TMI Blog1968 (4) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bombay Public Trusts Act (Bombay Act XXIX of 1950), hereinafter referred to as the 'Act' for registration of the Peer Haji Malang Dargah near Kalyan in the Thana District (hereinafter referred to as the 'Dargah ) without prejudice to his contention that the Dargah was not a public trust to which the Act was applicable. On August 3, 1953 the Deputy Charity Commissioner made an order declaring that the Dargah was a public trust and directed its registration as such. The Deputy Charity Commissioner further held that among the properties of the Dargah was the land bearingSurvey No. 134 of village Wadi on a portion of which the Dargah is located. The Deputy Charity Commissioner alsodirected that the appropriate court might be mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the appellant was a trustee or only a de facto. Manager of the Dargah, open for decision in the suit which had been filed by the Charity Commissioner. Against the order of the District fudge the Charity Commissioner filed an appeal in the High Court, being Appeal No. 501 of 1955. The appellant also filed his cross objections. The said appeal and cross objections were heard together and the High Court by its judgment dated November 19, 1958 confirmed the finding of the District Judge about the public nature of the trust and further held that the District Judge should have decided whether Survey plot No. 134 was the property of the Dargah or not and whether the appellant- was a trustee or a Manager of the trust. The case was therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etteer of the Bombay Presidency tells us that the tomb is that of a Muslim saint who came to India as an Arab missionary in the thirteenth century. According to tradition, there are two tombs in the Dargah in one of which is the dead-body of a Hindu princess and in the other tomb the dead-body of the Muslim saint. The fame of the saint was at height when the English made their appearance at Kalyan in 1780. As they only stayed for two years, their departure in the year 1782 was ascribed to the power of the dead saint. The Peshwas were then in power in that region and after the departure of the English they sent a thanks offering under the charge of one Kashinath Pant Ketkar, a Kalyan Brahmin. It is said that the offering sent by the Peshw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell, one pakka built masjid, one Dargah, one tomb . Exhibit 71 is an entry for the year 1915 from Akar Phod Patrak and in the column of Kabjedar the name of Rukminibai Hari appears with regard to plot 134.Thereafter, in the record of rights for the year 1913, Ex. 76, the name of the predecessor of the appellant is shown. On the basis of these entries it was submitted by Mr. Gokhale that the ownership of the plot was with the appellant and not with the Dargah. But there are important circumstances in this case which indicate that the appellant is not the owner of Survey plot No. 134. Exhibits 64 and 65 are significant in this connection. Exhibit 64 is an entry from the Sud in Marathi for the year 1858 in connection with Survey plot No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands of his own near plot No. 134 and the nearest lands he owns are in Bandhanwadi which are admittedly 3-1/2 to 4 miles away from the top of the hill. There is also the important admission made by the appellant in the course of his evidence that there are 2 or 3 tombs behind the Musaferkhana. He stated further that there is no cemetery or burial ground in Survey No. 134 . But this evidence is in direct conflict with the statement of the appellant in the previous case that Round about the Dargah many people die every year..... Anyone that died there, whether Hindu, Muslim or Parsee if he has no heirs is buried there . He also conceded that there is one public tank known as Chasmyachi Vihir near the Dargah and there are 5 wells near t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to, the, Courts the best material for its decision.. With regard to (1) 44 I. A. 98, at P. 103. third parties, this may be right enough-they have no responsibility for the conduct of the suit but with regard to the parties to the suit it is, in their Lordships' opinion an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition. This passage was cited with approval by this Court in a recent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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