JUDGMENT Niamatullah, J.
1. This appeal has arisen out of a suit brought by the plaintiff appellant for a declaration of his right as mahanth of the Kabirpanthi Math, situate in muhalla Ghasi Katra, city Gorakhpur, in succession to the preceding mahanth Malhu Das. Ganesh Das, defendant 1, is a rival claimant to the gaddi while the other defendants were transferees of certain properties alleged to belong to the math but wrongfully transferred by Mahanth Malhu Das.
2. The plaintiff appellant, who claims to be the disciple of Khelawan Das, a disciple of Malhu Das and who is described in the proceedings as grand chela of Malhu Das, has been engaged in litigation for about 15 years. He had instituted with the permission of the District Judge, Gorakhpur, a suit under the Religious and Charitable Endowment Act against Mahanth Malhu Das (1) for removal of Malhu Das from the office of mahanth, (2) for certain alienations made by him in favour of the present defendants 2 to 6 being declared invalid, and (3) for appointment of himself as a mahanth in succession to Malhu Das. The first two reliefs were granted. As regards the 3rd, it was held that the Court had no power to appoint the plain tiff as mahanth. Accordingly it was refused. Three appeals were filed from the decision of the Subordinate Judge, one by the plaintiffs, a 2nd by the transferees and the 3rd by Malhu Das. During the pendency of the appeals Malhu Das died on 12th December 1921. Ganesh Das, present defendant 1, claimed to be his chela and entitled to have his name brought on the record in place of Malhu Das. He was opposed by the plaintiff, who denied that Ganesh Das was the chela of Malhu Das. Accordingly, an issue was remitted to the Court of first instance for a finding on this question. Eventually, it was held that Ganesh Das was not the chela of Malhu Das. Two out of the three appeals already mentioned ended without the questions arising therein being decided on the merits. Malhu Das's appeal was declared to have abated, as no one entitled to claim as his legal representative had applied within limitation for substitution of his name in place of Malhu Das, Ganesh Das's application having been dismissed. The plaintiff's appeal was virtually withdrawn, as it was dismissed on his statement that he had been installed as a roahanth by other mahanths and the gentry of the town after the decree of the trial Court removing Malhu Das from the office of mahanth. The only appeal which was heard and decided by this Court was that of the transferees. As against them, the judgment of the first Court was upheld. In the meantime, Ganesh Das succeeded in obtaining mutation of names after the death of Malhu Das. The present suit was instituted on 2nd August 1923 against Ganesh Das and the transferees, who had been unsuccessful before the Subordinate Judge and this Court, for declaration of his right as mahanth and for recovery of the properties in possession of the unsuccessful transferees, namely, defendants 2 to 6.
3. The plaintiff relied on a custom obtaining in all Kabirpanthi Maths and also in the math in question, under which, on the death or removal of a mahanth a successor is installed by other mahanths of Kabirpanth Maths and the gentry of the neighbourhood, such successor being either the disciple or disciple of the disciple of the preceding mahanth. The plaintiff alleged that he had been installed after Malhu Das's removal under the decree passed by the Court of first instance in the suit under the Religious and Charitable Endowment Act. The Subordinate Judge, before whom the suit had been instituted, dismissed it on the preliminary ground that the plaintiff failed to establish that he had been installed as alleged by him. On appeal, the Additional District Judge set aside the decree of the Court of first instance, holding that the plaintiff had established his installation, as alleged by him. Accordingly, the suit was remanded under Order 41, Rule 23, Civil P.C. for a decision on all the questions arising in the case, specially the issue relating to the custom, on which the trial Court had expressed no opinion. On 15th December 1924, the Additional Subordinate Judge decreed the plaintiff's suit in full. Ganesh Das, defendant 1, preferred an appeal. The transferee defendants, except Manohar Sahu who filed a separate appeal acquiesced in the decision of the trial Court. Both the appeals were heard by the learned District Judge of Gorakhpur, who allowed them by his judgment of 19th March 1928 and dismissed the plaintiff's suit. The plaintiff has filed two appeals in this Court. The present appeal is against the decree of the lower appellate Court passed in the appeal preferred by Ganesh Das, while second appeal No. 597 of 1928 is from the decree passed by him in the appeal preferred by the transferee. In so far as the learned District Judge found that Ganesh Daa was not the chela of Malhu Das, a cross objection has been filed by Ganesh Das impugning that finding. We may say at once that no arguments have been addressed to us in support of the cross ob-* jection, directed as it is against a finding of fact. It must therefore fail, and the finding of the learned District Judge that Ganesh Das, defendant 1, was not the chela of Mahanth Malhu Das is accepted by us in discussing the merits of the case so far as they relate to the plaintiff's appeal.
4. The learned District Judge has held that the plaintiff was installed as mahanth by the "mahanths of his sect and neighbouring raises" during the lifetime of Malbu Das after the latter'a removal in pursuance of the decree passed in the suit brought by the plaintiff under the Religious and Charitable Endowment Act. He felt bound to arrive at that finding in view of the order of remand passed by the Additional District Judge in appeal from the first decree of the trial Court dismissing the suit. We think that the learned District Judge was right in taking that view of the aforesaid order of remand which was one under Order 41, Rule 23, and could have been appealed from but as it was not challenged by an appeal it became conclusive. No attempt was made on behalf of any of the respondents to impugn the correctness of the view taken by the learned District Judge on this aspect of the case. We must therefore take it that the plaintiff-appellant was accepted by the mahanths' of Kabirpanthi Matha and the gentry of the neighbourhood as the rightful successor of Malhu Das after the latter'a removal. Though the appellant starts with important findings in his favour, namely, that defendant 1 the rival claimant to the "gaddi" has no locus standi and that he had been installed by the mahanths' of Kahirpanthi Maths and the gentry of the neighbourhood yet he is confronted with a definite finding by the learned District Judge that he failed to establish that he was the "grand chela" of Malhu Das and further that he failed to establish the custom pleaded by him. If all the finding?, of the learned District Judge were to stand a most anomalous state of things will exist, at least, for sometime, as regards the management of the "math" and its properties. His findings however must be accepted being those of fact unless they can be displaced on any legitimate ground.
5. It was contended before the learned District Judge as has been done before us that the finding arrived at by the trial Court and by the High Court on appeal in the suit under the Religious and Charitable Endowment Act to the effect that the plaintiff-appellant was the "grand chela" of Malhu Das operates as rea judicata on the same question arising in the present litigation. The learned District Judge held that it did not, as, to quote his own words:
an appeal having been filed by Malhu Das and having been admitted in the lower appellate Coart the matter to be decided by the lower Court ceased to be res judioata aud was left open between the parties for final decision by the appellate Court. It can hardly be denied that there was no final decision by the High Court as against Malhu Das, because his appeal had abated.
6. We do not think that the ground on which the view of the learned District judge proceeds is sustainable. It is true when the decision of the trial Court is appealed from all questions decided by it again become subjudice and its decision cannot operate as res judicata pending the appeal. It is also true that the decision of the appellate Court on such questions supersedes the decision of the First Court, so that for the purpose of res judicata the decision of the appellate Court, unless it adopts that of the First Court is to be considered; but where the appeal is not decided on the merits but abates, so that the appeal becomes in-fructuous and the decision of the trial Court becomes conclusive, the latter will operate as res judicata as regards questions decided by it in a subsequent suit between the same parties assuming of course, that other conditions of the rule exist. We have been taken by the learned advocate for the appellant through the judgment of the trial Court in the suit under the Religious and Charitable Endowment Act and that of the Court of appeal and find that the question of the plaintiff being the "grand chela," of Malhu Das was directly and substantially in issue in that case the fact having been alleged by the plaintiff and denied by the opposite party. Both the Courts definitely found that the plaintiff was the "grand chela" of Malhu Das. The question was material in so far as the plaintiff had no right to take proceedings under the Religious and Charitable Endowment Act, unless he established that he had such an interest in the "math" as entitled him to sue. (After referring to the plaintiff's right to sue, what the learned Judges of the High Court, who heard the appeal had observed and after considering the evidence their Lordships proceeded). We are of opinion that the question whether the plaintiff was the "grand chela" of Malhu Das was directly and substantially in issue in the previous case and was heard and finally decided in that case and the decision thereon operates as res judicata on the same question arising in the present litigation.
7. It is argued by the learned advocate for the respondents that Ganesh Das cannot be deemed to be claiming under Malhu Das and that any decision obtained against the latter cannot operate as res judicata against the former. We do not think this contention is well founded. Malhu Das was a party in the earlier suit and represented the "math." Ganesh Das row claims to be representing the "math" being according to himself, its "mahanth." We are satisfied that the present suit is between the same parties or those claiming under the parties to the previous suit, as required by Section 11, Civil P.C. Apart from what the lower appellate Court held on the question of res judioata it should have regarded the judgment in the previous, case as possessing some evidential value on the question whether the plaintiff was "grand chela" of Malhu Das. Again, the lower appellate Court having acce'pted as a fact that the plaintiff-appellant had been installed by the "mahanths" of other Kabirpanthi maths and the gentry of the neighbourhood should have treated it as a circumstance possessed of some evidential value on the question whether the plaintiff was the "grand chela" of Malhu Das. The learned District Judge however approached this question as if there was nothing but the oral evidence of a few witnesses bearing on that question. We are clearly of opinion that the two pieces of evidence referred to above should not have been ignored by the learned District Judge and that his find-ling though one of fact is vitiated in consequence of such evidence being ignored.
8. We have been taken through the evidence of several witnesses examined on behalf of the plaintiff and of the three witnesses examined on behalf of the defendants and think that the finding of the trial Court, which is in favour of the plaintiff, should be accepted. Taking the oral evidence with all the probabilities of the case, the recognition of the plaintiff as the "grand chela" of Malhu Das in the judgment of the trial Court and of this Court in the suit under the Religious and Charitable Endowment Act and by a number of Kabirpanthi Maths and the gentry of the neighbourhood as the rightful successor of Malhu Das we are driven to the conclusion that the plaintiff's case on this point is true. The learned District Judge has not referred to the evidence of the defendant's witnesses probably considering it as quite worthless. In any case we take it to be so. For these reasons, we hold that apart from any previous judgment operating as res judicata the plaintiff is proved by the evidence adduced in this case that he was the "grand chela" of Malhu Das as alleged by him. As already stated the learned District Judge has found against the Plaintiff on the question of custom set up by him. Referring to a passage in the judgment of the First Court in the suit under the Religious and Charitable Endowment Act and one or two other documents the learned Judge held "that the math is not a very ancient institution" and "that the office of the mahinth has been so far hereditary." He went on to hold:
that the math in dispute was established definitely as a math only in the time of Paltan Das, that is, the immediate predecessor of Malhu Das. Now, this finding is contrary to what is admitted by both parties in pleadings. It is alleged in para. 1 of the plaint that the "math" in question has existed for several centuries. Ganesh Das admitted this fact in para. 1 of his written statement without any qualification or reservation. The learned District Judge was not justified in holding contrary to the case of both parties that the "math" in question is of recent growth and no custom such as is alleged by the plaintiff could come into existence. The learned Judge lays stress on the fact that no instance has been cited in which a "mahanth" was removed and another appointed. It is true that evidence afforded by instances is more satisfactory than evidence afforded by tradition but it is beyond question that an ancient custom can be established by evidence of persons who heard it mentioned by persons deceased who had special means of knowledge. The witnesses examined by the plaintiff who, it should be noted, have not been disbelieved by the learned District Judge, so far as they speak of the custom, stated it to be the same as alleged by the plaintiff. The only custom which the defendants have alleged in the written statement relates to the case of a "mahanth" who dies leaving several chelas. They do not allege any custom where a "mahanth" dies without leaving a chela. The witnesses examined on behalf of the defendants do not, likewise throw any light on the question. While we agree that questions relating to succession to the office of a "mahanth" have to be decided on proof of custom applicable to each particular "math" we cannot ignore the prevailing practice in a large number of "maths" of the same order that installation by "mahanths" belonging to the same order is considered necessary. Considering the evidence as a whole we are of opinion that the finding arrived at by the lower appellate Court cannot be supported vitiated as it is by reasonsfeome of which have been mentioned and that the finding of the trial Court which is based on the evidence produced by the plaintiff should be allowed to prevail. We have considered the evidence as to custom for ourselves and find ourselves in agreement with the trial Court. We may note that in interfering with the finding of the lower appellate Court on the question of custom we have not departed from the principle laid down in the recent Pull Bench case of this Court in the Municipal Board, Benares v. Kandhiya Lal A.I.R. 1931 All. 499 cited at the Bar. The result is that the appeal is allowed with costs on the higher scale, the decree of the lower appellate Court is set aside and that of the Court of first instance is restored. The cross objection preferred by defendant 1 is dismissed with costs.