(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL No. 539/2010 Ganesh Shrichand Rathod VERSUS Namdeo Hanjari Rathod. ________________________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. CORAM : R.M.SAVANT, J. DATED : 04.02.2011. Heard Shri A.C. Dharmadhikari, the learned Counsel for the appellant and Shri A.S. Chandurkar, the learned Counsel for the respondent No.1. This Appeal takes exception to the order dated 29.10.2010 passed by the learned District Judge, by which the application filed by the appellant above named, being M.J.C. No.35/2010 against the order of the Joint Charity Commissioner dated 26.08.2010 came to be dismissed. The proceeding in question is under Section 41-D of the Bombay Public Trust Act, 1950. The Public Trust in question is - Shri Devi Sevalal Sansthan, (2) Poharadevi, Tq. Manora, District Washim. Pursuant to the compromise decree passed by this Court, the management of the said Trust is to come by rotation to the appellant above named and the respondent. The respondent herein had filed an application under Section 41-D of the said Act, interalia on the ground that the appellant had misappropriated the Trust property in the form of one silver Sinhasan (Throne), one Etta Patta and one Bhala. On the said count, the respondent had sought removal of the appellant from the trusteeship. The said application was considered by the Joint Charity Commissioner and by his order dated 26.08.2010, the said application came to be partly allowed and the appellant was dismissed as a Trustee of the said Trust. Being aggrieved by the same, the appellant herein carried the matter to the District Court in Appeal under Section 72 of the said Act. The District Court by the impugned judgment and order dated 29.10.2010 confirmed the said order of the Joint Charity Commissioner. Both the Joint Charity Commissioner and the learned District Judge have recorded a finding based on the material that was before them, that the appellant was incharge of the trust property at the relevant time. Both the Authorities have held that the charge under (3) Section 41-D[d] of the Act was therefore, brought home against the appellant. As indicated above it is the said judgment and order passed by the learned District Judge, which is impugned in the present Second Appeal. On behalf of the appellant Shri A.C. Dharmadhikari, the learned Counsel submitted that the findings recorded by the Joint Charity Commissioner and the learned District Judge have been so recorded without considering the evidence which is on record and especially the evidence which has come by way of cross – examination of the respondent herein. The learned Counsel relying upon the statement made in the cross – examination by the respondent, that he had taken charge of the trust from the father of the appellant i.e. Shrichand, contended that at the relevant time he was not incharge of the affairs of the trust and infact it was the respondent who was incharge. The learned Counsel therefore contended that the Authority as well as the learned District Judge have laid undue emphasis on the execution proceedings, so as to draw a adverse finding against the appellant. Per contra, it is submitted on behalf of the respondent by Shri A.S. Chandurkar, the learned Counsel (4) for the respondent that the material on record unmistakably lead to only one conclusion that the appellant was incharge of the affairs of the trust at the relevant time and therefore, he was responsible for the mis appropriation of the property in question. The learned Counsel, contended that even on a preponderance of probabilities the findings recorded by the Joint Charity Commissioner as well as the learned District Judge is a plausible finding. Having heard the learned Counsel for the parties and having bestow my anxious consideration, in my view, there is no merit in the above Second Appeal for the following reasons. The material that is on record is in the nature of the list of immovable property drawn up when the trust property was handed over to the father of the appellant which is marked as Exh.35-A. Amongst the articles is the Silver Throne weighing 1000 tolas. The Executing Court i.e. the learned Civil Judge, Junior Division had passed an order on 06.02.2006 in the Regular Execution Case No.40./2006, pursuant to which the possession warrant Exh.35-B was issued and thereafter, the panchnama dated 17.02.2006 evidencing handing over the said articles, which was marked as Exh.35-E to the (5) father of the appellant herein, was prepared. The father of appellant died on 24.02.2006. The mode of succession was hereditary. It is significant to note that the appellant herein had filed a caveat application in the Court of Civil Judge, Junior Division, Mangrulpir. The said caveat was filed on 19.12.2006 on account of the apprehension expressed by the caveator that the caveatee i.e. respondent herein may approach the Executing Court for taking interim injunction order exparte and/or in any other proceedings to harass the caveator. Thereafter, the respondent herein when his turn came to take over the management of the trust, filed an application dated 08.01.2007 for deletion of certain properties out of the list of properties, which were handed over to the father of the appellant. The said application came to be allowed and it was observed that the execution is to be executed only against the judgment debtor, i.e. the appellant herein and therefore, the objection taken by him has no force. Accordingly, the said properties came to be deleted out of the list of the movable articles. Significantly, the appellant did not oppose the said application for deletion on the ground that the Silver Throne was not in his possession. Thereafter, on account (6) of the intransigence of the appellant, who was the judgment debtor in handing over the trust property to the respondent herein, the respondent had filed an application in the executing Court that the trust property may be handed over to him by breaking open the locks of the temple etc., which application came to be allowed and the bailiff at the time of taking over possession of the trust property has recorded in his report that the Silver throne (Sinhasan) weighing 1000 tolas, one Etta Patta and one Bhala, were not found. It is the aforesaid material which has been considered by the Joint Charity Commissioner as well as the learned District Judge, while recording the finding against the appellant. Though the learned Counsel for the appellant contended that the caveat application to which reference was made in this Court, was not considered by the Authority and the learned District Judge. In my view, the same would make little difference to the ultimate finding, as there is plethora of documentary evidence on record that it is during the trusteeship of the appellant that the alleged misappropriation or the mismanagement of the trust property has taken place. A statement here and there in the cross examination of the respondent cannot be read out of context. In the teeth of the findings recoded by (7) the Joint Charity Commissioner and the learned District Judge, in my view, the Second Appeal does not raise any substantial question of law, which is accordingly dismissed. Since the appellant is also facing criminal prosecution, needless to mention that the said proceedings would be decided on their own merits and in accordance with the law. At this stage the learned Counsel for the appellant prays that the status quo in the nature of statement made by the learned counsel for the respondent, be continued. Shri Chandurkar, the learned Counsel for the respondent shows his disinclination to continue the said status quo. In the light of the orders which have been confirmed by the instant order, I do not deem it appropriate to continue any protective order. In view of the dismissal of the Second Appeal Civil Application (S) No.980/2010 does not survive. The same is accordingly disposed of. No costs. JUDGE Rgd