Judgment:
A.V. Savant, J.
1. These two first appeals raise a question of law as to the nature of the proceedings adopted under sub-section (4) of section 72 of the Bombay Public Trust Act, 1950. They are treated as first appeals in this Court and the question of law which arises is as to whether these appeals under sub-section (4) of section 72 are really in the nature of first appeals on par with the first appeals under section 96 of the Code of Civil Procedure or are they in the nature of second appeals subject to the limitations of section 100 of the Code of Civil Procedure. These two first appeals can be disposed of by a common judgment and order since they arise out of the judgment and order dated 29th October 1974 passed by the learned Asst. Judge, Thane in Misc. Civil Application No. 172 of 1972 and Misc. Civil Application No. 179 of 1972. The said two applications were filed in the District Court, Thane under sub-section (1) of section 72 of the Bombay Public Trust Act, 1950. A few facts may be stated as under.
2. The predecessor in title of the appellants in both the first appeals initiated proceedings under section 22A of the Bombay Public Trust Act for a declaration that the following properties situated at Bhiwandi, District Thane be declared as Trust properties; the Trust being Peer Chingishah Barehena Dargah, Bhiwandi, District Thane, registered under No. B/183/ Thane;
i) Entire Revenue Survey No. 3,
ii) Entire Revenue Survey No. 96,
iii) Entire Revenue Survey No. 8,
iv) City Survey No. 1634,
v) City Survey No. 1644; and
vi) Revenue Survey No. 111/A.
The case of opponent No. 1 in First Appeal No. 288 of 1975 is to the effect that the revenue Survey No. 8 as also revenue Survey No. 3 are his personal properties and the trust has nothing to do with the said properties,. Similarly the case of opponent No. 1 in First appeal No. 289 of 1975 is to the effect that the revenue Survey No. 96, Survey No. 11/A, City Survey No. 1643 and City Survey No. 1644 are his personal properties and that the Trust has nothing to do with the said properties.
3. The Asst. Charity Commissioner who held the enquiry came to the conclusion by his judgment and order dated 31st March 1967 that only survey No. 96 Hissa No. 6 was the Trust property. Being aggrieved by the said decision of the Asst. Charity Commissioner the predecessor in title of the appellants preferred Appeal No. 35 of 1967 and the predecessor-in title of opponent. No. 1 preferred Appeal No. 47 of 1967. Both the appeals were heard together by the Deputy Charity Commissioner who held that survey No. 96/1, 96/3, 96/4 and 96/6 were the properties of the Trust while the other properties were not the Trust properties.
4. Being aggrieved by these findings two applications were preferred under section 72(1) of the Bombay Public Trust Act. The predecessor-in-title of the appellants preferred Misc. Civil Application No. 172 of 1972 whereas the predecessor-in-title of opponent No. 1 preferred Misc. Civil Application No. 179 of 1972. Both the applications were heard together as stated earlier, and were disposed of by common judgment and order. The learned Assistant Judge allowed both the applications by passing the following order:
'Both these applications are partly allowed. The findings and the conclusions of the Charity Commissioner that S. No. 111/A, C.S. No. 1643, 1644 and new S. Nos. 3/1 to 3 are not proved to be the properties of the Trust 'Peer Chingi Shah Trust' is hereby confirmed.
However, the finding and the conclusion drawn by the Deputy Charity Commissioner in respect of the portions of S. No. 96(New) and in respect of New S, Nos. 8/1 to 4 and in respect of New S. No. 3/1 to 3 is hereby set aside and the matter is remanded back to the Assistant Charity Commissioner's Court for further enquiry to ascertain whether these (New) S. No. 96, new S. Nos. 3/1 to 3 really correspond with old S. No. 8 and old S. No. 3 (part). And then to hold whether Maqbul establishes that it is a property of the present Trust in question.Directions are given to the Assistant Charity Commissioner to allow all parties concerned to lead evidence for and against these issues and then to give the necessary finding.
All parties to bear their own costs of both these applications.
Thana, (Sd). R.B. SULE
Dated 29th October 1974 Assistant Judge, Thana'.
Being aggrieved by this order dated 29th October, 1974 the predecessor-in-title of the appellants, who was the original applicant, has preferred these two First Appeals . During the pendency of these appeals, the original appellant having died his heirs are brought on record. Before dealing with the contentions raised by the learned Counsel, it must be clarified that there is one obvious mistake in the operative part of the order which has to be corrected since both the learned Counsel have consented to the modification of the said order. In para 1 of the operative part of the order, quoted above, the words, 'Survey Nos. 3/1 to 3' should be deleted and in its place 'Survey No. 3/4' should be inserted. This is clear in view of the second para of the operative order where in respect of Survey Nos. 3/1 to 3 the matter has been remained. The learned Appellate Judge obviously wanted to confirm the finding regarding Survey No. 3/4 which has been wrongly referred to in para 1 of the order as Survey Nos. 3/1 to 3. Hence the modification.
5. Coming to the merits of the two first appeals. I have heard Shri Lalit for the appellants, Shri Oka for respondent No. 1 and Miss Shastri for respondent No. 2. Shri Lalit for the appellants has raised one principal contention and that is in respect of the property bearing C.T.S. No. 1644 situated at Bhiwandi. According to the learned Counsel, the evidence on record clearly shows that as far as City Survey No. 1644 is concerned, Ex. 6 which is extract of the property register clearly shows that in the year 1958 the name of the owner was shown as 'Darga Vahivatdar Ahmed Miya Mohamed Saheb Fakir.' As far as the oral evidence is concerned, it is word against word, namely, the appellants contending that the said property is a Trust property whereas the first respondent contending that the properties are his personal properties. Shri Lalit's contention is that in view of the evidence in the nature of Exh. 6 coupled with the oral evidence of the appellants, prima facie, a presumption arises in favour of the appellants in respect of C.T.S. No. 1644 and since the learned Appellate Judge has remanded the matter in respect of certain other lands, such as land Survey No. 96(New) and Survey Nos. 8/1 to 8/4, as also Survey Nos. 3/1 to 3/3, it would be in the interest of justice necessary to remand the matter also for the purpose of finding out whether C.T.S. No. 1644 of Bhiwandi was a property belonging to the Trust or not.
6. Shri Oka, on the other hand, contended that, in the first place, it is well settled that the burden is on the appellants who are the heirs of the original applicant to prove that the said C.T.S. No. 1644 belonged to the Trust. Relying upon the decision of the Privy Council in the case of Parma Nand v. Nihal Chand, reported in40 Bom LR 907, Shri Oka contended that to constitute a Trust created or existing for a public purpose of a charitable or religious nature the author or authors of the Trust must be ascertained and the intention to create a Trust must be indicated by words or acts with reasonable certainty. More-over the purpose of the trust, trust property and beneficiaries must be indicated so as to enable the Court to administer the Trust, if required. He further contended that burden of proving that the property, admittedly in possession of a person, is subject to the Trust created for public purpose of charitable or religious nature is on the person who alleges it. Shri Oka, therefore, contended that the burden of proof was on the appellants to show that C.T.S. No. 1644 was a Trust property and the appellants having failed to discharge the said burden it is not necessary to interfere with the findings of the learned Appellate Judge in respect of the property bearing C.T.S. No. 1644.
7. It is not possible to accept this contention of Shri Oka. As stated earlier, the oral evidence consists of word against word. The appellants contend that the property is a trust property whereas the first respondent contends that the property is his personal property. However, Ex. 6 is relevant extract which does mention the name of 'Darga Vahivatdar'. It is of some relevance to note as far as Ex. 7 in respect of CTS No. 1643 is concerned, the name of the owner in the year 1958 is shown as Ahmedmiya Mohamed Saheb Fakir. This name is not preceded with the words 'Darga Vahivatdar' which words appear in Ex. 6 which is the relevant property card in respect of CTS No. 1644 for the year 1958. In this view of the matter, it is clear that the learned Appellate Judge was in error in law in ignoring Ex. 6 and coming to the conclusion that the words 'Darga Vahivatdar' may be merely an adjective or title to be prefixed to the name of Ahmed Miya. Since I am not deciding the matter finally and since only a remand is being ordered, I think, interests of Justice and particularly the interests of the Trust would be met by directing a remand also in respect of the property bearing CTS No. 1644. The finding recorded by the learned Appellate Judge is, therefore, entirely erroneous in law and to ignore the documentary evidence in the nature of Ex. 6 would be wholly impermissible in law in the facts of the present case.
8. Shri Oka, however, contended that though both these appeals are styled as First Appeals, they are infact in the nature of Second Appeals under section 100 of the Code of Civil Procedure. The learned Counsel contended that in the scheme of the provisions of section 70 and section 72 of the Bombay Public Trust Act what is preferred to the District Court in the nature of an application under sub-section (1) of section 72 is really in the nature of an appeal. The first authority to decide the controversy is the Assistant Charity Commissioner. Against his decision, an appeal lies to the Deputy charity Commissioner under section 70 of the Bombay Public Trust Act and it is virtually a second appeal to the District Court under sub-section (1) of section 72 of the said Act which is termed as an application. Suffice it to say that Shri Oka's contention is that what was preferred under sub-section (1) of section 72 to the District Court was in the nature of atleast a first appeal against the order of Deputy Charity Commissioner. He, therefore, contended that what has been filed in this Court under sub-section (4) of section 72 is, in effect, a second appeal though it is numbered as a first appeal. Section 72 of the Bombay Public Trust Act reads as under :
Section 72 :
(1) Any person aggrieved by the decision of the Charity Commissioner under sections 40, 41, (41C and 43(2)(a) and (c), 50A, 70 or 70A, or on the questions (whether a trust exists and whether such trust is a public trust) or whether any property the property of such trust may, within sixty days from the date of the decision, apply to the Court to set aside the said decision.
(1A) No party to such application shall be entitled to produce additional evidence, whether oral or documentary before the Court, unless the Deputy or Assistant Charity Commissioner or the Charity Commissioner has refused to admit evidence which ought to have been admitted or the Court requires any document to be produced or any witness to be examined to enable it to pronounce judgement or for any other substantial cause the Court thinks it necessary to allow such additional evidence:
Provided that whenever additional evidence is allowed to be produced by the Court, the Court shall record the reasons for its admission.)
(2) The Court after taking (evidence if any,) may confirm, revoke or modify the decision or remit the amount of the surcharge and make such orders as to costs as it thinks proper in the circumstances.
(3) Pending the disposal of an application under sub-section (2) all proceedings for surcharge shall be stayed if the person aggrieved makes out a prima facie case for a stay order.
(4) An appeal shall lie to the High Court, against the decision of the Court under sub-section (2) as if such decision was a decree from which an appeal ordinarily lies.
(Explanation---In this section, the expression 'Decision' shall include a scheme framed or modified under section 50-A).
Shri Oka's contention is that having regard to the essence and contents of the proceedings under sub-section (1) of section 72 in the District Court as also having regard to the powers of the District Court under section 72 sub-section (1) it is clear that the proceedings in the District Court were in the nature of a First Appeal. If that be so, the learned Counsel contends that, irrespective of the nomenclature of the proceedings in this Court as a first appeal, the present appeals must be regarded as second appeal. The sequator is that if they are second appeals, this Court can interfere only if they involve a substantial question of law within the meaning of section 100 of the Code of Civil Procedure.
9. In support of his contentions, Shri Oka has invited my attention to the decision of the Supreme Court in the case of Ramchandra Goverdhan Pandit v. Charity Commissioner of State of Gujarat, reported in : [1987]2SCR1083 . This was a case under the Bombay Public Trust Act and on a review of the relevant cases, it has been held that the Single Judge of the High Court while deciding the appeal from the order of the District Court under section 72(1) of the Bombay Public Trust Act deals with the order made by the District Judge in exercise of his appellate jurisdiction by the Court subject to the superintendence of the High Court and hence Clause 15 of the Letters Patent is directly attracted. Consequently, it was held that in such a case it was necessary for the appellant to obtain certificate from the Single Judge that the case was fit for appeal to the Division Bench. The Supreme Court further observed that the power of the District Court in exercising jurisdiction under section 72 is a plenary power. The District Court has got power to correct modify, review or set aside the order passed by the Commissioner. All the characteristics of an appeal and all the powers of an appellate Court are available to the District Court while deciding the application under section 72 of the Act. In such a case one must be guided not only by the nomenclature used by the section for the proceedings but by the essence and content of the proceedings. It was, therefore, held that the proceedings before the District Court under section 72(1) are in the nature of an appeal and that the District Court exercises appellate jurisdiction while disposing of a matter under section 72(1).
10. It must be pointed out that the attention of the Supreme Court was invited to a Division Bench decision of this Court in the case of D.R. Pradhan v. The Bombay State Federation of Goshalas and Panjrapoles, reported in 58 Bombay Law Reporter page 894. At page 896 of the said report in D.R. Pradhan's case, Chief Justice Chagla who spoke for the Court observed as under:
'Now, although section 72(1) confers a right upon a person aggrieved by the decision of the Charity Commissioner to apply to the City Civil Court, we must look at and consider the real nature of the right that is conferred by this sub-section. In substance if not in form, the right is in the nature of an appeal. The application is intended to set aside the decision of the Charity Commissioner and the City Civil Court must consider that decision and if satisfied that the decision is erroneous must set it aside and give the necessary relief to the party aggrieved by that decision. Therefore, in substance there is very little difference between an application contemplated by section 72(1) and a right of appeal against the order of the Charity Commissioner.'
Attention of the Supreme Court was then invited to another Division Bench decision of this Court in the case of Khivaraj Chhagniram Zavar and another v. Shivshankar Basappa Lingashetty and another, reported in : AIR1974Bom40 . It is true that the attention of the Division Bench deciding Khivraj's case was invited to the decision in D.R. Pradhan's case and in para 15 of the judgement at pages 45 and 46 of the report, the Division Bench in Khivraj's case distinguished the ratio of the Division Bench decision in D.R. Pradhan's case. However, on a consideration of both the decisions, namely, (i) in D.R. Pradhan's case (supra) and (ii) Khivaraj's case (supra), the Supreme Court dis-agreed with the reasoning in Khivaraj's case and approved of the reasoning in D.R. Pradhan's case. The Supreme Court has stated thus in paras 8 and 9 of the judgment at pages 1600 and 1601 of the report :
'We have considered the reasoning in the three judgments referred above. With respect, we find it difficult to agree with the reasoning in : AIR1974Bom40 . We agree with the reasoning in the other two cases. The slender thread on which the appellants arguments rest is the absence of the word 'appeal' in section 72(1). That alone cannot decide the issue. If the well known word 'appeal' had been used in this section that would have clinched the issue. It is the absence of this word that has necessitated a closer scrutiny of the nature, extent and content of the power under section 72(1).The power of the District Court in exercising jurisdiction under section 72 is a plenary power. It is true that the Commissioner is not subordinate to the District Court but the District Court has powers to correct, modify, review or set aside the order passed by the Commissioner. All characteristics of an appeal and all the powers of the Appellate Court are available to the District Court while deciding an application under section 72. To decide this case we must be guided not only by the nomenclature used by the section for the proceedings but by the essence and content of the proceedings. That being so, we have no hesitation to hold that the proceedings before the District Court under section 72(1) are in the nature of an appeal and that District Court exercises appellate jurisdiction while disposing of a matter under section 72(1). Consequently, the Single Judge of the High Court while deciding the appeal from the order of the District Court deals with a matter made by the District Judge in the exercise of an appellate jurisdiction by a Court subject to the superintendence of the High Court and hence Clause 15 of the Letters Patent is directly attracted.'
11. Shri Oka has also invited my attention to the unreported decision of this Court in the case of Shri Govindrao Devabasappa Manthalkar by his heirs v. Apparao ManthalkarManthalkar by his heirs and others, in First Appeal No. 152 of 1977 decided on 14th October 1987 by A.C. Agarwal, J. The learned Judge has, following the Supreme Court decision, taken the view that the proceedings before the District Court under section 72(1) would be in the nature of an appeal even though the word 'appeal' was not used in section 72. Consequently the appeal to this Court under section 72(4) against the order of the District Court, though styled as First Appeal will have to be treated as a second appeal and will have to satisfy the requirements of section 100 of the Code of Civil Procedure.
12. In view of the ratio of the Supreme Court decision in R.G. Pandit's case there is no doubt that the proceedings before the District court under sub-section (1) of section 72 were in the nature of appellate proceedings and hence, it would follow that the proceedings in this Court under section 72(4), though styled as first appeal, will have to be treated as second appeal. Since the decision in the case of Khivraj's case (supra) has been over-ruled by the Supreme Court in R.G. Pandit's case (supra), I have no hesitation in coming to the conclusion that the proceedings in this Court in the present two first appeals will have to be treated as second appeals.
13. However, reverting to the merits of the matter, it must be held that there is an obvious error of law in the impugned order which raises a substantial question of law in these appeals. Despite the documentary evidence in the nature of Ex. 6 raising the presumption in favour of the appellants to the effect that C.T.S. No. 1644 can be considered as trust property, the order of demand was confined to certain other lands excluding the land CTS 1644. I am, therefore, of the view that the appellants in these appeals are entitled to succeed partly. It will have, therefore, to be held that the Asst. Charity Commissioner to whom the matter has been demanded under the impugned order dated 29th October 1974 will enquire regarding the lands mentioned in para 2 of the operative part of the order dated 29th October 1974 as also in respect of the lands bearing C.T.S. No. 1644.
14. In view of the above my answer to the question of law posed in the opening para of this judgement is that the proceeding initiated in this Court under sub-section (4) of section 72 of the Bombay Public Trust Act, 1950 though styled as first appeals will have to be treated as second appeals being similar in nature to the second appeals under section 100 of the Code of Civil Procedure. This is clear in view of the ratio of the decision of the Supreme Court in R.G. Pandit's case (supra). It would, therefore, follow that such a second appeal will have to satisfy the requirement of section 100 of the Code of Civil Procedure and the High Court must be satisfied that the case involves a substantial question of law within the meaning of sub-section (1) of section 100 of the Code of Civil Procedure.
15. In the result the following order is passed.
i) Both the appeals are partly allowed.
ii) In addition to the land mentioned in para 2 of the operative part of the order dated 29th October 1974 passed by the Assistant Judge, Thane in Misc. Civil Application No. 172 of 1972 and 179 of 1972, the Assistant Charity Commissioner will also enquire into the question as to whether CTS No. 1644 of Bhiwandi was the property belonging to Pir Chingi Shah Trust or not.
iii)To the extent as indicated above, the first para of the operative part of the order dated 29th October 1974 is modified.
iv) In view of the concession made by the Counsel in respect of 'Survey No. 3/4' to be read for 'Survey No. 3/1 to 3' and in view of the above, para 1 of the operative part of the order dated 29th October 1974 would now read as under :
x) 'Both these applications are partly allowed. The findings and the conclusions of the Charity Commissioner that S. No. 111/A.C.S. No. 1643 and New S. No. 3/4 are not proved to be the properties of the Trust 'Peer Chingi Shah Trust' is hereby confirmed.'
v) The directions given to Assistant Charity Commissioner to allow all the parties concerned to lead evidence for and against the issue are hereby confirmed.
vi) There shall, however, be no order as to costs, in the circumstances of the case.