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SUPREME COURT OF INDIA
J.C. SHAH, V. RAMASWAMI AND G.K. MITTER, JJ.
Gopal Krishnaji Ketkar Appellant
Versus
Mohamed Haji Latif and others, Respondents.
Civil Appeal No. 954 of 1965.
D/-19-4-1968.
Advocates appeared
Mr. H. R. Gokhale, Senior Advocate (M/s. W. P. Oka. S. W. Oka and Ganpat Rai, Advocates with him), for Appellant Mr. Danial Latfi, Senior Advocate, (Mr. Hardev Singh, Advocate with him), for Respondents (Nos. 3 and 4), M/s. M. S. K. Sastri and R. H. Dhebar. Advocates, for Respondent No. 5.
Evidence Act - Section 114 - Bombay Public Trusts Act, 1950 - Section 18 - Public Trust - Registration of Peer Haji Malang Dargah - Trustee - Deputy Charity Commissioner made an order declaring that Dargah was a public trust and directed its registration as such - Deputy Charity Commissioner also directed that appropriate court might be moved for framing a scheme and appointing Trustees - Appellant preferred an appeal to Charity Commissioner Bombay under Section 70 of Act against order of Deputy Charity Commissioner - Whether Survey Plot belonged to Dargah or not and whether appellant was a trustee or only a de facto Manager of Dargah, open for decision in suit which had been filed by Charity Commissioner - Held, They have no responsibility for conduct of suit but with regard to parties thee suit it is, in their Lordships opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from Court written evidence in their possession which would throw light upon proposition - Court cannot raise an adverse inference against a party withholding evidence in his possession - Such a rule is inconsistent with illustration (g) of S. 114 of Evidence Act, and also an impressive body of authority - Court opinion that High Court was right in reaching conclusion that Survey plot belonged to Dargah and must be shown as property belonging to Public Trust - Appeal dismissed.
The case involves the following facts:
The appellant made an application to the Deputy Charity Commissioner for the registration of the Peer Haji Malang Dargah as a public trust, asserting that the Dargah was not necessarily a public trust subject to the relevant Act. The Deputy Charity Commissioner, however, declared that the Dargah was a public trust and ordered its registration, including a specific property, Survey No. 134 of village Wadi, as part of the trust's assets. The Deputy also directed that a scheme be framed and trustees be appointed, and the appellant appealed this decision to the Charity Commissioner.
Subsequently, the appellant challenged the ownership of the land and his status as a trustee, claiming that Survey No. 134 did not belong to the trust and that he was a hereditary trustee, not merely a de facto manager. The case moved through various courts, with findings that the Dargah was a public trust and that the management had been in the appellant’s family for generations.
A significant issue was whether the land in Survey No. 134 was owned by the Dargah or by the appellant. The records and historical entries regarding the land were examined, revealing that the land was considered Khalsa land and that the appellant’s family did not appear in the earliest land records, indicating a lack of clear title in the appellant’s name. The appellant admitted to enjoying income from the land but failed to produce accounts or documents to substantiate ownership or income management.
The courts also considered whether the appellant was in possession of relevant evidence, including accounts and records, and whether withholding such evidence affected the case. The courts ultimately concluded that the land belonged to the Dargah, and the appellant was not the owner of Survey No. 134, but rather a hereditary trustee managing the trust. The appeal was dismissed, affirming that the property was indeed part of the public trust.
Judgement
RAMASWAMI, J. : This appeal is brought, by certificate from the judgment of the Bombay High Court dated March 8, l963 in First Appeals Nos. 338 of 1960 and 422 of 1960.
2. On or about April 15, 1952 the appellant made an application to the Deputy Charity Commissioner, Greater Bombay Region under Section 18 of the Bombay Public Trusts Act (Bombay Act XXIX of 1950), hereinafter referred to as the Act for registration of the Peer Haji Malang Dargah near Kalyan in the Thana District (hereinafter referred to as the Dargah ) without prejudice to his contention that the Dargah was not a public trust to which the Act was applicable. On August 3, 1953 the Deputy Charity Commissioner made an order declaring that the Dargah was a public trust and directed its registration as such. The Deputy Charity Commissioner further held that among the properties of the Dargah was the land bearing Survey No. 134 of village Wadi on a portion of which the Dargah is located. The Deputy Charity Commissioner also directed that the appropriate court might be moved for framing a scheme and appointing Trustees. The appellant preferred an appeal to the Charity Commissioner Bombay under Section 70 of the Act against the order of the Deputy Charity Commissioner. The appeal was registered as Appeal No. 86 of 1953. Under Orders of the Government the appeal was heard by the Deputy Charity Commissioner, Ahmedabad invested for that purpose with the powers of the Charity Commissioner. By his order dated September 11, 1954, the said Deputy Commissioner with appellate powers dismissed the appeal. Feeling aggrieved the appellant filed an application under Section 72 of the Act in the Court of the District Judge, Thana to set aside the order of the Deputy Charity Commissioner with appellate powers, contending that the Dargah was not a public trust, that Survey No. 134 was not the property of the Trust and that the appellant was a hereditary Trustee. The application was opposed by respondents Nos. 1 to 4 who had intervened during the proceedings before the Deputy Charity Commissioner and by the Charity Commissioner respondent No. 5 who was also impleaded by the appellant in that application. The respondent contended that the Dargah was a public trust and the laud bearing Survey No. 134 belonged to the Trust and the appellant was not a Trustee of the Dargah. By his judgrnent dated April 26, 1955 the District Judge, Thana held that the Dargah was a public trust but he left the questions as to whether Survey Plot No. 134 belonged to the Dargah or not and whether the appellant was a trustee or only a de facto Manager of the Dargah, open for decision in the suit which had been filed by the Charity Commissioner. Against the order of the District Judge the Charity Commissioner filed an appeal in the High Court, being Appeal No. 501 of 1955. The appellant also filed his cross objections. The said appeal and cross objections were heard together and the High Court by its judgement dated November 19, 1958 confirmed the finding of the District Judge about the public nature of the trust and further held that the District Judge should have decided whether Survey plot No. 134 was the property of the Dargah or not and whether the appellant was a trustee or a Manager of the trust. The case was therefore remanded back to the District Judge for deciding these questions. Accordingly the District Judge reheard the matter and by his judgment dated February 29, 1960 held, in the first place, that Survey plot No. 134 of village Wadi was not the property of the Public Trust Peer Haji Malang Saheb Dargah and that the appellant was the hereditary trustee of the Trust, his family being its hereditary trustee. Against the judgment of the District Judge two appeals were filed in the High Court. First Appeal No. 338 of 1960 was filed by respondents Nos. 3 and 4 and First Appeal No. 422 of 1960 was filed by the Charity Commissioner, respondent No. 5. Both the appeals were heard together by th
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