SHAIKH ARSHAD MAHEBUB Vs. SAYYED SAMIR SHAH MAHMOOD

JUDGEMENT

(1.) Present appeal has been filed by those persons in whose favour an order dated 19-05-2014 was passed by learned District Judge, Ahmednagar, in a trust matter. Respondents no.01 to 07 are those persons in whose favour the impugned order dated 28- 08-2015 was passed on the basis of order dated 14-08- 2015. Respondents no.08 and 09 are the persons in whose favour order dated 19-05-2014 was passed and respondents no.10 and 11 are the persons who had filed application Exhibit 1002 before the trial Court. Basically the first appeal arises out of the order below Exhibit 01 and decree in Trust Suit No. 2 of 1970 by learned Ad hoc District Judge-2, Ahmednagar, thereby the said suit came to be partly decreed. Seven trustees were appointed with the consent of the said Court as per the scheme which was already formed and then the Court Receiver who was appointed since 1977 was directed to hand over all the trust properties, including the account books, to the newly appointed trustees.

(2.) One Mahmod Sharif Usmanmiya and Mohamad Ibrahim Mohamad Sharif had filed R.C.S. No. 2 of 1970 before District Judge, Ahmednagar, to declare the trustees as guilty of mismanagement and misappropriation of breach of trust and as such, those trustees i.e. the defendants to be removed from their office. The consequential prayer for giving them directions to submit the accounts was also prayed. The suit was basically a trust suit in respect of trust called "Hajrat Sarkar Pir Sahab Sharif Dargah Dayra, Ahmednagar". It was registered with Assistant Charity Commissioner, Pune Region, Pune, vide No. B-117. The defendants were the trustees and one Shamsuddin Karimbhai was a trustee who expired in April 1968. It was contended that the plaintiffs are the beneficiaries of the trust and they are having interest in the same. They are the representatives of the family Saint Pir Shah Sharif. The trust properties were at Ekalahare village in Shrirampur Taluka and Konoshi village in Shevgaon Taluka. In 1951, the predeceased of the defendants were appointed as permanent 'Mutwallis' by District Judge in an ex parte proceedings and thereafter the defendants had taken over charge and possession of the trust properties. Thereafter, they felt that since they have been appointed as permanent 'Mutawallis', nobody can remove them and thereby they started mismanaging the properties and misappropriating funds of the trust. They have not kept regular accounts. So also, bank account has not been opened and therefore, the suit was filed after obtaining permission from Charity Commissioner, Bombay, under Section 51 of the then Bombay Public Trusts Act, 1950, dated 25-10-1984. As aforesaid, in the suit, plaintiffs had claimed for declaration, removal of defendants from trusteeship and for accounts.

(3.) It appears from the proceedings, that by order dated 31-01-1973, a retired Civil Judge (Senior Division) was appointed as a Court Receiver and directions were given to manage the properties. Thereafter, it appears that some other receiver was appointed under the order of the Court. Thereafter, there was a compromise which was recorded before the trial Court on 16-10-2014 for appointment of in all seven persons as trustees and in view of order dated 16-10-2014, seven persons named in the order were appointed as trustees of the trust and copy of the order was directed to be given to Assistant Charity Commissioner, Ahmednagar, for taking further steps in the matter. In view of the said order, learned Assistant Charity Commissioner made enquiry under Enquiry Application No.335 of 1991 and passed order to that effect on 19-05-2015. Thereafter, application Exhibit 1002 was filed and thereby the order passed by learned Assistant Charity Commissioner, Ahmednagar, in Enquiry No. 335 of 1991 dated 19-05-2015 was partly set aside to the extent of nomination of four persons from four villages and the learned Assistant Charity Commissioner was directed to follow the order passed by learned Ad hoc District Judge-2, dated 16-10-2014 scrupulously. The said order came to be passed on 13-08-2015 and thereafter by order passed below Exhibit 01, the Trust Suit came to be partly decreed. The names of seven persons as trustees appointed by Assistant Charity Commissioner, Ahmednagar, with the consent of the said Court, as per the scheme, was confirmed. The Court Receiver was directed to hand over the property along with the accounts. This is the order which is under challenge.