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

                       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



                                                        Page No.1 of 3
                                                       28 August 2026
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

                                  Page No.2 of 3
                                 28 August 2026
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.]




                                  Page No.3 of 3
                                 28 August 2026