1987 Supreme(Bom) 350

IN THE HIGH COURT OF BOMBAY
Ashok Agarwal, J.
Govindrao Devabasappa Manthalkar by his heirs .... Appellants.
Versus
Apparao Devabasappa Manthalkar by his heirs others .... Respondents.
First Appeal No. 152 of 1977, decided on 14-10-87.
Advocates appeared :
M.R. Katikar, for appellants.
P.K. Hoshing, for respondent No. 2.
K.K. Tated, A.G.P., for respondent No. 4.

Headnote:Section 72 (1)-CPC, 1908, Section 100-Proceedings before District Court under Section 72 (1) are in the nature of an appeal-District Court exercises appellate jurisdiction while disposing of matter-Once a appeal is treated as a second appeal it shall have to satisfied the requirement of Section 100 C.P.C.

       It is true that Section 72 (1) of the Act, speaks of an application being filed to the Court to set aside the decision of the Charity Commissioner and it does not speak of an appeal It is also true that Sections 70 and 71 use the word appeal and a deliberate departure has been made in Section 72 by using the word apply instead of the word "appeal". Placing reliance upon the said provisions the counsel for the appellants submitted that the proceedings under Section 72 were not in the nature of an appeal and that therefore, when the District Court exercised its jurisdiction it did not exercise appellate jurisdiction but a special jurisdiction under the said Section 72. Though the well known word appeal has not been used in Section 72 the absence of that word cannot be regarded as determinative of the nature of the proceedings. If one considers the scope, ambit and content of the proceedings before the District Court it will have to be held that the District Court would be exercising appellate jurisdiction. The District Court while dealing with an application under Section 72 (1) was given the power to confirm, revoke or modify a decision of the Charity Commissioner and the section did not impose any limitation on this power. In an application under Section 72, the entire matter is at large before the District Court and the District Court has complete power to review the decision of the Charity Commissioner either an law or on facts in such manner as it thought proper. Although Section 72 (I) confers a right upon a person aggrieved by the decision of the Charity Commissioner to apply to the District Court one must look at and consider the real nature of the right that is conferred by the sub-section. In substance the application is intended to set aside the decision of the Charity Commissioner and the District Court must consider that decision and if satisfied that the decision is erroneous must set it aside and give the necessary reliefs to the party aggrieved by that decision. Therefore, in substance there is very little difference between an application contemplated by Section 72 (1) and the right of appeal against the order of the Charity Commissioner. To decide the present question one must be guided not only by the nominclature used by the section for the proceedings but by the essence and content of the proceedings. That being so. There is no hesitation to hold that the proceedings before the District Court under Section 72 (1) are in the nature of an appeal and that the District Court exercises an appellate jurisdiction while disposing of a matter under Section 72 (1). Consequently the present appeal though styled as a First Appeal arises out of an order passed by the District Court in appeal and hence the same shall be treated as a second appeal. Once this appeal is treated as a second appeal it shall have to satisfy the requirements of Section 100 of the Code of Civil Procedure before inviting this Court to interfere with the said order of the District Court and unless it is shown that the case involves a substantial question of law it would not be open to this Court to entertain the said appeal.

       Section 3- Temple situated in a house field to be the property belonging to the public trust.

       The Assistant Judge in his considered judgment has taken into account the relevant documents such .as the agreement Ex. 3 dated 22nd March, 1933 wherein had been described as a Panch of temple and not its owner and "A" had signed the same as a Panch of the said temple; Ex. 4 a rent-note dated 19th November, 1934 wherein "A" had described himself as a Pujari and had signed as such and had not described himself as an owner; Ex 5 the statement of "A" before the City Survey Officer wherein he had described the said property as a public property of temple and he had described himself as a Vahiwatdar who ,was performing Pooja Archana etc. He had further asserted that his name was erroneously shown in the city survey record as owner of that property and be prayed for correcting the said entry. He declared that the rental income of the property was being utilised by him for Pooja Archana of the goddess and also for meeting the expenses of the festival like Navratra, and that be was not the owner of the said property.

       The Judge also took note of the fact that the appellants had not filed a single document to show how they got title over the disputed property and the temple. It was also inter-alia noted that in the partition deed Ex. 45/3, the property in dispute did not figure as one of the properties owned by the joint Hindu family. He also noted that in the pamphlet issued for summoning the meeting of Samaj, the present temples was should as one of the temples owned by Samaj.

       He also noted that the receipt book regarding the collections made by the Panchas from the members of the community showed the present temple as belonging to the community. If after taking into consideration the aforesaid documents, the Assistant Judge was not inclined to believe the oral testimony of the witnesses examined on behalf of the appellants on the ground that the same were interested witnesses no fault can be found therewith. In this view of the matter the judgment and order of the Assistant Judge holding that temple also known as temple situate in the house to be the property belonging to the public trust will have to be upheld.