MIYA MOHAMED ABDULKARIM JARIWALA Vs. COLLECTOR OF SURAT

JUDGEMENT

(1.) There is a plot of land bearing old survey No. 6and new survey no. 3141 in ward no 3 of Surat city admeasuring about 2518 sq. yds. The appellant no. 1 had made an application dt. June 1 1962 under sec. 18 of the Bombay Public Trusts Act 1950 (hereinafter referred to as the Act) to the Assistant Charity Commissioner Surat for registration of public trust namely Sarvajanik Jmumasha Kabrastan. In the said application appellants nos. 2 and 3 were shown to be the trustees of the said trust and the mode of succession to trusteeship was by appointment from the residents of three localities of Surat namely Ambawadi Kalipul Ambawadi Ghadewans Takra and Ambawadi Saiyed Badarmiyas Moholla. The aforesaid plot of land bearing old s. no. 6 and new s. no. 3141 admeasuring about 2518 sq. yds. had been shown to be the property of the said public trust. It was averred in the application that the said property was being used as a burial ground by the Musalmans residing in the aforesaid three localities since time immemorial. The extract from the property card was produced along with the application wherein the name of the owner was shown to be the Surat Municipal Corporation. Another extract from the Sud register ex. 3 was produced along with the application wherein it was mentioned that the said land was sarvajanik land used as a Kabrastan. In that document the land was described as Sarkari. Notices were issued amongst others on the Municipal Commissioner Surat Municipal Corporation as well as the Collector of Surat and the inquiry was registered at no 54 of 1968 on December 24 1968

(2.) The Collector of Surat by his reply ex. 7 stated that the land originally belonged to the Government and it was shown at the time of the original survey in 1871 in the sud register as Sarkari land and on May 2 1874 an entry was made to the effect that it was reserved for Sarvajanik purposes and was the land of Kabrastan. He stated that thereafter in the revision survey undertaken in 1925 the said land was given a new survey no. 3141 and was shown as the Government unoccupied land. Subsequently on April 3 1943 this land was given to the Surat Borough Municipality under a Government Resolution on concessional rates for construction of Harijan Quarters. He therefore submitted that this land originally belonged to the Government and stands in the name of the Municipal Corporation since April 1943. He therefore resisted the application for registering this land as the property of a public trust. A similar written statement was filed on behalf of the Municipal Corporation wherein it was contended that the application was not bona fide and no public trust existed as alleged and the said land was not the property of the public trust but it belonged to the Municipal Corporation of Surat as having been acquired from the Government in the year 1943 for the construction of Harijan quarters. It was therefore contended on behalf of the Municipal Corporation that the inquiry in regard to this property instituted on the application of the appellant no I should be dropped.

(3.) The broad facts which emerge from the evidence and which have not been disputed before me are that the said open land is being used as the Kabrastan by the residents of the aforesaid three localities of Surat since before 1871. It is clear from the evidence that there are a number of graves in the said land some of them permanent structures and there is also one tomb bearing the inscription of Hijri year 1272. The property was shown in the Revenue Settlement Register (Sud Register) of 871 as Sarvajanik Kabrastan land. The character of the property is described as Sarkari. This entry seems to have been made on May 2 1874 as is clear from a perusal of ex 3. The Assistant Charity Commissioner Surat had visited the site and had found that the statements of fact made by the three witnesses examined on behalf of the appellants were correct. From their evidence it becomes clear that the disputed property was being used as a Kabrastan by the Musalmans of the aforesaid three localities for the last over 100 years. The existence of the tomb bearing the inscription Hijri year 1272 (equivalent to 1853 A. D. according to the judgment of the learned Assistant Judge) indicates that even in that year the land was being used as a grave yard. There are several graves in this lard and it is difficult to say how many of them date back to 1853 A.D. It is sufficient to say that over a number of years at least from 1874 this land is being used by the Musalmans of the aforesaid three localities as grave yard. It is true that in the revision survey of 1925 this land was described as Government unoccupied land but this statement does not seem to be factually correct because it is clear from the evidence that throughout the land was being used as a grave yard. The evidence shows that even after 1943 the land is being used as a grave yard by the Musalman residents of the aforesaid three localities. In support the appellants have produced the receipts of fees collected by the grave digger Mohmad lbrahim. It was not suggested by Mr. Sethna the learned counsel for the Municipal Corporation that after the Government resolution of 1943 the Municipal Corporation had assumed possession of the grave Bard and had closed the cemetery. Therefore even after the Resolution of 1943 it becomes clear from the evidence that the land was used as grave yard and the Municipal Corporation had not obtained actual possession thereof from those in management of the grave yard. It is therefore abundantly clear from the aforesaid evidence that this plot of land is being used as grave yard since before 1871 i.e. for the last over 100 years.