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. 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.
(3.) 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. 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.;