1. This appeal by the appellantStateoriginal opponent No.1 is filed against the judgment and order dated 31121984 passed by the learned Judge, City Civil Court No.14, Ahmedabad, in Civil Misc. Application No.259 of 1981 whereby application preferred by present respondent Nos.1 to 3original applicant Nos.1 to 3 in the form of appeal under Sec.370 of the Bombay Public Trusts Act against the order passed by Joint Charity Commissioner on 741978 in Appeal No.26 of 1976 was dismissed.
2. Short facts as arising from the order of the learned City Civil Judge are that a dispute has arisen qua three plots bearing Survey Nos.2978, 2979 and 3703 situated on Relief Road, Ahmedabad. It is the case of the appellantState that these are Government lands while it was held by learned Joint Charity Commissioner that Survey No.2979 is of the State while Survey Nos.2978 and 3703 are of the Wakf Board. Hence, Civil Misc. Appln.No.259 of 1981 was filed by the State challenging the order dated 741978 passed by the learned Joint Charity Commissioner. After hearing the learned advocates appearing for the respective parties and on perusal of the documents, learned Judge of City Civil Court has confirmed the order passed by the learned Joint Charity Commissioner by dismissing the Misc. Civil Application which is giving rise to present First Appeal by the State.
3. Heard learned AGP, Mr.P.P.Banaji for the State and learned advocates, Ms.Shabana A.Mansuri for the respondent No.1, M/s Tanna Associates for respondent No.4 and Mr.C.B.Upadhyaya for the respondent No.5. Though notice was duly served upon respondent Nos.2 and 3, they did not appear either personally or through advocate.
4. It is submitted by learned AGP, Mr.Banaji that the impugned judgment and order is contrary to law and evidence on record. It is further submitted that the learned Judge has not properly appreciated the oral evidence of Shri Kanaiyalal D.Mistri and Shri Maneklal L.Patel and has also not appreciated the documentary evidence available on record stating that Survey Nos.2978 and 3703 were of the Government. It is further submitted that Sec.2(19) of the Bombay Public Trusts Act has not been properly interpreted by the learned Judge. In this connection, he has relied on a judgment reported in AIR 1976 Supreme Court page 1569 and also a decision of this High Court reported in 18 GLR page 488 and sought to quash and set aside the impugned judgment and order by allowing this appeal.
5. Learned advocate, Ms.Shabana A.Mansuri, the main contesting respondent No.1 has supported the impugned judgment and order. According to her, learned City Civil Judge, after appreciating the oral as well as documentary evidence in proper perspective, has come to the right conclusion and has dismissed the Civil Misc. Application filed by the State. Since there is no infirmity in the findings arrived by the learned trial court, said findings are not required to be interfered with in this Appeal. It is therefore requested that the present appeal may be dismissed.
6. This Court has gone through the impugned judgment and order passed by the learned City Civil Court together with the oral as well as documentary evidence shown to me by the learned advocates appearing for the respective parties.
7. It appears from documents i.e. sketches at Exs.27 and 30 that Survey No.2978 is a graveyard. It is clear from Record of Rights and also from documents Exs.95,,97,33, 133 and 136 that Survey No.3703 is a Government Kabrastan. As per the Collector vide his letter Ex.123, symmetries were existing in Survey No.2978. There is an oral evidence of Maneklal L.Patel, the witness of Corporation, and also independent witness that numerous graves are there in Survey No.2978. Since there are several graves in Survey No.2978 which is borne out from the evidence of independent witness and witness of Corporation apart from the letter written by Collector, the learned Joint Charity Commissioner has held that the Survey No.2798 is not of the Government but is of the Wakf. As there was Kabrastan on Survey No.2703, it was also held by learned Joint Charity Commissioner that said survey belongs to Wakf. However, as Survey No.2979 is of the Government and as there was no dispute about the same, it was held as a Government property. For arriving at the said findings, learned Joint Charity Commissioner has relied on the decision of this High Court reported in 18 GLR page 488. Said findings of the learned Joint Charity Commissioner has been held by the learned City Civil Judge to be based on oral and documentary evidence and hence has been confirmed by the learned City Civil Judge. Since there is no illegality or irregularity in the findings of either the learned Joint Charity Commissioner or the learned City Civil Judge, said findings are not required to be interfered with in this First Appeal. Hence, the present First Appeal deserves to be dismissed.
8. This First Appeal is accordingly dismissed.
(M.D.SHAH,J.) radhan