REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6386 OF 1983

Mahant Jawala Singh Chela of .......Appellant Mahant Bishan Singh (Dead) Through Legal Representative

Versus

The Shiromani Gurdwara Prabhandhak .......Respondent Committee, Amritsar   

J U D G M E N T

G.S. Singhvi,  J.

1. This  appeal  is  directed against  judgment  dated 13.9.1982 of  the  

Division  Bench  of  the  Punjab  and  Haryana  High  Court  whereby  the  

appeal preferred by Mahant Jawala Singh (the appellant herein), who died  

during the  pendency of  the  appeal  before  the  High Court  and is  now  

represented by his legal representative against the order passed by Sikh  

Gurdwara  Tribunal,  Chandigarh  (for  short,  `the  Tribunal’)  declaring  

Gurdwara Sri  Guru Granth Sahib situated within the revenue estate of

village  Jalal,  Tehsil  and  District  Bhatinda  as  a  Sikh  Gurdwara  was  

dismissed.

2. Fifty-three persons claiming to be Sikh worshippers submitted  a  

petition  to  the  State  Government  under  Section  7(1)  of  the  Sikh  

Gurdwaras Act, 1925 (for short, ‘the Act’) for declaring the institution in  

question as a Sikh Gurdwara was published in the Punjab Government  

Gazette  vide  notification  No.385-G.P.  dated  25.1.1963  issued  under  

Section 7(3) of the Act. In  response  to  the  aforesaid  notification,  four  

separate petitions were filed under Section 8 of the Act.    One of the  

petitions  was  filed  by  the  appellant.  In  paragraphs  2,  3  and  5  of  his  

petition, the appellant averred as under:

“(2) That  the  petitioner  is  a  hereditary  office-holder  of  the  said Dera and is above 21 years of age and is thus entitled to  forward this petition under Section 8 of the Act.

(3) That the said Dera now described as Gurdwara Sri Guru  Granth Sahib in the above-said Notification is not at all a Sikh  Gurdwara.  It was not established by or in memory of any of the  ten Sikh Gurus or in commemoration of any incident in the life  of any of the ten Sikh Gurus or in memory of any Sikh Martyr,  Saint or Historical person and has never been used for public  worship by Sikhs owing to any tradition connected with any of  the ten Sikh Gurus or the Sikh religion nor was established for  use by Sikhs for purposes of public worship at any time before  or  at  the  time  of  the  presentation  of  the  petition  under  sub- section  (1)  of  Section  7  of  the  Act.   In  short  none  of  the  ingredients mentioned in Section 16 of the Act applied to the  said Dera.

On the other hand, the institution in question is only a  Dera  known  as  ‘Wada  Dera  Jalal’.   It  was  founded  and  

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established by Baba Kharak Singh, a Nirmala Sadhu long long  ago.  Baba Kharak Singh was a religious and pious person and  was very much revered in the Ilaqa.  He established the said  Dera  to  serve  as  a  resting  place  for  Nirmala  Sadhus  and  to  impart  religious  teachings  to  the  disciples.   It  was  neither  established for use by Sikhs for the purpose of public worship  nor was it used for such worship by the Sikhs at any time.  The  said Dera is partly a religious and partly a charitable institution  of  a  private  nature.   Guru  Granth  Sahib  Ji  is  held  in  great  reverence by the Nirmalas.  Therefore,  the same is opened in  one room of the Dera for recitation to the Nirmala Sadhus –  The Samadhies of the previous Mahants also exist which are  also  the  objects  of  worship  by  the  disciples  of  the  previous  Mahants.  The said Dera is not a Sikh Gurdwara, but is only a  Nirmala institution.  Nirmalas are not Sikhs as defined in the  said Act.

(5) That the signatures of the persons on the petition under  Section 7(1) of the Act were obtained by the employees of the  Shiromani  Gurdwara  Parbandhak  Committee,  Amritsar  fraudulently  representing  that  the  Shiromani  Gurdwara  Parbandhak  Committee,  Amritsar  was  going  to  request  the  Punjab  State  Government  to  grant  annual  Jagirs  to  all  the  religious  institutions  situate  in  erstwhile  Pepsu,  hence  they  should  subscribe  their  signatures  on the  paper.   Most  of  the  signatures are only bogus.  As a matter of fact, the said persons,  never  applied  for  declaring  the  said  Dera  to  be  a  Sikh  Gurdwara.”

3. Of the remaining three petitions, two were filed by different sets of  

the worshippers of the institution.  The fourth petition was filed by some  

of the  persons whose names appeared in  notification dated 25.1.1963.  

They claimed that their signatures were obtained by fraud and prayed that  

the Dera in question may not be declared as Sikh Gurdwara.   

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4. All the petitions were forwarded by the State Government to the  

Tribunal constituted under Section 14(1) of the Act.  The Tribunal issued  

notices to all the persons who originally moved the State Government  

under Section 7(1) but none of them appeared to contest the petitions  

filed under Section 8.  Respondent – Shiromani Gurdwara Prabandhak  

Committee  got  itself  impleaded  as  party  to  the  proceedings  pending  

before  the  Tribunal  and  filed  written  statement  questioning  the  very  

maintainability of the petition filed by the appellant on the ground that he  

was not a hereditary office-holder and the petition does not disclose the  

custom  relating  to  devolution  of  Mahantship  in  this  Gurdwara.   In  

paragraph 3 of the reply, the following averments were made:

“Para No.3 is right, in this respect that Baba Kharak Singh is a  Sikh saint and the Gurdwara in dispute was established in his  memory  or  in  the  alternative  it  was  established  by  him  for  worship  of  Sikhs  and  has  been  so  used  i.e.  for  worship  by  Sikhs.  The case falls either U/S. 16(2) (3) or 16(2) (4).  This is  a  Gurdwara  which  is  a  public  religious  and  charitable  institution.  Existence of Samadhi does not alter the nature of  the institution.”

5. On the pleadings of the parties, the Tribunal framed the following  

preliminary issue:

“Whether the petitioner is a hereditary office-holder of the  institution in dispute? OPP”

6. On 2.3.1965, Shri Charan Singh, Advocate appearing on behalf of  

the respondent stated that he does not want to contest the status of the  

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appellant to file petition under Section 8 of the Act as a hereditary office-

holder  because  there  are  two other  petitions  to  be decided  on merits.  

Accordingly,  the  preliminary  issue  was  decided  in  favour  of  the  

appellant.

7. On the same day i.e., 2.3.1965, an application was filed on behalf  

of the respondent for amendment of the written statement by substituting  

the original paragraph 3 with the following:

“The institution in dispute is a Sikh Gurdwara built in memory  of a visit of the 10th Guru who came to this place from Dina  and Lohgarh and stayed here for some time.  This Gurdwara  was built in memory of that visit and is being used as a place of  worship by Sikhs on account of the traditional visit of the 10th  Guru and is therefore, being worshipped by the Sikhs or in the  alternative under Section 16(2) (3).”  

The amended written statement was also filed along with the  

application for amendment.

8. By an order  dated  31.3.1965,  the  Tribunal  granted  leave  to  the  

respondent  to  amend  the  written  statement  and  framed  the  following  

issue:

“Whether the institution in dispute is a Sikh Gurdwara?”  

9. The appellant  examined himself  and seven other  witnesses.   He  

also produced documentary evidence in the form of Exhibits P-1 to P-31.  

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On behalf of the respondent, six witnesses were examined and eighteen  

documents marked Exhibits R-1 to R-18 were produced.

10. The Tribunal first considered the question whether the institution  

could be declared as a Sikh Gurdwara because the same was established  

to commemorate the visit of 10th Guru, Shri Guru Gobind Singh Ji to  

village  Jalal  and  answered  the  same  in  negative  by  recording  the  

following observations:

“………..  In  this  connection,  he  placed  reliance  on  the  statements  of  RW-1,  Mal  Singh,  RW-2  Santa  Singh,  RW-3  Gurnam  Singh,  RW-4  Balbinder  Singh,  RW-5  Jagir  Singh,  RW-6 Baga Singh, who have all deposed that according to the  tradition,  the 10th Guru visited village Jalal  on his way from  Village Dina to village Lambra of Lamb-wali.  The Ld. Counsel  also referred us the same books of History for substantiating his  said  contention.   But  when  confronted  with  narration  to  the  contrary in quite a large number of historical works, relied upon  and  referred  to  us  by  the  Ld.  Counsel  for  the  Petitioner,  S.  Charan  Singh  did  not  press  this  plea  any  further.   There  is  evidently not enough evidence on the record either factual or  historical from which it may be concluded that this institution  has any connection with  the  visit  of  10th Guru to  this  place.  Under the circumstances, we feel constrained to hold that the  provisions of Section 16(2) (iv) are not attracted to the facts of  the present case.  The plea taken by the Respondent Committee  regarding the establishment of this institution in memory of the  visit of Tenth Guru to this place is, therefore, rejected.”

11. The Tribunal then considered the question whether the institution  

could be treated as a Sikh Gurdwara under Section 16(2) (iii) of the Act,  

analysed the oral and documentary evidence produced by the parties and  

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held  that  the  institution  is  a  Sikh  Gurdwara.   For  recording  this  

conclusion,  the  Tribunal  mainly relied on the entries  contained in the  

revenue records i.e. Exhibit R-1 (Khatauni of village Jalal), Exhibit R-2  

(copy of Jamabandi pertaining to years 1981-85 BK), Exhibits R-3 and  

R-4 (certified copies  of  Jamabandies for the year  2000-2001),  Exhibit  

R-5 (certified copy of an extract from the register of Muafi and Pensions  

pertaining to village Jalal), Exhibit R-7 (copy of the revised entries from  

the register of Muafi of village Jalal), Exhibit R-6 (certified copy of the  

pedigree table of village Jalal), Exhibits R-8 and R-9 (certified copies of  

the statements of Bhaktawar Singh Lambardar and Mahant Bishan Singh  

recorded on 9.11.1985 BK in Muafi File No.9), Exhibit R-14 (attested  

copy of an application made by Dial Singh Lambardar and some other  

proprietors  of  village  Jalal  dated 12,  Bhadon,  Sammat  1941 from file  

No.192 decided on 11 Asuj, 1941 (1884 A.D.), Exhibit R-18 (copy of the  

Jamabandi for the year 1969-70 A.D.) and observed:

“Thus from the documents  placed and proved on the file on  behalf  of  the  Respondent  Committee,  it  comes  abundantly  evidence that from its very inception, Guru Granth Sahib has  been ceremoniously opened and recited in the said institution  which  has  throughout  been  described  as  a  Gurdwara  in  the  oldest as well up to date revenue record pertaining to its lands  and  Muafi……………..   The  presence  and  Parkash  of  Shri  Guru Granth Sahib in Dera in question is clearly mentioned in  this  document  which  also  incorporates  the  request  and  recommendation of the village proprietors to the effect that the  land should be entered in the name of the Dera Granth Sahib.  The counsel  also argued that  none of  the documents marked  Exhibit  P-1  to  P-31  in  any  way  supported  the  claim of  the  

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Petitioner regarding Nirmala Character of the institution.  On  the other hand most of the Petitioner’s documents themselves  show  that  the  Muafi  of  this  institution  was  granted  for  the  purposes  of  Dharam  Arth  and  that  the  incumbents  of  this  institution  were  all  “Bhais”  and  not  Nirmala  Sadhs  as  now  alleged  by  the  Petitioner.   Among  Sikhs  the  title  “Bhai”  is  generally meant and used for the most learned and venerable  one’s who are supposed to be well versed in Sikh Scriptures,  literature  and history.   It  is  also  worth  mentioning here  that  none  of  the  documents  exhibited  on  behalf  of  the  Petitioner  suggest  any  other  mode  or  object  of  worship  in  the  said  institution, at any stage of its existence.  The plea of Samadh  worship seems to be clearly  an after  thought  and appears  to  have been introduced solely for the sake of casting doubt on the  claim of the persons who have claims this institution to be Sikh  Gurdwara.”

12. The  Tribunal  noted  the  argument  made  by  the  counsel  for  the  

respondent that there is a statutory presumption regarding correctness of  

the entries in the record of rights and observed:

“……………..As the Petitioner has not been able to rebute  the presumption the entries in the Jamabandi Exhibits R-1,  R-2, R-3, R-4 and R-18 showing Guru Granth Sahib Wakia  Deh Hazah and Gurdwara Sahib Wakia Deh Hazab as the  executive  owner  of  the  landed  property  attached  to  the  institution, must be presumed to be correct.  There seems to  be much force in this argument of the counsel. It is now for  the  Petitioner  to  satisfy  us  how  far  he  has  succeeded  in  rebutting the said presumption.”

13. The  Tribunal  also  referred  to  the  statements  of  the  witnesses  

examined by the appellant and held that the same were not sufficient to  

discard  the  evidence  produced  by  the  respondent  to  show  that  the  

institution was in fact established as a Sikh Gurdwara for use by Sikhs  

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for the purpose of public worship.  The Tribunal was also of the view that  

the affidavits (Exhibits P7 to P10) of Ginder Singh, Gurjant Singh, Nand  

Singh, Jiwan and Harnam Singh, who stated that their signatures on the  

petition filed under Section 7(1) of the Act were obtained by fraud cannot  

be  relied  upon  because  they  were  not  examined  as  witnesses.   The  

Tribunal then considered the argument that the Dera was established by  

Baba Kharak Singh, who was a Nirmala saint and rejected the same by  

observing that no documentary evidence was produced to prove this fact.  

The argument of the appellant that the use of the word ‘Dera’ in various  

documents  is  indicative  of  the  fact  that  it  was  not  a  Gurdwara  was  

rejected by the Tribunal by relying upon the judgments of this Court in  

Banta Singh v. Gurdwara Sahib Dasvi Patshai and another (Civil Appeal  

No.446 of 1962 decided on 9.11.1964) and three unreported judgments of  

the Division Bench of the High Court wherein it was held that ‘Dera’ and  

‘Gurdwara’ are interchangeable terms.  The Tribunal distinguished the  

judgments  of  the  Lahore  High  Court  in  Ram  Parshad  and  others  v.  

Shiromani Gurdwara Parbandhak Committee, Amritsar and others AIR  

1931 Lahore 161; Arjan Singh and another v. Inder Dass and another  

AIR 1934 Lahore 13;  Lachhman Dass and others  v.  Atma Singh and  

others AIR 1935 Lahore 666; Maghar Singh and others v. Hardit Dass  

AIR 1935 Lahore 879; Santa Singh and others v. Puran Dass and others  

AIR 1936 Lahore 216;  Hardit  Dass  v.  Gurdit  Singh and another  AIR  

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1936  Lahore  819;  Dial  Singh  v.  Bhagat  Ram  and  others  AIR  1936  

Lahore 822; Harnam Dass v. Kartar Singh and another AIR 1936 Lahore  

825; Ishar Dass v. Bhagwan Singh and another AIR 1936 Lahore 841;  

Mukand Singh v. Puran Dass AIR 1936 Lahore 924; Arjan Singh and  

another v. Harbhajan Dass and another AIR 1937 Lahore 280 and of the  

Privy Council in Hem Singh and others v. Basant Dass and others AIR  

1936 PC 93 and distinguished the same by observing that  the factual  

matrix of those cases was substantially different.  The Tribunal rejected  

the plea of the appellant that the institution was established by Nirmala  

Sadh and distinguished the judgment of this Court in Mahant Harnam  

Singh v. Gurdial Singh and another AIR 1967 SC 1415 by making the  

following observations:

“But we do not see what benefit can be derived therefrom by  Petitioners,  in  view  of  the  overwhelming  documentary  evidence which repeatedly describe this institution to be a  Sikh  Gurdwara,  where  Guru  Granth  Sahib  has  been  the  object of worship throughout its existence.  There is no an  iota of evidence to show that the building mentioned as para  4 of the Notification No.385 G.P. dated 25th January 1963  was ever established as a Nirmala institution.  The gift of the  land was never made to Bhai Bir Singh individually or for  his  personal  use.   It  is  also  not  mentioned  in  any  of  the  documents that the institution was established for being used  as  Nirmala  monastery  or  college  or  for  the  purposes  of  Smadh-worship or anything of that  type.   If anything,  the  statement of the previous manager Bhai Bishan Singh in the  year 1928 A.D. copy marked Exhibit R-9 closed the matter  in regard to his religion as well as in regard to the nature of  the institution.  He declared in unequivocal terms that he was  a  Sikh  Jat  and  further  that  he  was  merely  a  manager  or  mahant of Gurdwara Sahib.  In our opinion, the Petitioner  

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has  not  been  able  to  make  out  any  case  regarding  the  Nirmala character of the institution.  On the other hand, on  the basis of the documentary evidence discussed above, we  feel inclined to hold that this institution was established by  Baba Kharak Singh.  A Sikh gentleman of piety and prestige  in  the  Illaqa  for  use  by  Sikhs  for  the  purposes  of  public  worship of Sri Guru Granth Sahib, the holy Sikh Scripture.”  

14. In  the  end,  the  Tribunal  considered  whether  the  requirement  of  

user of the institution by Sikhs for the purpose of public worship was  

satisfied and held:

“Next  coming  to  the  second  requirement  as  to  the  user  before and at the time of the presentation of the Petition, we  have  mainly  to  draw  material  from  the  oral  evidence  adduced on behalf of the parties.  It is conceded by all the  PWs that the village is  a Sikh Proprietory village and the  major part of the population of the said Village belongs to  the Sikh faith.   PW-7,  Sampuran Singh and PW-8 Jawala  Singh Petitioner have further recorded that there is no other  Sikh Gurdwara in the revenue estate of village Jalal.  The  consistent evidence of the Respondents witnesses is, that the  object of worship in the said Gurdwara is Shri Guru Granth  Sahib and nothing else.  RW-1 Mal Singh has deposed that  Guru  Granth  Sahib  is  the  only  object  of  worship  in  the  institution  and  Sikhs  comes  to  pay  reverence  in  this  Gurdwara  on  account  of  tradition  associated  with  it.   In  cross-examination  he  says  that  the  Chhota  Dera  of  Isher  Singh has nothing to do with the institution in dispute.  RW- 2, Santa Singh says that the Sikhs of the village come to pay  reverences to the Gurdwara due to the tradition.  In cross- examination, he says that he has not noticed any Smadhi in  the Gurdwara but on the back side in the cremation ground  there are some Samadhis.  RW-3 Gurnam Singh states that  Shri  Guru  Granth  Sahib  is  the  object  of  worship  in  this  institution and that the Petitioner who is a follower of the  Sikh faith is a Granthi and Mahant of this Gurudwara now.  He  has  further  mentioned  that  the  Petitioner  has  started  wearing saffron colour clothes for the last five or six months.  RW-4, Balbinder Singh says that the Sikhs come to worship  

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this institution where Holy Granths is the object of worship.  He also states that the birth day of 10th Guru is celebrated as  a  Gurpurab  in  the  institution  in  dispute.   In  cross- examination,  he  asserts  that  there  are  no  Smadhis  on  the  premises  of  the  institution,  but  there  may  be  Smadhis  of  some persons in the cremation ground of the village, which  is at the back of the village institution.  Towards the end of  the cross-examination, he says that he visits the institution in  dispute fortnightly or monthly and he last visited it about 15  days prior to his coming to the witness box.  RW-5 Jagir  Sigh  has  stated  that  the  institution  in  dispute  is  a  Sikh  Gurdwara  where  Sikhs  go  to  worship  and  pay  reverence.  According to this RW, Mahant Bishan Singh was a Sikh and  the Mahants, who preceded him were also Sikhs like him.  RW-6,  Baga  Singh  has  deposed  that  the  Sikhs  who  predominate  the  village  go  to  the  institution  for  worship  where  the  object  of  worship  is  Guru  Granth  Sahib.  According to RW Baga Singh, Mahant Bishan Singh was a  Sikh.   In  cross-examination,  he  was  confronted  with  the  writing  marked  Exhibit  RW-6/1 but  he explained that  the  statement which he made in the Court of Subordinate Judge,  Phool, related to another institution which was described as  Dera Jawala Singh.

In fairness to Mr. Sajjan Singh, we must also notice his last  submission regarding the Nirmala nature of the institution in  the light of certain passages occurring at pages 172 to 181 of  the  Gurmukhi  book  `Nirmal  Panth  Darshan’  Volume  III,  written  and  published  by  Mahant  Dial  Singh  of  Mahabir  Nagar, New Delhi.  On the basis of the version given therein  the learned counsel for the petitioner strongly stressed that  the institution be declared to be dera of the Nirmala Sadhus.

The learned counsel for the Respondent Committee took a  strong objection a reference being made to this book on the  ground  that  the  same  was  purposely  published  by  the  Nirmalas  sometime  in  1963  after  the  publication  of  the  notification under Section 7(3) in this case.  The date of the  publication of the Book is not mentioned anywhere on the  title page or anywhere else in the book.  S. Charan Singh  however, pointed out to us that the printed matter appearing  to page 553 clearly indicated that this volume was published  after July 1962.  The two dates 1st July 1962 and 10th July  

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1962 mentioned at the said page regarding the execution of  some gift deed by the donor whose life is depicted thereafter,  as well as the mention of some incidents of Sammat 2018  both at page 553 and page 4 also afforded a clue that this  book was published only recently.  Another objection raised  was that no attempt having been made by the petitioner to  prove that the author had any special knowledge about the  subject about which he had dealt with in the book or that he  had done   any  research  in  the  Sikh  history  as  a  research  scholar or as a historian, not much reliance can be placed on  the narrations given in the said book.  It was further urged  that  the  petitioner  has  neither  shown  that  the  book  in  question was based on the material obtained from old books  on religion or history, nor has he brought its author in the  witness box to depose about the source of correctness of the  material collected in the said compilation.  Taken together,  the above factors do create an impression that  the present  Volume of “Nirmala Panth Darshan” may have been brought  out with a  purpose by and at the instance of the persons who  were  likely  to  be  adversely  affected  by  the  various  notifications  issued  by  the  State  Government  under  the  relevant provisions of the Sikh Gurdwaras Act as amended  by  Act  1  of  1959.   In  dealing  with  it,  we  have  thus  to  exercise much caution, more so, when the learned counsel  for the petitioner has failed to support the statements made in  this volume by and from any other authoritative or standard  work on the subject.

Not only that, the disclosure made in the said book about the  spiritual heritage of Baba Kharak Singh, the founder of the  institution  in  dispute,  damages  the  case  of  the  petitioner  beyond repairs.  According to the pleadings and evidence of  the petitioner, the said Baba Kharak Singh  was a Nirmala  Sadh.  In the book under discussion Baba Kharak Singh  is  shown as disciple of Baba Gurbux Singh, the first mohatmim  of historic Sikh Shrine known as Gurdwara Padshi Naumi at  Dhamdhan, now a notified Sikh Gurdwara entered at Serial  No. 314 of Schedule I of the S.G. Act.  It is next mentioned  in  it  that  the  above  said  Baba  Gurbax  Singh  was  administered  Amrit  by  Bhai  Daya  Singh  Jee  who  had  received Nectar (Amrit) directly from the 10th Guru.  It may  be noted here that the said Baba Daya Singh was the first  among the Five Pyaras or Beloved One’s who had offered  

13

their  heads  to  Shri  Guru  Gobind  Singh  Jee  upon  his  command at Keshgarh on the Baisakhy festival of 1699 A.D.  “Nirmal  Panth  Darshan”  however  reveals  that  the  aforementioned Baba Kharak Singh  received Amrit as well  as his entire spiritual and religious training at the hands of  said  Baba  Gurbax  Singh,  who  after  bidding  farewell  to  Anandpur  Sahib,  had  taken  his  abode  at  Gurdwara  Dhamdhan Sahib.  There is no denying the fact that Baba  Daya  Singh  Jee  and  Baba  Gurbax  Singh  Jee  above  mentioned  were  both  famous  Sikh  heroes  and  historical  persons, about whom references have been repeatedly made  in  all  the  important  works of  Sikh history.   The fact  that  Baba  Kharak  Singh  was  initiated  into  Sikh-fold  by  administration  of  Amrit  that  is  Sikh  Baptism  by  Baba  Gurbux Singh, in itself is enough to enable us to conclude  that the former also came to be known as a Sikh saint of  great repute during his life time.  The institution established  by such a devoted and dedicated Sikh as Baba Kharak Singh,  for the purpose of public worship of Shri Guru Granth Sahib,  cannot by any stretch of imagination or argument be held to  a  non-Sikh  or  Nirmala  institution.   Since,  we  find  no  substance whatsoever, even in the above submission of the  learned  counsel  for  the  petitioner,  which  he  urged  as  an  argument of last resort, we accordingly repel the same.”

15. The appellant  challenged  the order  of  the  Tribunal  by  filing  an  

appeal, which was dismissed by the impugned judgment.  The Division  

Bench of the High Court discarded the documentary evidence produced  

by the appellant by making the following observations:   

“At  the  outset,  we  may  point  out  that  the  documentary  evidence led by the petitioner in the form of Exhibits P-1 to  P-31 is not of much use to him for proving his case to rebut  the  evidence  led  by  the  Respondent-Committee.   The  Tribunal in para 38 of its judgment observed:-

“The learned counsel for the petitioner has not been  able to convince us as to how the documents Exhibits  

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P-1 to P-31 in any manner substantiate the allegations  of the petitioners.”

We  also  repeatedly  asked  the  learned  counsel  for  the  appellant  to  explain  how he  derived  any  help  from these  documents to counter the case of the respondent.  He was  unable to derive any support  from these documents.   We,  therefore, will not refer to those as they do not contain any  substantial matter to dispute that the institution in dispute is  not a Sikh Gurdwara.”

16. The Division Bench of the High Court then referred to Exhibits R1  

and R7 in which Guru Granth Sahib is shown as the owner of land in  

Patti Suleman and Patti Shamer and held that as per these entries, Bhai  

Bishan  Singh  Chela  of  Bhai  Gulab  Singh,  Nirmala  sadh,  resident  of  

village Jalal was only a non-occupancy tenant.  The Bench did take note  

of  the  appellant’s  plea  that  Baba  Kharak  Singh  had  founded  the  

institution but did not accept the same and observed:

“In the case of the Appellant that Baba Kharak Singh had  founded the institution, but there is no direct evidence of any  type, oral or documentary of the time of the establishment of  the institution pointing to the purpose of its establishment.  We  have  to  fall  back  upon  the  available  records  of  the  earliest times.  The revenue records referred to above are the  only authentic and reliable evidence available to assess the  situation.  These documents show that the land of both the  Pattis Suleman and Shamir in Village Jalal stood in the name  of  Gurdwara  Sahib  or  Guru  Granth  Sahib  right  from the  earlier times, the records came into existence.  In Exhibits R- 2 and R-7, the entries in red ink show that the Muafi was  granted for Dhoop Deep of Guru Granth Sahib, serving the  Sadhus  and  also  serving  feed  to  the  wayfarers  till  the  continuance  of  the  Dera.   These  records,  which  are  unimpeachable  and  no  effect  was  made  to  doubt  their  veracity  on  behalf  of  the  Appellant,  go  to  establish  the  

15

presence of Guru Granth Sahib in the institution since the  earliest times.  Muafi for Dhoop Deep of Guru Granth Sahib  also indicates that it was being worshipped there and such  worship  was  done  publicly.   Unless  it  was  worshipped  openly, the Rulers could not have sanctioned the Muafi and  continued it in the terms which are recorded in red ink in the  revenue documents.”

(emphasis supplied)

The Division Bench then referred to the statement of Dogar Singh  

Lamberdar of Patti Suleman, which was recorded on 23rd Asuj Samvat  

1956,  statement  of  another  Lamberdar  of  village  Jalal,  namely,  

Bakhtawar Singh, which was recorded on 8th November, 1985 Bk. and  

statement of Bishan Singh, an office-holder of the institution recorded on  

8th November, 1985 Bk. and proceeded to observe:

“In this statement, he made an unequivocal declaration that it  is a Gurdwara and that the income is being spent on Dhoop  Deep and also for serving travellers.  He wanted the Muafi to  be continued as before, that is, in the name of the Gurdwara  or Guru Granth Sahib, as is indicated from the entries in red  ink  incorporated  in  the  revenue  record  referred  to  above.  Serving the travellers or running a Langer etc. is a charitable  purpose of a Sikh Gurdwara.

When  the  other  places  of  evidence  referred  to  above  are  considered with the admission of Bishan Singh, in Exhibit  R-9, then it makes the matter very clear that the institution  was established as a Sikh Gurdwara for the use of Sikh for  public  worship.   It  has to be held so;  especially  when no  direct  evidence has been led that  Baba Kharak Singh had  founded it or that he was a Nirmala.

It becomes clear from the above discussed evidence that it  was a Gurdwara and not a Dera of the Nirmalas.

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All the documents leave no room for doubt that Guru Granth  Sahib was the only object of worship in this institution.  In  the  Petition  itself,  the  presence  of  Guru  Granth  Sahib  is  mentioned though the purpose was sought to be restricted  only  for  the  benefit  of  the  Nirmalas.   In  the  light  of  the  discussion  in  the  previous  paragraphs,  we  are  inclined  to  accept  this  assertion  about  the  restricted  use  only  by  the  Nirmalas.  If  it  was  for  a  limited  purpose,  then  the  Lamberdars and Biswadars, who made statements during the  enquiries about the Muafi could not make those statements,  which have been referred to in the previous paragraphs in the  revenue records, it could not be referred to as a Gurdwara.  Even Bhai Bishan Singh admitted it to be a Gurdwara in his  statement Exhibit R-9.  The Muafi could not be granted and  continued in the terms given.  The Bws were emphatical in  their assertion that Guru Granth Sahib was the only object of  worship.   They  get  very  strong  support  from  the  circumstances discussed above.”

17. In support of its conclusion that the institution in question is a Sikh  

Gurdwara,  the  Division  Bench  of  the  High  Court,  in  addition  to  the  

documentary evidence produced by the respondent, strongly relied upon  

the following factors:

1. The majority of the population of village Jalal was Sikh;

2. There is no other Gurdwara in the village where the Sikhs  

could go for worship; and  

3. Maharaja of Nabha who gave Muafi and other grants was  

himself a Sikh ruler.

18. Shri Sarvesh Bisaria, learned counsel for the appellant referred to  

Section 16(2)(iii) of the Act to show that an institution can be declared to  

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be a Sikh Gurdwara only if it is proved that the same was established for  

use by Sikhs for the purpose of public worship and was so used before  

and at the time of presentation of petition under Section 7(1). Learned  

counsel  emphasized  that  the  burden  to  prove  both  the  ingredients  of  

Section  16(2)(iii)  was  on  the  respondent,  which it  miserably  failed  to  

discharge and argued that the Tribunal committed a jurisdictional error by  

declaring the institution in question to be a Sikh Gurdwara only on the  

ground that  in  the  revenue records  produced by the  respondent,  Guru  

Granth Sahib was shown as the  owner of  various parcels  of  land and  

Baba Bishan Singh Chela of  Baba Gulab Singh was shown as a non-

occupancy  tenant.   Learned  counsel  pointed  out  that  in  the  amended  

written  statement,  the  respondent  had  specifically  pleaded  that  the  

Gurdwara in question was established to commemorate the visit of 10th  

Guru and is being used as a place of worship on account of the said visit,  

but failed to substantiate the same.  Learned counsel then submitted that  

even though in paragraph 3 of the amended written statement a reference  

was also made to  Section 16(2)(iii),  there  was  not  a  whisper  that  the  

institution  was established for  use  by  Sikhs for  the  purpose of  public  

worship and was used as such before and at the time of presentation of  

the  petition  under  Section  7(1)  and  argued  that  in  the  absence  of  a  

foundation having been laid, the Tribunal was not justified in granting a  

declaration that the institution is a Sikh Gurdwara.  Shri Bisaria criticized  

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the  impugned  judgment  and  argued  that  the  High  Court  committed  

serious  error  by  deciding  the  appeal  without  even  adverting  to  the  

documentary evidence produced by the appellant on the specious ground  

that the counsel appearing on his behalf could not explain as to how the  

same were helpful  to the cause of his client.   Shri  Bisaria extensively  

referred to documents produced before this Court which, according to the  

learned counsel formed part of the record of the Tribunal and the High  

Court to show that Maharaja Bharpur Singh of Nabha State (village Jalal  

was part of the princely State of Nabha) had granted land measuring 50  

Ghumaon (approximately 200 bighas) to Bhai Bir Singh as early as in  

Samvat 1908 and that in Samvat 1914 the land was given to Bhai Bir  

Singh on periodical lease when Maharaja Bharpur Singh visited Phul and  

argued that the documentary evidence showing grant of Muafi in respect  

of a portion of the land granted to Bhai Bir Singh and recording of the  

name of Dera Granth Sahib as per the desire of the owners was clearly  

indicative of the fact that the institution in question was a Dera and not a  

Gurdwara much less a Sikh Gurdwara established for use by Sikhs for the  

purpose of public worship.  In the end, Shri Bisaria relied upon Section 4  

of the Places of Worship (Special Provisions) Act, 1991 (for short, ‘the  

1991 Act’)  and argued  that  religious  character  of  the  Dera  cannot  be  

changed on the basis of the order passed by the Tribunal.

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19. Shri  Jaspal  Singh,  learned  senior  counsel  appearing  for  the  

respondent  supported  the  impugned  judgment  and  the  order  of  the  

Tribunal and argued that even though the respondent had not specifically  

pleaded that the institution in question was established for use by Sikhs  

for the purpose of public worship and was used as such by Sikhs before  

and at the time of presentation of the petition by 53 persons under Section  

7(1) of the Act, the Tribunal did not commit any error by declaring it to  

be a Sikh Gurdwara because the parties had gone to the trial knowing  

fully well that the Tribunal was required to decide whether the institution  

is a Sikh Gurdwara and led evidence in support of their respective cases.  

Learned senior counsel referred to the entries made in the Khatauni and  

Jamabandis  of  village  Jalal  to  show that  the  Guru  Granth  Sahib  has  

throughout been recorded as the owner of land and Baba Bishan Singh  

Chela of Baba Gulab Singh was merely a non-occupancy tenant.  Learned  

senior counsel submitted that Muafi granted by Maharaja of Nabha did  

not alter the character of the institution, which was established for use by  

Sikhs for the purpose of public worship.  Shri Jaspal Singh emphasized  

that the appellant did not lead any substantive evidence to prove that the  

institution was established by Nirmala Sadhs and worship of Guru Granth  

Sahib was only incidental to their activities.  Shri Jaspal Singh argued  

that the provisions of Section 4 of the 1991 Act cannot be relied upon for  

the purpose of nullifying the declaration granted by the Tribunal because  

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no evidence was produced by the appellant to show that the Dera was a  

religious place established by Nirmala Sadhs.

20. We have considered the respective submissions.  For deciding the  

questions raised in this  appeal,  it  will  be useful  to notice the relevant  

provisions of the Act.  The same are as under:

“7. Petition  to  have  a  gurdwara  declared  a  Sikh  Gurdwara.— (1) Any fifty or more Sikh worshippers of a  gurdwara, each of whom is more than twenty-one years of age  and was on the commencement of this Act or, in the case of the  extended territories from the commencement of the Amending  Act  resident in the police station area in which the gurdwara is  situated,  may  forward  to  the   appropriate  Secretary  to  the  Government so as to reach the Secretary within one year from  the commencement of this Act or within such further period as  the State Government may by notification fix for this purpose,  a petition praying to have the gurdwara declared to be a Sikh  Gurdwara:

Provided that the State Government may in respect of any such  gurdwara declare by notification that a petition shall be deemed  to be duly forwarded whether the petitioners were or were not  on the commencement of this Act or, in the case of extended  territories, on the commencement of the Amending Act, as the  case may be, residents in the police-station area in which such  gurdwara is situated, and shall thereafter deal with any petition  that may be otherwise duly forwarded in respect of any such  gurdwara  as  if  the  petition  had  been  duly  forwarded  by  petitioners who were such residents:

Provided further that no such petition shall be entertained in  respect of any institution specified in schedule I or schedule  II  unless  the  institution  is  deemed  to  be  excluded  from  specification in schedule I under the provisions of section 4.

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(2) List  of  property  claimed  for  the  gurdwara  and  of  persons  in  possession  thereof  to  accompany  a  petition  under  sub-section  (1).— A  petition  forwarded  under  the  provisions of sub-section (1) shall state name of the gurdwara  to which it relates and of the district, tehsil and revenue estate  in which it is situated, and shall  be accompanied by a list,  verified and signed by the petitioners, of all rights, titles or  interests in immovable properties situated in Punjab inclusive  of  the gurdwara  and in  all  monetary  endowments  yielding  recurring  income  or  profit  received  in  Punjab,  which  the  petitioners  claim  to  belong  within  their  knowledge  to  the  gurdwara the name of the person in possession of any such  right, title or interest, and if any such person is insane or a  minor the name of his legal or natural guardian, or if there is  no such guardian,  the name of the person with whom the  insane person or minor resides or is residing, or if there is no  such person, the name of the person actually or constructively  in possession of such right, title or interest on behalf of the  insane person or minor, and if any such right, title or interest  is alleged to be in possession of the gurdwara through any  person, the name of such person shall be stated in the list; and  the petition and the list shall be in such form and shall contain  such further particulars as may be prescribed.

(3) Publication  of  petition  and  list  received  under  sub- sections (1) and (2).— On receiving a petition duly signed and  forwarded under the provisions  of  sub-section (1)  the State  Government shall, as soon as may be, publish it alongwith the  accompanying list, by notification, and shall cause it and the  list to be published, in such manner as may be prescribed, at  the headquarters of the district  and of the tehsil  and in the  revenue estate in which the gurdwara is situated and at the  headquarters of every district  and every tehsil  and in every  revenue  estate  in  which  any  of  the  immovable  properties  mentioned in the list is situated and shall also give such other  notice thereof as may be prescribed:

Provided that such petition may be withdrawn by notice to be  forwarded  by  the  Board  so  as  to  reach  the  appropriate  Secretary to Government, at any time before publication, and  on such withdrawal it shall be deemed as if no petition had  been forwarded under the provisions of sub-section (1).

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(4) & (5) xxx xxx xxx

8. Petition to have it declared that a place asserted to be  a  Sikh  Gurdwara  is  not  such  a  gurdwara.— When  a  notification has been published under the provisions of sub- section  (3)  of  section  7  in  respect  of  any  gurdwara,  any  hereditary office-holder or any twenty or more worshippers of  the Gurdwara, each of whom is more than twenty-one years of  age and was on the commencement of this Act or, in the case  of  the  extended  territories,  on  the  commencement  of  the  Amending Act,  as the case may be,  a resident  of a police- station area in which the gurdwara is situated, may forward to  the  State  Government,  through the appropriate  Secretary  to  Government so as to reach the secretary within ninety days  from the date of the publication of the notification, a petition  signed and verified by the petitioner, or petitioners, as the case  may be, claiming that the Gurdwara is not a Sikh Gurdwara,  and  may  in  such  petition  make  a  further  claim  that  any  hereditary  office-holder  or  any  person  who  would  have  succeeded  to  such  office-holder  under  the  system  of  management prevailing before the first day of January 1920 or  in the case of the extended territories,  before the 1st day of  November, 1956, as the case may be, may be restored to office  on the grounds that such gurdwara is not a Sikh Gurdwara and  that such office-holder ceased to be an office-holder after that  day:

Provided that the State Government may in respect of any such  gurdwara declare by notification that a petition of twenty or  more worshippers of such gurdwara shall be deemed to be duly  forwarded whether  the petitioners  were  or  were not  on the  commencement  of  this  Act  or,  in the case of  the extended  territories, on the commencement of the Amending Act, as the  case may be, resident in the police-station area in which such  gurdwara is situated, and shall thereafter deal with any petition  that may be otherwise duly forwarded in respect of any such  gurdwara  as  if  the  petition  had  been  duly  forwarded  by  petitioners who were such residents.

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16. Issue as to whether a gurdwara is a Sikh Gurdwara  to be decided first and how issue is to be decided.— (1)  Notwithstanding  anything  contained  in  any  other  law  in  force,  if in any proceeding before a tribunal  it  is  disputed  that a gurdwara should or should not be declared to be a Sikh  Gurdwara, the tribunal shall, before enquiring into any other  matter  in  dispute  relating  to  the  said  gurdwara,  decide  whether it should or should not be declared a Sikh Gurdwara  in accordance with the provisions of sub-section (2).

(2) If the tribunal finds that the gurdwara— (i) xxx xxx xxx (ii) xxx xxx xxx

(iii) was established for use by Sikhs for the purpose  of public worship and was used for such worship by Sikhs,  before  and at  the  time  of  the  presentation  of  the  petition  under sub-section (1) of section 7; or

(iv) was  established  in  memory  of  a  Sikh  martyr,  saint or historical person and was used for public worship by  Sikhs,  before  and  at  the  time  of  the  presentation  of  the  petition under sub-section (1) of section 7.

(v) xxx xxx xxx

(3) Where the tribunal finds that a gurdwara should not  be declared to be a Sikh Gurdwara, it shall record its finding in  an order,  and,  subject  to  the  finding of  the High Court  on  appeal,  it  shall  cease  to  have  jurisdiction  in  all  matters  concerning such gurdwara, provided that, if a claim has been  made in accordance with the provisions of section 8 praying  for  the restoration to office  of  a hereditary office-holder  or  person who would have succeeded such office-holder under  the system of management prevailing before the first day of  January, 1920 or, in the case of the extended territories, before  the  first  day  of  November,  1956  the  tribunal  shall,  notwithstanding such finding continue to have jurisdiction in  all matters relating to such claim; and , if the tribunal finds it  

24

proved that such office-holder ceased to be an office-holder on  or after the first day of January, 1920 or, in the case of the  extended territories, after the first day of November, 1956, it  may  by order  direct  that  such  office-holder  or  person  who  would have so succeeded be restored to office.

21. A reading of  the above reproduced provisions  shows that  50 or  

more Sikh worshippers  of a gurdwara each of whom is more than 21  

years of age and is resident of the area of police station within which the  

gurdwara is situated can file a petition under Section 7(1) with the prayer  

that the gurdwara may be declared to be Sikh Gurdwara.  By virtue of  

proviso to that section, such a petition cannot be entertained in respect of  

any institution specified in Schedule-I or Schedule-II unless the same is  

deemed to be excluded from specification in Schedule I under Section 4  

of the Act.  Section 7(2) specifies the particulars which are required to be  

incorporated in a petition filed under sub-section (1).  These include the  

name of gurdwara to which it relates and the district, tehsil and revenue  

estate in which the gurdwara is situated.  The petition shall also contain  

details of all rights, titles or interests in immovable properties situated in  

Punjab inclusive of the gurdwara.   The names of the persons who are  

actually or constructively in possession of title and interest on behalf of  

an insane or a minor are also required to be disclosed.  On receiving a  

petition under Section 7(1), the State Government is required to ensure  

that the same is published in the prescribed manner at the headquarters of  

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the  district  and  of  the  tehsil  and  in  the  revenue  estate  in  which  the  

gurdwara  is  situated.   Notice  is  also  required  to  be  published  at  the  

headquarters  of every district/tehsil/revenue estate in which any of the  

immovable properties mentioned in the list is situated.  The movers of the  

petition under Section 7(1) can withdraw by giving notice, which must  

reach the appropriate Secretary to the Government before publication of  

notification.  Section 8 provides for filing of petition to contest the prayer  

made in a petition made under Section 7(1).  A petition under Section 8  

can  be  filed  by  any  hereditary  office  holder  or  any  20  or  more  

worshippers of the gurdwara each of whom is more than 21 years of age  

and is a resident of a police station area in which the gurdwara is situated.  

In terms of Section 14(1), the State Government is required to forward to  

a Tribunal all petitions received by it under Sections 5, 6, 8,10 and 11 and  

the Tribunal is required to dispose of such petitions in accordance with  

the provisions of the Act.  Section 16(1) contains a non obstante  clause.  

It lays down that notwithstanding anything contained in any other law in  

force, the Tribunal shall decide the dispute whether a gurdwara should or  

should not be declared as a Sikh Gurdwara before inquiring into any other  

matter in dispute relating to the said gurdwara.  Section 16(2) enumerates  

the  types of  cases  in which a  gurdwara can be declared to  be a Sikh  

Gurdwara.   In  terms  of  Section  16(2)(iii),  the  Tribunal  can  declare  a  

gurdwara to be a Sikh Gurdwara if it finds that the same was established  

26

for use by Sikhs for the purpose of public worship and was used for such  

worship by Sikhs before and at the time of presentation of the petition  

under Section 7(1).  Section 16(2)(iv) empowers the Tribunal to declare a  

gurdwara  to  be  a  Sikh  Gurdwara  if  it  finds  that  the  gurdwara  was  

established in the  memory of a Sikh martyr, saint or historical person and  

was used for such worship by Sikhs before and at the time of presentation  

of  the  petition  under  Section 7(1).   Section 16(3)  deals  with  cases  in  

which the Tribunal finds the Gurdwara should not be declared as a Sikh  

Gurdwara.  In the event of recording such finding, the Tribunal ceases to  

have jurisdiction in all matters concerning such Gurdwara except to the  

extent of restoration of office of a hereditary office holder or person who  

would  have  succeeded  such  office  holder  under  the  system  of  

management  prevailing  before  1.1.1920 or  in  the  case  of  an extended  

territories before 1.11.1956.

22. Section  16  of  the  Act  has  received  fair  amount  of  judicial  

consideration and it has been repeatedly held by the Courts that before  

the  Tribunal  can  declare  an  institution  to  be  a  Sikh  Gurdwara  under  

Section  16(2)(iii),  it  must  be  satisfied  that  (a)  the  institution  was  

established for use by Sikhs for the purpose of public worship, and (b)  

was used for such worship by Sikhs before and at the time of presentation  

of the petition under Section 7(1).  These two conditions are required to  

27

be fulfilled separately and conjointly and unless that is done, the Tribunal  

cannot declare an institution to be a Sikh Gurdwara.  In other words, a  

person  seeking  a  declaration  that  the  particular  institution  is  a  Sikh  

Gurdwara,  he  must  satisfy  the  Tribunal  that  the  institution  was  

established for use by Sikhs for the purpose of public worship and that  

the same was used as such before and at the time of presentation of the  

petition under Section 7(1) of the Act.  If he fails to prove either of the  

conditions,  the  Tribunal  cannot  declare  the  institution  as  a  Sikh  

Gurdwara.  In this connection, reference may be made to the judgments  

of the Lahore High Court in Lachhman Dass and others v. Atma Singh  

and others (supra) and of this Court in  S.G.P.C. v. M.P. Dass Chella  

(supra),  Shiromani Gurdwara Parbandhak Committee,  Amritsar v.  

Bagga Singh  (2003) 1 SCC 619,  Shiromani Gurdwara Parbandhak  

Committee  v.  Mahant  Harnam  Singh (2003)  11  SCC  377  and  

Shiromani Gurdwara Parbandhak Committee v. Mahant Prem Dass  

(2009) 15 SCC 381.   

23. It is also a settled law that the onus to prove that an institution is a  

Sikh Gurdwara lies on the person who asserts the same.  If Shiromani  

Gurdwara Parbandhak Committee comes forward to support the plea or  

espouse the cause of the one who files petition under Section 7(1) that the  

particular institution is a Sikh Gurdwara and is liable to be declared as  

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such under Section 16(2)(iii) of the Act, then the burden to prove the two  

conditions  is  on  the  Committee.   If  it  fails  to  fulfill  either  of  the  

conditions,  the  Tribunal  does  not  get  the  jurisdiction  to  declare  the  

institution as a Sikh Gurdwara –  S.G.P.C. v. M.P. Dass Chella  (supra)  

and  Shiromani Gurdwara Parbandhak Committee v. Mahant Prem  

Dass (supra).   

24. Before  proceeding  further,  we  may  notice  the  judgment  of  the  

Lahore High Court in Kirpa Singh v. Ajaypal Singh AIR 1930 Lahore 1  

on which reliance was placed by the learned counsel for the appellant to  

support of his argument that the institution was established by Nirmala  

Sadhus and, therefore, the same cannot be declared as a  Sikh Gurdwara  

merely because Guru Granth Sahib is worshipped by the appellant and  

other Nirmala Sadhus.  The facts of that case show that the plaintiffs-

respondents  had  filed  a  suit  under  Section  92  of  the  Code  of  Civil  

Procedure  for  removal  of  the  appellant  from  the  management  of  the  

institution named “Guru Sar Satlani” situated at a distance of about 13  

miles  from  Amritsar.   According  to  the  plaintiffs-respondents,  the  

institution was a Sikh Gurdwara, that is, a place of public worship for the  

Sikhs  and  constitutes  a  trust  for  public  purposes  of  charitable  and  

religious nature.  They alleged that the defendant-appellant was a man of  

loose character and he had committed breach of trust by mismanaging the  

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Gurdwara,  mal-administering  its  properties,  misapplying  the  income,  

misappropriating  its  funds  and  by  otherwise  misbehaving  and  mis-

conducting himself in a manner which injured and scandalized the Sikh  

community and worshippers of the Gurdwara. The plaintiffs-respondents  

also  prayed  for  framing  of  a  scheme  for  future  management  of  the  

Gurdwara.  The defendant-appellant denied all the allegations and also  

pleaded that the institution was meant for Nirmala Sadhus only and that  

the plaintiffs-respondents who were not Nirmalas had no interest therein.  

One of the issues framed by the trial Court was whether Guru Sar Satlani  

is a general Sikh Gaddi as distinguished form a Nirmala Sikh Gaddi and  

whether  the  plaintiffs-respondents  have  any interest  in  it  and they  are  

entitled to maintain the suit.  The trial Court decreed the suit and directed  

removal  of  the  defendant-appellant  from  the  management  of  the  

institution.  During the pendency of the appeal, the Sikh Gurdwaras Act,  

1925 was enacted and brought into force.  Bhide, J. extensively referred  

to the evidence produced by the parties,  various books and reports  on  

Nirmalas and observed:

“The origin of the Nirmalas seems to be somewhat obscure  and there are different traditions in connection with it.  But it  seems to be generally accepted that they came into existence  in Guru govind Singh’s time.  Defendant Kirpa Singh has  himself admitted in his statement:  vide p.85, part 1 of the  Printed  Paper  Book,  that  “Nirmalas”  are  chelas  of  Guru  Gobind Singh, and hence it is unnecessary to dilate on this  point.   But  although  the  Nirmalas  appear  to  have  been  originally  followers  of  Guru  Gobind  Singh  the  important  

30

point for consideration is whether they are now distinct from  the  general  body  of  the  Sikhs  and  in  particular  from the  plaintiffs  who are “Akalis.”  On this point,  the authorities  seem to be agreed that the Nirmalas have drifted to a great  extent  towards  the  practices  of  the  Hindu  religion.   The  following  extract  from  Sir  Edward  Maclagan’s  Census  report for this Province for the year 1891 is very instructive  in this connection.

The Nirmalas represent a different aspect of the history of  Gobind's followers; for this order has by degrees rid itself of  the  main  distinguishing  marks  of  the  Khalsa  faith  and  is  gradually  returning to a pure form of orthodox Hinduism.  The  Nirmalas  originated,  like  the  Akalis,  in  the  time  of  Gobind Singh, but there are two stories regarding the manner  of  their  origin.  According to the  one,  a  water  carrier  was  seized by Gobind's soldiers for supplying water to the enemy  during a battle, but the Guru recognized the virtue of his act  and  embracing  him  exclaimed,  Thou  art  without  stain  (Nirmala).

This  story,  however,  has  too  much  resemblance  to  that  regarding Kanhaiya Lal quoted in para. 103 above; and the  following appears the more probable account. It is said that  Guru Gobind Singh sent three followers named Karm Singh,  Harchand and Mihr Rai to Benares to acquire a knowledge  of Sanskrit,  when the Pandits of that city refused to come  themselves to Gobind Singh; and that,  on their  return, the  Guru blessed them as being the only Earned men among the  Sikhs and called them "Nirmala." They were allowed to take  the  pahul  and founded the order  of  Nirmala  Sadhus.  This  order  was  at  first  devoted  to  the  regulations  of  Gobind  Singh, wore white garments, and had considerable influence  with  his  followers.  But  their  taste  for  Sanskrit  literature  (which is to this day cultivated by them with considerable  care) led them to imbibe the principles of the Vedanta and to  re-adopt many of the customs of the Shastras. They gave up  the use of meat  and spirits.  They also began to adopt the  ordinary ochre-coloured dress of the Indian faqir, which is  strictly prohibited to the true followers of Gobind, and some  of  them  are  now  only  distinguishable  from  the  Udasi  followers of Nanak by the wearing; of the kes or uncut hair.  They  are  almost  always  celibate  and  almost  always  in  

31

monasteries.  They  have  generally  some  pretensions  to  learning,  and,  unlike  most  of  the  religious  orders  in  the  Punjab, have a high reputation for morality. They are said to  live on offerings voluntarily presented, and to abstain from  begging but there are some who say that the ochre-coloured  dress  has  been  adopted  mainly  for  its  convenience  in  begging. Their principal Akhara is at Hardwar, and it is said  that their societies throughout the province are periodically  visited  by  a  controlling  council.  They  have  three  considerable  monasteries;  in  the  Hoshiarpur  District  at  Munak,  Adamwal  and Alampur Kotla;  and by our returns  they  appear  to  be  strong  in  Gurdaspur,  where  they  are  mainly returned as Hindus, and in Ambala, Ferozepor and  Amritsar,  where  they  are  mainly-returned  as  Sikhs.  It  is  supposed  that,  they  are  to  be  found  in  some  numbers  in  Patiala, but our tables would intimate that they are as strong  in Faridkot They are looked on as unorthodox by most true  Sikhs, and it will be observed that more of them are returned  in  the  Census  as  Hindu  than  as  Sikhs.  The  Akalis  are  specially  bitter  against  them  and  there  have  been  great  contentions between the two sects with regard to the right of  worship  at  the  great  Sikh  shrine  at  Apchalanagar  on  the  Godaveri.”

25. The  aforementioned  judgment  was  approved  by  this  Court  in  

Mahant Harnam Singh v. Gurdiyal Singh AIR 1967 SC 1415.  In that  

case, the appellant had challenged the decree passed by the High Court  

which  had  reversed  dismissal  of  the  suit  filed  by  the  respondent  for  

removal  of  the  appellant  from the  office  of  Mahant  of  an  institution  

described as Gurdwara Jhandawala.  In the plaint, the respondent pleaded  

that  is  one  Guru  Granth  Sahib  at  Village  Jhandawala  in  the  name of  

Gurdwara  Jhandawala  which  is  managed  by  Mahant  Harnam  Singh  

appellant as a Mahatmim, and that he is in possession of the “Dera” and  

32

agricultural land belonging to Guru Granth Sahib, Gurdwara Jhandawala.  

The  Gurdwara  was  said  to  be  a  public  religious  place  which  was  

established  by  the  residents  of  the  village.   It  was  pleaded  that  this  

religious  institution  was  a  public  trust  created  by  the  residents  of  the  

village for the service of the public to provide food to the visitors from  

the Lungar (free kitchen) to allow the people to fulfil religious beliefs and  

for worship, etc. The plaintiff-respondents stated that, in the capacity of  

representatives of owners of lands situated at village Jhandawala and of  

the  residents  of  village  Jhandawala,  they  submitted  an  application  for  

permission  to  institute  this  suit  on  the  ground  that  the  appellant  was  

indulging in various undesirable activities and was misusing the funds of  

the trust which justified his removal from the office of the Mahant. The  

respondents  claimed  that,  in  their  capacity  of  representatives  of  the  

owners of the land situated at village Jhandawala and of residents of the  

said village, they were entitled to institute this suit under Section 92 CPC.  

The trial Court held that Nirmalas are not Sikhs and the institution was  

not a Sikh institution and further that the plaintiffs do not have the right  

to file suit.  The High Court did not agree with the trial Court and held  

that Nirmalas are a section of Sikhs and as such the Sikhs had interest in  

the institution because it was a Sikh Gurdwara.  This Court noted that  

although the Punjab High Court had referred to the judgment of Lahore  

High Court, but overlooked the ratio thereof and held:

33

“We are unable to agree that these passages relied upon by  the  High  Court  are  enough  to  lead  to  an  inference  that  Nirmala  Sadhus  are  Sikhs  and  that  they  still  retain  the  essential characteristics of the Sikh faith. It is true that, in  their  origin,  Nirmala  Sadhus  started as  a  section of  Sikhs  who  were  followers  of  Guru  Gobind  Singh,  but,  subsequently, in the period of about 300 years that has since  elapsed, they have veered away from the Sikh religion. That  is  why,  after  giving  their  historical  origin,  Macauliffe  expressed  the  opinion  that  Nirmalas  were  only  nominally  Sikhs. In Maclagan’s Census Report also it was mentioned  that  Nirmala  Sadhus  are  treated  as  Sikhs  in  some places,  while  in  other  place  they  are  returned as  Hindus.  He has  mentioned the Districts  in Punjab where they are returned  mainly as Hindus, and others where they were considered as  Sikhs. Faridkot, the District within which the institution with  which we are concerned is situated, is mentioned as a place  where they are regarded as Hindus and in the Census they  have been returned as such. In these circumstances, we do  not think that this material by itself, which the High Court  called out of the judgment of Bhide, J., could properly lead  to the inference that Nirmalas are Sikhs. ….

…. ….. ….

Further,  in this  case,  there was material  showing that  this  institution  at  Jhandawala  was  registered  as  one  of  the  branches  of  the  principal  institution  of  Nirmala  Sadhus  known as the Panchayati  Akhara situated at  Kankhal near  Hardwar.  There was further  evidence showing that  in this  institution  the worship is  primarily of  a  Samadh which is  against  all  tenets  of  the  Sikh  religion.  Nirmala  Sadhus,  it  appears, as a class worship at Samadhs which goes to show  that they can no longer be regarded as people following the  Sikh  religion.  In  their  beliefs  and  practices,  the  Nirmala  Sadhus are now quite akin to Udasis, and there is a series of  cases which has laid down that members of the Udasi sect  are not Sikhs. ………..”

34

26. In  Pritam  Dass  v.  Shiromani  Gurdwara  Parbandhak  

Committee (1984) 2 SCC 600, a three-Judge Bench of this Court was  

called upon to consider whether the religious institution in dispute, which  

was  situated  in  village  Ramgarh  (also  known  as  Bhagtuana),  Tehsil  

Faridkot,  District  Bhatinda  was  a  Sikh  Gurdwara.   Sixty-five  persons  

claiming to be members  of the Sikh community  filed a petition under  

Section  7(1)  of  the  Act  for  declaring  the  institution  to  be  a  Sikh  

Gurdwara.  The State Government notified the application under Section  

7(3)  of  the  Act.   Thereupon,  the  appellant  filed  an  application  under  

Sections 8 and 10 claiming that the institution was not a Sikh Gurdwara  

but an Udasi institution known as Dera Bhai Bhagtu.  The respondent  

contested the application.  The Tribunal held that the institution was a  

Sikh Gurdwara.  The High Court confirmed the findings of the Tribunal  

and dismissed the appeal.  This Court referred to the distinctive features  

of  Sikh  Gurdwaras,  the  judgments  in  Mahant  Harnam  Singh v.  

Gurdiyal  Singh (supra),  Mahant  Dharam Dass  v.  State  of  Punjab  

(1975) 1 SCC 343 and held that the Tribunal and the High Court had not  

examined the issues raised by the parties  in a  correct  perspective  and  

ignored Section 16(2).  The Court then proceeded to analyze the evidence  

and observed:

“What emerges from this discussion is that as found by the  Tribunal, the succession was from Guru to Chela; that Bhai  

35

Bhagtu was an Udasi  saint  and there are Samadhs on the  premises — one of Bhai Bhagtu and the other of his mother.  Evidence shows that there are photos of Hindu deities in the  institution. These three facts, without anything more, would  be  sufficient  to  reject  the  case  of  the  respondent  that  the  institution is a Sikh gurdwara. We would like to reiterate that  existence of Samadhs and succession from Guru to Chela  would  clearly  be  destructive  of  the  character  of  the  institution as a Sikh gurdwara because they are inconsistent  with the tenets of the Sikh religion. ………….  Counsel for  the  respondent  emphasised  the  feature  that  there  was  evidence to show that Guru Granth Sahib was recited and  read in this institution. It is well established that Udasis are  midway between Sikhs on the one hand and Hindus on the  other.  Srichand,  son  of  Guru  Nanak,  the  founder  of  the  Sikhism, had, as already indicated, broken away and set up  the Udasi sect. Udasis while venerating Guru Granth Sahib,  retained Hindu practices and also showed their veneration to  the Samadhs. From the very fact that Guru Granth Sahib was  recited in this institution, no support can be drawn for the  claim that the institution was a Sikh gurdwara.”

(emphasis supplied)

27. In  Shiromani Gurdwara Prabhandhak Committee v. Mahant  

Kirpa Ram (1984) 2 SCC 614, another three-Judge Bench relied upon  

the judgment in Mahant Dharam Dass v. State of Punjab (supra) and  

Pritam Dass v. Shiromani Gurdwara Parbandhak Committee (supra)  

and held:

“It must be conceded that nearly a century after the setting  up of the institution, Granth Sahib was venerated and read in  this institution. Does it provide conclusive evidence that the  institution was set up and used for public worship by Sikhs?  In order to bring the case under Section l6(2)(  iii  ) it must not    only be established that the institution was established for  use by Sikhs for the purpose of public worship but was used  for  such  worship  by  Sikhs  before  and  at  the  time  of  the  

36

presentation of the petition. The use of the conjunctive “and”  clearly  imports  that  in  order  to  attract  Section 16(2)  (  iii  ),    both the conditions must be cumulatively satisfied. Not only  that it must be satisfactorily established that the institution  was established for use by Sikhs for the purpose of public  worship but was used for such worship by the Sikhs before  and at the time of the presentation of the petition. It was so  held in  Gurmukh Singh v.  Risaldar Deva Singh  and in our  opinion that represents the correct interpretation of Section  16(2)(iii). In this case there is no evidence to show that the  institution was established for use by Sikhs for the purpose  of public worship.  It must be conceded that the institution  may be established by anyone, may be a Sikh or follower of  any other faith, but it must be established for use by Sikhs  for the purpose of public worship. One can therefore, ignore  the  fact  that  the  original  grantor  was  a  Muslim ruler  Rai  Kalha  but  there  is  nothing  to  show  that  when  Gulabdas  Faquir of Udasi Sect established the institution, he did it for  use by Sikhs for the purpose of public worship. Later on as  the majority of the population of the village was follower of  Sikh  religion  and  as  Udasis  also  venerate  Granth  Sahib,  reading  of  Granth  Sahib  may  have  commenced  and  therefore,  generally  speaking  people  may  describe  and  revenue record may show it to be Gurdwara but that would  neither  be  decisive  of  the  character  of  the  institution  nor  sufficient to bring the institution within Section 16(2)(  iii  ) of    the Act.” 2 (AIR 1937 Lah.577)

(emphasis supplied)

28. In Uttam Das v. Shiromani Gurdwara Parbandhak Committee  

(1996) 5 SCC 71, this Court reiterated that the Udasis are a sect distinct  

from the Sikhs and the mere fact that they recite Guru Granth Sahib in the  

presence of Sikh congregation is  not by itself  sufficient to declare the  

institution to be a Sikh Gurdwara unless it is proved that the same was  

established for use by Sikhs for the purpose of public worship and was  

37

used  for  such  worship  by  Sikhs  as  per  the  requirement  of  Section  

16(2)(iii) of the Act.

29. In S.G.P.C. v. M.P. Dass Chela (supra), this Court considered the  

question whether the entries in jamabandi register and mutation register  

to the effect that Dera Guru Granth Sahib is the owner proves that the  

institution was established for use by Sikhs for the public purpose and the  

same was used for  such worship  by  Sikhs  and answered the  same in  

negative.  In that case, an application was made by sixty persons claiming  

to  be  worshippers  of  Gurdwara  Dera  Lang  Shri  Guru  Granth  Sahib  

situated  within  the  revenue  estate  of  village  Sardargarh,  Tehsil  and  

District Bhatinda under Section 7(1) of the Act.  On publication of the  

notification under Section 7(3), Mahant Puran Dass filed a petition under  

Section 8 of the Act claiming that the institution was not a Sikh Gurdwara  

but was a Dera of Udasi sadhus.  The Tribunal impleaded the appellant as  

a party in that petition.  After considering the evidence adduced by both  

the parties,  the Tribunal held that the respondent was not a hereditary  

office-holder  and  had  no  right  to  file  petition  under  Section  8.   The  

Tribunal  also held that  the  institution  in  question is  a  Sikh Gurdwara  

within  the  meaning  of  Section  16(2)(iii)  of  the  Act.   On appeal,  two  

Judges  of  the  High  Court  constituting  the  Division  Bench  expressed  

divergent opinions.  When the matter was referred to the third Judge, he  

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agreed with one of the Judges that the respondent was a hereditary office-

holder and that the institution in question was not a Sikh Gurdwara.  This  

Court approved the view expressed by the majority and observed:

“It is quite evident from the language of Section 16(2) that  the burden of proving an institution to be a Sikh gurdwara is  on  the  person  who asserts  the  same.  Significantly  in  this  case, none of the sixty persons who presented the petition  under Section 7(1) has chosen to enter the witness box and  give evidence in support thereof. There is no explanation for  the  same.  The  oral  evidence  adduced  on  behalf  of  the  appellant  has  not  inspired  even  the  Tribunal.  All  that  is  relied on by the appellant is the entry in Jamabandi Register  and Mutation Register. The entries in those registers are to  the effect that Dera Guru Granth Sahib is the owner.  Those  entries can hardly prove either the purpose of establishment  of the institution or the use thereof before and at the time of  the petition under Section 7(1)  of the Act.  Tiwana,  J.  has  himself  pointed out  that  the appellant  herein who was the  respondent before him was not in a position to furnish any  direct evidence that it is a Sikh gurudwara. On the other hand, the entries in Ex. R-14, containing the  proceedings of the Settlement Commissioner  held in 1903  prove  beyond  doubt  that  the  institution  is  not  a  Sikh  gurdwara. Column 2 thereof shows that the original donor  was  Sardar  Jodh Singh Saboke and the  donee  was  Khem  Dass Faqir  Udasi.  Column 9 refers  to  Guru Granth Sahib  (Dera Lang) under the management of Jawahar Dass, chela  Gian  Dass  Udasi  of  the  village.  Column 20  contains  the  report of the Superintendent. That shows that the muafi was  granted by Sardar Jodh Singh of Sobo for expenses of the  building of Sawara Guru Granth Sahib. The opinion of the  Assistant  Settlement Officer is  set  out in Column 21. The  order  of  the  Settlement  Commissioner  dated  1-5-1903  in  Column 22 reads thus: “Muafi as detailed continued to the   Lang Dera in the name of the custodian for the time being.”  Thus it is clear that the institution was not established for use  by Sikhs.”

(emphasis supplied)

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30. In  Shiromani Gurdwara Parbandhak Committee, Amritsar v.  

Bagga Singh  (supra),  this  Court  held that  reading of Granth Sahib or  

veneration of Sikh scriptures in an institution of Udasi sect cannot lead to  

an inference that it is a Sikh Gurdwara.

31.  In the light of the propositions laid down in the aforementioned  

judgments, we shall now consider whether the declaration made by the  

Tribunal that the institution in question is a Sikh Gurdwara was legally  

correct and the High Court did not commit any error by confirming the  

order of the Tribunal.   

32. At the outset, it needs to be mentioned that none of the fifty-three  

persons  who  submitted  petition  under  Section  7(1)  of  the  Act  for  

declaring the institution in question as a Sikh Gurdwara responded to the  

notice issued by the Tribunal or appeared before it to support their plea.  

Rather, some of them filed petition under Section 8 asserting that their  

signatures were obtained by fraud and at least four of them filed affidavits  

in support of that assertion.  It is a different thing that they did not pursue  

the petition filed under Section 8, which was dismissed in default and the  

Tribunal erroneously discarded the affidavits by observing that they were  

not  examined  by  the  appellant.   As  a  matter  of  fact,  it  was  for  the  

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respondent to examine those fifty-three persons or at least some of them.  

Unfortunately,  the  Tribunal  and  the  High  Court  did  not  direct  their  

attention  towards  this  important  omission  and  decided  the  matter  by  

relying upon the oral evidence of those who were not party to the petition  

filed  under  Section  7(1)  and  the  revenue  records  produced  by  the  

respondent.

33. Another  important  aspect  which  has  been  ignored  both  by  the  

Tribunal  and the High Court is that the written statement  filed by the  

respondent was conspicuously silent on the twin requirements of Section  

16(2)(iii)  of  the  Act.   In  the  written  statement  filed  on  behalf  of  the  

respondent, it was pleaded that Gurdwara in dispute was established in  

the  memory  of  Baba  Kharak  Singh,  who  was  a  Sikh  saint  or  in  the  

alternative it was established by him for worship by Sikhs and has been  

so used by Sikhs,  that  the case falls  either  under Section 16(2)(iii)  or  

16(2)(iv) [erroneously written as 16(2)(3) or 16(2)(4)] and that existence  

of Samadhi does not alter the nature of the institution.  In the amended  

written  statement,  the  case  originally  pleaded  was  given  up  and  an  

altogether new case was set up by asserting that the Gurdwara in dispute  

was built in the memory of the visit of Tenth Guru who came to this place  

from Dina and Lohagarh and stayed there for  some time and that  the  

Gurdwara is being used as a place of worship by Sikhs on account of the  

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traditional  visit  of  Tenth  Guru.   Although,  in  the  amended  written  

statement  reference  was not  made  to  Section  16(2)(iv),  the  averments  

contained in paragraph 3 clearly suggests that the respondent wanted the  

institution  to  be  declared  as  a  Sikh  Gurdwara  with  reference  to  that  

section. Of course, a casual reference was also made to Section 16(2)(iii)  

by incorporating the following words:

“or in the alternative under Section 16(2)(iii)”

34. The Tribunal  did not  accept  the  plea  of  the  respondent  that  the  

Gurdwara was built in the memory of the visit of Tenth Guru and held  

that  Section 16(2)(iv)  is  not  attracted  in  the  case.   The  Tribunal  then  

adverted  to  the  two  conditions  required  to  be  fulfilled  before  an  

institution can be declared to be a Sikh Gurdwara.  As a sequel to this, the  

Tribunal  made  detailed  analysis  of  the  evidence  produced  by  the  

respondent and held that  the institution was established by Baba Kharak  

Singh, a Sikh gentleman of piety and prestige in the illaqa  for the Sikhs  

for  the  purpose  of  pubic  worship  of  Shri  Guru  Granth  Sahib.   While  

recording  this  finding,  the  Tribunal  overlooked  the  fact  that  in  the  

amended written statement the respondent had altogether  given up the  

plea that Baba Kharak Singh was a Sikh saint and Gurdwara in dispute  

was established in his memory or in the alternative it was established by  

him for worship by Sikhs.  Interestingly, in paragraph 9 of the impugned  

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judgment, the High Court altogether discarded the plea that Baba Kharak  

Singh had founded the institution by observing that there was no evidence  

of  any  type,  oral  or  documentary  of  the  time  of  establishment  of  the  

institution  pointing  to  the  purpose  of  its  establishment.   These  

contradictions in the findings of the Tribunal and the High Court are too  

prominent to be overlooked.

35. The Tribunal and the High Court also became oblivious of the fact  

that even though in paragraph 3 of the amended written statement filed on  

behalf of the respondent, an alternative plea was taken for treating the  

institution in dispute as a Sikh Gurdwara under Section 16(2)(iii), but no  

foundation  was  laid  for  raising  that  plea  inasmuch  as  there  was  no  

averment that the Gurdwara was established in the particular year by the  

particular  individual  or  a  group  of  persons  for  use  by  Sikhs  for  the  

purpose of public worship and was used for such worship by Sikhs before  

and  at  the  time  of  presentation  of  petition  under  Section  7(1).   The  

manner  in  which the  Tribunal  analyzed  the  evidence  produced  by the  

parties gives an impression that it had assumed that a specific case had  

been set up by the respondent in the context of Section 16(2)(iii) of the  

Act.  In our view, in the absence of basic pleadings, the Tribunal was not,  

at all,  justified in examining the issue whether the Gurdwara is a Sikh  

Gurdwara  within  the  meaning  of  Section  16(2)(iii)  and  the  findings  

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recorded  by  it  with  reference  to  twin  requirements  embodied  in  that  

section are liable to be treated as  non est.  Unfortunately, the Division  

Bench of the High Court also overlooked this fatal flaw in the case put  

forward  by  the  respondent  and  thereby  compounded  the  grave  error  

committed by the Tribunal.

36. At this stage, it is appropriate to mention that the findings recorded  

by the Tribunal and the High Court have been extracted in detail only to  

demonstrate how mis-directed consideration of the issues raised by the  

parties has resulted in recording of patently erroneous conclusions and  

miscarriage of justice.  A reading of the Tribunal’s order shows that  it  

recorded  satisfaction  with  reference  to  first  part  of  Section  16(2)(iii)  

primarily by relying upon the entries made in khataunis and jamabandis  

in which Guru Granth Sahib is described as the owner of land and Baba  

Bishan  Singh  Chela  of  Baba  Gulab  Singh  is  shown  as  non-

occupancy/gair maurisi tenant.  The Tribunal also attached considerable  

importance to use of the words “Deh Hazah” after the words Guru Granth  

Sahib  and  Gurdwara  Sahib  and  the  fact  that  muafi  was  granted  in  

perpetuity on 14th Phagan, Samvat 1912 for the purpose of meeting the  

expenses  of  Dhup Deep and also for serving food etc.  to Sadhus and  

wayfarers on their visit to the institution.  Another factor relied upon by  

the  Tribunal  was  that  the  institution  was  established  by Baba  Kharak  

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Singh,   who was a  dedicated Sikh and this  was  done by him for  the  

purpose of public worship of Guru Granth Sahib.  In this process, the  

Tribunal completely lost sight of the fact that all the witnesses examined  

on behalf of the respondent spoke about establishment of the institution in  

dispute  in the memory  of  the  visit  of  Tenth Guru and his  stay  in  the  

village for a few days on his way from Dina to Lambwali and none of  

them  said  a  word  about  establishment  of  Gudwara  by  Baba  Kharak  

Singh.   Of  course,  as  mentioned  above,  the  High  Court  altogether  

discarded  the  theory  that  the  Gurdwara  was  established  by  or  in  the  

memory of Baba Kharak Singh.  The revenue records produced by the  

respondent did show that Guru Granth Sahib was recorded as owner, but  

neither the khataunis nor jamabandis could be made basis for recording a  

finding  that  the  institution  was  established  for  use  by  Sikhs  for  the  

purpose of public worship.  The entries in the revenue records may be  

relevant for determining title and possessory rights over lands mentioned  

therein but the same could not be relied upon for recording a finding that  

the institution to which land belongs was established by the particular  

individual for a particular purpose.  The emphasis placed by the Tribunal  

and the High Court on the entries made in the different revenue records  

and the fact that Muafi was given for meeting the expenses of Dhoop  

Deep  was  clearly  misplaced.   Both  the  Tribunal  and  the  High  Court  

appear  to  be  obsessed  with  the  idea  that  when Guru  Granth  Sahib  is  

45

recorded as the owner of land in the khatauni and the jamabandis and  

Prakash is being done in front of Guru Granth Sahib, the institution must  

have been established for use by Sikhs for the purpose of public worship  

and was used for  such worship  by  Sikhs.   This  approach was clearly  

erroneous and the findings recorded by the Tribunal and the High Court,  

though concurrent are liable to be set aside being contrary to the law laid  

down by this Court.

37. We also find that the Tribunal and the High Court have not given  

due weightage to the evidence, oral  and documentary produced by the  

appellant.  Appellant, Jawala Singh, who appeared as PW-8 and seven  

witnesses examined by him consistently stated that the institution, that is,  

the Dera was established by Nirmala faquir and Baba Bishan Singh was  

its first Mahant. The report of Tehsildar, Phul dated 16 Sawan Samvat  

1941, report of the Revenue Superintendent dated 18 Har Samvat 1956,  

report of Nazar in Mahkama Aliya Ijlas dated 18 Bhadon, Samvat 1956,  

order dated 28th Bhado Samvat 1956 passed by Mahkama Aliya Ijlas and  

the order passed by the then Maharaja Sahib on 24 Kartik Samvat 1956  

show that Maharaja Bharpur Singh had given 56 Ghumaons of land to  

Bhai Bir Singh in Sammat 1913.  It is also borne out that in Samvat 1914,  

the land in both the patties was given by Maharaja Bharpur Singh to Bhai  

Bir Singh on periodical  lease.   In the report  of Tehsildar,  Phul it  was  

46

noted that there is no mention regarding the ownership but inquiry from  

Lambardar revealed that the ownership was of Bhai Bir Singh who was  

shown as Nirmal Sadhu.  In the report of Revenue Superintendent, there  

is a mention of dera on the land and as per the instructions given by the  

government  on  29th Poh  Samvat  1954,  the  entry  in  the  column  of  

ownership was to be made in the name of Dera Granth Sahib  as per the  

desire of real owners.  It was also indicated that the Sadhus residing in the  

dera shall have no right to sell and mortgage the land.  The muafi was  

granted by Maharaja Bharpur Singh for dharamarth i.e., to meet expenses  

of Sadhus and poor.  The last order passed by the Maharaja shows that  

entry regarding ownership of the Dera was to be made as proposed at the  

time  of  settlement.   Unfortunately,  the  High  Court  brushed  aside  the  

documentary evidence produced by the appellant by recording one line  

observation  that  his  counsel  could not  establish  its  relevance.   In  our  

view, while hearing the appeal, it  was duty of the High Court to have  

adverted to the various documents and then determined their relevance.   

38. The findings recorded by the Tribunal and the High Court on the  

question of use of the institution for worship by Sikhs are too sketchy.  

The only statement made by the witnesses examined by the respondent  

was that sometimes the residents go for worship of Guru Granth Sahib.  

In our view, in the absence of any evidence to show that the institution  

47

was established for use by Sikhs for the purpose of public worship, the  

Tribunal did not have the jurisdiction to declare it to be a Sikh Gurdwara  

by simply relying upon the entries in the revenue records or the fact that  

Prakash of Guru Granth Sahib is done and on some occasion people come  

to  worship Guru Granth  Sahib and the High Court  committed  serious  

error by dismissing the appeal.   

39. Since we have held that the orders passed by the Tribunal and the  

High Court  are  legally  unsustainable,  it  is  not  necessary  to  deal  with  

argument advanced by the learned counsel with reference to Section 4 of  

the 1991 Act.

40. In the result,  the appeal is allowed.  The impugned judgment as  

also the order passed by the Tribunal are set aside.  As a sequel to this,  

the declaration made by the Tribunal that the institution in question is a  

Sikh Gurdwara is also set aside.  The parties are left to bear their own  

costs.

……………………….…J. [G.S. Singhvi]

…………………………..J. [Asok Kumar Ganguly]

New Delhi

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January 12, 2011.

49