1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 413/2006 (Shantabai Tilak Prasad VERSUS Gulabrao Vithoba Patil) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri R. Upadhye, counsel for the appellant. Shri Masodkar, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : AUGUST 7, 2008. Heard the learned counsel for the parties. This appeal is preferred against the judgment passed by the Additional District Judge, Gondia on 02.02.1993 in Miscellaneous Judicial Case No.17/1987 and that of the Joint Charity Commissioner, Nagpur on 28.09.1987 in Appeal No.38/1972 upholding the order of the Assistant Charity Commissioner that Shri Ramchandra Swami Deosthan, Tirora is a public religious trust and the persons who had applied were the trustees of the same. The present appellant Shantabai is the daughter of one Purushottamdas who is son of one Bajrangdas. Shri Ramchandra Swami Deosthan at Tirora has a Temple and Dharmashala, house property and agricultural 2 lands admeasuring 17.52 acres. It is the case of the appellant that the trust was founded by Bajrangdas long ago and is a private trust, held and owned by Bajrangdas. Bajrangdas died in the year 1914 and his son Purushottamdas became the Wahiwatdar of the Deosthan. According to the appellant Purushottamdas became the de- facto owner of the land in question and the Idol was the de-jure owner. Purushottamdas went on a pilgrimage from 1926 to 1932 and while leaving, he had entrusted the property in the hands of some panchas. A dispute arose in regard to the possession of the Deosthan property and it was held in the proceedings under Section 145 of Code of Criminal Procedure that Purushottamdas was in possession thereof. In the year 1961, seven persons applied to the Assistant Charity Commissioner to register the Deosthan as a public religious trust. On 07.08.1961, the Deputy Charity Commissioner directed the registration of the Deosthan as a public trust. The order was appealed against and the matter was remanded for a fresh enquiry. Again as the Assistant Charity Commissioner held that it was a public trust, the order was appealed against. Then the District Judge remanded the matter to the Joint Charity Commissioner. The Joint Charity Commissioner, 3 by an order dated 28.09.1987 heard the matter afresh and held that the order passed by the Deputy Charity Commissioner declaring the Deosthan as a public religious trust was just and proper. The order passed by the Joint Charity Commissioner, Nagpur on 28.09.1987 was challenged by the appellant in Miscellaneous Judicial Case No.17/1987 before the Additional District Judge, Gondia. However, the application filed by the appellant was dismissed by the judgment dated 02.02.1993. Hence, this second appeal. It is submitted on behalf of the appellant that the authorities committed serious error in holding that the Deosthan was a public religious trust. The counsel for the appellant submitted that the property of the trust was, in fact, gifted by one Rajaram Patil and Vishwanath Brahman to the grandfather of the appellant by name Bajrangdas. According to the counsel for the appellant, the doners had gifted the property to Bajrangdas and not to the public trust. It was then submitted on behalf of the appellant that the appellant was continuously in possession of the property and the appellant and her predecessors were in possession of the property for nearly 100 years and in this background, it cannot be said 4 that the property is a public trust property or the Deosthan is a public trust. It is submitted on behalf of the respondent that the findings recorded by the Joint Charity Commissioner, as well as the Additional District Judge are pure findings of facts and do not give rise to any substantial question of law. It is submitted on behalf of the respondents that the entire relevant evidence was considered by both the authorities to hold that the Deosthan was a public religious trust and the persons who had applied were the trustees of the same. According to the counsel for the respondents, the judgment passed by the leaned Additional District Judge and the order passed by the Joint Charity Commissioner, Nagpur calls for no interference in this second appeal. I have considered the submissions made on behalf of the parties and have also perused both the judgments in detail. Both the authorities have concurrently held that the Deosthan was a public trust and Bajrangdas was simply a Wahiwatdar as there was no intention on the part of doners Rajaram Patil and Vishwanath Brahman to make a grant of the property in favour of Bajrangdas. According to both the authorities, the dedication of this land was in 5 favour of the Deity and a public trust was created. The authorities then considered the admissions of Purushottamdas in his cross- examination that the Deosthan was built about 100 years ago with the help of the trustees. The authorities further considered the admission of Purushottamdas that the land on which the Deosthan was built was received from agriculturists. He had further admitted in his cross-examination that the revenue papers of the land were in the name of Deosthan and not in his personal name. According to his admission, though he had applied for recording his name as Kabjedar, he was not allowed to do so. He further admitted that he had no documentary evidence or any record to show that his father had become the owner of the properties. Both the authorities, on consideration of the oral and documentary evidence on record, held that Purushottamdas was merely a Wahiwatdar, who was required to manage the property and his rights as Wahiwatdar cannot be equated to the rights of ownership. The request made by Purushottamdas to get the lands registered in his name in the revenue records was turned down by the revenue authorities. The land was shown to be Mafi Khairati, which meant 6 that the assessment on the land was waived because the lands were used for public purposes. The Courts considered the gift deeds by which the parties had gifted the land in favour of the deity. The Courts held that the land was not gifted personally to Bajrangdas but, was gifted to the Deosthan. In this background, on a proper appreciation of the material evidence on record, both, the Joint Charity Commissioner, Nagpur and the Additional District Judge, Gondia recorded a finding that the Deosthan was a public trust and the order passed by the Assistant Charity Commissioner holding it to be so, was just and proper. Merely by the possession over the property, a party cannot seek ownership over the same as the oral and documentary evidence on record clearly showed that the property was the public trust property and not the property of a private trust, as pleaded by the appellant. The findings recorded by the Joint Charity Commissioner, Nagpur and the Additional District Judge, Gondia are pure findings of facts which do not give rise to any substantial question of law. The second appeal is, therefore, dismissed with no order as to costs. 7 C.A. NO. 5527/2008. Since the second appeal is dismissed, the prayer made in the civil application does not survive, and hence, the same is also dismissed and disposed of. JUDGE APTE