JUDGMENT :- The order passed by the Extra Joint Judge, Pune on 6th October 1976 in Miscellaneous Application No. 131 of 1973, rejecting the application under Section 70A of the Bombay Public Trusts Act, has been challenged in this appeal.

2. Facts giving rise to this litigation may be briefly stated as follows :

3. Surveys Nos. 225A, 225B and 225C (persent Surveys Nos. 429A, 429B and 429C), admeasuring about 11/2 acres situated at the City of Pune was previously an Inam land. It was given to one Makbulsaheb who happened to be the ancestor of the applicants. This Mukbulsaheb was a Mohamedan Saint. After his death, his tomb was constructed on this property. A mosque is also standing on that property. The mosque, however, got damaged in the riots of 1965 but-a part of the mosque remains. The ancestors of the applicants were in occupation of the land for a pretty long time. A portion of this land was given on lease to one Abdul Hussain Hasanali Bohori for the period of 99 years on the annual rent of Rs. 31.50 on 24-1-1923. Some land was given on lease to the Pune Municipality. On or about 1932, some members of the so-called Misgar Jamat Trust filed a suit against the ancestors of the applicants for a declaration that the property had become Wakf property by the user. This suit was Civil Suit No. 993 of 1932. The suit was decreed and the appeal against that decree was also dismissed by the High Court on or about 24-3-1935. Under the provisions of the Mussalman Wakf Act, 1923 (as amended by the Mussalman Wakf Bombay Amendment Act 1935), this Wakf was registered and the property was shown as the Wakf property. It is the case of the applicants that no notice of this proceeding was ever served on the ancestors of the applicants. There were litigations between the parties with which we are not concerned. Enough to point out at this stage that applications Nos. 9 of 48 and 2 of 43 in respect of the same Wakf were filed before the District Court. The District Court had directed the parties to file a regular suit. Accordingly, Civil Suit No. 2997 of 1949 was filed in the Civil Court at Pune. It was dismissed. The appeal, however, was preferred to the District Court. In the meanwhile, the Commissioner, Central Division, Pune, passed an order prohibiting further burials in the said land.

4. Subsequently, the Bombay Public Trusts Act came on the statute book and the Wakf came to be registered as a Public Trust. It is the contention of the applicants that no notice was served on them. It is the applicants' contention that the points which were relevant were not considered and all these enquiries were fishing enquiries. The present application is, therefore, filed under Section 70A of the Bombay Public Trusts Act. The relief sought by the applicant was to reverse the order directing the Wakf to be registered and the property be registered as Wakf property.

5. The learned Deputy Charity Commissioner (exercising the powers of the Charity Commissioner) heard the parties at length and rejected their application on 7th October 1971. Feeling aggrieved with this order, the appellants have come in appeal under Section 72 of the Bombay Public Trusts Act. The learned Joint District Judge, Pune, on hearing this appeal recorded the finding that the Wakf in dispute was properly registered under Section 28 of the Bombay Public Trusts Act. In view of this, the appeal came to be rejected. It is this order which has been the subject of challenge in the present appeal.

6. Mr. Abhyankar, the learned Advocate for the appellants took me extensively through the record. Mr. Abhyankar fairly told before me that the Wakf has been registered long back under the provisions of the Wakf Act. He, however, contended before me that the enquiry was not proper in as much as the points which were material were never considered by the Court before passing the order directing the registration of the Wakf. It may be pointed out at this stage that this order directing registration of the

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