KALIDAS YASHWANT LONKAR AND ORSversusNITIN SHIVRAM LONDHE AND ORS

                                                                      25-WP11011-2026.DOC

                                                                                  Santosh

                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION


                                    WRIT PETITION NO. 11011 OF 2026

                      Kalidas Yashwant Lonkar And Ors                     ...Petitioners
                                       Versus
                      Nitin Shivram Londhe And Ors                      …Respondents

                      Mr. Sudhir Sadavarte, for the Petitioners.
                      Mr. Aseem Naphade, a/w Sandeep Phatak and Adhik Kadam,
                           for the Respondents.

                                                        CORAM: N. J. JAMADAR, J.
                                                        DATED: 29th AUGUST, 2026
SANTOSH
SUBHASH
KULKARNI              JUDGMENT:-
Digitally signed by
SANTOSH
SUBHASH
KULKARNI
Date: 2026.09.03
22:22:32 +0530


                      1.   Rule. Rule made returnable forthwith and, with the

                      consent of the learned Counsel for the parties, heard finally.


                      2.   This petition under Article 227 of the Constitution of India

                      assails the legality, propriety, and correctness of an order

                      passed by the learned District Judge, Pune, in Miscellaneous

                      Civil Appeal No. 130 of 2026, whereby an application preferred

                      by the Petitioners – Plaintiffs under the provisions of Order XLI

                      Rule 27 of the Code of Civil Procedure, 1908 (‘the Code’), for

                      production of the purported Agreement for Sale executed by the

                      Respondent/Defendant Nos. 1 to 4 in favour of Mrs. Nandini

                      and Mr. Santosh Bahirat on 13 th March, 2026, came to be


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rejected.


3.    The Petitioners-Plaintiffs claim to be the owners of land

admeasuring 55 Are alongwith the structures, well, and a

borewell therein situated at CTS No.1840, Old Survey No.

55A/2A, Village Mundhwa, within the limits of Pune Municipal

Corporation. The Defendant Nos. 1 to 4 have purchased 15 Are

land out of the adjacent land bearing Survey No. 55A/2C from

the erstwhile co-owners of Survey No. 55A under a registered

Sale Deed dated 8th February, 2013. The Defendant Nos. 1 to 4,

by misusing their proximity with the Government Officials and

Police Officers, attempted to encroach upon the suit land. The

Plaintiffs were thus constrained to institute a suit seeking a

declaration that the Defendants have no right to encroach upon

the suit land or establish possession over any part thereof, erect

a compound wall in the suit land, and for the consequential

relief of injunction.


4.    In the said suit, the Plaintiffs filed an application for

temporary injunction on 5th January, 2026. By an order dated

9th January, 2026, the learned Civil Judge was persuaded to

initially grant an ad-interim injunction and thereby restrain the

Defendants from erecting a compound wall over the suit

property till the appearance of the Defendants and, eventually,

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by an order dated 4th May, 2026, the learned Civil Judge was

persuaded to allow the application for temporary injunction and

make the ad-interim injunction order passed on 9 th January

2026 absolute.


5.   Being aggrieved, the Defendants - Respondent Nos. 1 to 4

have preferred an appeal against the said order before the

District Court.


6.   In the said appeal, the Plaintiffs filed an application

seeking permission to produce the purported Agreement for Sale

dated 13th March, 2026, executed by the Defendants-Appellants

in favour of Mrs. Nandini and Mr. Santosh Bahirat, by way of

additional evidence. It was, inter alia, asserted that the learned

Civil Judge had passed the ad-interim order on 9 th January,

2026. The Defendants had appeared before the Trial Court on

22nd January, 2026 and eventually filed their affidavit-in-reply

on 7th April, 2026. In the intervening period, on 13 th March,

2026, the Defendants have executed purported Agreement for

Sale dated 13th March, 2026, in respect of the suit property. The

said instrument was, in effect, an absolute sale, though it was

styled as an Agreement for Sale. It was, therefore, necessary to

place the said instrument on the record of the Appellate Court

by way of additional evidence.

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7.    By the impugned order, the learned District Judge was

persuaded to reject the application observing that the said

instrument had no concern with the subject matter of the

dispute as it pertained to another property. The said instrument

was not necessary to decide the controversy between the

parties.


8.    Being aggrieved, the Plaintiffs have invoked the writ

jurisdiction of this Court.


9.    I have heard Mr. Sudhir Sadavarte, the learned Counsel

for the Petitioners, and Mr. Aseem Naphade, the learned

Counsel for the Respondents, at some length. With the

assistance of the learned Counsel for the parties, I have perused

the material on record.


10.   Mr. Sadavarte, the learned Counsel for the Petitioners,

would submit that the learned District Judge did not properly

appreciate the nature of the instruments and its impact upon

the   claim   of   the   parties    to    the   appeal,   which   awaits

adjudication. The learned District Judge rejected the application

by mechanically observing that the said instrument had no

concern with the matter in dispute. Inviting the attention of the

Court to the description of the property in respect of which the

purported Agreement for Sale came to be executed, Mr.
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Sadavarte would urge that the Defendant Nos. 1 to 4 have

purported to sell the property bearing Old Survey No. 55A/2K,

which the Defendants never acquired. The learned District

Judge, according to Mr. Sadavarte, lost sight of the fact that the

claim of Defendant Nos. 1 to 4 had its genesis in the Sale Deed

dated 8th February, 2013 executed by the erstwhile co-owners of

the Plaintiffs.


11.   Mr. Naphade, the learned Counsel for the Respondents,

attempted to support the impugned order. It was submitted that

there was no injunction against the transfer or alienation of the

property acquired by Defendant Nos. 1 to 4 under the Sale Deed

dated 8th February, 2013. Therefore, the Plaintiffs cannot draw

any mileage from the fact that Defendant Nos. 1 to 4 had

entered into an Agreement for Sale in respect of the property

which formed part of old Survey No. 55A/2C. Secondly, Mr.

Naphade would urge, the learned District Judge was fully

justified in rejecting the application for adduction of additional

evidence, as the said instrument had no bearing upon the

determination of the appeal preferred against the order granting

temporary injunction.


12.   It appears, the learned District Judge took a very hyper-

technical view of the matter. The observations of the learned

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District Judge that the purported instrument had no concern

with the subject matter of the suit appeared to be clearly

incorrect.


13.   The chronology of the proceedings before the Trial Court

assumes significance. The suit was instituted on 5 th January,

2026. On 9th    January, 2026, the Trial Court granted an ad-

interim temporary injunction. The Defendants appeared before

the Trial Court on 22nd January, 2026. An affidavit-in-reply was

filed on 7th    April, 2026. Eventually, the application for

temporary injunction was allowed by the Trial Court on 4 th May,

2026. In the intervening period, on 13 th March, 2026, during the

pendency of the suit and the application for temporary

injunction, Defendant Nos. 1 to 4 executed the purported

Agreement for Sale in favour of Mrs. Nandini and Mr. Santosh

Bahirat.


14.   It is imperative to note, in the affidavit-in-reply filed on

behalf of Defendant Nos. 1 to 4 on 7 th April, 2026; after three

weeks of the execution of the said registered instrument, there

was no reference to the instrument executed by Defendant Nos.

1 to 4 in favour of the third parties. Evidently, unbeknownst to

the Plaintiffs, the Defendant Nos. 1 to 4 had executed the

registered Agreement for Sale in favour of the third parties, and

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there was also non-disclosure of the said fact in the affidavit-in-

reply filed to the application for temporary injunction.


15.   In a situation of this nature, the provisions contained in

Order XLI Rule 27(1)(aa) of the Code were clearly attracted, as

the instrument which was sought to be tendered by way of

additional evidence was executed unbeknownst to the Plaintiffs

and there was suppression of the said instrument. The

observations of the learned District Judge that the application

seeking permission to produce additional evidence did not fall

within any of the clauses of Sub-Rule (1) of Rule 27 of Order XLI

of the Code thus appeared to be unsustainable.


16.   Ordinarily, the Appellate Court is not expected to travel

beyond the record of the Court of first Instance and cannot take

any additional evidence in appeal. The Appellate Court is,

however, empowered to permit the parties to adduce additional

evidence if the case is covered by any of the clauses of Order XLI

Rule 27(1). If the conditions laid down in the said clauses are

satisfied, the Appellate Court may, in its discretion, allow the

parties to produce additional evidence. However, the discretion

is required to be exercised in a judicious manner.


17.   From a bare perusal of the instrument in question, it

becomes abundantly clear that the title of Defendant Nos. 1 to 4
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to the 15 Are land out of Survey No. 55A/2K is traced to the

registered Sale Deed in favour of defendant Nos.1 to 4 dated 8 th

February, 2013. In the affidavit-in-reply filed to the temporary

injunction application, the Defendant Nos. 1 to 4 categorically

asserted that they had acquired 15 Are land out of Survey No.

55A/2C from the legal heirs of Jagannath Lonkar, the erstwhile

co-owner of Survey No.55A, under the registered Sale Deed

dated 8th February, 2013. It was this very land which under the

instrument in question the Defendant Nos. 1 to 4 agreed to

transfer in favour of Mrs. Nandini and Mr. Santosh Bahirat.


18.   What is of critical salience is the fact that the recital 6 of

the said registered instrument, inter alia, records that the

Defendants     had    delivered     the   vacant,     peaceful,   and

unobstructed possession of the said property to the purchasers.

The implications of the delivery of possession of the 15 Are land

out of Survey No. 55A/2C upon the justifiability of the order of

injunction granted by the Trial Court appeared to be a relevant

consideration. If the Defendant Nos. 1 to 4 have inducted

transferees into the said property, the aspect of appropriately

modulating the final relief that may be granted in the pending

appeal was required to be examined. Therefore, the learned

District Judge was not at all justified in rejecting the application

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on the premise that the instrument in question did not pertain

to the subject matter of the suit.


19.     The   upshot   of   aforesaid    consideration    is   that,   the

impugned order suffers from legal infirmity. Resultantly, the

impugned order deserves to be quashed and set aside and the

application for producing the purported Agreement for Sale

dated 13th March, 2026 before the Appellate Court in the

pending Miscellaneous Civil Appeal deserves to be allowed.


20.     Hence, the following order:


                             :ORDER:


(i)     The Petition stands allowed.


(ii)    The impugned order is quashed and set aside.


(iii)   The   application   seeking     permission   to   produce      the

        purported Agreement for Sale on the record of the

        Appellate Court stands allowed.


(iv)    The Petitioners-Plaintiffs shall produce the said purported

        Agreement for Sale dated 13 th March, 2026 before the

        Appellate Court within a period of two weeks from the date

        of uploading of this order.


(v)     The learned District Judge is requested to decide the


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        appeal on its own merits and in accordance with law

        without being influenced by any of the observations made

        hereinabove, which were confined to test the legality and

        correctness of the impugned order.


(vi)    Rule made absolute in the aforesaid terms.


(vii)   No order as to costs.

                                             [N. J. JAMADAR, J.]




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