drp {1} AO No.30/2004 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.30 OF 2004 Bhausaheb s/o Yesu Sanap APPELLANT Age-38 years, Occ-Agri R/o Wanjulpoi, Tq-Rahuri, Dist-Ahmednagar VERSUS 1. Eknath s/o Sitaram Pawar RESPONDENTS Age-35 years, Occ-Agri 2. Rambhau s/o Pandurang Pawar Age-33 years, Occ-Agri 3. Balasaheb Ramdas Pawar Age-30 years, Occ-Agri 4. Balasaheb Genu Rewale Age-34 years, Occ-Agri 5. Popat Keshav Pawar Age-35 years, Occ-Agri All R/o Wanjulpoi, Tq-Rahuri Dist-Ahmednagar ....... Mrs.M.B.Thube-Mhase Advocate for the appellant Mr.R.R.Karpe, Advocate for respondents ....... [CORAM : A.V.POTDAR, J.] drp {2} AO No.30/2004 RESERVED ON : 7th February 2011 PRONOUNCED ON : 10th February 2011 JUDGMENT: 1. By the present Appeal from Order, the appellant- original plaintiff has assailed the judgment and decree dated 01.04.21004 passed by Second Additional District Judge, Ahmednagar in Regular Civil Appeal No.123/2002. By the said judgment and decree, the judgment and decree passed in Regular Civil Suit No.294/1995, by the Civil Judge, Junior Division, Rahuri, was set aside and the matter was remanded back to the trial court with direction to frame issue No.4 as framed in paragraph No.12 of the impugned judgment. It is further directed to give opportunity, afresh, to both the sides to adduce evidence in connection with the said issue and then to decide the suit afresh. 2. Admittedly, the present Appeal from Order is preferred under Order 43 Rule 1 (u) of the Civil Procedure Code r/w section 100 of the Civil Procedure Code. In view of the judgment of the Apex Court in the matter of “Narayan V/s Kumaran” 2004 (4) SCC 26, the appeal from order, preferred under Order 43 Rule 1 (u) r/w section 100 of the Civil Procedure Code, has to be decided like a second appeal, by formulating substantive question of law involved in the appeal. 3. Heard learned counsel for the appellant followed by the drp {3} AO No.30/2004 submissions of learned counsel for the respondents-original defendants. Learned counsel for the appellant has contended that the appellant-original plaintiff had filed suit for declaration and injunction against the respondents-defendants in respect of the property bearing Gat No.239/1/1/1+2, admeasuring 30 R, situated at village Wanjulpoi. It was contended that the father of the appellant, along with three others, had acquired the said property from one Laxmibai Appaji Pawar, under a registered sale deed dated 04.09.1978. It was further contended that thereafter the father of the appellant acquired the entire property from the remaining purchasers. Thereafter family partition took place between the father of the appellant and his brothers and during the said family partition, the said property came to the share of the father of the appellant and hence he was in possession of the said property as a owner since then. It was further contended that in the year 1994, father of the appellant had constructed temple of Swami Samartha, in the said property. It was the contention of the appellant that behind his back and without notice to the father of the appellant, an entry was effected in the 7/12 extract of the said land that part of the said land was used as a burial ground. In the year 1995, the respondents tried to obstruct the possession of the father of the appellant and, therefore, RCS No.294/1995 was preferred before Civil Judge, Junior Division, Rahuri for declaration of his title and injunction against the defendants not to obstruct his possession over the suit property. After service of summons, the respondents-original defendants appeared in the drp {4} AO No.30/2004 suit and filed their written statement. The defendants have contended that the western side portion of the said land, admeasuring about 11 to 12 R, abutting to Tilapur Road, is used by the people of Mahanubhav community as a burial ground, since last 200 to 250 years and one temple of Keshavbaba is also situated in the said portion of the said land. Though the suit was contested on number of other grounds, yet the main ground was this only. 4. It appears that on the basis of the pleadings of the parties, the trial court had framed issues at Exhibit-17. Out of the 8 issues framed by the trial court, issues No.4 and 5 read thus- “4. Whether the defendants prove that they are enjoying the suit property since long? 5. Whether the defendants prove that the plaintiff has made encroachment over the suit property?” Thereafter, the parties were directed to lead evidence. After considering the evidence lead by the parties, the trial court decreed the suit in respect of declaration of the title of the plaintiff- appellant. However, liberty was given to the respondents- defendants to worship in Keshavbaba temple and celebrate certain religious functions. The defendants were restrained from using the said portion of the said land as a burial ground. The said judgment drp {5} AO No.30/2004 and decree was challenged by the respondents-defendants by filing Regular Civil Appeal No.123/2002. One of the grounds raised in the appeal was that the issues were not properly framed by the trial court and the evidence was not properly appreciated on the issues framed. 5. Learned counsel for the appellant, draw my attention towards the judgment of the lower appellate court, particularly towards paragraph No.8 of the impugned judgment. The lower appellate court has observed that after going through the respective pleadings and arguments advanced by the respective counsel, the only question for consideration is as to whether the issues have been properly framed by the trial court or not? The lower appellate court has further observed that on the basis of the pleadings of the parties the following issue is necessary- “Do the defendants prove that they have easmentary rights to use the suit land, as burial ground by way of prescription and custom?” The lower appellate court, therefore, remanded the suit to the trial court with direction to give an opportunity to the parties to adduce evidence on the said issue. 6. Considering the pleadings of the parties before the trial court and the findings of the lower appellate court, the only drp {6} AO No.30/2004 substantive question of law, which is required to be formulated in the present Appeal From Order is - “Can the Court record its finding without framing proper issue?” 7. Learned counsel for the appellant contended that the trial court had framed issue No.4 based on the pleadings in the written statement. It is further urged that under the Easement Act, to use any land to bury dead bodies, is not an easementary right and nor it was the case of the defendants and if it was so, the trial court had properly framed issue No.4 and on appreciation of the evidence had recorded the finding accordingly. As against this, the learned counsel for the respondents has urged that in view of the pleadings of the parties, the issue framed by the lower appellate court is a proper issue. 8. Under Order 14, Rule 1 of the Civil Procedure Code, it is incumbent on the trial court to frame issues based on the facts and law, on the basis of the pleadings of the parties and, therefore, the issues framed by the trial court on the basis of the pleadings of the parties are the proper issues. So far as the issue framed by the lower appellate court -Whether respondents-defendants have easementary right over the suit land as a burial place’ is concerned, the same is not based on the facts pleaded by the respondents-defendants in the written statement. Apart from it, drp {7} AO No.30/2004 Section 17 of the Easementary Act, speaks for the rights which cannot be acquired by prescription. The right of burial cannot be acquired as easement by prescription or otherwise or on fiction of a lost grant. It is also observed by Privy Council, in the matter of “Lakshmidhar Misra V Ranglal” AIR 1950 PC 56 that there is no easementary right to the land for burial and cremation of dead bodies. A claim by inhabitants of a village to the use of certain area as a cremation ground of the village could only be supported on the ground of custom and not on the basis of dedication or lost grant. Thus, in law also there shall not be any right of easement to the land for burial of dead bodies. 9. Once it is held that the issues were properly framed by the trial court and the proposed issue framed by the lower appellate court, in the impugned judgment, is devoid of any merit and not based on law and as rightly pointed out by learned counsel for the appellant that if the issue framed by the lower appellate court is not based on the pleading of the parties nor the same is based on legal proposition and hence the judgment of the lower appellate court directing the trial court to hear the suit afresh in respect of the issue framed by the lower appellate court, is erroneous, the impugned judgment would not sustain. Learned counsel for the defendants-respondents though vehemently supported the judgment of the lower appellate court, yet he was unable to satisfy that the issue framed by the lower appellate court is based on the pleadings of the parties or on the law point. The drp {8} AO No.30/2004 substantive question of law, which is formulated in the present Appeal from Order - Can the Court record its finding without framing proper issue? - is answered in negative. The court can record finding only on framing proper issues. According to me, the trial court had framed proper issues and hence the view of the lower appellate court in that behalf without deciding the appeal on its own merits, is unwarranted. In the premise, the appeal ought to succeed with direction to the lower appellate to decide the Regular Civil Appeal No.123/2002 on its own merits, in accordance with law. 10. Accordingly, the Appeal from Order is allowed. The judgment and decree passed by the Second Additional District Judge-Ahmednagar in RCA No.123/2002 dated 01.04.2004 is hereby quashed and set aside with no order as to costs. Regular Civil Appeal No.123/2002 is restored to the file of Additional District Judge, Ahmednagar. The parties are directed to appear before the lower appellate court within four weeks from today. The lower appellate court is directed to hear the Regular Civil Appeal No.123/2002 on its own merits, in accordance with law and dispose of the same, within a period of 6 months after the appearance of the parties before the lower appellate court. Registry to send the Record and Proceedings to the lower appellate court, forthwith. [A.V.POTDAR, J.] drp/B10/ao30-04 drp {9} AO No.30/2004 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.4203 OF 2004 IN APPEAL FROM ORDER NO.30 OF 2004 Bhausaheb s/o Yesu Sanap APPLICANT VERSUS Eknath s/o Sitaram Pawar & Others RESPONDENTS ....... Mrs.M.B.Thube-Mhase Advocate for the Applicant Mr.R.R.Karpe, Advocate for respondents ....... [CORAM : A.V.POTDAR, J.] Date : 10 th February 2011 PER COURT : 1. In the light of disposal of the Appeal From Order No. 30/2004, the present Civil Application does not survive and hence disposed of accordingly. [A.V.POTDAR, J.] drp/B10/ao30-04