S.R Das, C.J:— This second appeal arises out of a suit instituted by the plaintiff-respondent Raghunath Gir for possession of 75 kanals 5 marlas of land with a declaration that the plaintiff-respondent was entitled to receive three-fourth of a moiety of the produce of the land, from the tenants and that he was entitled to induct and eject tenants and for a permanent injunction restraining the defendant-appellants who are the proprietors of the land in suit from interfering which his right to induct or eject the tenants and to realize time, fourth of a moiety of the rents from the tenants. It is alleged that the land in suit is attached to the institution known as Devi Talab in Tehsil Jullundur in Dharamarth and the Mahant of that institution is the muafidar of the land in suit. This maufi is said to have been sanctioned by the Government as far back as 31st July, 1847. It is claimed that the Mahant of Devi Talab as muafidar used to realize a moiety of the produce from the tenants upto 1884 when some disputes arose between the proprietors and the Mahant. Those disputes are said to have been amicably settled on or about 6th August, 1884 in the following manner, namely, that out of the moiety realised from the tenants a quarter thereof was to be taken by proprietors and the remaining three-fourth of that moiety would be appropriated by the Mahant muafidar. In 1921, the then proprietors are alleged to have served notices of ejectment on the then tenants. In 1922, the then tenants instituted suits against the then proprietors contesting the latter's right to serve such notices of ejectment. Those suits were decreed and appeals filed by the proprietors were dismissed in 1923. The present defendant-appellants who were defendants No. 1, 2 and 3 in the suit purchased the Page: 79proprietors' interest in the land in suit and after their purchase they in 1940 served the tenants with notices of ejectment. The then tenants filed suits challenging the validity of such notices. Those suits, however, were dismissed. After the dismissal of those suits Moti Gir, the last Mahant of Devi Talab, filed a suit for a declaration of his title to the land in suit as a muafidar and for possession. Issues were framed in that suit in May 1943. After several days' hearing the suit was on 18th August, 1943 fixed for hearing and recording of evidence. The hearing, however, was adjourned till 19th October, 1943. Before that, however, on 4th October, 1943 a compromise was recorded between Moti Gir and the proprietors whereby it was agreed that the Mahant would be entitled to only Rs. 11 per annum as muafidar and would have nothing to do with the land in suit or the tenants thereof. Moti Gir died in Jeth 1943. The present suit was filed by the plaintiff-respondent Raghunath Gir on 10th July, 1946 against the proprietors and the tenants for the reliefs I have mentioned.

2. In paragraph 1 of the plaint it is alleged that the land in suit had from olden times been muafi since the rule of Sikhs until the existence of Devi Talab and that the land had descended from Guru to Chela and that the plaintiff is the last muafidar of the land in suit. In paragraph 2 it is averred that the muafidar had always been in possession of the land and had been realizing one-half of its produce from the tenants. In paragraphs 3 and 4 is pleaded the settlement of disputes between the then muafidar and the then proprietors which took place in August 1884. In paragraph 5 is set out the litigation between the tenants and the then proprietors which resulted in the cancellation of the notices of ejectment served by the then proprietors on the tenants. In paragraph 7 are recited the fact of notices of ejectment served by the present proprietors and the suits instituted by the tenants for cancellation thereof and the fact of dismissal of those suits for default of appearance on the tenants. The litigation between Mahant Moti Gir and the present proprietors and the settlement thereof in 1943 are reffed to in paragraphs 8 and 9 of the plaint. It is alleged that the last mentioned settlement was brought about by undue influence and Moti Gir's suit was withdrawn pursuant to such settlement. It was contended in paragraph 10 that settlement brought about by inducement and undue influence exercised on Moti Gir was not binding on his successor and in any event the previous muafidar had no right to relinquish the right to possess and recover the produce of the land and thereby injure the dharmarth property. Paragraph 11 of the plaint is important as formulating the right of the plaintiff-respondent and is in the following terms:—

“The previous Mahant muafidar Moti Gir died in the month of Jeth 1943. The plaintiff, present Mahant, is his Chela and by virtue of will and nomination is the muafidar from Government. He is, therefore, competent to sue”.

3. The proprietor-defendants have contested the suit and have filed their written statement. In the preliminary pleas the contesting defendants deny that the plaintiff has any cause of action. Para 1 of the plaint is totally denied and it is averred that the plaintiff has got no connection whatsoever with the land in dispute. The defendants deny that any muafidar has been in possession of the land in suit or has realized any share of produce from the tenants. The alleged compromise of 1884 referred to in paragraph 3 of the plaint is denied. The defendants do not admit the allegations in paragraph 5 of the plaint and contend that even if any proceedings took place between the then proprietors and the then tenants in 1921 the same has no effect as against those defendants. The defendants Page: 80maintain that they were perfectly justified in serving notices of ejectment on the tenants in 1940 and the suits of the tenants had been properly dismissed. The defendants maintain that the suit filed by Moti Gir was absurd and without foundation and that realizing that he had do chance of success Moti Gir in good faith and in the best interests of the institution effected a compromise which is binding on the institution and his successor. The defendants deny that any inducement was had out to Moti Gir and maintain that Moti Gir was fully competent to effect the compromise. The defendants contend that Moti Gir's suit having been dismissed or withdrawn as a result of the compromise the plaintiff, claiming to be his successor, is not entitled to bring the present suit. The last two sentences of paragraph 9 of the written statement are as follows:—

“* * * The plaintiff is not a Mahant, nor is he competent to ignore the said compromise and institute this suit. The compromise is in all respects legal and enforceable”.

4. Paragraph 11 of the plaint is dealt with in paragraph 10 of the written statement as follows:—

“The allegations in para 11 with regard to the death of Moti Gir are admitted. The other allegations in this para, are quite incorrect and are denied. The plaintiff is not at all competent to sue”.

5. It will appear from the pleadings as summarised above that the plaintiff-respondent founds his claim on the basis that the land descends from Guru to Chela (para 1 of the plaint) and that on the death of Moti Gir the plaintiff became the Mahant (1) as his Chela, (2) by virtue of nomination by the will of Moti Gir and (3) as the muafidar from the Government, (para. 11 of the plaint). There is no specific averment of any particular custom governing the devolution of the office of Mahant of this particular institution. The only averment is that the plaintiff claims to be the Mahant by virtue of his being a Chela or being nominated by the will of the last Mahant or being recognised as muafidar by the Government, The contesting defendants deny paragraphs 1 and 10 of the plaint in the way I have mentioned. On the pleadings the learned trial Judge raised the following issues:—

1. Whether the suit is barred by section 11, Civil Procedure Code and Order 23, rule 3, Civil Procedure Code;

2. Whether the plaintiff has a locus standi to bring this suit?

6. The first issue, however, was eventually altered and amended so as to read as follows:—

“Whether the plaintiff is competent to maintain this suit inspite of the fact that Moti Gir had withdrawn the previous suit?”

7. As will be observed, the issues were worded in very general terms instead of specific points in dispute being made the subject matter of separate and specific issues as they should have been done. Thus issue No. 1 was to cover the cases of undue influence alleged to have been practised on Moti Gir and of his competence to bind the institution and his successor. Likewise issue No. 2 involved disputes relating to questions of the Chelaship, the custom of nomination and the title as muafidar. The parties went to trial on the basis of the issues as if they covered the disputes arising out of the relevant paragraphs of the plaint and the denial thereof in the relevant paragraphs of the written statement.

8. The trial court held on issue No. 1 that the compromise between Moti Gir and the proprietors, the present defendants-appellants, was binding Page: 81on the plaintiff-respondent and that the present suit was barred by section 11 of the Code of Civil Procedure. It will be observed that the trial court proceeded on issue No. 1 as it had originally been framed and overlooked the fact that issue had been amended and consequently did not give any finding on the issue as amended. On issue No. 2 the trial Judge held that the plaintiff being a married man could not be the Mahant of this institution which was a gaddi of celibate Sanyasis. He further held that the plaintiff not having been proved to be the Chela of Moti Gir and no custom of devolution of office by nomination by the last Mahant having been established the plaintiff had no locus standi to maintain the suit which was accordingly dismissed.

9. The plaintiff-respondent appealed against the decree of dismissal to the Court of the Additional District Judge. Additional District Judge took the view that the claim of the plaintiff to be the Chela of Moti Gir was not specifically denied and the will having been proved the plaintiff-respondent had established his locus standi to maintain the suit and decided issue No. 2 in favour of the plaintiff. On issue No. 1 the learned Additional District Judge pointed out that the trial court had failed to record any finding on the amended issue and consequently remanded the case to the trial court for trial on the amended issue which included the question of the compromise between Moti Gir and the proprietors having been brought about by undue influence. The proprietors have now come up before this court on second appeal.

10. It will be observed that a finding on the amended issue No. 1 will be necessary only if the finding of the Additional District Judge on issue No. 2 in favour of the plain tiff-respondent can be maintained. I have already set out paragraphs 1 and 10 of the written statement which denied paragraphs I and II of the plaint where the title of the plaintiff was formulated. It appears to me that the claim of the plaintiff as formulated in paragraphs I and II of the plaint was sufficiently denied in the relevant paragraphs of the written statement. The plaint itself was defective in that no custom regulating the devolution of the office of Mahant was specifically pleaded. However, stretching the pleadings, the claim of the plaintiff to be the present Mahant on the grounds alleged by him maybe said to imply an allegation that the custom was devolution from Guru to Chela and at any rate by the nomination by the last Mahant of his successor. The parties went to trial on that basis and evidence was adduced. The plaintiff adduced evidence to the effect that he was the Chela of Moti Gir. P.W 2 Dogar Mai who as an attesting witness proved the execution of the will stated that the plaintiff was the Chela of Moti Gir. P.W 3 Vir Bhan, another attesting witness of the will, also stated that Moti Gir had previous to the execution of the will made the plaintiff his Chela, although in cross-examination this witness admitted that he was not present when the plaintiff was thus made a Chela. The plaintiff himself gave evidence on his own behalf and stated that he had been made a Chela by Moti Gir 12 or 13 years ago and that a writing evidencing that fact was made in a certain Bahi which, however, was not produced on the plea that it had been stolen when his dera had fallen down about three months prior to his giving evidence. The plaintiff was cross-examined at some length both on the question of his being made a chela and also on the question of compromise between Moti Gir and the proprietors having been brought about in settlement of disputed claim?. The proprietor-defendants called Page: 82no less than seven witnesses, all of whom deposed that the plaintiff was not the Chela of Moti Gir. Some of these defence witnesses also deposed that the plaintiff was a married man and that a married man could never be a Mahant of this institution. In view of the pleadings and the evidence as to the Chelaship adduced on both sides it is impossible to hold that the plaintiff has succeeded in establishing his chelaship. In the circumstances of this case the plaintiff cannot be heard to say that he was taken by surprise and that he did not appreciate that the factum of his chelaship was being contested and was involved in issue No. 2 which raised the question of his locus standi to maintain this suit.

11. It is now quite clear on the authorities that there is no general custom governing all religious institutions. The cases clearly establish that each institution is governed by its own usage and custom which must be specifically alleged in the plaint and proved by cogent evidence. As I have pointed out, there was no specific averment in the plaint as to any particular custom governing the devolution of the office of Mahant of this institution. Assuming, however, that such an averment may be taken to be implied in paragraphs I and II of the plaint there is absolutely no evidence in support of any such custom. Although the will of Moti Gir may be said to have been satisfactorily established a mere will by the last Mahant is not enough to entitle the plaintiff to succeed in the absence of proof of any custom of this particular institution sanctioning the devolution if the office by mere appointment or nomination by will by the last Mahant. Reference may be made to the cases of Raghubushana Tirthaswami v. Vidiavaridhi Tirthaswami1 and Mahant Satnam Singh v. Bawa Bhagwati Singh A.I.R 1938 P.C 216. The learned Additional District Judge assumed that in a majority of shrines there was a general custom of devolution of the office by nomination. It has been definitely ruled by the Judicial Committee in the Committee of Management of Gurdwara Panja Sahib v. Lieutenant Sardar Mohmmad Nawaz Khan A.I.R 1941 P.C 56 that the rule of majority of shrines was no guide and the particular custom of a particular shrine must be alleged and proved. The case of Ram Parkash v. Anand Das4 also clearly establishes that there is no general custom governing all religious institutions. In my judgment the learned Additional District Judge proceeded on an erroneous view of the law and his conclusion that the plaintiff's claim as Chela was not congested or that the plaintiff had become the Mahant by reason of his being Chela or by reason of nomination by the will of Moti Gir cannot, in the absence of proof of any specific custom, be sustained.

12. The learned Advocate for the plaintiff-respondent urged that even if the plaintiff had not proved that he was a de jure Mahant, in any case he was the de defacto Mahant and as such entitled to maintain the suit. The claim of being a de facto Mahant depends on facts which have to be alleged and proved. In the plaint there is no suggestion even of the plaintiff being the de facto Mahant. The whole claim of the plaintiff as formulated in the plaint proceeds on his being the de jure Mahant and in the circumstances it is not open to the plaintiff now to change his case and set up the plea of being the de facto Mahant.

13. Finally, learned Advocate for the plaintiff-respondent sought to found himself on his title as the muafidar recognised by the Government. A muafidar may be a grantee of land free of revenue or he may be an assignee of the land revenue. In the second case the assignment of land revenue by the Government to a person does not affect the title of the owners of the land. In other words, the assignment of land revenue does not operate as a confiscation of the rights of the owners. In the Settlement record of 1885 (Ex. P. 9) Mathra and others are shown as owners. In the Jamabandi of 1939–1940 (Ex. P. 21) Behari Lal and others are shown as the owners and in the Jamabandi of 1943–1944 the same state of things appears. All these exhibits clearly recognise the existence of the proprietors. Therefore, this muafi cannot be regarded as a grant of the latter itself by the Government to the muafidar but can only amount to an assignment of the revenue. Indeed, in Ex. P. 21 there is a note that the revenue of the land in suit, namely, Rs. 14 belongs to the maufidar Shiv Gir upto the existence of the Devi Talab. From this entry it is quite clear that the muafi was only the assignment of the land revenue and had really been granted to the institution and the name of the Mahant for the time being was entered in the revenue papers. The person whose name appears in the revenue papers has no personal right but is the muafidar as representing the institution. The plaintiff respondent claims that he has been recognised by the Government as the muafidar. As I have said, the entry of the plaintiff's name in the record does not give him any personal right. He is muafidar only as representing the institution Devi Talab. If, therefore, the plaintiff does not legally represent the Devi Talab the recording of his name as muafidar in the Government revenue papers cannot in my opinion give him the rights of a Mahant. In a suit of this description the plaintiff has to establish his title as Mahant so as to justify his claim as the muafidar representing the institution. The jamabandi papers Exs. P. 9 and P. 21 to which I have referred clearly establish that the proprietors never gave up their rights. The mere fact that the plaintiff has been recorded as muafidar representing the institution Devi Talab cannot at any rate give him any higher rights than the right to receive the land revenue to the extent of Rs. 11 as shown in Ex. P. 21. If he claims the benefit of any higher rights under the Settlement of 1804 he must prove his independent title as Mahant. This, in my opinion, he has failed to do. In my judgment, issue No. 2 and all that is involved therein must be decided against the plaintiff. This issue having been decided against the plaintiff, issue No. 1, namely, as to whether the compromise between Moti Gir and the proprietors was brought about by undue influence or whether that compromise was adverse to the interest of the institution and as such not binding on Moti Gir's successor, does not arise. The result, therefore, is that the order of the learned Additional District Judge must be set aside and the plaintiff's suit should be dismissed with costs throughout and I order and decree accordingly.

14. Appeal accepted.