-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.314 OF 1986 APPEAL NO.314 OF 1986 APPEAL NO.314 OF 1986 Wairibandh Gram Vikas Mandal and others ...Appellants vs. Shrikrishna Venkatesh Padwaal and others ...Respondents Mr.V.A.Gangal with Mr.A.G.Toraskar for the Appellants Mr.B.H.Mehta A.G.P. for State CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : FEBRUARY 27, 2008 : FEBRUARY 27, 2008 : FEBRUARY 27, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The submissions of the learned Advocates for the parties were heard yesterday. The challenge in this First Appeal filed under section 72 (4) of the Bombay Public Trusts Act,1950 is to the Judgment and Order dated 7th January 1986 passed by the learned Judge of the City Civil Court, Bombay in an application under section 72 (1) of the said Act. 2. An application was made under section 19 of the said act of 1950 before the learned Assistant Charity Commissioner by which the some of the present appellants contended that Wairi Bandh Gram Vikas Mandal is a public trust and therefore same is required to be registered as such. The said application was contested by the Respondent Nos.1 and 2 in this Appeal. Various issues were framed by the learned Assistant Charity Commissioner. The Assistant Charity Commissioner by a -2- detailed order held that the trust exists. The learned Assistant Charity Commissioner held that the "Pimpal Par" with temple of Datta on area of 4 acres of land bearing Survey No.698/1 and 698/13 was the trust property. The learned Assistant Charity Commissioner however clarified that the land below the temple was not the trust property. The order passed by the Assistant Charity Commissioner was challenged by the respondent Nos.1 and 2 by preferring an appeal before the Deputy charity Commissioner. The order of the Assistant Charity Commissioner was confirmed by the Deputy Charity Commissioner in the Appeal. Being aggrieved by the said two orders, the first and second Respondents preferred an application under sub section 1 of section 72 of the said Act of 1950. By the impugned Judgment and Order the learned Judge held that the Datta temple and the 4 gunthas of land bearing 698/1 and 698/13 was not the property of the first Appellant-trust and that to that extent the order passed by the learned Assistant Charity Commissioner and the Joint Charity Commissioner were modified. 3. The submission of the learned Counsel for the Appellants is that in view of the clear finding of fact recorded by the learned Assistant Charity Commissioner as well as the Joint Charity Commissioner, the learned Judge of the City Civil Court has committed an error by holding that the temple and the land below the temple was not the property of the trust. -3- He has invited my attention to the evidence recorded by the Assistant Charity Commissioner as well as the documents on record. He submitted that the finding of the learned Judge that the temple was of the private ownership of the first Respondent is perverse and the same is inconsistent with the finding recorded by the the Assistant Charity Commissioner regarding the existence of the trust relating to the temple. He pointed out that in so far as the existence of the trust and the registration thereof are concerned, the learned Judge of the City Civil Court has not interfered and therefore, the impugned order is inconsistent with the findings of the learned Assistant Charity Commissioner which are confirmed. He, therefore, submitted that the impugned order deserves to be quashed and set aside. 4. The submissions of the learned Counsel for the Appellants were heard yesterday when none appeared for the contesting respondents. Today when the Appeal is called out, none appears for the contesting Respondents. Though the Appeal has been registered as a First Appeal, in view of settled position of law, the same will be governed by the constraints of section 100 of the Code of Civil Procedure,1908. Thus, the Appeal will lie only on the substantial question of law. Perusal of the record of the appeal shows that while admitting the Appeal, substantial question of law has not been framed. However, the Appeal is admitted on 9th April 1986 and -4- therefore, instead of relegating the Appeal to the stage of admission after lapse of 22 years, I have considered the submissions of the Advocate for the Appellants on merits. 5. It will be necessary to refer to the application for registration of the trust made by some of the Appellants in the form prescribed by the Bombay Public Trust Rules,1951. The column 7 of the said form requires the details of the immoveable property held by the trust to be filled in. There is not even a reference to the land bearing survey No.698/1 and 698/13 against the column No.7. There is a different property described as a Trust property mentioned against the column No.7. Therefore, in the application made for registration of the trust, the structure of the temple and the land below the temple admeasuring 4 gunthas was not claimed or shown as a trust property. Against column No.6 the description of the various articles in the temple has been incorporated. The column No.6 required the details of the moveable assets of the trust to be filled in. 6. It will be necessary to refer to the evidence of the original fourth appellant Sudhakar Ambedkar recorded on behalf of the Applicants in support of the application for registration. In his deposition, it is stated that the Respondents No.1 and 2 are the owners of the land on which the temple is situated. He stated that though the 1st and 2nd -5- Respond are the owners of the land on which the temple is situated, they are not the Vahivatdars. In fact he has stated that the Applicants were ready to purchase the portion of land on which the structure of the temple is constructed. It will be also necessary to refer the findings recorded by the learned Assistant Charity Commissioner on this aspect. In paragraph 20 of the Judgment, the learned Assistant Charity Commissioner has held thus : "20. There is no evidence of express dedication of the land for purposes of the temple. The land Survey No. is no divided for that purpose and it continued to be club bed with the adjoining land of Padwals. Thus, the ownership of the land remained with the Padwals. However, for all the purposes the use of the land was for public temple/Peepal par, etc. The revenue record remained as before as there was no express dedication/ transfer etc. During all these years, the land was used as public place of worship by the villagers and that public place was maintained/repaired/renovated by the public without any objection from Padwal, without any active interest and participation and contributors by the Padwal. The applicant has in good faith came forward to purchase the land to get the ownership of land by goodwill and without hard feelings. Thus, they have not made claim of possession and transfer of right after fixed years on -6- expiry of limitations. Thus, I do not go into that any further as no arguments were made and no such claim was put forth by the Applicants. Thus, I will not held that the ownership in land is transferred to the Mandal." 7. Thus, the finding is that the owners of the land bearing the aforesaid survey numbers were the Respondent Nos.1 and 2. Another finding is that there is no evidence of express dedication of the land for the purpose of temple. There is another finding that there is no transfer of the land or the structure of the temple. Only aspect which is mentioned is that the land was used as a place of worship by the villagers and the temple was maintained by the villagers without any objection from the Respondents Nos.1 and 2. Therefore, the finding is that the trust is not the owner of the land bearing the aforesaid survey numbers on which the temple is standing. 8. The said order was challenged by the Respondent Nos.1 and 2 by preferring an Appeal. In the Appeal the said finding has not been disturbed by the learned Joint Charity Commissioner. Moreover, the learned Deputy Charity Commissioner also found that the Respondent Nos.1 and 2 were the owners of the land below the temple and that they have not obstructed to the management and Vahiwat of the temple by the first Appellant-trust. However, the learned Deputy Charity Commissioner recorded a finding that the super structure of -7- the temple was of the ownership of the first Appellant-trust. Such finding was not recorded even by the Assistant Charity Commissioner. Surprisingly, there was no challenge by the Appellants to the order of the Assistant Charity Commissioner and the aforesaid finding was recorded against the 1st and 2nd Respondent in an Appeal preferred by them. That is the reason, why the learned Judge of the City Civil Court has interfered and passed the impugned order. The learned Judge found that till 1964, there was no temple in existence and only a pendol (sabha mandap) was in existence. He also found that the pendol (Sabha mandap) was open. The learned Judge has held thus in paragraph 17 of its judgment : "17. It was urged that since 1964 at least the villagers are using it as a public trust property and therefore the rights if any of Padwal family are extinguished. It is not possible to accept this argument because it is not the case of the Respondents that Padwals are ousted from the property. The Sabha Mandap is still open, though it is called a temple and only the Gabhara in which Datta idol is installed is under a lock and key. Padwals still come from their house directly to the Sabha Mandap and they have free access to this property. They are not dispossessed of the property. Merely because they allowed the other villagers to come and worship will not mean that they are ousted from the temple and their -8- rights will not be extinguished. Therefore, from the evidence on record I find that this alleged Datta Temple is not at all a public property. So the finding of the Assistant Charity Commissioner confirmed by the Deputy Charity Commissioner that this temple is a public Trust property will have to be set aside. So far as the registration of the Respondent No.1 as a trust is concerned, there is no challenge to it. The only challenge is about holding the Datta temple as a public trust property. Therefore, the rest of the trust will continue." 9. It is not possible to find fault with the said approach. Admittedly, there is no evidence of dedication of the land and temple in favour of the villagers. The Appellants accepted the ownership of the 1st and 2nd Respondents of the land below the temple and that they had offered to purchase the land. There is no evidence that the temple was constructed by the villagers. Therefore, the structure of the temple and the land below it cannot be the trust property. 10. However, it must be stated that the learned Judge of the City Civil Court has not disturbed the finding recorded by the learned Assistant Charity Commissioner that for the last several years, the structure on the land bearing survey no.698/1 and 698/13 including the temple is being used as a -9- place of worship by the villagers and the same has been maintained/renovated by the members of the public. This finding of the Assistant Charity Commissioner is not upset by the learned Judge of the City Civil Court. The result of the said finding is that the first Appellant-trust is entitled to the day to day management of the temple without any obstruction by the first and second Respondents. Thus, the trust will be entitled to repair and maintain the structure of the temple. 11. Going by the findings recorded by the learned Assistant Charity Commissioner which were not even challenged by the present appellants, no fault can be found with the impugned order which records the finding regarding ownership of the temple and the land below the temple. 12. Subject to what is observed above, there is no merit in the Appeal and the same is accordingly dismissed with no order as to costs. JUDGE JUDGE JUDGE