Shri Prabhatkumar G. Thatte Vs. Kisan Maruti Raut, Since Deceased by His Heirs Narayan Kisan Raut and Others - Court Judgment

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trust and societies - public property - bombay public trusts act, 1950 - application filed for regularization of public trust rejected - authorities below concluded that there was no public trust in existence and not necessary to register such trust - entire property (land and temple) going down from generations to generations by inheritance - public property cannot be inherited from generation to generations - property belonged to x as claimed by them - property was private property and not public property - held, authorities below right in not registering trust as public trust as property involved was not public property. - - he also clearly stated that the expenses for the worship of the god were made by them from their private income. lastly he has also clearly stated that the temple was never a public trust or a public temple and it was not so even on the date of the application. he further clearly stated that the idol had come to him as an heir of the thattes. no doubt shri thatte, was extremely well prepared on the facts. he clearly and candidly admitted in his first application that there was no public land belonging to the deity and that whatever was the property, it was the private property of shri thatte. 8. the record and evidence clearly indicate that the land and the property and the deity was through out claimed to be belonged to the thatte family as their private property and there was absolutely no public interest, public purpose or public right. naik for one of the respondents that the entire property was going down from generations to generations by inheritance and this fact clearly cuts at the very root of the arguments of shri thatte that the property, that is the temple and the land, was a public property. i, therefore, conclude that i am not at all satisfied from the submissions and from the record that the land under question belonged to the deity ram and that the temple to be public and that it was not a private property of thattes. he also has very clearly held that there were judicial decisions in the past in some cases in respect of sameland and the property that it was a private temple and not public one. the futile attempts of the appellants to undo whatever has been done during the course of the centuries must fail here itself.orderr.j. kochar, j.1. the present first appeal has arisen from the judgment and order dated 16th september, 1983 passed by the learned joint judge, district court pune in misc. application no. 292 of 1976 dismissing the said application, which was filed by the applicants under section 72 of the bombay public trusts act, 1950 (hereinafter referred to as the said act), claiming an interest in the trust and the trust property for setting aside the decision of the charity commissioner, maharashtra state, bombay in appeal no. 50 of 1973 under section 70 of the said act, dismissing the appeal on 5th february, 1976 which arose out of the decision in an enquiry under section 19 of the act being no. 59 of 1967, concluded on 19th december, 1972 by the deputy charity commissioner, greater bombay region holding that there did not exist a public trust and, therefore, it was not necessary to register the trust under the act.2. to trace the origin of the present proceedings, i have an application dated 14-4-67 filed by one shri krishnarao anant agashe, under section 18 of the act for registration of a public trust to the assistant charity commissioner. 1 have carefully gone through the whole application and also the schedule annexed thereto. the application was as vague as possible and the columns to which answers were expected show the remark 'nil' (in marathi). most of the important columns disclosed nothing. in respect of the trust property, it is pertinent to note that the answer to the said column is nil which means the trust had no moveable or immovable property. similarly, the columns regarding the income and source of income and expenses as also the other columns are answered with remark nil. the said application has been verified by the applicant on solemn affirmation. in the annexure the applicant has given some history to the effect that about 175 years ago,the peshwes, the rulers at that time had given a piece of land to shri thatte for the purpose of having a small garden (pushpavatika in marathi) so that flowers from the garden could be offered for the worship of the god ram. it is further stated by the applicant in the said application that the thattes had about 100-125 years ago sold the said land to malis and there was no income left for the god ram. he further gives information that subsequently, the said land was further sold to various parties. he has also averred that the said thatte ram mandir was a private temple situated in budhwar peth and in view of the neighbouring prostitution business going on the idol of god was shifted from that place to the house of one shri vaishmpayan at shukruwar peth, purandar colony, subhash nagar, pune. he also clearly stated that the expenses for the worship of the god were made by them from their private income. he has further averred that the place of the god (devsthan) had come to him on the basis of ownership. he has given his address of indore city, madhya pradesh. lastly it is very significant to note that the applicant has in no uncertain manner stated that the ram mandir was a private temple of shri thatte and they were given the land for having a garden so that flowers therefrom could be offered to god. he has also made a statement that the said land was given to shri thatte for his private purpose and not for public purpose. he has also averred that, had it been a public property he could not have sold it as he had done. he has finally accepted that the land and the temple was for the private use of the thatte family. lastly he has also clearly stated that the temple was never a public trust or a public temple and it was not so even on the date of the application. he has further stated that the idol was of private nature for the family of thatte and that the idol had come to him by inheritance. the temple and the idol both were never known, used or recognised as a public temple and they were also not used as public since the idol of the deity ram and the temple, both were the private property of the thattes. he further clearly stated that the idol had come to him as an heir of the thattes. he has repeatedly mentioned that the trust was never a public trust nor was he a trustee. after receipt of the said application for registration of the trust as a public trust, the assistant charity commissioner appears to have proceeded with an enquiry under section 19 of the act. the deputy charity commissioner, the first authority under the act for registration of a trust held the enquiry in the said application which was numbered as 59 of 1967 and concluded by his order dated 19th , december, 1972 holding that there did not exist any public trust and therefore, it was not necessary to register such a trust under the act. this order of the deputy charity commissioner was challenged before the charity commissioner in appeal under section 70 of the act. the charity commissioner agreed with the conclusions of the deputy charity commissioner and dismissed the appeal by his order dated 5th february, 1976. i may mention here that the orders of both the authorities below are reasoned orders dealing with the case thoroughly in every respect, tracing the history to the sanad given by the peshwas, gifting the land to thatte for the purpose of having a garden. both the authorities have exhaustively dealt with all the facts on record and have given concurrent findings against the applicant. the judgement and order of the charity commissioner, the appellate authority under the act was challenged before the district court under section 72 of the act. the learned district judge has also thoroughly and exhaustively dealt with the case in the impugned judgement, which is the subject matter of the present appeal. it was, therefore, submitted as a preliminary point by the respondents that the present appeal should be treated as second appeal under section 100 of the code of civil procedure and it should be decided accordingly. it was submitted that there was a concurrent finding on facts by three authorities below, and therefore, this court should confine this matter to the extent of a substantial question of law and should not look into any factual errors in the orders passed by the three authorities below. in support of the said contention the respondents have relied upon a judgement of this court in first appeal 604 of 1979 decided on 5-11-97, reported in shivprasad s. pardeshi v. leelabai b. kalwar, : air1998bom131 . the division bench has taken a view that an appeal filed under section 72(4) of the act is a second appeal to the high court and is subject to the restriction and limitation imposed on a second appeal as prescribed under section 100 of the c.p.c. they have further held that there was nothing in the scheme of section 72 of the act or for that matter, any other provisions of the act, widening the scope of the appeal beyond the limits prescribed by section 100 of the c.p.c. it was also held that such an appeal would be maintainable only if it involved a substantial question of law as contemplated by section 100 of the c.p.c to the satisfaction of the high court. the learned judges have also laid down guidelines to determine on the facts of each case where the endowment is of private or a public nature. para 35 of the said judgment gives the guidelines set by the apex court in the case of radhakanta deb v. the commissioner of hindu religious endowments, reported in : [1981]2scr826 which are reproduced below:-(1) where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right; (2) the fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature. (4) where the evidence shows that the founder of the endowment did not make any stipulation for offering or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.' 3. in spite of the constraints imposed by the division bench of our high court to treat an appeal under section 72(4) of the act as a second appeal and to consider it on par with a second appeal under section 100 of the c.p.c. restricting it to the substantial question of law, shri thatte, the learned advocate for the appellants urged before me to hear the matter from thebeginning of the sanad and to consider all other subsequent developments and events. no doubt shri thatte, was extremely well prepared on the facts. in fact he virtually argued the present appeal exhaustively as if it was a first appeal and not a second appeal. according to him, the authorities below including the district court have misconstrued the documents and, therefore, they came to a wholly erroneous and perverse findings. shri thatte, therefore, submitted that, that was a substantial question of law.4. instead of wasting my valuable time on such a controversy, i preferred to hear shri thatte on each and every fact, event and development, which took place from the day ) of the sanad. with his assistance i could go through all the documents and also the judgment of the authorities below. according to him, the learned judge of the district court has not applied his mind in 'right perspective' to the history and subsequent events and developments in the life of thattes and the whole genealogy of thattes and the journey of generations down below till the applicant shri agashe. it was his grievance that the documents and the evidence as also the oral evidence recorded before the district court have not been properly assessed and appreciated and, therefore, the court has come to an entirely perverse and erroneous conclusion. he has pointedly drawn my attention to the grammatical construction of the first sanad and also to the proceedings and conclusions of the inam commission. he has also referred to me every other document in support of his case that the trust was in fact a public trust and that the thatte's ram mandir was a public temple for the purposes of public and that it was never a private property of the thattes. he vehemently stressed the point that the sanad was given to the deity ram and the thattes were appointed only to manage the affairs of the deity ram. from the construction of the first sanad he wanted me to read it as peshwa's had given a gift of the land in question to the deity ram and that the ownership vested in the deity and not in thattes in their private capacity. according to him, shri thatte was appointed only as manager of the deity. shri thatte, the learned counsel has indeed taken great pains to dig out a case for his clients, but it was all in vein and futile. shri thatte was confronted with the original application submitted by shri agashe to the deputy charity commissioner for registration of the public trust. it was again very vehemently submitted by him that the applicant did not know anything and he made such an application containing all false submissions, which according to him, were retracted subsequently by his advocate who filed an application on 13-1-1970 (exh. 66) before assistant charity commissioner purportedly on behalf of shri krishnaji anant agashe. this application has not been signed by shri agashe. the contents of the application have not been owned or accepted by shri agashe. it is nowhere on record that the said advocate was authorised by shri agashe to make such statements which are totally contrary to the original application made by him. according to me, this application purportedly filed by an advocate for shri agashe must be disbelieved and discarded as it is not worth the paper on which it was written. it has absolutely no evidential value, left in such a situation shri thatte did not pursue this line of arguments that the application by the advocate of shri agashe should be taken as containing true facts and not the original application filed by shri agashe.5. in view of the himalayan efforts made by shri thatte on behalf of his clients, i have carefully gone through the first document i.e. the sanad dated 30th april, 1776. the sanad is in the old marathi style and the plain and simple meaning of the sanad is that krishnaji bhairav thatte, residing at pune was given land admeasuring 10 bigha for the purpose of a garden (pushpawatika in marathi) to have flowers for offering the same to god ram. shri thatte wanted me to read the said sanad to mean that the land was given to god ram and that shri krishnaji thatte was appointed as the manager of the god. i am not able to read this simple marathi in the fashion in which shri thatte wants me to read the same. it is crystal clear that the land was given to shri thatte to enable him to have a garden for flowers required for offering to god. once this sanad is interpreted in its true manner there is absolutely no doubt that the land was a private property of shri thatte and the temple thereon was the private temple within the precincts of the residence of shri thatte (thatte wada). it is further pertinent to note and it is clear from the record of the inam commission that the said sanad appears to have been cancelled subsequently and instead another sanad came to be given not to shri krishanji bhairav thatte or anyone from the thatte family, but to one shri janardan appaji resident of pune for the very purpose i.e. to have garden for flowers to be offered to deity. the land admeasured 10 bighas, but it was in the area known as manik baug. from the record of the inam commission, the first sanad appears to have lapsed for the reasons unknown to us. the second sanad is not in the name of krishnaji thatte or anyone from his family. we do not know the identity of shri janardan appaji. it is, therefore, very difficult for me to hold that the land in question is belonged to the thatte family. if the first sanad has been cancelled or has lapsed or it did not exist, in that case, the very bottom of the case disappears and the thattes will have absolutely no claim over the land which they are claiming to be their own land. the second sanad is clear enough to show that the land was not gifted to krishnaji thatte but it was given to one shri janardan appaji. shri thatte, the learned counsel was frank enough to express his inability to throw any more light on this aspect. he however, tried to pursuade me to infer from the record of the inam commission that the said shri janardan appaji is somewhere in the genealogy of the thattes and that it should be further inferred that the thattes were the real owners of the said land. i am not able to accept the said submissions even for a while.6. in the aforesaid circumstances, the statements made by the applicant shri agashe acquired significance. shri agashe has been truthful person to have made clean breast of the case. he clearly and candidly admitted in his first application that there was no public land belonging to the deity and that whatever was the property, it was the private property of shri thatte. in the light of these circumstances and the application i am not able to agree with the contention of the learned advocate for the appellants that the land was given to the deity ram and that the thattes were appointed only as managers and the deity was a public temple and that the public was contributing for the expenses and that the public was coming to take the darshan etc., and therefore, the whole land belonged to the deity ram and it did not belong to thatte and that, therefore, the public trust should be registered.7. in view of the himalayan efforts made by shri thatte i had asked him umpteen times to show the basic documents indicating the title of the thatte family. except the sanad, even which appears to have been cancelled, there was absolutely no document to show that the land belonged to the deity and that the thattes were the managers and that in view of the deity's ownership of the land, the temple should be held and declared to be a public temple, and therefore, a public trust should be registered.8. the record and evidence clearly indicate that the land and the property and the deity was through out claimed to be belonged to the thatte family as their private property and there was absolutely no public interest, public purpose or public right. as rightly pointed by shri s.b. naik for one of the respondents that the entire property was going down from generations to generations by inheritance and this fact clearly cuts at the very root of the arguments of shri thatte that the property, that is the temple and the land, was a public property. had it been so, the concept of inheritance would not have entered into. public property cannot be inherited by private persons. the very fact that thatte's property is being inherited from generation to generations, it is crystal clear that it was claimed to be the private property of the thatte family and the legal heirs of the thatte family. i, therefore, conclude that i am not at all satisfied from the submissions and from the record that the land under question belonged to the deity ram and that the temple to be public and that it was not a private property of thattes. since the deity ram and the temple belonged to thatte as claimed by them, it was a private property and not the public property and since it was not a public property, the authorities below were right in not registering the trust as a public trust. i cannot find any fault with the findings and conclusions recorded by the authorities below.9. i have even very carefully gone through the judgement and order of the learned district judge. it is as exhaustive and elaborate as it could be. it runs into several pages. the learned district judge has taken all the pains to examine all the 14 documents on record. he has discussed the contents of all the documents and thereafter, he has recorded his findings and conclusions. he has also referred to several other documents in his anxiety to find even a straw in the heap of documents to help the appellants. to the misfortune of the appellants not even a single document could be traced by him in the heap of the papers. he has taken all the more pains to find out some factual basis from the documents before him in favour of the appellants to show that the temple was the public temple and that the land belonged to the deity, and that it was not a private property of the appellants. the matter was not confined only to the documentary evidence. the appellants had examined 11 witnesses in their support. the learned trial judge has considered the whole oral evidence, witness wise. he has examined the statements made by all the witnesses and has tried to construe and co-relate the facts. he has given his own reasons for not accepting the evidence. he has considered very carefully all the circumstances which emerge from the voluminous evidence, documentary and oral. he has not left any corner of the case unsearched. he has critically examined the whole evidence and the case including the judgement given by the two authorities below. he has also elaborately given details and particulars of the case which he discussed. he also has very clearly held that there were judicial decisions in the past in some cases in respect of sameland and the property that it was a private temple and not public one. he also took search of the city survey records and revenue records and even there, was absolutely no material in support of the case of the appellants that temple was a public temple. from the oral evidence he has come to a conclusion that people were corning to the place of thatte wada for private purposes such as to visit vaidya, who was having his dispensary in thatte wada and 'while coming or going they used to take darshan of the deity. these was no contribution made by the public for expenses for worship of the deity. he has also taken note of the fact that there were no accounts maintained by anyone to show the public nature of the temple. the learned judge has carved many tests and guidelines and criteria from the different judgements cited before him to test whether the temple was of public character or private character. he has finally concluded that considering all the circumstances together it was impossible to infer that there was an intention to create any public trust or public temple and that the real beneficiaries were the public at large or indeterminate body of persons and the right to worship was with the family only and was never with public at large or with any indeterminate unspecified body. he has also further concluded that it was never exercised as such and there was no control or management by the members of the public at large and therefore, according to me, there was no escape from the conclusion that it was a private temple and not a public temple. the learned judge has also noted the inconsistencies between the claim of the appellants that it was a public temple the ownership of which descended by inheritance. the concept of inheritance and the public ownership are mutually exclusive and self contradictory.10. there is absolutely no substance and merits in the appeal and the same deserves to be dismissed. i may mention here that the learned advocates for the respondents have submitted that the land under question which is tried to be shown to be owned by the deity ram is fully developed and there are several structures which have come on the said land, a township is settled, several residents have come to occupy the said houses and a housing colony is also set up. several judgements were cited before me but i do not wish to burden the record as it is not necessary to deal with them in support of the respondents. the futile attempts of the appellants to undo whatever has been done during the course of the centuries must fail here itself. the hands of the time and clock can never be put back.11. the appeal fails and the same is dismissed. the appellants shall pay cost to the respondents at the rate of rs. 1000/- per head.12. after the judgement was pronounced in the court, it was submitted by smt. phadke for the appellant that the appellant is a very old man living a retired life and that he has no source of income as such, the order of cost may he recalled. in view of the mercy appeal made by the learned advocate, i recall my order of imposing the cost on the appellant. there will be no order as to costs.certified copy expedited.parties to act on ordinary copy of this order duly authenticated by the sheristedar of this court.13. appeal dismissed.

Judgment:
ORDER

R.J. Kochar, J.

1. The present first appeal has arisen from the judgment and order dated 16th September, 1983 passed by the learned Joint Judge, District Court Pune in Misc. Application No. 292 of 1976 dismissing the said application, which was filed by the applicants under section 72 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as the said Act), claiming an interest in the trust and the trust property for setting aside the decision of the Charity Commissioner, Maharashtra State, Bombay in Appeal No. 50 of 1973 under section 70 of the said Act, dismissing the appeal on 5th February, 1976 which arose out of the decision in an enquiry under section 19 of the Act being No. 59 of 1967, concluded on 19th December, 1972 by the Deputy Charity Commissioner, Greater Bombay Region holding that there did not exist a public trust and, therefore, it was not necessary to register the trust under the Act.

2. To trace the origin of the present proceedings, I have an application dated 14-4-67 filed by one Shri Krishnarao Anant Agashe, under section 18 of the Act for registration of a public trust to the Assistant Charity Commissioner. 1 have carefully gone through the whole application and also the schedule annexed thereto. The application was as vague as possible and the columns to which answers were expected show the remark 'NIL' (in Marathi). Most of the important columns disclosed nothing. In respect of the trust property, it is pertinent to note that the answer to the said column is NIL which means the trust had no moveable or immovable property. Similarly, the columns regarding the income and source of income and expenses as also the other columns are answered with remark NIL. The said application has been verified by the applicant on solemn affirmation. In the annexure the applicant has given some history to the effect that about 175 years ago,the Peshwes, the Rulers at that time had given a piece of land to Shri Thatte for the purpose of having a small garden (Pushpavatika in Marathi) so that flowers from the garden could be offered for the worship of the God Ram. It is further stated by the applicant in the said application that the Thattes had about 100-125 years ago sold the said land to Malis and there was no income left for the God Ram. He further gives information that subsequently, the said land was further sold to various parties. He has also averred that the said Thatte Ram Mandir was a private temple situated in Budhwar Peth and in view of the neighbouring prostitution business going on the idol of God was shifted from that place to the house of one Shri Vaishmpayan at Shukruwar Peth, Purandar Colony, Subhash Nagar, Pune. He also clearly stated that the expenses for the worship of the God were made by them from their private income. He has further averred that the place of the God (Devsthan) had come to him on the basis of ownership. He has given his address of Indore City, Madhya Pradesh. Lastly it is very significant to note that the applicant has in no uncertain manner stated that the Ram Mandir was a private temple of Shri Thatte and they were given the land for having a garden so that flowers therefrom could be offered to God. He has also made a statement that the said land was given to Shri Thatte for his private purpose and not for public purpose. He has also averred that, had it been a public property he could not have sold it as he had done. He has finally accepted that the land and the temple was for the private use of the Thatte family. Lastly he has also clearly stated that the temple was never a public trust or a public temple and it was not so even on the date of the application. He has further stated that the Idol was of private nature for the family of Thatte and that the Idol had come to him by inheritance. The temple and the Idol both were never known, used or recognised as a public temple and they were also not used as public since the Idol of the deity Ram and the temple, both were the private property of the Thattes. He further clearly stated that the idol had come to him as an heir of the Thattes. He has repeatedly mentioned that the Trust was never a public trust nor was he a trustee. After receipt of the said application for registration of the trust as a public trust, the Assistant Charity Commissioner appears to have proceeded with an enquiry under section 19 of the Act. The Deputy Charity Commissioner, the first authority under the Act for registration of a trust held the enquiry in the said application which was numbered as 59 of 1967 and concluded by his order dated 19th , December, 1972 holding that there did not exist any public trust and therefore, it was not necessary to register such a trust under the Act. This order of the Deputy Charity Commissioner was challenged before the Charity Commissioner in Appeal under section 70 of the Act. The Charity Commissioner agreed with the conclusions of the Deputy Charity Commissioner and dismissed the appeal by his order dated 5th February, 1976. I may mention here that the orders of both the authorities below are reasoned orders dealing with the case thoroughly in every respect, tracing the history to the Sanad given by the Peshwas, gifting the land to Thatte for the purpose of having a garden. Both the authorities have exhaustively dealt with all the facts on record and have given concurrent findings against the applicant. The judgement and order of the Charity Commissioner, the appellate authority under the Act was challenged before the District Court under section 72 of the Act. The learned District Judge has also thoroughly and exhaustively dealt with the case in the impugned judgement, which is the subject matter of the present appeal. It was, therefore, submitted as a preliminary point by the respondents that the present appeal should be treated as second appeal under section 100 of the Code of Civil Procedure and it should be decided accordingly. It was submitted that there was a concurrent finding on facts by three authorities below, and therefore, this Court should confine this matter to the extent of a substantial question of law and should not look into any factual errors in the orders passed by the three authorities below. In support of the said contention the respondents have relied upon a judgement of this Court in First Appeal 604 of 1979 decided on 5-11-97, reported in Shivprasad S. Pardeshi v. Leelabai B. Kalwar, : AIR1998Bom131 . The Division Bench has taken a view that an appeal filed under section 72(4) of the Act is a second appeal to the High Court and is subject to the restriction and limitation imposed on a second appeal as prescribed under section 100 of the C.P.C. They have further held that there was nothing in the scheme of section 72 of the Act or for that matter, any other provisions of the Act, widening the scope of the appeal beyond the limits prescribed by section 100 of the C.P.C. It was also held that such an appeal would be maintainable only if it involved a substantial question of law as contemplated by section 100 of the C.P.C to the satisfaction of the High Court. The learned Judges have also laid down guidelines to determine on the facts of each case where the endowment is of private or a public nature. Para 35 of the said judgment gives the guidelines set by the Apex Court in the case of Radhakanta Deb v. The Commissioner of Hindu Religious Endowments, reported in : [1981]2SCR826 which are reproduced below:-

(1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right;

(2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large;

(3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature.

(4) Where the evidence shows that the founder of the endowment did not make any stipulation for offering or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.'

3. In spite of the constraints imposed by the Division Bench of our High Court to treat an appeal under section 72(4) of the Act as a second appeal and to consider it on par with a second appeal under section 100 of the C.P.C. restricting it to the substantial question of law, Shri Thatte, the learned Advocate for the appellants urged before me to hear the matter from thebeginning of the Sanad and to consider all other subsequent developments and events. No doubt Shri Thatte, was extremely well prepared on the facts. In fact he virtually argued the present appeal exhaustively as if it was a first appeal and not a second appeal. According to him, the authorities below including the District Court have misconstrued the documents and, therefore, they came to a wholly erroneous and perverse findings. Shri Thatte, therefore, submitted that, that was a substantial question of law.

4. Instead of wasting my valuable time on such a controversy, I preferred to hear Shri Thatte on each and every fact, event and development, which took place from the day ) of the Sanad. With his assistance I could go through all the documents and also the judgment of the authorities below. According to him, the learned Judge of the District Court has not applied his mind in 'right perspective' to the history and subsequent events and developments in the life of Thattes and the whole genealogy of Thattes and the journey of generations down below till the applicant Shri Agashe. It was his grievance that the documents and the evidence as also the oral evidence recorded before the District Court have not been properly assessed and appreciated and, therefore, the Court has come to an entirely perverse and erroneous conclusion. He has pointedly drawn my attention to the grammatical construction of the first Sanad and also to the proceedings and conclusions of the Inam Commission. He has also referred to me every other document in support of his case that the trust was in fact a public trust and that the Thatte's Ram Mandir was a public temple for the purposes of public and that it was never a private property of the Thattes. He vehemently stressed the point that the Sanad was given to the deity Ram and the Thattes were appointed only to manage the affairs of the Deity Ram. From the construction of the first Sanad he wanted me to read it as Peshwa's had given a gift of the land in question to the Deity Ram and that the ownership vested in the Deity and not in Thattes in their private capacity. According to him, Shri Thatte was appointed only as manager of the Deity. Shri Thatte, the learned Counsel has indeed taken great pains to dig out a case for his clients, but it was all in vein and futile. Shri Thatte was confronted with the original application submitted by Shri Agashe to the Deputy Charity Commissioner for registration of the public trust. It was again very vehemently submitted by him that the applicant did not know anything and he made such an application containing all false submissions, which according to him, were retracted subsequently by his Advocate who filed an application on 13-1-1970 (Exh. 66) before Assistant Charity Commissioner purportedly on behalf of Shri Krishnaji Anant Agashe. This application has not been signed by Shri Agashe. The contents of the application have not been owned or accepted by Shri Agashe. It is nowhere on record that the said Advocate was authorised by Shri Agashe to make such statements which are totally contrary to the original application made by him. According to me, this application purportedly filed by an Advocate for Shri Agashe must be disbelieved and discarded as it is not worth the paper on which it was written. It has absolutely no evidential value, Left in such a situation Shri Thatte did not pursue this line of arguments that the application by the Advocate of Shri Agashe should be taken as containing true facts and not the original application filed by Shri Agashe.

5. In view of the Himalayan efforts made by Shri Thatte on behalf of his clients, I have carefully gone through the first document i.e. the Sanad dated 30th April, 1776. The Sanad is in the old Marathi style and the plain and simple meaning of the Sanad is that Krishnaji Bhairav Thatte, residing at Pune was given land admeasuring 10 Bigha for the purpose of a garden (Pushpawatika in Marathi) to have flowers for offering the same to God Ram. Shri Thatte wanted me to read the said Sanad to mean that the land was given to God Ram and that Shri Krishnaji Thatte was appointed as the manager of the God. I am not able to read this simple Marathi in the fashion in which Shri Thatte wants me to read the same. It is crystal clear that the land was given to Shri Thatte to enable him to have a garden for flowers required for offering to God. Once this Sanad is interpreted in its true manner there is absolutely no doubt that the land was a private property of Shri Thatte and the temple thereon was the private temple within the precincts of the residence of Shri Thatte (Thatte Wada). It is further pertinent to note and it is clear from the record of the Inam Commission that the said Sanad appears to have been cancelled subsequently and instead another Sanad came to be given not to Shri Krishanji Bhairav Thatte or anyone from the Thatte family, but to one Shri Janardan Appaji resident of Pune for the very purpose i.e. to have garden for flowers to be offered to deity. The land admeasured 10 Bighas, but it was in the area known as Manik Baug. From the record of the Inam Commission, the first Sanad appears to have lapsed for the reasons unknown to us. The second Sanad is not in the name of Krishnaji Thatte or anyone from his family. We do not know the identity of Shri Janardan Appaji. It is, therefore, very difficult for me to hold that the land in question is belonged to the Thatte family. If the first Sanad has been cancelled or has lapsed or it did not exist, in that case, the very bottom of the case disappears and the Thattes will have absolutely no claim over the land which they are claiming to be their own land. The second Sanad is clear enough to show that the land was not gifted to Krishnaji Thatte but it was given to one Shri Janardan Appaji. Shri Thatte, the learned Counsel was frank enough to express his inability to throw any more light on this aspect. He however, tried to pursuade me to infer from the record of the Inam Commission that the said Shri Janardan Appaji is somewhere in the genealogy of the Thattes and that it should be further inferred that the Thattes were the real owners of the said land. I am not able to accept the said submissions even for a while.

6. In the aforesaid circumstances, the statements made by the applicant Shri Agashe acquired significance. Shri Agashe has been truthful person to have made clean breast of the case. He clearly and candidly admitted in his first application that there was no public land belonging to the Deity and that whatever was the property, it was the private property of Shri Thatte. In the light of these circumstances and the application I am not able to agree with the contention of the learned Advocate for the appellants that the land was given to the Deity Ram and that the Thattes were appointed only as managers and the Deity was a public temple and that the public was contributing for the expenses and that the public was coming to take the Darshan etc., and therefore, the whole land belonged to the Deity Ram and it did not belong to Thatte and that, therefore, the public trust should be registered.

7. In view of the Himalayan efforts made by Shri Thatte I had asked him umpteen times to show the basic documents indicating the title of the Thatte family. Except the Sanad, even which appears to have been cancelled, there was absolutely no document to show that the land belonged to the Deity and that the Thattes were the managers and that in view of the Deity's ownership of the land, the temple should be held and declared to be a public temple, and therefore, a public trust should be registered.

8. The record and evidence clearly indicate that the land and the property and the Deity was through out claimed to be belonged to the Thatte family as their private property and there was absolutely no public interest, public purpose or public right. As rightly pointed by Shri S.B. Naik for one of the respondents that the entire property was going down from generations to generations by inheritance and this fact clearly cuts at the very root of the arguments of Shri Thatte that the property, that is the temple and the land, was a public property. Had it been so, the concept of inheritance would not have entered into. Public property cannot be inherited by private persons. The very fact that Thatte's property is being inherited from generation to generations, it is crystal clear that it was claimed to be the private property of the Thatte family and the legal heirs of the Thatte family. I, therefore, conclude that I am not at all satisfied from the submissions and from the record that the land under question belonged to the Deity Ram and that the temple to be public and that it was not a private property of Thattes. Since the Deity Ram and the temple belonged to Thatte as claimed by them, it was a private property and not the public property and since it was not a public property, the authorities below were right in not registering the trust as a public trust. I cannot find any fault with the findings and conclusions recorded by the authorities below.

9. I have even very carefully gone through the judgement and order of the learned District Judge. It is as exhaustive and elaborate as it could be. It runs into several pages. The learned District Judge has taken all the pains to examine all the 14 documents on record. He has discussed the contents of all the documents and thereafter, he has recorded his findings and conclusions. He has also referred to several other documents in his anxiety to find even a straw in the heap of documents to help the appellants. To the misfortune of the appellants not even a single document could be traced by him in the heap of the papers. He has taken all the more pains to find out some factual basis from the documents before him in favour of the appellants to show that the temple was the public temple and that the land belonged to the Deity, and that it was not a private property of the appellants. The matter was not confined only to the documentary evidence. The appellants had examined 11 witnesses in their support. The learned trial Judge has considered the whole oral evidence, witness wise. He has examined the statements made by all the witnesses and has tried to construe and co-relate the facts. He has given his own reasons for not accepting the evidence. He has considered very carefully all the circumstances which emerge from the voluminous evidence, documentary and oral. He has not left any corner of the case unsearched. He has critically examined the whole evidence and the case including the judgement given by the two authorities below. He has also elaborately given details and particulars of the case which he discussed. He also has very clearly held that there were judicial decisions in the past in some cases in respect of sameland and the property that it was a private temple and not public one. He also took search of the city survey records and revenue records and even there, was absolutely no material in support of the case of the appellants that temple was a public temple. From the oral evidence he has come to a conclusion that people were corning to the place of Thatte wada for private purposes such as to visit Vaidya, who was having his dispensary in Thatte wada and 'while coming or going they used to take Darshan of the Deity. These was no contribution made by the public for expenses for worship of the Deity. He has also taken note of the fact that there were no accounts maintained by anyone to show the public nature of the temple. The learned Judge has carved many tests and guidelines and criteria from the different judgements cited before him to test whether the temple was of public character or private character. He has finally concluded that considering all the circumstances together it was impossible to infer that there was an intention to create any public trust or public temple and that the real beneficiaries were the public at large or indeterminate body of persons and the right to worship was with the family only and was never with public at large or with any indeterminate unspecified body. He has also further concluded that it was never exercised as such and there was no control or management by the members of the public at large and therefore, according to me, there was no escape from the conclusion that it was a private temple and not a public temple. The learned Judge has also noted the inconsistencies between the claim of the appellants that it was a public temple the ownership of which descended by inheritance. The concept of inheritance and the public ownership are mutually exclusive and self contradictory.

10. There is absolutely no substance and merits in the appeal and the same deserves to be dismissed. I may mention here that the learned Advocates for the respondents have submitted that the land under question which is tried to be shown to be owned by the Deity Ram is fully developed and there are several structures which have come on the said land, a township is settled, several residents have come to occupy the said houses and a housing colony is also set up. Several judgements were cited before me but I do not wish to burden the record as it is not necessary to deal with them in support of the respondents. The futile attempts of the appellants to undo whatever has been done during the course of the centuries must fail here itself. The hands of the time and clock can never be put back.

11. The appeal fails and the same is dismissed. The appellants shall pay cost to the respondents at the rate of Rs. 1000/- per head.

12. After the judgement was pronounced in the Court, it was submitted by Smt. Phadke for the appellant that the appellant is a very old man living a retired life and that he has no source of income as such, the order of cost may he recalled. In view of the mercy appeal made by the learned Advocate, I recall my order of imposing the cost on the appellant. There will be no order as to costs.

Certified copy expedited.

Parties to act on ordinary copy of this Order duly authenticated by the Sheristedar of this Court.

13. Appeal dismissed.