RANGOOBAI CHANDRABHAN SHEGOKAR Vs. VITHOBA ZINGOOBAJI ZALWADE

JUDGEMENT

(1.) Heard Shri Khapre, learned counsel for the appellants - original non-applicants in proceedings under Section 19 of Bombay Public Trust Act, 1950, and Shri Mandpe, learned counsel for respondents No. 2 & 3. Original Respondent No.1 . Vithoba, who filed application under Section 19 has expired during the pendency of proceedings and has been deleted on 26.7.2006.

(2.) In view of the judgment of Division Bench of this Court in the case of Shivprasad vs. Leelabai Badrinayaran, reported at 1998 (1) Mh. L.J. 444, this appeal under Section 72(4) of Bombay Public Trust Act, 1950, is to be treated as Second Appeal under Section 100 of Civil Procedure Code and accordingly this Court can interfere only when substantial question of law arises for determination. As the appeal has been admitted long back, the substantial questions of law have not been framed.

(3.) Shri Khapre, learned counsel for the appellants, in order to demonstrate that such substantial questions did arise for determination of this Court, has initially demonstrated that more than three questions fall for determination in this matter. He contends that as immovable property has been treated as Trust property by the lower authorities, the dedication to trust of such property is possible only by registered instrument as contemplated by Section 17 of Indian Registration Act. He relies upon the provisions of Section 2(27) of Bombay Public Trust Act, which states that words and phrases which are not defined in Bombay Public Trust Act, but are used in it are to be interpreted by taking recourse to its meaning in Indian Trust Act. He states that Section 3 of Indian Trust Act defines Trust as an obligation annexed to the ownership of property and Section 5 thereof specifies how the trust of immovable property can be created. He argues that such a trust can be created only by registered instrument and as in this case there is no such registered instrument, there is no dedication to Trust and as such there is no public trust. He further contends that an unregistered document vide Exh. 22 has been utilised by Courts below to record a finding that original owner Tanbaji created a Trust in favour of one Maroti Deosthan, Ubda, and also its original is not on record. He states that in view of provisions of Section 17 of Registration Act read with Section 49 thereof, the copy could not have been utilised in evidence and its contents could not have been read. He argues that though the document i.e. copy was allowed to be exhibited, that by itself does not mean that contents of original are proved and he further argues that there cannot be any objection in raising the issue of law in appeal in this Court only on the ground that the document was allowed to be exhibited. He also argues that the authorities have not recorded a specific finding that members of general public were permitted to visit the temple to perform pooja archana or for holding other religious functions as of right. He contends that there was evidence led by the appellants to demonstrate that everything was controlled by the appellants and general public had no such right. He lastly argues that the dedication to public at large is basically an issue which needs to be answered after appreciation of evidence and in present case the appellate Court i.e. the District Judge, Wardha, while deciding MJC (Trust) Application No. 2 of 1980 has not evaluated the evidence at all. He contends that in view of 1998 judgment of this Court (supra), the appeal under Section 72 before the District Judge becomes a First Appeal under Section 96 of Civil Procedure Code and the District Judge was therefore duty bound to record a specific finding on each issue essential for determination of controversy. He relies upon the judgment of the Hon'ble Apex Court in the case of Santosh Hazari vs. Purushottam Tiwari, reported at 2001 (2) Mh. L.J. 786, in support of his contention. He also wants to add other points to further substantiate his arguments on merits of present Second Appeal.