GOPAL KRISHNAJI KETKAR Vs. MOHAMED HAJI LATIF

JUDGEMENT

(1.) 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 Judgment 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 the High Court. By its judgment dated March 8, 1963 the High Court confirmed in the first place, the finding of the District Judge that the management of the Dargah has been in the family of the appellant. With regard to ownership of Survey plot No. 134 on which the Dargah is situated, the High Court held that the appellant was not the owner of that plot but that it was the property of the Dargah.

(3.) The main question presented for determination in this appeal is whether the land comprised in Survey plot No. 134 was the property of the Dargah or whether it belonged to the appellant.