1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE First Appeal No.879 of 2002 Madhukar Jairam Chaudhari & anr. Appellants Vs. Narayan Raghunath Bairagi since deceased through LRs and anr. Respondents Mr.R.S.Datar for appellants. Ms.Sujata Mhadgut for Resp.nos.2/1 to 2/3. CORAM: B.H.MARLAPALLE, J. January 14, 2008 P.C. 1. Heard Mr.Datar, the learned counsel for the appellants. For some reason or the other this appeal has been waiting for admission for the last more than five years and it arises from an application filed under Section 50-A of the Bombay Public Trust Act, 1950 which came to be allowed partly by the Assistant Charity Commissioner by order dated 30/11/1990 and thereby the scheme framed for the administration of Shri Gramdevi Virar Public Trust, which was registered as such on 11/9/1979, came to be settled and appointment of two Trustees viz. Shri Narayan Raghunath Bairagi and Shri Hari Raghunath Bairagi came to be approved. As against this the petitioners 2 had suggested five names for appointment as the Managing Trustees and they were the appellants, Shri Jagannath Ganesh Choudhari, Shri Vasudeo Waman Raut and Shri Pratap Sitaram pandit. The appellants were aggrieved by the appointment of only two persons and, therefore, they filed an appeal under Section 72 of the Bombay Public Trusts Act, 1950 and the appeal came to be dismissed by the impugned judgment and order dated 19/3/2002. 2. In the mean while the appellants had also approached the Joint Charity Commissioner by Application No. 3 of 1993 filed under Section 41-E of the Bombay Public Trusts Act, 1950 and prayed for restraining orders against the Trustees on the ground that they were misappropriating the property of the Trust. This application was allowed on 8/6/1993 and all the six opponents were restrained from dealing with the Trust property bearing Survey No.259 (Part) of Virar. Four of the said opponents in Application No.3 of 1993 filed Civil Appeal No.288 of 1993 before the District Court and the same was dismissed on 3/12/1997. In the mean while by his order dated 6/6/1995 in Application No.25 of 1992 the Joint Charity Commissioner, Mumbai was pleased to remove 3 one of the respondents i.e. Shri Narayan Bairagi and that order received finality in asmuchas it was not challenged by either Shri Narayan Bairagi or his heirs. 3. AS the order passed in the appeal decided by the District Court is impugned in this appeal, the same has to be treated as a Second Appeal and, therefore, this Court is required to examine whether there is any substantial question of law that arises for consideration from the judgment dismissing the appeal filed by the present appellants before the District Court. 4. There is no dispute that the two Trustees appointed by the Assistant Charity Commissioner while framing the scheme were for their life time and on their demises their heirs would be the subsequent trustees. Challenging the same it was contended by the appellants that the Trust was mismanaged by the respondent - trustees, no accounts were being maintained in respect of the income and expenditure of the trust and the mode of succession as hereditary was not valid and, therefore, other trustees were required to be appointed as prayed for. On perusal 4 of the record the learned Addl. District Judge noted that before the Assistant Charity Commissioner no document was placed by the appellants to show that they were interested persons in the proper management of the trust beyond merely saying that they had done something in the interest of the trust. Even while framing the scheme the Asst. Charity Commissioner had noted that the trust property was standing in the name of the grandfather of the respondents and there was nothing to show by way of any documentary evidence that the trust property was owned by some individuals and it was donated to the Devsthan. Therefore, the learned District Judge accepted that it was a hereditary trust by referring to the law laid down in the case of Kakinada Samajan Vs. Commissioner of Hindu Religious Endowment, Hyderabad [AIR [AIR [AIR 1971 SC 891] 1971 SC 891] 1971 SC 891]. 5. So far as the appellants are concerned, they could not place any evidence either before the Asst. Charity Commissioner or before the lower Appellate Court that they were in any way either interested or concerned persons in the subject trust so as to be entrusted for its management in place of the respondents. It was necessary for the appellants to 5 put on record the evidence to dislodge any respondents and in their place to enter their names as the trustees and there was no such evidence. It is, therefore, clear that the lower Appellate Court has proceeded on the fact finding exercise and more particularly its correctness as decided by the Asst. Charity Commissioner. Consequently, no substantial question of law arises in this appeal which has to be treated as a Second Appeal and hence the same is dismissed in limine. (B.H.MARL