Macpherson, J.:— Brahmadeo Bharthi, the plaintiff, appeals against the decision of the Subordinate Judge of Gaya dismissing his suit brought in forma pauperis against the defendant Ramanand for a declaration that plaintiff is the mahanth of the Bishunpur muth in the Aurangabad Sub-division of the district of Gaya and for recovery of possession from him of the properties, valued at Rs. 11,000 of the muth set out in Sch. A of the plaint, of mesne profits amounting to Rs. 3,000 and of future mesne profits. In his plaint plaintiff designated himself “Mahanth” and the defendant as Brahmachari and in his written statement defendant designated himself “Mahanth Ramanand Bharthi” and denied that the plaintiff was mahanth. The Subordinate Judge dismissed the suit of the plaintiff and the plaintiff appeals. The Court having ordered that Government should realise the court-fee payable on the plaint from the defendant, the same to be a first charge on the property of the muth in possession of the defendant, the defendant has appealed against the order.

2. The case set out in the plaint is briefly as follows. The plaintiff (hereinafter referred to as the appellant) is the chela and heir of the late Mahanth Harakh Narain Bharthi of the Bishunpur muth who died on 26th Magh 1331 F. (27th February 1924) and is in possession of the properties of the muth while defendant is not entitled to be Mahanth or to possess the property of the muth included in Sch. A. Bishunpur is a Dasnami muth of sanyasis. The late Mahanth initiated the plaintiff about 1898 and some seven years later performed the Birjahom ceremony of the plaintiff thus making him a perfected chela and his lawful successor. The late Mahanth left no other chela or lawful heir and on 26th Falgun 1331-F. (17th March 1924) plaintiff performed the samadhi bhandara of the Mahanth in the presence of a chela of the Mahanth of Bodh Gaya and other Mahanths of neighbouring muths and respectable people of the neighbourhood who gave him the chadar of the Mahanth and installed him on the gadi. The defendant is a chela of the Swamiji of Patalganga, a Brahmachari asthal within the Deo estate, and Raja of Deo is the chela of that Swamiji and desired to amalgamate with the asthan of Patalganga the properties of Bishunpur muth endowed by his ancestors who were chalas of Bishunpur muth. Some years before the death of the late. Mahanth who had cataract, plaintiff used to perform the work of Bishunpur muth but during the Survey operations in the neighbouring district of Hazaribagh where there are properties of the muth, the late Mahanth on the recommendation of the Raja of Deo appointed the defendant his karpardas to look after the survey proceedings and Court work. That was done by a mukhtarnama of 29th June 1915; but the Mahanth did not consent to the designation therein of the defendant as chela nor did he know of the contents of the deed. Owing to his dishonesty, the Mahanth in 1917 removed the defendant from being karpardaz and the defendant was dishonest in various ways thereafter. After the death of the Mahanth, through proceedings under the Land Registration Act and under Code of Criminal Procedure which were decided in defendant's favour in November 1924, April 1925 respectively, the defendant was put in possession of the property of the muth. The defendant was instigated in this regard by the Raja of Deo. It was further averred that the defendant being a Brahmachari Vaishnav could not be Mahanth of the Bishunpur muth and in fact was not installed on the gadi thereof and in particular that even if defendant is a chela of the late Mahanth, nevertheless the plaintiff as the senior chela is entitled to succeed to the gadi and was in fact installed thereon at the bhandara of the late Mahanth.

3. In his written statement the defendant substantially traversed the allegations of the plaintiff: in particular he denied that the late Mahanth had ever made the plaintiff his chela or performed his Birjahom ceremony and that plaintiff lived in Bishunpur muth as a chela. The plaintiff, he averred, merely came to the muth as a wandering fakir and being there guilty of sexual immorality, was turned away by the late Mahanth. He himself is not a Brahmachari Vaishnav nor a chela of the Swamiji of Patalganga but is the only chela of the late Mahanth who initiated him 22 years ago under the name of Ramanand Bharthi and performed his Birjahom ceremony and made him a sanyasi fakir. He also gave defendant a registered general power-of-attorney on 29th June 1915, after which the defendant always did the village and Court work. The defendant also performed the samadhi and bhandara of the Mahanth on 26th Falgun 1333 F, was at the bhandara given chadar and installed by neighbouring Mahanth and zamindars and grihast chelas on the gadi of the Mahanth and has since then been Mahanth and in possession of the properties of the muth. He denied the allegations of the plaintiff that the late Mahanth did not know the contents of the general power-of-attorney and that defendant did acts of bad faith in respect of the muth, suggests that plaintiff has been set up by interested people of Khardiha and Katya whom the defendant antagonised in connexion with his work of the muth and who are financing plaintiff, and denies that plaintiff was ever in possession of the properties in suit. It is to be observed that both parties place the bhandara and election on 26th Falgun 1331 F, in the Court yard of the Bishunpur muth. The learned Subordinate Judge held on a consideration of the evidence both that there was

“no satisfactory evidence to prove that plaintiff was initiated as chela of the late mahanth”

4. And that no Birjahom ceremony of the plaintiff was performed at all. He further held that the plaintiff had failed to prove that the defendant was a chela of the Swamiji of Patalganga or that the Raja of Deo actuated by a desire to amalgamate Bishunpur muth with the asthan of Patalganga, had set up the defendant. Fie pointed out that the plaintiff had not adduced the testimony of any of the Mahanths subordinate of Bishunpur math of whom several testified in favour of the defendant, or of any of its tenants or amlas. He found that the ammukhtarnama of 1915 in favour of the defendant was executed with the full knowledge of the Mahanth, that the defendant was not removed from his ammukhtarship by the late, Mahanth, and was not a follower of a Bramachari path but a perfected chela of the late Mahanth and broadly that plaintiff though not merely a sadhu who in his wanderings came to Bishunpur muth, was not while defendant was perfected chela of the Mahanth and that defendant served the Mahanth for a long time and was beloved by him. Further he was convinced that defendant performed the bhandara of the deceased Mahanth, was given the chadar of Mahanth and was installed on the gadi of the Mahanth on the occasion of the bhandara, while the plaintiffs allegation as to performing the bhandara and being installed was untrue as well as his allegation as to possession and dispossession. His view was that the plaintiff stealthily removed the papers from the muth just after the bhandara, and while he was apparently present in the muth when the police arrived he was no more than any other fakir in possession of the muth or of its properties. In his view plaintiff had never been in possession of the office of Mahanth or the properties in suit. The appellant's case has undergone changes and even on the first day of the hearing when the case was taken up in the afternoon, the submission of Mr. Jayaswal for the appellant substantially was that the appellant was entitled to succeed as being the senior chela. On the following morning however he indicated that, on better acquaintance with the record, he recognized that in fact the appellant's case was that he was the senior chela of the Mahanth, that the defendant was perhaps also a chela, that the succession was by election and that the appellant was the chela elected. In the course of the hearing the usual decisions, namely, Rangachariar v. Yegna Dlkshatur (1), Ramdhan Pari v. Dalmir Pari (2) the well-known Budhauli case, also of the district of Gaya, Lahar Puri v. Purati Nath (3) and Baldeo Prasad v. Arya Priti Nidhi Sabha (4) and Gour's Hindu Code, para. 2491, were referred to, as well as the untranslated Dharmasindhu at p. 367 where it is stated in the chapter on sanyasis (para. 65) that in the opinion of some pinda dan is to be done and in the opinion of others it is not to be done, the agnesti and the repeating of the mantra however being omnium consensu essentials at the Birjahom.

5. The suit being in ejectment it is upon the plaintiff to establish his right to the Mahanthship and the properties appertaining thereto. The suggestions that he is entitled to the Mahanthship by seniority or by nomination of the late Mahanth are entirely baseless. There can be no doubt that the succession is not “maurusi” or “hakimi” but “panchaiti” or electoral; and it is not by the mixture of “panchaiti” and one of the other methods. It was, therefore, incumbent on the appellant to establish, first that he was a duly initiated and perfect chela of the late Mahanth and, secondly, that he had been duly elected, and installed in the place of his guru. It is obvious that the suit fails if he does not establish that he was elected. It would also fail if, though a chela, his Birjahom had not been validly performed by the deceased and still more if he was neither a perfected nor an initiated chela of the deceased. In my judgment, the appellant has egregiously failed to establish that he was-elected to the Mahanthship. (After considering evidence his Lordship held, that the plaintiff did not succeed to the Bishunpur muth and the properties in suit, that he did not perform the bhandara of the late Mahanth and that he was not elected by some of the neighbouring Mahanths and zamindars; as Mahanth of the Bishunpur muth in succession to Mahanth Harakh Narain Bharthi and was never in possession of the muth or its properties). A very important point is that his accounts of the bhandara and chadar ceremonies were filed by the defendant and relied upon by the Court below. This paper had been written by the patwari Nathuni Lal who has since been dismissed as being in collusion with the appellant. The defendant would hardly have taken the risk of fifing such a paper if it were not genuine. It was also filed in the proceedings in 1926 and then relied upon. This account the appellant has failed to print in accordance with the rules of the Court, and under the settled practice of this Court the appellant is not allowed to challenge the conclusions therefrom of the trial Judge.

6. This is sufficient to dispose of the appeal. (The judgment considered the evidence for the defendant and proceeded). It is however admitted that there is no objection to a Brahmachari becoming a sanyasi. The allegation that the defendant is a chela of the Swamiji of Patalganga, is untrue. Indeed it is impossible with any semblance of reason to assail the status of the defendant as a chela of the deceased whose initiation and Birjahom are shown to have been validly performed. He was therefore eligible for election and beyond doubt he was duly and openly elected, as he claims. It has been urged that his am-mukhtarnama of 1915 was prepared without the cognizance of the executant and that in any case the defendant fell out with the Mahanth subsequently. To my mind the challenge in the plaint to the am-mukhtarnama is frivolous. The Subordinate Judge rightly disbelieved Murat Narain's statement that the contents were not read over and explained to the Mahanth, and there can be no doubt that the business of the muth was carried on by the defendant on the strength of it. On the other hand, it cannot be contested that in the written statement, Ex. 14, filed on behalf of the Mahanth in 1922, it is stated that the Mahanth having detected the dis honesty and licentiousness of Ramanand removed him from his residence five or six years before, that Ramanand was in collusion with the plaintiff in that suit and that:

“Ramanand filed an application in the Land Registration Department which was rejected.”

7. The defendant's explanation of the latter is that it was done at the instigation of the Mahanth himself which is probably the truth. The written statement was filed in a money suit in which the Mahanth and Ramanand were defendants in respect of money borrowed by Ramanand in virtue of his am-mukhtarship. It was according to the evidence filed on the date on which the suit was compromised by Ramanand. Though for obvious reasons the latter does not say so straight out the impression obtained in the circumstances as a whole is that the collusion was not between plaintiff and Ramanand but between the two defendants (the Mahanth and Ramanand) and for their joint benefit. In November, 1923, Ramanand was certainly present as a member of an august conference of Mahanths and others at Bodh Gaya. He suggests that he was the accredited representative of the Mahanth there and the fact that he was made a member of the “Working Committee” would suggest that he was accepted in that capacity or at any rate was not regarded as an outcast such as would be if the allegations in Ex. 14 had any foundation in fact. I can see no escape from the conclusion that Ramanand was actually managing the properties of the muth in close touch with the Mahanth up to the time of his death, and in any event he was still a chela of the Mahanth and eligible for election to succeed him.

8. As regards the appellant, I see no reason to doubt on Exs. 3, 4 and 9 that he was connected with the Bishunpur muth in some capacity after he was kidnapped from his home at the age of nine or ten about 1898. The evidence that he was made a chela on probation, though not convincing, may be allowed to pass; he certainly described himself as chela, though not in circumstances which would necessarily be lenown to Mahanth Harakh Narain. But it must be remembered that chelas are not all of one class. Apart from the girhast chelas there is the class of special disciples in respect of whom esoteric ceremonies are performed. It is a much more difficult question whether these were regularly performed in respect of the appellant. The learned Subordinate Judge came to the conclusion that they were not performed at all and it is difficult to disturb his finding. The evidence is certainly meagre and unsatisfactory. Appellant, mentions 15 persons as present and of them six were examined of whom only one spoke of the Birjahom and he is Jobraj Bharthi, whose testimony is as unacceptable on this as on other points; the other person P.W 5 is not even mentioned by appellant as having been present.

9. We are not really concerned with the question whether the pindi dan to himself and the devouring of a portion of the mixture of pan supari, the ashes of his tik (tuft of hair) and ghee are essential portions of the Birjahom without which it is invalid. On the text submitted to us there appears to be some doubt on the point. But it would seem that, whether essential or not, they are useful in Bihar, especially the former, and the failure of the plaintiff to remember or to mention the performance of them at his alleged Birjahom is of considerable significance when one is determining whether it was actually performed or not especially in the otherwise unsatisfactory state of the evidence on the point. I would hold that whether the failure to perform these ceremonies is a fatal irregularity or not, the fact that they were not performed arouses suspicion that appellant's Birjahom did not take place, and so it is unsafe to differ from the view of the learned Subordinate Judge that appellant has failed to establish that he himself is a perfected chela of the late Mahanth. For all these reasons I would hold that the decision of the Court below is right and would dismiss this appeal with costs. The appeal preferred by the defendant against the order that he is to pay the court-fee on the plaint, the same to be a first charge on the property of the muth in his possession, is definitely not contested on behalf of Government or plaintiff-appellant and palpably no answer to it could be forthcoming. It is therefore allowed with costs against Brahmadeo Bharthi. The court-fee on the plaint will be payable to Government by Brahmadeo Bharthi.

Mohammad Noor, J.:— I agree.

V.S

10. Appeal dismissed.