FA/1166/1985 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1166 of 1985 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI : ========================================= ================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= ================ UNION OF INDIA & 1 - Appellant(s) Versus SAIYED TAMIZUDDIN JALAUDDIN MASHHADI - Defendant(s) ========================================= ================ Appearance : MR YN RAVANI for Appellant(s) : 1 - 2. MR SK BUKHARI for Defendant(s) : 1, ========================================= ================ CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/09/2008 ORAL JUDGMENT 1. This appeal is directed against the judgment and decree dated 30.03.1982 passed by the learned City Civil Judge, Court FA/1166/1985 2/4 JUDGMENT No.8, City Civil Court, Ahmedabad in Civil Suit No.986 of 1978 whereby, the said suit was dismissed. However, it was held that the respondent, original plaintiff, is the administrator and owner of the suit property popularly known as “Saiyed Usman Mosque and Tomb” situated at Usmanpura, Ahmedabad, which is an ancient protected monument. 2. The facts in brief are that the respondent, original plaintiff, filed the aforesaid suit before the City Civil Court, Ahmedabad praying to restrain the appellants, original defendants, from causing any interference with the respondent's rights, in any manner whatsoever, over the property situated on Final Plot No.28, Town Planning Scheme No. 3 of Usmanpura, Ellisbridge, Ahmedabad and popularly known as “Saiyed Usman Mosque and Tomb”. In the said suit, the appellants filed their written statement vide Exhibit – 48. 3. The trial Court, after appreciating the evidence on record, dismissed the suit of the respondent. However, while do so, the trial Court observed that the respondent, original plaintiff, has proved that he is the administrator and owner of the suit property. Being aggrieved by the said observations made by the trial Court in Para-5 of the impugned decree, the appellants have approached this Court by way of this appeal. 4. Heard learned counsel for the respective parties and perused FA/1166/1985 3/4 JUDGMENT the documents on record. It is not in dispute that in the Agreement dated 07.09.1964 entered into between the Superintendent of the appellant – Department and the Predecessor-in-title of the respondent, the respondent has been described as the “owner” of the suit property. However, the trial Court, while appreciating the documents on record, has completely lost sight of the fact that the said Agreement is to be considered in context of the provisions contained in the Ancient Monuments and Archaeological Sites and Remains Act, 1958, more particularly, the provision contained in Section 2(g) thereof. 5. As per the provision of Section 2(g) of the said Act, the term “owner” includes a joint owner invested with powers of management on behalf of himself and other joint owners and the successor-in-title of any such owner; and any manager or trustee exercising powers of management and the successor-in-title of any such manager or trustee. Thus, by making the said observations in Para-5 of the impugned decree, the trial Court has committed serious error in law since under the provisions of the said Act, the Government of India has the exclusive rights over the suit property. Hence, the same deserves to be quashed and set aside. 6. For the foregoing reasons, the appeal is allowed. The impugned judgment and decree passed by the trial Court is modified only to the extent that the observations made in Para-5 of the said order, regarding the issue of ownership of the suit FA/1166/1985 4/4 JUDGMENT property, is quashed and set aside. Rest of the impugned judgment and decree is not disturbed. The appeal stands disposed of accordingly. No order as to costs. [K. S. JHAVERI, J.] Pravin/*