GOVINDRAO DEVABASAPPA MANTHALKAR Vs. APPARAO DEVABASAPPA MANTHALKAR

JUDGEMENT

(1.) A short question that falls for consideration in this appeal is the nature and scope of the present appeal which is styled as a First Appeal filed under section 72(4) of the Bombay Public Trusts Act, 1950 (in short, "the Act").

(2.) A few facts giving rise to the present appeal may be enumerated : The property in dispute is the Ambabai temple also known as Jagadamba temple, situate in House No. 489, City Survey No. 4281, Shukrawar Peth, Sholapur. This temple was originally managed by one Nilabai who claimed to be its owner. She also owned shops around the temple. In the year 1861 she executed a sale-deed (Ex. 75) in respect of the property bearing House No. 489 except the temple which is the subject matter of dispute in the preset proceedings. In 1875 the said Nilabai executed an agreement (Ex. 76) in favour of Ramchander S/o Anandapa whereunder she appointed him as a Pujari giving him the hereditory right of worship. The appellants were the original opponents in the application filed by the respondents No. 2 under section 19 of the Act, for registering the said temple as a public trust property. The appellants who claim to be the successors of Ramchandra in the said enquiry under section 19, claimed the said temple to be their private property. The said application which was numbered as Application No. 181 of 1967 was decided by the Assistant Charity Commissioner on 13th December, 1971 whereby the said temple was held to be the property of public trust. The appellants challenged the said decision by preferring Appeal No. 43 of 1972 under section 70 of the Act but the same came to be dismissed by the Deputy Charity Commissioner by his judgment and order dated 27th June, 1974. The appellants thereafter filed Civil Miscellaneous Application No. 120 of 1974 to the District Court under section 72(1) and the same came to be rejected by the learned Assistant Judge by his judgment and order dated 17th December, 1976.

(3.) Being aggrieved the appellants filed the present first appeal on 7th February, 1977. By order dated the 10th March, 1977, record and proceedings the case were called for and on receipt of the same, the appeal was admitted on 13th April, 1977. In the meanwhile vide section 37 of the Act of. 104 of 1976, the provisions of section 100 of the Code of Civil Procedure were amended whereby the scope of the second appeal was restricted substantial question of law.