Decided on July 27,1979



S.H.SHETH - (1.) The appellant was the owner of survey Nos. 432 433 434 and 461 of village Kholvad in Kamrej Taluka of Surat District. Respondents 1 and 2 claim to be his protected tenants under the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as 6 the Tenancy Act for the sake brevity). On 12th December 1956 the appellant served upon respondents 1 and 2 notice terminating under sec. 32 of the Tenancy Act their tenancy in respect of the lands in question. On 31st December 1956 the appellant created a trust in respect of the lands in question for the purpose of running a free public dispensary and for giving scholarships to Muslim students for prosecuting their studies. On 20th January 1957 he made an application for registration of that trust which was styled as Dadabhai Trust under sec. 18 of the Bombay Public Trusts Act 1950 On 31st January 1957 it was registered under sec. 19 of the Bombay Public Trusts Act. Respondents 1 and 2 appealed to the Charity Commissioner against the order of registration of Dadabhai Trust. It was appeal No. 56 of 1957. The appeal was dismissed. Thereafter an application under sec. 72 of the Bombay Public trusts Act was made by respondents 1 and 2 to the District Judge at Surat calling in question the appellate order of the Charity Commissioner. The District Court dismissed it by its order dated 18th October 1967. That order was challenged in this High Court in First Appeal No. 347 of 1968. That appeal in the first instance came up for hearing before Mr. Justice T. U. Mehta who held that the transaction evidenced by the deed of settlement dated 31 December 1956 was a gift. Therefore under sec. 55A read with sec. 70 (O) of the Tenancy Act he referred to the Mamlatdar Kamrej the following issue:- "Whether the transaction evidenced by the vesting of the disputed property in Dadabhai Trust under document dated 31-12-1956 is valid or not in view of the provisions contained in sec. 63 of the Bombay Tenancy Act". Mr. Justice T. U. Mehta felt that since the transaction in question amounted to a gift it might be hit by the provisions of sec. 63 of the Tenancy Act because that transaction was brought about without the previous permission of the competent authority specified in sec. 63. Upon reference the Mamlatdar Kamrej held that the gift resulting from the deed of settlement was not valid because previous permission of the Collector to make that gift had not been obtained as required by sec. 63 of the Tenancy Act. We are now told that the appellant appealed against that order to the Prant Officer. We are further told that that appeal has been dismissed. We are also told that a revision application against that appellate order filed by the appellant is pending before the Gujarat Revenue Tribunal.
(2.) However on 22nd September 1975 that First Appeal came up for final hearing and disposal before Mr. Justice J. M. Sheth. Mr. Justice J. M. Sheth decided the appeal on merits because he was told that po appeal against the Mamlatdars judgment had been preferred to the Collector or the Prant Officer. The learned single Judge therefore proceeded to decide the appeal on the basis that the Mamlatdars order had become final and conclusive. He also felt that the order made by the Mamlatdar under the Tenancy Act was binding upon him because he was exercising the jurisdiction of the Civil Court. Since the Mamlatdar had held that the gift of the lands in question to the trust was bad in law he allowed the appeal set aside the orders made by the Courts below and held that the land in question had not vested in public trust Dadabhai Trust and that they continued to be the private property of the appellant.
(3.) It is that order which is challenged by the appellant in this Letters Patent Appeal.;

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