MOHAMAD HUSSEN MUJAWAR Vs. ADAM IBRAHIM MUJAWAR AN

JUDGEMENT

(1.) THIS first appeal arises from the judgment and order passed by the Second Extra Assistant Judge, Kolhapur, dated 30th of July, 1982, in Misc. Application No. 43 of 1982 filed under section 72 of the Bombay Public Trust Act, 1950. The dispute relates to the management of Deosthan Inam viz. , Hazrat Peer Malik Rehan Dargah, Kille Vishalgad, Taluka Shahuwadi, District Kolhapur, Commonly known a Vishalgad Dargah (hereinafter for brevity sake referred to as the said Dargah ). The facts lie within a narrow compass. For the maintenance of the said Dargah two lands were given, one at village Gajapur in Shahuwadi Taluka, District Kolhapur, and the other at village Adhisthi in Sangameshwar Taluka, District-Ratnagiri. Both these lands are Deosthan Inam lands and the income derived from these two lands is spent for the upkeep of the said Dargah. It appears that in 1952 two separate applications were made by one Hussen Mujawar, father of the present appellants, and Usman Kadir for the registration of the two trusts in respect of both the lands at Gajapur and Adhisthi. After the inquiry under section 18 of the Bombay Public Trust Act, on 9th February, 1954, Assistant Charity Commissioner, Kolhapur, registered both the trusts under Registration nos. B-68 and B-69 respectively in respect of the above two lands. Accordingly, the said land at Adhisthi was being managed by Usman Kadir, Cousin of Hussen Mujawar. On 8th September, 1966. Hussen Mujawar died and thereafter his eldest son Ibrahim filed the change report showing himself as the trustee being the heir and also as the manager of the joint family after the death of his father, Husen Mujawar. The other two sons of Hussen viz. , Mohamed and Ahmed also filed change report bearing Change Report No. 954 of 1974 on 1st of October, 1974, for the inclusion of their names as trustees of the said Dargah along with the name of their eldest brother, Ibrahim. During the pendency of the said report before the Assistant Charity Commissioner, Ibrahim died on 4th of November, 1981. The Assistant Charity Commissioner by his order dated 5th of January, 1982, allowed the said Change Report No. 954 of 1974 and included the names of Mohamed and Ahmed as trustees of the said Dargah. Adam Ibrahim Mujawar, respondent no. 1 herein who is the son of the deceased Ibrahim preferred appeal against the said order before the Charity Commissioner. The said appeal was dismissed by the Joint Charity Commissioner on 30th of March, 1982, confirming the order of the Assistant Charity Commissioner. Subsequently, the said Adam along with the other heirs of Ibrahim filed application under section 72 of the Bombay Public Trust Act before the District Court at Kolhapur being Misc. Civil Application No. 43 of 1982. The said application was allowed by the Second Extra Assistant Judge, Kolhapur, by his judgment and order dated 30th of July, 1982, and both the orders passed in the change report by the Assistant Charity Commissioner and confirmed by the Joined Charity Commissioner were set aside.

(2.) AGGRIEVED by the aforesaid decision of the Second Extra Assistant Judge, Kolhapur, the said Mohamed and Ahmed preferred this first appeal before this Court adding the heirs of Ibrahim as respondents. This appeal came up before Sharad Manohar, J. , on 13th of November, 1986, who referred the same to the Division Bench. Accordingly, the appeal came up before a Division Bench (Shah and Tated, JJ.) wherein it was contended by the respondents that since respondent Nos. 1 to 4 were not on record as the heirs of Ibrahim in the proceedings before the learned Assistant Charity Commissioner, Joint Charity Commissioner and the Extra Assistant judge, Kolhapur, they had no opportunity to adduce oral and documentary evidence to disprove the claim of the appellants. The Division Bench after hearing both the sides by its order dated 17th of March, 1987 framed two issues viz.

(3.) SHRI Bhimrao Naik, learned Counsel appearing on behalf of the appellant, supported the findings given by the learned Third Additional District Judge at Kolhapur and contended that the respondents have led no evidence whatsoever to show that Sarsubhe Vat Hukum No. 44 of 1913 issued by Kolhapur Darbar was applicable to the Deosthan Inam in Vishalgad Jahagir and/or also failed to show that the rule of primogeniture was applicable to the Deosthan in Vishalgad Jahagir under any other law in force in the said Jahagir. According to Shri Bhimrao Naik, the learned Third Additional District Judge was, therefore, justified in giving negative findings in respect of the two issues referred to him for his decision. On the other hand, Shri Rane, learned Counsel appearing on behalf of the respondents, strongly contended that the learned Third Additional District Judge was wrong in coming to the conclusion that Sarsubhe Vat Hukum No. 44 of 1913 issued By olhapur Darbar was inapplicable to Deosthan Inam in Vishalgad Jahagir, though there is sufficient documentary evidence to that effect and further also contended that the lower Court failed to take into consideration several documents filed by the respondence vide list, Exh. 40, though they were relevant documents more particularly from the point of view of deciding the second issue framed by the High Court and referred to the lower Court.