Bombay High Court

SHRI.ANANT VASANT MOHITEversusREVATI VISHNU MOHITE (DECEASED) THRU LRS.

Decided: 28 August 2026
Disposal: Disposed Off

Holding

A civil court cannot grant relief of recovery of possession or mandatory injunction for removal of construction in respect of an open space when no such prayer is made in the plaint, and setting aside such impermissible relief does not confer exclusive possession on the defendant; the open space remains for joint enjoyment.

Summary

The appellant challenged the First Appellate Court's judgment dated 31 March 2017 in Civil Appeal No.62 of 2009, which had set aside the Trial Court's decree dated 6 April 2009 in Regular Civil Suit No.144 of 2001. The suit concerned House No.465, with House No.465A in the plaintiff's possession and House No.465B in the defendant's possession. The plaintiff sought recovery of possession of House No.465B and an injunction restraining the defendant from disturbing the plaintiff's possession of the open space around the house by constructing a water tank and verandah. The Trial Court rejected the prayer for recovery of House No.465B but granted mandatory injunction for removal of construction in the open space and delivery of its possession, along with prohibitory injunction, even though no such prayer was made in the plaint. The First Appellate Court set aside both injunctions on the ground that there was no supporting prayer in the plaint. The High Court held that the Trial Court could not have granted relief not prayed for, and that setting aside the injunction over the open space would not ipso facto make the defendant its exclusive possessor, as the open space was for joint enjoyment of the plaintiff and the defendant. Finding no substantial question of law, the Second Appeal was rejected and the Civil Application was disposed of.

Issues considered

Whether the First Appellate Court was justified in setting aside the Trial Court's decree granting mandatory and prohibitory injunctions when the plaint contained no prayer for recovery of possession of the open space or for removal of construction.
Whether the Trial Court could grant relief that was not prayed for in the plaint.
Whether setting aside the injunction regarding the open space would ipso facto confer exclusive possession of that open space on the defendant.
Whether any substantial question of law arises in the Second Appeal.

Subjects

Second Appeal
mandatory injunction
prohibitory injunction
relief not prayed for
possession
open space
joint enjoyment
substantial question of law
civil procedure

Judgment

Priyanka 35-SA-301-2019.docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.301 OF 2019
WITH
CIVIL APPLICATION NO.579 OF 2019

Anant Vasant Mohite ...Appellant
V/s.

Revati Vishnu Mohite (deceased) thr. LRs & Ors ...Respondents
________________
Mr. S. C. Wakankar for the Appellant.
Mr. Rohit Joshi for Respondent Nos.2, 3, 4A, 4B and 5 to 40.
Digitally
signed by ________________
PRIYANKA
PRIYANKA MADHAVRAO
MADHAVRAO KALE
KALE Date:
2026.09.01
CORAM: SANDEEP V. MARNE, J.
10:52:16
+0530
DATED: 28 AUGUST 2026.

P.C.:
1) The Appeal challenges the Judgment and Decree dated 31
March 2017 passed by the First Appellate Court in Civil Appeal No.62 of
2009 by which the Appellate Court has set aside the Trial Court's Decree
dated 6 April 2009 passed in Regular Civil Suit No.144 of 2001. The
Appellant had partly succeeded before the Trial Court in securing
mandatory injunction for removal of construction in the open space
around the house and for handing over possession thereof, as well as
prohibitory injunction from creating obstruction to possession of open
space of the Plaintiff. The Appellate Court however, set aside both the

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Priyanka 35-SA-301-2019.docx

injunctions granted by the Trial Court on the ground inter alia that there
was no prayer supporting the said relief in the Plaint.

2) I have heard Mr. Wakankar, the learned counsel appearing
for the Appellant and Mr. Joshi, the learned counsel appearing for the
Respondents.

3) It appears that in the House No.465 there are two portions,
House No.465A was in the possession of the Plaintiff whereas, House
No.465B was in the possession of Defendant. The Suit was filed for
recovery of possession of House No.465B from the Defendant. Plaintiff
also complained that Defendant was attempting to construct a water
tank and verandah in the open space around the House. Accordingly,
Plaintiff sought prayer for recovery of possession of House No.465B and
claimed injunction against Defendant from disturbing Plaintiff's
possession of open space around the House by restraining the Defendant
from carrying out any construction therein.

4) The Trial Court rejected the main prayer of the Plaintiff for
recovery of possession of House No.465B. However, it proceeded to grant
something which was never prayed for by the Plaintiff. The Trial Court
directed Defendant to handover possession of open space around the
House to the Plaintiff by removing water tank and verandah constructed
therein. As a matter of fact, there was no prayer in the Plaint for recovery
of possession of open space and the Plaint proceeded on footing that
Plaintiff was already possessing the same. The Appellate Court has
rightly reversed the Decree passed by the Trial Court. Since, there was no

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Priyanka 35-SA-301-2019.docx

prayer in the Plaint for recovery of possession of open space around the
House or for removal of construction, such relief could not have been
granted by the Trial Court.

5) Mr. Wakankar submits that, on account of Decree of the
Appellate Court, Defendant may claim exclusive possession over open
space around the House. I find this apprehension to be misplaced. Merely
because relief granted in favour of Plaintiff qua open space is set aside by
the Appellate Court that would not ipso facto make Defendant exclusive
possessor of such open space around the House. The open space around
the House would obviously for joint enjoyment of the Plaintiff and the
Defendant.

6) In view of the above position, no substantial question of law
is involved in the Appeal.

7) The Second Appeal is accordingly rejected.

8) In view of the rejection of the Second Appeal, nothing
survives in the Civil Application and the same is accordingly disposed of.

[SANDEEP V. MARNE, J.]

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