Bombay High Court
Mrs. Swati Tukaram Kamble (After … vs The Mohmedan Education Society And Ors on 19 June, 2025
2025:BHC-AS:24378
902 FA-1085-2013-C3.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
by
CIVIL APPELLATE JURISDICTION
HUSENBASHA
HUSENBASHA RAHAMAN
RAHAMAN
NADAF
NADAF
Date:
FIRST APPEAL NO. 1085 OF 2013
2025.06.20
17:25:26 +0530
WITH
CIVIL APPLICATION NO. 3101 OF 2013
1. Swati Tukaram Kamble )
After marriage, )
Sou. Swati Deepak Kamble. )
Age. 31 yrs, Occu. Household and )
2. Smt. Chhabu Tukaram Kamble )
Age. 48 yrs. Occu. Agri. )
Both R/o. Rukadi, )
Tal. Hatkanangle, Dist. Kolhapur. ) ...Appellants/Applicants
Versus
1. The Mohmedan Education Society )
Registered Trust having office at, )
Dasara Chowk, Kolhapur. )
2. Haji Ismile Umar Bagwan )
Age. 67 yrs. Occu. Business, )
R/o. Hs. No. 22/3, C Ward, )
Kolhapur. )
3. Gani Abdul Ajarekar )
Age. 57 yrs.. Occu. Nil. )
R/o. 709. Bagwan Galli, )
C Ward, Kolhapur. )
4. Haji Tajuddin Haji Noormahamad )
Mujawar, Age. 62 yrs. Occu. Nil. )
R/o. Noor Manzil, Near Mutton )
Market, C Ward, Kolhapur. )
5. Kadar Hamja Malbari )
Age. 67 yrs. Occu. Business, )
R/o. 1851, Ibrahim Khatik, )
Husen Page 1 of 11
::: Uploaded on - 20/06/2025 ::: Downloaded on - 22/06/2025 02:44:22 :::
902 FA-1085-2013-C3.odt
Chowk, 'C' Ward, Kolhapur. )
6. Mahamad Sharif Abdul )
Rajjak Shaikh. Age. 72 yrs. )
Occu. Nil, 1892, Somwar Peth, )
'C' Ward, Kolhapur. )
7. Sanaulla Yusuf Thodye, )
Age. 57 yrs. Occu. Nil. )
R/o. 1718, Behind Mutton Market, )
'C' Ward, Kolhapur. )
8. Dr. Abdul Gafar Bandulal Bagwan )
Age. 62, Occu. Doctor, )
1612, Ganji Galli, )
'C' Ward, Kolhapur. )
9. Haji Papabhai Haji Kasambhai )
Bagwan, Age. 72 yrs. Occu. Nil., )
R/o. 2051, D Ward, Kolhapur. )
10. Mahamad Nasar Wajivkhan )
Pathan, Age. 67 yrs, Occu. Nil. )
R/o. 22/12, Tarabai Park, )
Kolhapur. )
11. Haji Gafur Ibrahim Wantmure )
Age. 57 yrs. Occu. Nil. )
R/o 390 'C' Ward, )
Hatti Mahal Road, Kolhapur. )
12. Haji Alam Aba Nadaf )
Age. 57 yrs. Occu. Nil. )
1843, Laxmipuri, Kolhapur. )
13. Madhukar Gangaram Rukadikar )
Age. 82 yrs., Occu. Agri. )
R/o. Rukadi, Tal. Hatkanangale, )
Dist. Kolhapur. )
14. Balu Anappa Kamble )
Since Deceased through L. Rs. )
a. Smt. Lalita Ballu Kamble )
Age. 59 yrs. Occu. Household, )
Husen Page 2 of 11
::: Uploaded on - 20/06/2025 ::: Downloaded on - 22/06/2025 02:44:22 :::
902 FA-1085-2013-C3.odt
R/o. Rukadi, Tal. Hatkanangale )
Dist. Kolhapur. )
b. Sharad Balu Kamble )
Age. 32 yrs. Occu. Agri. )
R/o. Rukadi, Tal. Hatkanangale, )
Dist. Kolhapur. )
c. Smt. Anita Dashrath Kamble )
Age. 42 yrs. Occu. Household, )
R/o. Kurundwad, Tal. Shirol, )
Dist. Kolhapur. )
15. Shamrao Ramu Kamble )
Age. 66 yrs. Occu. Rtd. & Agri. )
R/o. Rukadi, Tal. Hatkanangale )
Dist. Kolhapur. )
16. Prabhakar Ramchandra Kamble )
Age. 62 yrs. Occu. Agri. )
R/o. Rukadi, Tal. Hatkanangale )
Dist. Kolhapur. )
17. Ramesh Ramchandra Kamble )
Age. 69 yrs. Occu. Agri. )
R/o. Rukadi, Tal. Hatkanangale )
Dist. Kolhapur.
18. Joint Charity Commissioner )
Kolhapur Region Kolhapur. )
Having office at Bagal Chowk, )
Kolhapur. )
19. State of Maharashtra )
Through its Department of Law, )
And Judiciary, Mantralaya, Mumbai. ) ... Respondents
***
Mr. D. V. Sutar a/w. Mr. Latika Kabad & Ms. Kavita Vijapure,
Advocates for Appellants/Applicants.
Mr. Drupad Patil a/w Mr. Shantanu S. Kalekar Advocates for
Respondent No.1.
***
Husen Page 3 of 11
::: Uploaded on - 20/06/2025 ::: Downloaded on - 22/06/2025 02:44:22 :::
902 FA-1085-2013-C3.odt
CORAM : M.M. SATHAYE, J.
DATE : 19th June, 2025
JUDGMENT :
1. This is an appeal filed under Section 72(4) of The Maharashtra
Public Trusts Act, 1950 (“the said Act”, for short) challenging the
impugned order dated 27.07.2012 passed by District Judge-2,
Kolhapur in Miscellaneous Civil Application No.122 of 2006. This
miscellaneous application was filed under Section 72(2) of the said
Act, challenging the order dated 07.04.2006 passed by the Joint
Charity Commissioner, Kolhapur Region, dismissing Revision
Application No.2 of 2006 under section 70A of the said Act. Section
72 was on the statute book at the time of filing the appeal.
2. Agricultural land Gat No.438 admeasuring 14 H 18 R
(originally bearing survey No.137 and survey No.166) situated at
Village Rukadi, Taluka Hatkanangale, District Kolhapur is the subject
matter property and it hereinafter referred to as ‘suit property’.
3. Few facts necessary for disposal of this appeal, are as under.
Suit property is an Inaam land. Chhatrapati Shri. Shahu Maharaj of
Kolhapur by proclamation (Mulki Khate Tharav No.102) dated
28.06.1919 ordered that the income of Hajrat Peer Rajebagswar
(Rajebaxar) be paid to King Edward Mohmedan Education Society,
Kolhapur after keeping aside Rs.500/- for repairs and maintenance
of the Dargah as well as for Urus festival. Appellants claim that their
predecessors were in possession of the suit property as protected
tenants and after their demise, they are cultivating the suit property.
By an order dated 31.10.1953 passed in Inquiry Application
Husen Page 4 of 11
::: Uploaded on – 20/06/2025 ::: Downloaded on – 22/06/2025 02:44:22 :::
902 FA-1085-2013-C3.odt
No.726/52, the Respondent No.1-Trust was registered at the instance
of one Badshah Jamadar. Respondent No. 1 itself was earlier a
registered society and its erstwhile name was King Edward
Mohmedan Education Society. This order of registration was not
challenged by any of the predecessors of the Appellants and no such
record is shown to this Court. However, in 2006 for the first time,
present Appellants challenged the registration by filing Revision
Application No.2 of 2006 under Section 70A of the said Act. By a
reasoned order, passed after hearing all concerned including the
Appellants and Respondent-Trust, the Joint Charity Commissioner,
Kolhapur Region, Kolhapur dismissed the said revision on
07.04.2006. The Appellants filed Miscellaneous Application No.122
of 2006 under Section 72(1) of the said Act and challenged the
dismissal of the revision. Ultimately, by impugned order, the
miscellaneous application is also dismissed.
4. In these facts and circumstances, the Appellants are before this
Court challenging concurrent findings of the District Court as well as
the Joint Charity Commissioner.
5. Mr. Sutar appearing for the Appellants submitted that the
Respondent No.1-Trust was registered behind their back and without
issuing any notice to their predecessor. He submitted that the
Respondent No.1-Trust is only Vahivatdar of the suit property and is
not owner thereof. He submitted that the Joint Charity
Commissioner as well as the District Court has not appreciated the
evidence on record correctly, in as much as, the Respondents No.1
could not have been considered as owner of the suit property. He
Husen Page 5 of 11
::: Uploaded on – 20/06/2025 ::: Downloaded on – 22/06/2025 02:44:22 :::
902 FA-1085-2013-C3.odt
submitted that even wording of the proclamation dated 28.06.1919
indicates that only the income of the property was directed to be
paid to the erstwhile King Edward Mohmedan Education Society and
certain amount was directed to be kept aside for maintenance of
Dargah and Urus festival.
6. Per contra, Mr. Patil learned counsel for Respondent No.1-Trust
submitted that it is not disputed that the Respondent No.1-Trust was
initially a society known as King Edward Mohmedan Education
Society and the Trust is the owner of the suit property. Drawing
attention to the Schedule-I of the Public Trust Register (‘PTR’ for
short), it is pointed out that the suit property at Rukadi is shown as
Trust property under Inaam. He submitted that long ago, on
29.04.1960, by complying with the provisions of The Bombay
Tenancy and Agricultural Lands Act, 1948 (“BTAL”, for Short), the
Respondent-Trust has secured an order of exemption under Section
88B of BTAL Act and therefore neither the Appellants nor their
predecessor are protected under BTAL Act. He submitted that the
order granting exemption under Section 88B was subjected to
challenge by Shamrao Ramu Kamble and his legal heirs, who are
close relative of the Appellants by filing Writ Petition No. 1072 of
2005 in this Court. The Appellants’ father Tukaram and the Petitioner
Shamrao in the said writ petition, were real brothers. It is submitted
that the subject matter of the said petition was the same as present
suit property. He submitted that after hearing the parties, the said
writ petition has been dismissed by a well-reasoned order dated
15.04.2025. It is submitted that same grievance of notice being not
Husen Page 6 of 11
::: Uploaded on – 20/06/2025 ::: Downloaded on – 22/06/2025 02:44:22 :::
902 FA-1085-2013-C3.odt
given to predecessor was raised, which has been rejected.
7. It is not disputed that in view of exemption under section 88B
of the BTAL Act, the Respondent No. 1 Trust had filed a civil suit
seeking possession of the suit property, which is stated to be pending
at the appellate stage.
8. Having carefully considered the rival contentions and on
perusal of the record, I find no merit in the case of the Appellants,
for the following reasons :
8.1. It is noted from the order of this Court passed in Writ Petition
No.1072 of 2005 that its subject matter property was the same as the
present suit property. After going through the record this Court has
already concluded that way back in the year 1975, during pendency
of Special Civil Applicant No.305 of 1975, the Petitioner in the said
petition i.e. Shamrao who is brother of present Appellants’ father
was aware of the claim of Respondent No.1-Trust over the suit
property. It is recorded that the certificate of exemption under
Section 88B of BTAL Act was placed on record long ago in civil suit.
It is also noted by this Court that in the year 1971, Regular Civil Suit
No.121 of 1971 was filed by Respondent No.1-Trust seeking
possession of the suit property based on exemption under Section
88B of BTAL Act which was exhibited document at Exh. 65. From
these facts, it is clear that the family of the Appellants already knew
at least from 1971 that Respondent No.1-Trust is claiming ownership
of the suit property and seeking its possession.
8.2 It is not shown to the Court even remotely that any one of the
Husen Page 7 of 11
::: Uploaded on – 20/06/2025 ::: Downloaded on – 22/06/2025 02:44:22 :::
902 FA-1085-2013-C3.odt
Appellants’ predecessor ever objected to the registration of the
Respondent No.1-Trust. The order of the registration is of the year
1953 and challenge to the said registration has been raised first time
after a lapse of 53 years i.e. in the year 2006. The Joint Charity
Commissioner was therefore justified in rejecting the revision on the
ground of delay amongst other grounds. Perusal of the order dated
07.04.2006 passed by concerned Joint Charity Commissioner shows
that the Appellants’ contention has been considered on merits in
detail.
8.3 About the case of the Appellants that Appellant No.1 was
minor and Appellant No.2 is widow and therefore they had no
knowledge about the registration of Trust, cannot be accepted in
view of the fact that the Appellant No.1’s date of birth is 16.06.1982
therefore she became major in 2000 and even thereafter the
Appellants have waited for 6 years to file the revision application in
2006. There is no justifiable reason for the said conduct. So far as
the argument about Appellant No.2 being widow and therefore not
having knowledge is concerned, the said argument is too specious
and omnibus for this Court to upset the concurrent findings by the
District Court as well as the Joint Charity Commissioner.
8.4. As far as interpretation of the wordings of proclamation dated
28.06.1919 is concerned, when the entire proceeds of the suit
property were directed to be paid to the erstwhile King Edward
Mohmedan Education Society by keeping aside a limited amount for
repair and maintenance of the Dargah and Urus festival, the same is
sufficient indication to conclude that the Respondent No.1-Trust
Husen Page 8 of 11
::: Uploaded on – 20/06/2025 ::: Downloaded on – 22/06/2025 02:44:22 :::
902 FA-1085-2013-C3.odt
(which was the said erstwhile society) was considered as owner by
the grantor.
8.5. Perusal of the PTR Schedule-I clearly indicates that the
Respondent-Trust is owner of the suit property which is listed in the
column of immovable property of the Trust recording that suit
property is Inaam land, which is in tune with the proclamation of the
year 1919.
8.6. This Court, in a case relied upon by learned counsel for
Respondent No.1 in the case of Kondiba Laxman Hanmar since
deceased by his legal heirs Baburao Kondiba Hanmar & Anr. Vs.
Krishnarao Anandrao Dalavi deceased by his legal heirs Radhabai
Krishnarao Dalavi and Ors. [2004(4) Mh.L.J. 324], while dealing
with the entitlement of the Trust to get certificate under Section 88B
of the BTAL Act, has held that the entitlement will have to reckoned
as on 01.04.1957 i.e. “Tiller’s day” and it was held that the property
must have been acquired prior to Tiller’s day by the Trust. In the
present case, the property has been allotted under proclamation in
the year 1919 i.e. much prior to the tiller’s day. There is no dispute
that the erstwhile King Edward Mohmedan Education Society has
been registered as present Respondent No.1-Trust. Therefore, the
certificate of exemption under section 88B of BTAL Act, duly
confirmed by this Court in Writ Petition No. 1072 of 2005, also
supports the case of the Respondent No.1 that the suit property is
Trust property.
8.7. Perusal of the Mutation Entry No.6821 dated 08.11.1961
Husen Page 9 of 11
::: Uploaded on – 20/06/2025 ::: Downloaded on – 22/06/2025 02:44:22 :::
902 FA-1085-2013-C3.odt
indicates earlier survey numbers of the suit property being recorded
in the name of Respondent No.1-Trust as ‘owner’ and further
recording grant of 88B certificate.
8.8. The entries of the Respondent No.1 in revenue record merely
mentioning the Respondent No. 1 as ‘Vahivatdar’ will not advance
the case of the Appellants, as the word ‘Vahivatdar’ also means
person in possession. In view of Schedule-I of the PTR showing suit
property as property of the Trust and Exemption Certificate under
section 88B granted in favour of the Respondent No. 1 sufficiently
establishes that Respondent No. 1 Trust is the owner of the suit
property.
9. Lastly it is necessary to note that learned counsel for the
Appellants has relied upon the case-law in Vithalrao s/o Sambhajirao
Kharpade & Ors. Vs. Motiram s/o. Narsingrao Birajdar & Ors. [2010
ALL MR (Supp.) 110], in support of his contention that there is no
period of limitation prescribed for exercise of suo motu powers for
entertaining application under Section 70A of the said Act. In this
respect, it is material to note that in the present case, the power was
not exercised suo motu but it was on an application by the
Appellants. Admittedly the application has been filed after 53 years
of registration of Respondent No.1-Trust. It is settled position of law
that power of revision has to be exercised within a reasonable time
and, 53 years, by no stretch of imagination, can be said to be
reasonable. Therefore the said case-law will not advance the case of
the Appellants.
Husen Page 10 of 11
::: Uploaded on – 20/06/2025 ::: Downloaded on – 22/06/2025 02:44:22 :::
902 FA-1085-2013-C3.odt
10. For the aforesaid reasons, the belated objection raised by the
Appellants after a long lapse of time, to the registration of the
Respondent-Trust, which is turned down by the Charity
Commissioner as well as the District Court, does not require any
interference at the hands of this Court. The Appeal is devoid of
merits and it is accordingly dismissed. No order as to costs.
11. In view of dismissal of the Appeal, pending Civil Application is
also dismissed.
12. All concerned to act on duly authenticated or digitally signed
copy of this order.
(M.M. SATHAYE, J.)
Husen Page 11 of 11
::: Uploaded on – 20/06/2025 ::: Downloaded on – 22/06/2025 02:44:22 :::