia
lays down that when it has been decided, under the
provisions of the Act, that a right, title or interest
in immovable property belongs to a Notified Sikh
Gurdwara or when a right, title or interest in such
property has been included in a list published under
the provisions of s. 5 (3), the Collector of tho district in which tho property is situawd shall, on
application being made to him on this behalf and
after making such enquiry as he may deem proper
into the fact of such deoision or inclusion, cause an
entry t-0 be made in the records-of-rights, if any, of
tho estaw in which the property is eitua.ted recording the ~rdwara as the owner of the right, title or
interest in accordance with the provisions of the
Punjab Land Revenue Act, 1887. Section 28 then
provides for a suit for poesession in respect of
properties in whir.h no claim has been made under
s. 5 ors. JO. Section 34 (1) gives a right of appeal
to the High Court to any party aggrieved by·a final
order passed by the tribunal dewrrnining any
matwr decided by it under the provisions of the
Act. Sections 36 and 37 are important and may be
read in extenso.
~·
(1) S.C.R.
SUPREME COURT REPORTS
335
"36. No suit shall lie in any court to
question anything purporting to be done by
the State Government or by a tribunal in
exercise of any powers vested in it by or under
this Act."
"37. 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 incor,sistent with any
decision of a tribunal, or any order passed on
appeal therefrom, under the provisions of this
Part."
It is clear therefore from the scheme of the
Act that it gives jurisdiction to the tribunal to
decide all claims to properties which are claimed to
to be the properties of a Sikh Gurdwara mentioned
in Sch. I to the Act. It is true that where a property
in notified in the list under s. 3 each person who
has a claim to that property has to make a separate
claim .,n his own behalf which is forwarded to the
tribunal for decision. It is clear however from the
provisions of s. 15 ~hat where a tribunal is dealing
with a property which is claimed to belo.r g to a Sikh
Gurdwara and in respect of which counter claims
have been made by other persons, it has jurisdiction
to decide to ~horn that property belongs, whether
to the Sikh Gurdwara or to any oLher person claiming it and for that purpose it can consolidate the
proceedings resulting from different claims to the same
property so that all disputes with regard to that
property can be decided in one consolidated proceeding. Further it has the power under s. 15 to inquire
by public advertisement or otherwise if any person
desires to be made a party to any proooeding and
may join in any proceeding any person who it considers ought to be made a party thereto. Where
therefore a number of claims have been made under
s. 5 to the same property which is claimed under s.3
1961
Kesar Sinth
v.
Balwarrt Singh
Warichoo J.
1951
K11ar Si.,gli
V.
Ba/wa"l Sing/a
IVanthoo J,
336 SUPREME COURT REPORTS [1962] SUPP.
1
to bP!ong to a Sikh Gurdwa.ra the trihunal can
consolidate a.II such claims umfor s. 1 !i and treat all
the claims as one proceedi1!g. Where therefore
tho trib1111al consolidates the claims in one proceed.
i11g Pach claimant even though he had made a claim
for himself as ag.iinst the Sikh Gurdwara would be
cntitle<l under s. 15 to contest tho claim not c,nly
of the Sikh Gurdwara but of any other person who
is making a rival claim to the property ltS against
the Sikh Gurdwara. It is also clear from s. 25A
that in deciding the claims made undt>r s. 5 it is
open to tl1c tribunal not only to decide whether the
property to which claims have been made belongs
tc the Gurdwara but also to decide whetl'.er it
belongs to anv of the claimants. It sccmH therefore
that th•' Act has given full power to the tribunal to
dPcide between the rival claims of the Sikh Gurdwara
and other claimants under s. 5 and empowers it not
only to give a d~cision as to the rights of the Sikh
Gurdwara but also of other claimants. Further
there is provision in s. 3! of the Act for appl'al to
tho High Court hy any party aggrieved by a final
order passed hy a tribunal in matters decided by it
und<'r the provisions of the Act. The wor<ls in s. 34
( 1) are very wide and where claims are consolidated
in one procerding under s. l 5 ani the claim of the
Gurdwarn and the rival claims of various claimants
under s. 5 with respect to one property are decided
in a consolidate<! proceeding, it is clear that any
party who was pnrty to the consolidated proceeding
would be Pntitled to appeal against the order of the
tribunal if it went against it and was in favour of
the Sikh Gurdwara or of any other claimant in tho
consolidated proceeding. Section 36 thereafter bare
a suit in any court to question any d1•cision of a
tribunal in exercise of any powers vested in it by
or under the Act. Section 37 bars any court from
paMing any order or granting any decree or execut·
ing wholly or partly any order or decree, if the effect
of such order, or decree or execution would be
(1) S.C.R.
SUPREME COURT REPORTS
337
inconsistent with any decision of a tribunal or any
order passed on appeal therefrom under the provisions of the Act. -
It is on this scheme of the Act that we have
to see whether it is open to the appellant and the
otl-.er rlefendant to raise the q?estion in the present
suit thaL Balwant Singh was not the'descendant of
Maharaja Sher Singh and therefore not entitled to
maintain the present suit. It is necessary for this
purpo~e to examine the order of the tribunal which
was made on June 22, 1933, by a majority of two
to one. It is not in dispute that this bunga was
notifieC: uuder s, 3 of the Act as property claimed
by the Golden Temple. This notification led to
four c1aims with respect to this bunga., namely, by
Jaswa.nt Singh who was a party to the suit from
which the present appeal has a.risen, Darbara Singh
and others with whom we are not concerned, Kesar
Singh appellant and Balwant Singh respondent. The
tribunal consolidated all the four claims up.der s. 15
of the Act and dealt with the matter in one proceeding. The case of Jaswant Singh was that he was in
possession of the first storey of the bunga by virtue
of his perpetual rights of possession and management in the bunga as bungai. Kesar Singh's case
was that he was in possession of two rooms on the
first and second floors of the bunga. He did not
define what his right was but denied that the bunga
was wakf. Balwant Singh's case was that the bunga
was
built
by
his
ancestors
for
spiritual
and wordly benefit of their offspring and was in his
possession and that of his ancestors and should be
declared to be the property of his family. All these
three claimants denied that the Golden Temple had
any kind of right in the bunga..
In the consolidated proceeding therefore the
tribunal had to decide firstly whether the bunga
was the property of the Golden Temple. If it
decided that, a.II the claims would necessarily fall
1:161
Kesar Singh
v.
Balwant Sinzh
Wanchoo J.
1961
Kesar Sirl,ih
••
Ra/wanl Sin1h
1ranthoo J.
338 SUPREME COURT REPORTS fl962) SUPP.
through. But if it held that the bunga was not tht
property of the Golden Temple it had to adjudicate
on the respective claims of Jaswant Singh, Kcsar
Singh and Balwant Singh . .By majority, tho tribunal
held that the bunga was not the property of the
Golden Temple. It therefore had to decide to which
of the three claimants under s. 5, if any, the bunga
could be hold to belong. It ncμ-atived the claims of
Kesar Singh and Jaswant Singh. As to Balwant
Sin&}i's
claim
it
held
by
a maj<>rity that
Balwant Singh had no personal or private right in
the bunga. It further held that the bunga was wakf
property dedicated to the pilgrims to the Golden
Temple and that the descendants of Maharaja
Sher Singh were the managers of the bunga. It is
clear from the decision of the majority of the tribunal that the descent of Bal want Singh from Maha·
raja Sher Singh wa.s not disputed before the tribunal either by the Golden Temple or by any other
party. It is clear therefore thl\t the tribunal had
jurisdiction to decide the rights to the bunga, as it
was one of the properties notified under s. 3. It
had also the jurisdiction to determine all claims
made under s. 5 and it consolidated all the claims
into one proceeding and decided the rights of the
claimants and the Golden Temple in that Proceeding.
Now the respondent ·was claiming in those proceedings that he was the owner of the bunga a.a the descendant of Maharaja Sher Singh. Neither tho Golden
Temple nor the other claimants seem to have
challenged the claim of the respondent before the
tribunal on the ground that he was not a descendant
of Maharaja Sher Singh and therefore had no right
to maintain the claim. The whole proceecling before
the tribunal wa.s conducted on tho basis that the
respondent was a descendant of Maharaja Sher Singh
and the only question was whether as such descendant he had a right to the property. The tribunal
negatived his claim of ownership of the bunga and
held that it was wakf property under the management of the descendants or Maharaja Sher Singh.
-·
•
••
(1) S.C.R.
SUPREME COURT REPORTS
339
It has been urged that the order of the tribunal
does not mention in the operative part that Balwant
Singh was entitled to manage the property as the
descendant of )faharaja Sher Singh and this shows
that though the tribunal was of opinion that the
descendants of Maharaja Sher Singh were entitled to
manage the bunga it was not accepting Balwant
Singh's claim as such descendant and there was
thus no decision in favour of Balwant Singh. We
cannot accept this contention, for if Balwant Singh
was not a descendant at all of Maharaja Sher Singh
and if this point was raised by anybody before the
tribunal his claim would have failed on the simple
ground that he was nobody to put forward the
claim of the descendants of Maharaja Sher Singh.
The reaeon why the tribunal used the words "that
the descendants ofMaharajaSher Singh are managers
of the bunga" appears to be that at that time the
father of Balwant Singh was alive and in the pre·
sence of his father Balwant Singh could not claim a
right to manage the bunga. Therefore the tribunal
used neutral words, namely, "the descendants of
Maharaja Sher Singh are managers of the bunga",
instead of mentioning Balwa.nt Singh
as the
manager of the bunga.
This is clear from
an earlier part of the derision of the tribunal
where in dealing with the question of ownership of Balwant Singh, it has remarked that
"it is hard to see that Balwant Singh has any
personal or private rights over the hunga in the presence of his father Raghbir Singh". Though therefore the respondent was held by the majority of the
tribunal, not to have rights in himself because his
father was alive the tribunal nevertheless went into
the question of the rights of Maharaja Sher Singh's
descendants at the instance of Balwant Singh treating him as a representative of the descendants. This
is also clear from the form in which the issue No. 3
was framed, namely, "was the bunga in dispute built
by Maharaja Sher Singh, ancestor of Balwant Singh
p_etitioner in 1629, and has been in his poBBession ?
What rights as he been exercising over it ?" It is
1901
Kesar Sing/,
v.
B•lwant Sinf!,h
H'anchoo J.
CP6T
Kesar Singh
v.
Balwanl Singh
JVanr.hoo J,
340 SUPREME COURT REPORTS [1962) SUPP.
clear therefore that before the tribunal Balwant
Singh's claim as a descendant of Maharaja Sher
Singh was not challenged by tho appellant or the
other defendant-; and the tribunal found in favour
of the descendants of Maharaja Sher Singh at the
instance of Balwant Singh. It was in our opinion
open to the appellant and the other defendant to
challenge this finding in favour of the d!JSCendants
of Maharaja Sher Si11gh at the instance of Balwant
Singh under s. 34 of the Act as all the claims were
consolidated under s. 15 and treated as one- case
relating to one property. But though the appellant and. the other defendant went in appeal to the
High Court they do not seem to have challenged
tho finding of the tribunal in favour of the descendants of llfaharaja Sh~r Singh! Further tho Golden
Temple also went in appeal; but it also did not
challenge the decision in favour of the descendants
of Maharaja Sher, Singh. That decision has therefore become fina! and according to that decision the
descendants of Maharaja Sher Singh are the managers of this. bunga. That decision was given at the
instance of thO- respondeqt whose claim in those
proceedings based on bis beiug a descendant of
l\faharaja Sher Singh was never challenged on the
groung that he was not the descendant of" Maharaja
Sher Singh.
The question therefore that arises is whether
in view of ss. 36 and 37 of the Act it would be
open to any court now to give a decision which
will go against what h!ts been held in that decision
of the·IT'ribuna!. If a court cannot give a decision
which would go against the decision of the Tribunal
in 1933, it would obviously be not open to a party
to those proceedings to raise any question which
would have the effect of questioning the decision
of the Tribunal. Section· 36 barn any court from
questioning anything done by a'Tribunal in exercise of 'the powers vested in •it by or under the Act.
Section -37 ha.rs any court from pa.ssing any order
t
(1) S.0.1-t. SUPREME COURT REPOl'tTS
341
or granting any decree or executing wholly or
partly any order ot decree if the effect of such
order, decree or execution would be inconsistent
with any decision of the tribunal or any order
passed on appeal therefrom under the provisions
of the Act. Now the decision of the tribunal which
became final as it was not appealed from either by
the Golden Temple or by the appellant or the other
def911dant was that the bunga. was wakf property
unqer the management of the descendants of Maha·
raja Sher Singh and this decision was given at the
instance of the respondent who claimed in those
pr'oceedings to be a descendant of Maharaja Sher
Singh and this claim of his to be a descendant of
l'lfaharaja Sher Singh was never disputed. If therefore the Court now holds at the instance of the
appellant or the other defendant that the respondent is not the descendant of Maharaja Sher Singh it
will be questioning the decision of the tribunal and
passing an order or granting a decree which would
be inconsistent with the decision of the tribunal.
Section 36 and 37 bar any such order or decree by
the court and therefore the appellant and the other
defendant are naturally debarred from raising a
point the decision of which is barred under ss.
36
and 37 of the Act. We are therefore of opinion
that the view taken by the High Court in its judgment after remand on issue No. 6 is correct and it
is not open to the appellant to raise the question
whether the respondent is a descendant of l'lfaharaja
Sher Singh and as such entitled to maintain the present suit.
This brings us to the question of limitation,
which was decided by the High Court on the earlier
occassion when the remand was made. The case
of the appellant in that connection is that he was
in adverse possession and the respondent had been
out of possession for over 12 years before the suit
was filed in 19i3 and therefore the suit should be dismissed as barred under Art. 144 as well as .A.rt. 142
1961
Ktsar Singh
••
Ba/want Sinth
Wanchoo J.
1961
Kesar Sinth
••
Balwant Singh
Hlanchoa J.
342 SUPREME COURT REPORTS [1962] SUPP.·.
of the Limitation Act. The appellant· contends
that the . plaint itself shows that the respondent
had been dispossessed more than 12 years before
the present'. Ru it was filed -and therefore the suit
must fail on the ground of limitation. We agree
with the High Court however that a careful reading
of paras. 3 and 4 of the plaint shows that the respondent's case was that he and bis uncle were
. -
--
managers of the bunga as descendants of !\Iaharaja
Sher Singh and that the appellant and the other
··--'
. defendant were in possession as their servants or '
servitors. ·But these servants had started denying
·the title of the respondent and his uncle they do
· . not want. to keep them any longer in_their service.
. . They , therefore filed the suit for ejectment ·of these
servants and for possession of the property. The
High Court -therefore was right· in the view it took
that it was a case of permissive possession arising .
in favour of the appellant and the other defendant .
. Whatever may be the position -about the actual
possession; it appears from the decision of the
· tribunal that the claim of the appellant and other
_ defendant before the tribunal in 1933 was tl:!<tt they
were bungais i.e. servitors; and this was also the •
view of the High Court in the appeal from the decision of the tribunal where the High Court said that .
. "no doubt Kesar Singh, his father and. grandfather
- have been Bungais of the bunga, but there is no
· reliable evidence of their having set up a title adverse
to the institution or that the nature of this bunga is .
. · exceptional." Similarly'Jaswant Singh also. cfaimed
· · to be a mere bungai before· the tribunal by virtue
of his father being adopted by Natha Singh who
was undoubtedly a bungai. In these circumstances
from the J.ecision of the tribunal. in favour of the
. respondent in 1933, it appears that no hostile title
. adverse to the respondent was ever set up by the
appellant and the other defendant before that decision. In consequence it cannot be said that adverse
possession over _12 years
has been established
•
(i) S.U.R.
SUPREME COURT REPORTS
343
before June I, 1943 when the preseBt suit was filed.
As originally the possession of the appellant an<l tho
other defendant was clearly permissive, there can
be no question of the application of Art. 142 in the
present case and the appellant could only succeed
if he could prove adverse possession under Art. 14,i
for over U years. '£he deuision of the High Court
on the question of limi ta ti on is correct.
Lastly, it is urge<l that the respondent had
applied under s. i5A to the tribunal but allowed
that suit to be dismissed for default and therefore
it was not open to him to file the present suit for
possession. It is enough to say that though this
point was raised in the written statement no issue
was framed with respect to it by the trial court.
When the matter was raised in the High Court on
the first occasion it held that as no issue had been
framed and no evidence had been led by the parties
as to whether the cause of action was or was not
the same and no copy of the plaint in the ear lier
proceeding had been filed the question whether the
present suit was barred by virtue of O.IX r. 9. of
the Code of Civil Procedure could not be gone
into and it must be held that it was not barred
under O. IX. r. 9. In view of what the High Court
has said we are of opinion that it is not open to the
appellant to raise this point before us when he had
failed to get an issue framed on it and no evidence
was led in that behalf.
As the appellnnt cannot challenge that the
respondent is the descendant of Maharaja Sher
Singh the respondent would have a right to maintain the suit. Further as the appellant and the
other defendant are servitors and they have
undoubtedly set up a title after the tlecision of the
tribunal adverse to the respondent's right as found
by the tribunal, the respondent is entitled to ejeut
the appellant and the other defendant, for servitors
cannot claim to remain in possession after they set
up an ad verse title with respect to the property of
19GI
A'esar Singh
v.
Ba/want Singh
lfanchoo J,
1961
;.·tsar Sing.'a
V,
Ba/u:ant SinKh
1Vanrh~ J.
1961
}lo~mbtr G.
;144 SUPHEME COURT REPORTS (19li2] SUPP.
1
which they arc servitors. In view of our decision
on issue No. li, it is unnecessary to consider issull
No. 2 on which a finding was called for by this
Court by ita interlocutory judgment in 1958.
The appeal therefore fails;
there would be
no order as t-0 costs.
Ap11eril dismissed.
THE RAJAH OJ<' VIZIANAGAHA!il
v.
OFFICIAL RECEIVEit, VIZIANAGARAM
(K. SUBBA RAO, J. c. SHAH, RAGHUHAR DAYAL
and J. R MUDHOLKAR, JJ.)
JV inding up-Com puny I 11Wrporaled in England-U111-.uistered
company-Fureign credit-Or1-l/ can prove their
claims-Indian Companies Act, ]913 (VII of 1913), ss. 270
to 276.
The company was incorporated in England. The company took lease of certain land from the appellant. On the
application of the appellant the company was being wound up
as an unrcghtcrcd company. Certain foreign creditors of the
company filed proofs of their claim before the official liquidator. The appellant objected to their claim• being entertained on the ground that these liquidation proceedings were
only for the benefit of the Indian creditors, and that the
foreign creditors were not entitled to prove their debts in' these
proceedings.