MAQBUL AHMED MIYA GIRAV Vs. HIDAYATULLA BALDI

JUDGEMENT

(1.) THESE two first appeals raise a question of law as to the nature of the proceedings adopted under sub-section (4) of section 72 of the Bombay Public Trust Act, 1950. They are treated as first appeals in this Court and the question of law which arises is as to whether these appeals under sub-section (4) of section 72 are really in the nature of first appeals on par with the first appeals under section 96 of the Code of Civil Procedure or are they in the nature of second appeals subject to the limitations of section 100 of the Code of Civil Procedure. These two first appeals can be disposed of by a common judgment and order since they arise out of the judgment and order dated 29th October 1974 passed by the learned Asst. Judge, Thane in Misc. Civil Application No. 172 of 1972 and Misc. Civil Application No. 179 of 1972. The said two applications were filed in the District Court, Thane under sub-section (1) of section 72 of the Bombay Public Trust Act, 1950. A few facts may be stated as under.

(2.) THE predecessor in title of the appellants in both the first appeals initiated proceedings under section 22a of the Bombay Public Trust Act for a declaration that the following properties situated at Bhiwandi, District Thane be declared as Trust properties; the Trust being Peer Chingishah Barehena Dargah, Bhiwandi, District Thane, registered under No. B/183/ Thane;

(3.) THE Asst. Charity Commissioner who held the enquiry came to the conclusion by his judgment and order dated 31st March 1967 that only survey No. 96 Hissa No. 6 was the Trust property. Being aggrieved by the said decision of the Asst. Charity Commissioner the predecessor in title of the appellants preferred Appeal No. 35 of 1967 and the predecessor-in title of opponent. No. 1 preferred Appeal No. 47 of 1967. Both the appeals were heard together by the Deputy Charity Commissioner who held that survey No. 96/1, 96/3, 96/4 and 96/6 were the properties of the Trust while the other properties were not the Trust properties.