1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION FIRST APPEAL NO.2688 OF 2007 Shri Tukaram Vishnu Limbore & ors. ...Appellant V/s. Shri Kaluram Maruti Limbore ...Respondent Mr. Sugandh Deshmukh for the appellant Mrs. Sharvari Shailendra for the respondent CORAM : ANOOP V. MOHTA,J. DATED :18th June, 2008 P.C. . This is an appeal filed by the original objector who resisted the application moved by the respondent, person interested to register a trust and appointment of trustees as provided and contemplated under Section 18 of the Bombay Public Trust Act, 1950 (for short BPT Act). 2. After considering the material as well as the fact the Dy. Charity Commissioner, Pune vide order dated 28-8-1988 granted registration certificate and registered the trust under the BPT Act. The relevant entry has been accordingly directed to be made with the Registrar of Public Trust. The said order is confirmed by Joint Charity Commissioner Pune Region vide order dated 12-10-1999 and lastly the Adhoc District Judge, 2 Pune by rejecting the application under Section 72 of the BPT Act. 3. Therefore, the present appeal which as settled by this Court is in the nature of second appeal. Therefore, the basic thing required to be considered in such matters is whether there is any substantial question of law involved. 4. The learned counsel appearing for the appellant has strongly relied and contended that he is the owner of the land alongwith temples pursuance to the grant; the so called consent exh. 33 obtained by fraud, the 7/12 extract referred the land as agriculture land in the name of the opponent. The findings given by the Courts below with all these aspects goes against the appellant. Those reasons are as under:- "The applicants have published a public notice vide Ex.6, inviting the objections from public at large, about the registration of the present trust, alongwith it’s property, under the provisions of the Bombay Public Trust Act, 1950. In pursuance of the said notice, the opponents have raised an objection, vide written statement at Ex. 10. At the first instance, they have claimed that the trust is their private trust and the land in their 3 possession is the private land. The applicants have stated in Ex.1, that property Survey No. 52, including it’s sub-parts from 1 to 8, Survey No.53, including it’s sub-parts from 1 to 6 and Survey No. 54, including it’s sub-parts 1 to 8, belongs to the trust. In support of these properties, the applicants have filed some revenue records. The extract of 7/12, pertaining to the agricultural fields, will show, that the same is recorded in the names of the opponents, as if they are the owners of the said land. But simultaneously there is also an entry of the deosthan in each of the extract. Therefore, the land is vested in the trust as Inam land and the opponents are cultivating it on behalf of the trust, and as such the land cannot be said private land, It is the land belonging to the trust and the opponents are holding it as wahiwatdar of the trust." "The applicants have also filed the xerox copies of the consent letter of which the original is at Ex.33. In this document, the opponents have admitted the existence of the trust and about the trust property. Therefore, this documents also help in declaring that Survey Nos.52,53 and 54 are the trust properties, including their sub-parts. The opponents have also filed some documents as per 4 list Ex.26. The document at Sr. No.2, is the extract of Village Form No. 8A, wherein, at the bottom of it, it is mentioned that the land Survey No. 52,53 and 54 are the Inam land of the Deosthan. Similarly, in document Sr.No.3,4,5 and 6. The extract of Record of Rights, in village Form No.6 is at Sr. No. 11 of Ex.26. This document shows the entry No. 250,258,467,480,490,496 and 498. In the second column-against each of the entry, there is a mention about the Inam Class III of the land Survey Nos. 52,53 and 54. Document at Sr. No.15 of Ex.26 is the extract of village Form No.3 of the year 1955-56, of land Survey No.52,53 and 54 which shows that the land is Inam Class III land. Hence, it is beyond doubt clear that the land under dispute, is the trust land and not the private land of the opponents. The opponents have also filed the copy of Sanad at Serial No.16 of Ex.26 dated 6gth June, 1885. This extract also helps in declaring that the land in dispute is the land of the trust and not the private land of the opponents." "The applicant is examined at Ex.20, and he has categorically proved the contents of the application at Ex.1. He has deposed that, the 5 trust is a public trust and the land Survey Nos. 52,53,54 are the properties of the trust. He was cross-examined by the opponents at length, but there is no adversity or any rebuttable evidence, so far the trust and it’s properties are concerned. The applicant has examined another witness at Exk.30, who has supported the case of the applicant. The opponents have examined their witness at Ex.37, who has admitted that the trust is a public trust and the land shown in Exk.1, is the land of the said trust. The opponents have not examined any of the other opponents or other witness, in support of their case." "As per grant produced on record,the lands were given to Kusabai Malhari Limbore in the year 1864-65 by the then Collector. Grant was given as Manager of Gram Devta. Marathi translation is appearing on record. As per said grant, it is clearly seen that the lands are Inami lands and not owned by the applicants as argued by the Learned advocate for the applicants. The grant was given for maintaining Gram Devata. Therefore, the temples standing in the land are not private temples. These temples are in existence since prior to the grant." 6 "If it is so, then the applicants should have obtained a declaration from the Civil Court that the document is obtained by coercion, fraud or undue influence whatsoever it may be. But no such declaration is obtained by the applicants. They have ample opportunity to file complaint before the police about the coercion made on them. But no such attempt is made by the applicants. Therefore, their arguments has no legal course about the coercion and other things." 4. In view of these findings once it is concluded and held that there is a public trust, all the formalities as required under the law i.e. B.P.T. Act need to be followed in all respects. It means registration of the trust if not already registered, the appointment of trustees and to maintain entry accordingly in the Registrar of the Trust. 5. In this matter the claim of ownership based upon the grant in question and even the 7/12 extract as made has been rightly considered by the Courts below against the appellants. The grant in question is apparently not in dispute as a deity when the claim and ownership of land and as of temple is impermissible. Though the applicants are in possession of the trust property since 7 1885, the importance in such matters is the nature of grant and not the possession claimed. There is no material and particulars on record to prove allegation of fraud or undue influence. The appellant failed to discharge his burden on all these counts also. 6. The 7/12 extract as relied, thus, cannot be basis to decide the title in favour of the appellant as claimed. The fact that the temples are in existence since 1885 though some construction made by the applicant, that itself convert the public temple into private temple or such public trust into private trust. There is contra material to demonstrate that the opponent was and/or is in exclusive possession of the property as well as the temple and/or managing the temple in all respects. The temples which are in existence from 1885 and are in use by people at large having free inlet and outlet that element just cannot be overlooked to consider the basic averments of public territory. The requirement of public trust in this background as taken note of by the Court below and in the present case rightly so, cannot be said to be perverse in any way. There are materials on record to demonstrate that the land and temples are properties of public trust and, therefore, the grant of certificate and appointment of trustees as done in the present case is just within the framework of law and the record. The 8 findings given by Dy. Charity Commissioner, Pune and confirmed by Appellate Court infact protect the right of the appellant. It reads as under. "Admittedly the opponents are in possession of the trust property since from 1885. Therefore, they are well conversant with the income of the trust, arising out of the trust property. The opponents might have the account of such income with them, and thus, for regularizing the financial transaction of the trust, the opponents must be retained int he management of the trust. While doing this, the interest of the applicants, who have taken pain in moving the present proceeding for registration has to be taken into account, Ofcourse, since 1885, the year, which is available on record, by way of Sanad, the temples and the religious functions, in the name of the deities, are being performed by the opponents and their forefather. Moreover, the evidence in the form of documents and oral is available on record to show that the opponents from their fathers were taking active part in all the affairs of the Deosthan. If this is the admitted position, for what reasons they should be deprived of their rights of bring 9 trustees in the trust. Similarly, the applicants having no case that, the opponents are mismanaging the property, misusing the trust and trust property, etc. If no such adverse material is on record, it is not proper and legal to evict the opponent from trusteeship, abruptly." 7. In totality there is no question of law involved in the present matter as submitted by the learned counsel appearing for the appellant. As per the grant itself as it was admitted to be given for the purpose of Gram Devta, that itself cannot be title and ownership of the property as such. 8. In view of this the present first appeal is dismissed. [ANOOP [ANOOP [ANOOP V. MOHTA,J.] V. MOHTA,J.] V. MOHTA,J.]