Maqbul Ahmed Miya Girav vs Hidayatulla Baldi and another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1992 Supreme(Bom) 5

IN THE HIGH COURT OF BOMBAY
A.V. Savant, J.
Maqbul Ahmed Miya Girav... Appellants.
Versus
Hidayatulla Baldi and another... Respondents.
First Appeal Nos. 288 and 289 of 1975, decided on 1-7-1992.
Advocates appeared :
J.R. Lalit, for the appellants.
Abhay S. Oka, for respondent No. 1.
Miss Geet Shashtri, for respondent No. 2.

Headnote:Section 72 (1)-Decision of Charity Commissioner-Application against, the District Judge-Nature of proceedings-Though styled as application-Proceedings before District Judge to be treated, really the first appellate proceedings -Nomenclature immaterial.
       Section 72 (4)-Code of Civil Procedure 1908-Sections 96 and 100 Appeal to High Court-Nature of proceeding under Section 72 (4) of Act Whether in nature of first appeal or in nature of second appeal-Order of Charity Commissioner-Proceedings against, before District Court under Section 71 (1) were in nature of appellate proceedings-Hence proceedings in High Court, though styled as first appeal to be treated as second appeal.
       Sections 96 and 100.
       See Bombay Public Trusts Act, 1950-Section 72 (4).

JUDGMENT - A.V. SAVANT, J.:---These two first appeals raise a question of law as to the nature of the proceedings adopted under sub-section (4) of section 72 of the Bombay Public Trust Act, 1950. They are treated as first appeals in this Court and the question of law which arises is as to whether these appeals under sub-section (4) of section 72 are really in the nature of first appeals on par with the first appeals under section 96 of the Code of Civil Procedure or are they in the nature of second appeals subject to the limitations of section 100 of the Code of Civil Procedure. These two first appeals can be disposed of by a common judgment and order since they arise out of the judgment and order dated 29th October 1974 passed by the learned Asst. Judge, Thane in Misc. Civil Application No. 172 of 1972 and Misc. Civil Application No. 179 of 1972. The said two applications were filed in the District Court, Thane under sub-section (1) of section 72 of the Bombay Public Trust Act, 1950. A few facts may be stated as under.

2. The predecessor in title of the appellants in both the first appeals initiated proceedings under section 22A of the Bombay Public Trust Act for a declaration that the following properties situated at Bhiwandi, District Thane be declared as Trust properties; the Trust being Peer Chingishah Barehena Dargah, Bhiwandi, District Thane, registered under No. B/183/ Thane;

i) Entire Revenue Survey No. 3,

ii) Entire Revenue Survey No. 96,

iii) Entire Revenue Survey No. 8,

iv) City Survey No. 1634,

v) City Survey No. 1644; and

vi) Revenue Survey No. 111/A.

The case of opponent No. 1 in First Appeal No. 288 of 1975 is to the effect that the revenue Survey No. 8 as also revenue Survey No. 3 are his personal properties and the trust has nothing to do with the said properties,. Similarly the case of opponent No. 1 in First appeal No. 289 of 1975 is to the effect that the revenue Survey No. 96, Survey No. 11/A, City Survey No. 1643 and City Survey No. 1644 are his personal properties and that the Trust has nothing to do with the said properties.

3. The Asst. Charity Commissioner who held the enquiry came to the conclusion by his judgment and order dated 31st March 1967 that only survey No. 96 Hissa No. 6 was the Trust property. Being aggrieved by the said decision of the Asst. Charity Commissioner the predecessor in title of the appellants preferred Appeal No. 35 of 1967 and the predecessor-in title of opponent. No. 1 preferred Appeal No. 47 of 1967. Both the appeals were heard together by the Deputy Charity Commissioner who held that survey No. 96/1, 96/3, 96/4 and 96/6 were the properties of the Trust while the other properties were not the Trust properties.

4. Being aggrieved by these findings two applications were preferred under section 72(1) of the Bombay Public Trust Act. The predecessor-in-title of the appellants preferred Misc. Civil Application No. 172 of 1972 whereas the predecessor-in-title of opponent No. 1 preferred Misc. Civil Application No. 179 of 1972. Both the applications were heard together as stated earlier, and were disposed of by common judgment and order. The learned Assistant Judge allowed both the applications by passing the following order:

"Both these applications are partly allowed. The findings and the conclusions of the Charity Commissioner that S. No. 111/A, C.S. No. 1643, 1644 and new S. Nos. 3/1 to 3 are not proved to be the properties of the Trust "Peer Chingi Shah Trust" is hereby confirmed.

However, the finding and the conclusion drawn by the Deputy Charity Commissioner in respect of the portions of S. No. 96(New) and in respect of New S, Nos. 8/1 to 4 and in respect of New S. No. 3/1 to 3 is hereby set aside and the matter is remanded back to the Assistant Charity Commissioner's Court for further enquiry to ascertain whether these (New) S. No. 96, new S. Nos. 3/1 to 3 really correspond with old S. No. 8 and old S. No. 3 (part). And then to hold whether Maqbul establishes that it is a property

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