( 1 ) ON an application made by the appellants an inquiry under sec. 19 of the Bombay Public Trusts Act 1950 (hereinafter to be referred to as the Act) was made by the Deputy Charity Commissioner Ahmedabad. He held the trust known as Shaikh Din Abdullah Hasrat Bada Edroos Saheb Roza Masjid and Kabrasthan Ahmedabad to be a public trust as defined under sec. 2 (13) of the Act and that way directed the same to be registered under the provisions of the Act. The properties appertaining to the said trust were also held to be the properties thereof. According to him the trust was a public Wakf by user. Against that decision passed on 23rd April 1956 the appellant preferred Appeal No. 125 of 1956 before the Charity Commissioner under sec. 70 of the Act. By an order passed on 29th May 1957 by Mr. S. C. Bhatt Charity Commissioner Bombay that appeal came to be dismissed with costs. Aggrieved by that decision Miscellaneous Application No. 149 of 1957 was filed under sec. 72 of the Act in the Court of the District Judge at Ahmedabad. By his order dated 29th December 1959 the learned District Judge allowed the application and set aside the decision of the Deputy Charity Commissioner which had come to be confirmed by the Charity Commissioner Bombay He thereby held that the trust was a private trust. Opponents Nos. 1 and 2 were directed to pay the costs of the applicant in one set and bear their own. The Charity Commissioner was directed to bear his own costs. Feeling dissatisfied with that decision opponents Nos. 1 and 2 have come in appeal before this Court. The Charity Commissioner has also filed an Appeal No. 939 of 1960 against that decision.

( 2 ) SINCE both these appeals arise out of the common judgment and involve consideration of the same points they have been heard together and a common judgment is recorded.

( 3 ) IN order to appreciate the points raised before this Court it would be necessary to set out a few facts. Saiyad Mahmad Baquir El-Edroos Valde Saiyad Jaffer El-Edroos the respondent No. 1 is a member of the Edroos family. The history of their family has been given at length in the judgment Ex. 74 of the District Judge of Surat in Appeal No. 80 of 1931 of his Court. The material part thereof has been set out in the judgment of the learned Charity Commissioner as also by the learned District Judge Ahmedabad. It appears that the family claims to be descendants of Hajarat Imamali who was son-in-law as also the cousin of Prophet Mohmad. One of the descendants of Hajarat Imamali came over to India in about 1542 A. D. and found his gadi at Ahmedabad Broach and Surat. The property in dispute in this proceeding it appears was given in gift to one of the holders of the gadi by his disciple. That holder was later on buried In the house and his Durgah is situated there. There is also a place for reciting prayers. That place is according to the appellants a mosque while it is said to be Ibadatgah according to the respondent. According to the respondent his disciples alone were entitled to come to the property in dispute and saying Patoha as there in a Durgah of one of his ancestors there. For their convenience there is a place for Saying prayers. The properties are that way said to be private trust properties as against the case of the appellants that they constitute public trust properties under the provisions of the Act.

( 4 ) IN 1928 Civil Suit No. 201 of 1928 was filed in the Court of the First Class Sub-Judge at Surat by Saiyed Mustafa Valde Saiyed Sakkaf Saheb Al-Edroos and another against the father of the respondent No. 1 under sec. 92 of the Civil Procedure Code after obtaining the necessary sanction of Collector of Surat. The plaintiffs in that suit prayed for a declaration that the defendant was not a Sajjadanashin or Mutawalli of Edroos Shrines of Surat Broach and Ahmedabad or the Wakf properties attached thereto and also for a permanent injunction restraining him from acting as such. They had further prayed