SITABAI RAMCHANDRA JALTARE Vs. MASJID NURUN MOHALLA JINGERWADI

JUDGEMENT

(1.) This appeal under the Letters Patent has been filed against the Judgment of the learned single Judge (Mr. Justice Nain) in Appeal No. 20 of 4967, allowing the said appeal and setting aside the order passed by the learned District Judge on 13th April 1967 in Miscellanous Judicial Case No. 27 of 1965. The facts leading to the present appeal may shortly be stated as follows,

(2.) At Akot in district Akola, there was a mosque popularly known as 'Mas-jid Nuran' or Nurunbiki Masjid. It appears that some immoveable property in the shop of open plot and built houses had been dedicated to this mosque. One Awaliyabi, who purported to be the Mutawalli of the mosque, brought a suit being Civil Suit No. 279-A of 1951 In the Court of Civil Judge at Akot against Ramchandra Narayan for possession of a piece of land, demarcated by letters ABCDEFJLM in the map accompanying the plaint on the allegation that this piece of land belonged and was in possession of the mosque and was in wrongful possession of the said Ramchandra, Ramchandra raised several contentions in his defence. The learned Civil Judge decided the suit on 17th November 1952 and held that the plaintiff in the suit was entitled to the possession of a site measuring 78 feet x 68 feet from out of the site which was the subject matter of the suit. The learned Civil Judge dismissed the suit with regard to rest of the site. Being aggrieved by this decision of the learned Civil Judge in the suit, Awaliyabi preferred an appeal before the learned District Judge at Akola which was numbered as Appeal No. 79-A of 1953 Ramchandra filed cross-objections in the appeal. When the appeal was pending before the learned District Judge, Ramchandra contended that the appeal could not be proceeded with because, even according to the plaintiff, i.e. Awaliyabi, the mosque was a public trust and unless the said public trust was registered as required by the provisions of the M. P. Public Trusts Act, 1951, the appeal could not be entertained. This objection on the part of Ramchandra was upheld by the then learned District Judge, who on 26th August 1955 passed an order in the following terms :-

(3.) On 30th April 1965 one Abdul Majid son of Abdul Rahman presented an application to the learned District Judge, purporting to be a Managing Trustee of the said mosque. After giving the history of the litigation upto the order which was passed by the learned District Judge on 26th August 1955, Abdul Majid submitted that Awa-liyabi expired on 24th May 1958 and till her death the mosque was not registered as a public trust. He further submitted that later on the mosque came to be registered as a public trust under the provisions of the Bombay Public Trusts Act, 1950 and certificate of registration had been issued to him by the Assistant Charity Commissioner, Akola Region, Akola on 5th November 1963 and hence he had become the managing trustee of the said mosque and was entitled to present the application on behalf of the said trust. Abdul Majid further contended that since the mosque had been registered as public trust, it was entitled to carry on the appeal which had been consigned to the Record Room for want of registration under the above said order of the learned District Judge. By this application, therefore, Abdul Majid prayed that the record of the appeal should be sent for from the Record Room and he should be substituted as appellant in place of Awaliyabi and the appeal be proceeded with. Ramchandra, who was respondent in appeal, resisted this application by filing written statement on 25th August 1965. He raised several contentions and one of the contentions was that during her lifetime Awaliyabi has applied to the Registrar of Public Trusts under the M. P. Public Trusts Act on 10th July 1956 for registration of the trust as a public trust but the said application was dismissed by the Registrar on the ground that the trust was not a public trust. Ramchandra further contended that while applying for registration before the Assistant Charity Commissioner under the provisions of the Bombay Public Trusts Act, 1951, the applicant, viz., Abdul Majid had suppressed this fact from the Assistant Charity Commissioner and since the Registrar under the M. P. Act had already rejected Awaliyabi's application for registration of the trust as a public trust, the Assistant Charity Commissioner had no power and jurisdiction to do otherwise and hence the order passed by the latter registering the trust as a public trust was without jurisdiction. Another contention raised by Ramchandra was that even if it was held that the mosque was a private trust and Awaliyabi was its Mutawalli, the application made by Abdul Majid for leave to proceed with the appeal was not tenable in view of the fact that legal representatives of Awaliyabi, who should have applied for being brought on record within 90 days of the death of the former, had not done so and hence the right to sue did not survive and the appeal abated. These were the two main contentions apart from others which Ramchandra raised against the application of Abdul Majid. Abdul Majid followed the first application by another application for 27th March 1967, purporting to have been filed under Order 22 Rule 10 of the Code of Civil Procedure. In substance the allegations in this application were practically the same as in the earlier application. The only difference being that by this application Abdul Majid prayed that he may be allowed to amend the appeal memo by substituting his name in his capacity as a Managing Trustee of the mosque in place of Awaliyabi. Ramchandra opposed this application also by filing written statement on 6th April 1967. Abdul Majid produced Certificate of Registration while Ramchandra produced four documents which included a certified copy of the order passed by the Registrar under the M. P. Public Trusts Act on the application of Awaliyabi and certified copy of the resolution passed on 26th December 1962 electing members to the Managing Committee of the mosque. It may be mentioned here that the name of Abdul Majid appears in the list of members given in the resolution and he is shown as a Managing Trustee.