Bombay High Court

ANANDNARAYAN PURSHOTTAM KALWAR DIED AND THEREFORE THROUGH LEGAL REPRESENTATIVES APPELLANT NO 2 TO 5versusDEEPAK HARIPRASAD PARDESHI

Disposal: Disposed Off

Holding

The appeal is withdrawn with liberty to the appellant to file a suit for declaration, and all parties' contentions remain open for consideration in that suit.

Summary

The appellants filed a second appeal under Section 100 of the Code of Civil Procedure, 1908, challenging a judgment that had reversed an earlier order dismissing a suit for simpliciter possession. The appellants argued that the suit did not involve a title dispute and sought leave to withdraw the appeal and instead file a suit for declaration of their rights over the property. The respondents contended that the appellants were free to file a declaration suit and that all their contentions should remain open in any such suit. The Court granted leave to withdraw the appeal, allowing the appellants to file a declaration suit with all parties' contentions remaining viable. Consequently, the second appeal was disposed of as withdrawn and the interim application was also dismissed.

Issues considered

Whether a second appeal filed under Section 100 CPC can be withdrawn with liberty to file a separate suit for declaration
Whether a suit for simpliciter possession raises any issue of title requiring adjudication in the appeal
Procedural consequences of withdrawing an appeal without addressing its merits

Legislation cited

Code of Civil Procedure, 1908 — s. 100

Subjects

Second Appeal
Section 100 CPC
withdrawal of appeal
possession simpliciter
declaration suit
Civil Procedure
Bombay High Court
Kolhapur Circuit Bench

Judgment

                                                                                 34-sa168-2025.docx

VAIBHAV
RAMESH
JADHAV                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
VAIBHAV
RAMESH JADHAV
Date: 2026.10.08
20:33:15 +0530
                                            CIRCUIT BENCH AT KOLHAPUR
                                            CIVIL APPELLATE JURISDICTION

                                           SECOND APPEAL NO. 168 OF 2025

                      Anandnarayan Purshottam Kalwar
                      Died & Therefore Through Legal
                      Representatives & Ors.                         … Appellants
                                  V/s.
                      Deepak Hariprasad Pardeshi & Anr.              … Respondents

                                                      WITH
                                       INTERIM APPLICATION NO. 2753 OF 2025
                                                        IN
                                          SECOND APPEAL NO. 168 OF 2025

                      Anandnarayan Purshottam Kalwar
                      Died & Therefore Through Legal
                      Representatives & Ors.                         … Applicants
                                  V/s.
                      Deepak Harisprasad Pardeshi & Anr.             … Respondents

                      Mr. Ashutosh M. Kulkarni with Akshay Kulkarni for the
                      Appellants.
                      Mr. Umesh Mankapure with Benazir Jamadar, Trupti Padekar and
                      M. M. Koshti /by Ms. Divya Powar for the Respondents.
                      Mr. Vishalnarayan A. Kalwar, Appellant No.5, is present.



                                                   CORAM        : ASHWIN D. BHOBE, J.

                                                   DATED        : OCTOBER 8, 2026
                      Oral Order:


                      1.    Heard Mr. Ashutosh Kulkarni, learned Advocate for the Appellants and

                      Mr. Umesh Mankapure, learned Advocate for the Respondents.



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2.     By this Second Appeal filed under Section 100 of the Code of Civil

Procedure, 1908, the Appellants (Defendants) are before this Court, assailing

the Judgment and Decree dated 11th November 2024 passed by the Principal

District Judge, Solapur (“Appellate Court”), in Regular Civil Appeal No. 70 of

2020, by which the Appellate Court reversed the Judgment and Decree dated

16th March 2020 passed by the Joint Civil Judge, Senior Division, Solapur

(“Trial Court”), in Special Civil Suit No. 230 of 2015, by which the Trial Court

had dismissed Special Civil Suit No. 230 of 2015 filed by the Respondent

(Plaintiff).


3.     Mr. Ashutosh M. Kulkarni, learned Advocate for the Appellants, states

that Special Civil Suit No. 230 of 2015, being a suit for simpliciter possession,

does not involve an issue of title. He therefore, on instructions from the

Appellants, seeks leave to withdraw the present Appeal with liberty to file an

appropriate suit seeking a declaration of the Appellants' rights to the suit

property. He requests that all issues and contentions regarding the suit for

declaration that the Appellants propose to file be left open for consideration

before the Court where the suit would be filed.


4.     Mr. Umesh Mankapure, learned Advocate for the Respondents, states

that Special Civil Suit No. 230 of 2015, filed by the Respondent (Plaintiff),

was a suit for possession simpliciter. He submits that the Appellant is always



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at liberty to file a suit for declaration seeking a declaration of his rights. He

submits that if the Appellant proposes to file a suit for declaration, all the

rights and contentions of the Respondent in that suit be left open.


5.    In view of the above statements made by Mr Ashutosh M. Kulkarni,

learned Advocate for the Appellants and Mr. Umesh Mankapure, learned

Advocate for the Respondents, leave is granted to withdraw this Appeal, with

liberty to the Appellant to file a suit for declaration. If such a suit for

declaration is filed by the Appellant, all contentions of the parties remain

open and the suit shall be decided on its merits and in accordance with law.


6.    The Second Appeal is withdrawn without addressing the merits.


7.    In view of the above, Second Appeal No. 168 of 2025 stands disposed

of as withdrawn.


8.    Interim Application No. 2753 of 2025 does not survive and is disposed

of.




                                                  (ASHWIN D. BHOBE, J.)




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