938-SA NO.622 OF 2021.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO.622 OF 2021

WITH CA/748/2022 IN SA/622/2021

WITH CA/13997/2021 IN SA/622/2021

Government of India, New Delhi

]

Through Superintending Archaeologist,

]

Archeological Survey of India,

]

Aurangabad Circle, Bibi-ka-Maqbara,

]

District Aurangabad

]

… Appellant

(Orig. Defendant)

Versus

Ravindra S/o. Pralhadrao Puranik,

]

Age : Major, Occupation : Archak (Pujari),

]

R/o. Verul, Taluka Khultabad,

]

District Aurangabd.

]

… Respondent

(Orig. Plaintiff)

. . .

Advocate for Appellant : Mr. Ramdas B. Bhosale

Advocate for Respondent : Mr. R. L. Chhabda

. . .

CORAM : MANGESH S. PATIL, J.

DATED : 01 APRIL 2022.

PER COURT :

1.

This is an appeal by the original defendant which is the

Government of India through its Superintending Archaeologist, who has

suffered a concurrent decision of the courts below holding the respondent-

plaintiff to be entitled to perpetual injunction to protect his possession over

the suit property described as Survey No. 299 of Verul, Taluka Khultabad, Dist.

Aurangabad.

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2.

After hearing the learned advocates of both the sides, following

substantial questions of law arise for determination in the second appeal and it

is admitted:

I.

Whether the courts below were justified in ignoring the

law laid down by the Supreme Court in the matter of

Anathula Sudhakar Vs. P. Buchi Reddy, AIR 2008 SC 2033,

even when apparently a cloud was created over the

respondent’

s title to the suit property and deciding the suit

and the appeal without framing any issue as to title?

II.

Whether the lower appellate court has erred in refusing to

remand the suit for decision afresh in the facts and

circumstances?

I have heard the learned advocates of both the sides, on the

aforementioned substantial questions of law.

3.

There is no dispute about the fact that the respondent claiming

himself to be in exclusive possession of the suit property filed the regular civil

suit seeking perpetual injunction against the appellant, restraining it from

obstructing his possession over the suit property. The appellant filed a written

statement, but thereafter did not turn out to contest the suit. Pertinently, in

the written statement it was the contention that the suit property was declared

as a ‘Centrally Protected Monument’ by virtue of a Government of India

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Gazette Notification of the year 1960. It also tried to justify the mutation entry

effected in that respect in the year 2010.

4.

The averments in the plaint itself where indicative of the fact that

the respondent was aware about the claim by the Archaeologist Department of

the Government of India and even questioned the mutation entry No. 3163 of

the year 2010. It is, therefore, quite clear that the respondent has been aware

that a claim is being put up by the appellant creating a cloud over the title on

the basis of which he claimed to be in possession.

5.

In spite of the above state of pleadings, the trial court did not

frame any issue pertaining to this question of disputed title. Only the issues

pertaining to possession and its obstruction were claimed.

6.

The error seems to have perpetuated even before the lower

appellate court. In an appeal by the appellant a serious question as to the title

to the suit property was raised/agitated. Even the documents were sought to

be produced under Order 41 Rule 27 of the CPC which were allowed to be

produced. But without formulating any point for the determination touching

the disputed question of title, it has proceeded to decide the appeal by

formulating the points for determination in tune with the issues framed by the

trial Court.

7.

It is true that in paragraph nos. 10 and 11, the lower appellate

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court did make some attempt to go into the issue regarding title and even

commented upon some overwriting