1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4476 OF 2009. Nasim Ahmed S/o Gulam Dastagir, Age 68 years, Occ.Pensioner and Mutawalli of Takiya Roshan Ali Shah, Qadri and Nashan Gausepaak, Shah Bazar, Aurangabad R/o H.No.2-3-45, Shah Bazar, Aurangabad. ... Petitioner. Versus 1. Shaikh Naser S/o Shaikh Abdul Quader, Age 35 years, Occ.Business, R/o Shah Bazar, Aurangabad. 2. The State of Maharashtra through Collector, Aurangabad.... Respondents. ... Mr.S.S.Kazi, advocate for the petitioner. Mr.G.D.Shaikh, advocate for the Respondent No.1. Mr.S.K.Kadam, Asstt. Govt. Pleader for the State. ... CORAM : S.V.GANGAPURWALA,J. Date : 31.03.2010. 2 ORAL JUDGMENT 1. Rule. Rule made returnable forthwith. With the consent of the parties, the matter is taken up for final hearing. 2. I have heard Mr.Kazi, learned advocate for the petitioner, Mr.G.D.Shaikh, learned advocate for the Respondent No.1 and Mr.S.K.Kadam, learned Asstt. Govt. Pleader for the State. 3. The petitioner vide the present Writ Petition takes exception to the judgment and order dated 11.2.2008, passed by the learned District Judge-II in MARJI No.402/2008, whereby the application of the present petitioner seeking leave to file an appeal against the judgment of the 5th Joint Civil Judge (Senior Division),Aurangabad dated 15.10.2008 in MARJI No.321/2008 is rejected. Vide the judgment of the learned trial Judge, the learned trial Judge was pleased to issue heirship certificate in respect of the property bearing CTS No.10078 at Shahbazar, Aurangabad, in favour of Respondent 3 No.1, as heir of deceased Sk.Chand S/o Sk.Chaggu. 4. It is the claim of the petitioner that he is the Mutwalli of the said property and has right and interest in the said property. It is further contention of the petitioner that the Respondent suppressing this fact has obtained the heirship certificate which he is not entitled to. 5. At this stage while considering the application for leave to file appeal, it would not be necessary to consider the minute details regarding the ownership and the interest involved of the parties. For deciding application for leave to file appeal, the only requirement would be as to whether the applicant has exhibited some interest in the property which is the subject matter of the order which is sought to be impugned by the petitioner. 6. The petitioner has placed on record the document showing that he is appointed as a Mutwalli. The question as to whether the 4 appointment is legal or whether he is appointed as a permanent or temporary Mutwalli would not be germane at this stage but the document on record prima facie shows that the petitioner has got some semblance of interest in the said property. 7. Mr.Gulam Dastagir Shaikh, learned advocate for the Respondent submitted that no fault can be found in the order of the Court below. The application for seeking permission to file appeal is very cryptic. It does not contain any details as to the right of the applicant therein. He further contended that the Respondent is the Mutwalli and the present petitioner has no concern with the said property. He has also invited my attention to the suit bearing No. 97/2008 filed by the petitioner before the Wakf Tribunal, Aurangabad, wherein also he has pleaded about the suit property. In view of all these facts he prays that the Writ Petition be dismissed. 8. Considering the rival submissions of the parties and on perusing the impugned judgment 5 it is clear that the learned Judge has only considered the factum of relationship of the applicant with Sk.Chand. According to the learned Judge, the application is silent regarding relation of the applicant with Sk.Chand. The learned Judge has further observed that "the Respondent is not at all claiming any sort of concern or relevance with the said Takiya Roshan Ali Shah nor the heirship certificate refers anything in that regard." On the said premise, the application came to be rejected. 9. The judgment in heirship proceeding would be a judgment in rem. When the heirship certificate in respect of the said property is awarded in favour of a particular party, the said party would be in a position to exercise the right pursuant to the said heirship certificate against the whole world. In that view of the matter when the petitioner claims right over the said property then as a natural consequence it follows that the said right would be affected. 10. Though the application seeking leave to 6 file an appeal is not precise, is bereft of necessary particulars and it does not lay down the source of the right of the applicant, the documents substantiate the contention of the petitioner made in his application that he is the Mutwalli of the said institution. The merits of the matter would not be required to be gone into, whether the applicant would fail or succeed in the appeal is a different question altogether. At the time of adjudicating the said application it will only have to be seen as to whether the right of the applicant (if any) would be affected. 11. In the light of the above facts, the applicant is entitled for leave to file an appeal. As such the impugned order dated 11.12.2008 passed by the District Judge-II, Aurangabad in MARJI 402/2008 is quashed and set aside and the application (MARJI No.402/2008) filed by the present petitioner seeking permission to file appeal is allowed. 12. The Writ Petition is partly allowed in 7 above terms. The relief as far as second part of prayer clause (B) i.e. to the extent of setting aside the order passed by the learned 5th Joint Civil Judge (S.D.), Aurangabad in MARJI No. 402/2008 is concerned, the Writ Petition is dismissed. The Writ Petition is only allowed to the extent of the order dated 11.12.2008 passed below Exh.1 by District Judge-2 in MARJI No. 402/2008. Rule is partly made absolute in above terms, with no order as to costs. 13. It is made clear that I have not observed anything on the merits of the matter and while deciding the appeal the appeal be decided by the District Court on its own merits without being influenced by the observations made in this order. (S.V.GANGAPURWALA,J.) asp/office/wp447609 8