Bombay High Court
1. Sitabai Murlidhar Boradhe (Decd) ... vs 1. Tanaji Murlidhar Borhade on 8 August, 2025
RPS-st-14019-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (St.) NO. 14019 OF 2024
IN
SECOND APPEAL NO. 289 OF 2016
Sitabai Murlidhar Boradhe
Since deceased through Lrs. ...Petitioners.
Versus
Shankar Dhondi Jadhav and Others. ...Respondents.
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Harshada Shrikhande i/b Siddharth Mehta for the Review Petitioner.
Swapnil G. Rokade, Ramchandra B. Wagh, Sidharth Ghodake and Swapnil Klokhe for
the Respondents.
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Coram : Sharmila U. Deshmukh, J.
Reserved on : July 28, 2025
Pronounced on : August 8, 2025.
ORDER :
1. Review Petition seeks review of the order dated 30 th January
2024 passed in Second Appeal No. 289 of 2016 dismissing the appeal.
2. The order under review arises out of the judgment dated 7 th
October 2015 passed by the Appellate Court in RCA No.34 of 2010
declaring the present Respondent Nos.3 to 7 as owners of suit
property. The factual matrix is that Regular Civil Suit No.34 of 2001
was instituted by the Review Petitioner seeking declaration of title
relating to agricultural land bearing Gat No.742 and injunction against
disturbing the Review Petitioner's possession in addition to declaration
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of civil death of Respondent Nos.1 and 2. The case of Review
Petitioners was that the suit land was acquired by their predecessor
under Section 32 of the Bombay Tenancy and Agricultural Lands Act.
The Respondent Nos.3 to 7 without any concern with Respondent No.1
are claiming to be relatives of Respondent Nos.1 and 2 and causing
obstruction. The Respondent Nos.3 to 7 claimed title over suit land
being heirs of Respondent No.2-Yashwant Pagare and that they had
perfected title over land bearing Gat Nos.335, 1486 being heirs of
Yashwant Pagare. The Respondent Nos.3 to 7 claimed declaration of
title and recovery of possession.
3. The Trial Court vide judgment dated 2nd January, 2010 dismissed
the suit and counterclaim. In so far as the title of Respondent Nos.3 to
7 it concerned, the Trial Court held that there is no positive evidence
on record to show that Respondent Nos.1 and 2 have expired and
subsequently Respondent Nos.3 to 7 are legal heirs. It held that
evidence on record is sufficient to prove that plaintiffs are tenants over
suit land and though it is assumed that defendants are legal heirs of
original owners, they have to acquire rights under provisions of
Bombay Tenancy and Agricultural Lands Act.
4. The present Review Petitioners, who were the Plaintiffs, did not
prefer any appeal against the dismissal of suit and the Respondent
Nos.3 to 7 herein preferred appeal against the dismissal of
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counterclaim. The Appellate Court considered that as per the record of
RCS No.34 of 2001 and particularly documents as per list at Exhibit 68,
the suit property was owned by Yashwant Pagare and other members
of Pagare family as joint family property. Considering the genealogical
tree, the Appellate Court held that there were three branches of the
joint family of Defendants and their predecessor and the property left
by Late Yashwant has devolved upon the forefather of Respondent
Nos.3 to 7 by considering the Respondent Nos.3 to 7 as Class-II heirs.
The Appellate Court held Respondent Nos.3 to 7 to be owners of the
suit property and directed the Review Petitioners to hand over
possession to the Respondent Nos.3 to 7.
5. As against the judgment of Appellate Court dated 7 th October,
2015, the Second Appeal came to be preferred before this Court. The
order under review records that the submission of the Counsel for
Appellant was that there is finding of the trial Court that the Review
Petitioners are in possession of suit property in capacity as tenant and
despite non-issuance of Section 32M certificate, for the purpose of
recovery of possession, Respondent Nos.3 to 7 have to take recourse to
the provisions of Tenancy Act. The substantial question of law argued
was that jurisdiction of the Civil Court is barred under Sections 85 and
85A of the Tenancy Act as regards the issue of tenancy which is
required to be decided under the provisions of Tenancy Act.
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6. The order under review notes the findings of Appellate Court as
regards the Respondent Nos.3 to 7 being the legal heirs of Yashwant.
The order under review holds that the bar of jurisdiction of Civil Court
operates to decide any question which under the Act is required to be
decided by the authorities specified in the Tenancy Act. The Plaintiffs
had instituted suit claiming ownership on basis of Section 32G
proceedings and the Civil Court was not called to determine the
tenancy rights of the Review Petitioners in which case the bar under
Sections 85 and 85A of Tenancy Act would apply. The order under
review notes that in reply to the counterclaim filed by the Respondent
Nos.3 to 7, the Review petitioners had not raised the bar of tenancy
and thus bar of jurisdiction of Civil Court does not apply.
7. The present review petition has been filed by the Review
Petitioners through a different advocate. Ms. Shrikhande, Learned
Counsel for the Review Petitioner submits that review is sought as the
Petitioners have discovered new documents i.e. Judgment dated 1 st
October, 2003 passed in RCS No.244 of 1995 and order dated 23 rd June,
2017 passed by Tahsildhar, Niphad under Section 257 of Maharashtra
Land Revenue Code, 1966 with respect to Mutation Entry No.62/1994.
She submits that the documents are critical for the case of Petitioners
and the Petitioners had no knowledge about the said documents.
Patil-SR (ch) 4 of 17
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8. Taking this Court through the documents, she submits that in the
judgment of 1st October 2003 passed in RCS No.244/1995, it has been
declared that the present Respondent Nos.3 to 7 are not the legal heirs
of deceased Yashwant Hari Pagare and Sonubai Hari Pagare and they
have no concern with the suit property therein i.e. Gat No.335. She
would further submit that it has been held that the genealogical tree
relied upon in the said proceedings discloses that the Respondents
have no access with the branch of deceased. She submits that after the
order under review dated 30th January 2024 was passed, the
Petitioners have discovered the above documents. She would submit
that the Petitioners were not party to the civil suit proceedings or
before the Tahsildar and had no knowledge of the said proceedings, or
the orders passed therein. She seeks remand of the matter to the trial
Court in view of the judgments which have come to the knowledge of
the Petitioners by relying upon Section 114 of CPC read with Order 47
Rule 1 of CPC.
9. She would further submit that in RCS No.34 of 2001, the 7x12
extract and the revenue entries were produced by Respondent Nos.3
to 7 in respect of Gat No.335, which was considered by the Trial Court
in RCS No.244 of 1995 to hold that the Respondent Nos.3 to 7 are not
the legal heirs of Yashwant Pagare and Sonubai Pagare. She would
further point out to the decision of Appellate Court arising out of RCS
Patil-SR (ch) 5 of 17
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No.34 of 2001 and would submit that based on the same genealogical
tree, the Appellate Court has held that the Respondent Nos.3 to 7 are
the legal heirs of deceased Yashwant Pagare. She submits that the
Appellate Court has held that the learned trial Court has ignored the
documentary and oral evidence whereas there were no documents
produced before the trial Court and only revenue entries in respect of
other Gat Numbers were produced. She would further point out that
the Appellate Court has held that the Plaintiffs are relying upon the
entries in 7x12 extract to prove their possession and title, and that the
entries in revenue record are of fiscal nature and do not create any
right in favour of the person, whereas based on the revenue entries
produced by Respondent Nos 3 to 7, the Appellate Court has held them
to be the owners of property.
10. She has further taken this Court through the judgment passed in
RCS No.244 of 1995 where the Court has held, by taking into
consideration the revenue entries in respect of the same Gat Number
which are produced in RCS No.34 of 2001 that Yashwanth Pagare
belongs to some other branch and the Defendant Nos.1 to 5 are from
different branch and there was evidence lacking to show relationship in
the names mentioned in the genealogy tree and there was no
relationship established of the Respondent Nos.3 to 7 with the
deceased Yashwant Pagare and Sonu Pagare. She would further
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submit that the mutation entry relied upon by Respondent Nos.3 to 7
was subsequently set aside by order of Tahsildar of the year 2017. She
would submit that the Appellate Court in an appeal against RCS No.
159 of 1997 in respect of Gat No.335 has considered the decision in
RCS No.244 of 1995 that the Respondent Nos.3 to 7 have no concern
with the land Gat No. 335. In support, she relies upon the following
decisions:
Usha Bharti v. State of UP1 ;
BCCI v. Netaji Cricket Club2 ;
Soundararaj v. Devashayam3 ; and
Hariom C. Jaipuriye v. Manoj G. Chamedia4 .
11. Per contra Mr. Rokade, learned Counsel appearing for the
Respondents submits that the present case does not fall within the
scope of review under Order 47 Rule 1 of CPC. He submits that from
the documents annexed to the review petition, it is clear that the
judgment and decree dated 1 st October, 2003 is very much available
with the Review Petitioners. He would further submit that the
judgment dated 1st October, 2003 was challenged by the Respondent
No 3 before the Appellate Court and judgment was set aside and
remanded to the Trial Court and by judgment dated 30 th December,
1 (2014) 7 SCC 663.
2 (2005) 4 SCC 741.
3 1983 SCC OnLine SC 372.
4 2021 SCC OnLine Bom 2998.
Patil-SR (ch) 7 of 17
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2013, the suit has been dismissed. He would submit that once the
second appeal has been dismissed, no review can be filed without
obtaining the consent of advocate on record. In support, he relies
upon following judgments :
Tamil Nadu Electricity Board v. N. Raju Reddiar5 and
Sanjay Kumar Agarwal v. State Tax Officer6
12. In rejoinder, Ms. Shrikhande would submit that there are no rules
framed by the High Court to obtain NOC from the earlier advocate and
Vakalatnama has been duly filed in the present case.
13. I have considered the submissions and perused minutely the
order under Review.
14. Section 114 of CPC read with Order 47 Rule 1 of CPC permits the
party to apply for review of judgment and the Court may make such
orders thereon as it thinks fit. The grounds on which a review can be
sought are set out in Order 47 Rule-1 of CPC, which reads as under:
"1. Application for review of judgment.--(1) Any person
considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed,
but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed,
or
(c) by a decision on a reference from a Court of Small
Causes,
and who, from the discovery of new and important matter
or evidence which, after the exercise of due diligence was
5 (1997) 9 SCC 736.
6 (2024) 2 SCC 362.
Patil-SR (ch) 8 of 17
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not within his knowledge or could not be produced by him at
the time when the decree was passed or order made, or on
account of some mistake or error apparent on the face of the
record or for any other sufficient reason, desires to obtain a
review of the decree passed or order made against him, may
apply for a review of judgment to the Court which passed the
decree or made the order."
15. In the present case, the review is premised on the ground of
discovery of new and important matter/evidence, which according to
the Review Petitioners have come to their knowledge subsequent to
passing of order under review, which was passed on 30 th January, 2024
in Second Appeal proceedings. The Review Petitioners seek to rely on
additional evidence of judgment of Civil Court of the year 2003 and the
order of Tahsildar of the year 2017 to contend that the Respondent
Nos.3 to 7 were held not to be legal heirs of the Respondent Nos.1 and
2 in those proceedings. The Second Appeal can be admitted only on
substantial question of law. At the initial hearing of Appeal, the
question of law which was argued by the Counsel for the Review
Petitioners was the bar of jurisdiction of Civil Court in view of Section
85 and Section 85A of the Bombay Tenancy and Agricultural Lands Act.
As there was no such ground of tenancy raised in the suit proceedings,
it was held that no substantial question of law arises in the present
case and it was open for the Review Petitioners to approach the
concerned Authority under the Tenancy Act and seek appropriate relief
as regards their tenancy rights.
Patil-SR (ch) 9 of 17
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16. What the Review Petitioners now seek to attempt is to bring on
record additional evidence of judgments of other proceedings to assail
the finding of Appellate Court that the Respondent Nos.3 to 7 are the
legal heirs of Respondent Nos.1 and 2. The proceedings of Second
Appeal cannot be equated with Trial Court or First Appellate Court
proceedings. Whether the judgment in Second Appeal can be reviewed
based on additional evidence which was not produced before the Trial
Court/First Appellate Court is doubtful when considered against the
background of scope of Second Appeal which is restricted to
substantial question of law.
17. The issue is no longer res integra and has been decided in case of
Janaradan Pandurang Lipane v. Sadhu Davji Lipane 7. This Court was
considering the issue whether the appellant in Second Appeal can seek
to produce additional evidence in support of their claim to the suit
property and it was held in paragraph 11 as under:
"11. Apart from the above facts, even on the point of
law, there is apparently no case for review on the ground of
discovery of new materials. The order, which is sought to be
reviewed in the proposed review application, has been passed
in the Second Appeal. Though a ground of discovery of new
materials can be a ground for review of an order passed at the
original stage or even at the stage of first appeal, it can hardly
be a ground at the stage of Second Appeal. It is settled law
that the Second Appeal can be preferred only in case a party is
able to make out a substantial question of law for
consideration in the matter. Such point has to be disclosed
from the materials on record and not on the basis of the
7 2004 (4) Mh.L.J. 1129.
Patil-SR (ch) 10 of 17
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additional evidence or extraneous materials. In the Second
Appeal even appreciation of evidence already on record is not
permissible except in a rare case, like the finding being totally
perverse or contrary to the materials on record. The findings
cannot be said to be perverse or contrary to the materials on
record when the challenge is on the ground of failure on the
part of a party itself to produce the evidence on record."
18. It is also notable that Order 47 Rule 1 of CPC permits exercise of
review jurisdiction upon discovery of new and important matters or
evidence which was not within the knowledge of party despite the
exercise of due diligence. It is necessary to plead and demonstrate
that the new material which is sought to be brought on record could
not be produced by the party despite exercise of due diligence. It is
not open for a party to seek de-novo trial by undoing findings of fact
without satisfying the ingredients of Order 47 Rule 1 of CPC. In that
context, if the pleadings in the present review petition are perused, it
is pleaded that documents were unknown to the Plaintiff and
therefore could not be produced. The documents on the basis of which
the Petitioner seeks review is the judgment passed by the Jt. CJJD,
Niphad in RCS No.244 of 1995 dated 1st October 2003 and order passed
by Tahsildar, Niphad with regard to the Mutation Entry No.62 of 1994,
dated 23 June 2017. There is no pleading in the review petition as to
when the documents of the year 2003 and 2017 came to the
knowledge of Review Petitioner and the manner in which the
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documents were procured by the Petitioner after the order under
review was passed. The pleadings in the Petition does not make out
case for exercise of review jurisdiction within the settled parameters of
Order 47 Rule 1 of CPC.
19. In the affidavit-in-reply, it is pleaded by Respondent Nos.3 to 7
that the judgment and decree of 1st October 2003 passed in RCS NO
244 of 1995 was challenged by them before the Appellate Court which
set aside the order of trial Court and remanded the suit and pursuant
to remand, the suit was dismissed on 30 th December 2013. Ms.
Shrikhande would contend that finding in the judgment of 30 th
December 2013 is that the present Respondent Nos.3 to 7 have failed
to prove that they are legal heirs of deceased Yeshwant and Sonubai
Pagare. Even if the finding in the said judgment are considered, the
findings are based on the oral and documentary evidence which was
led by the parties in RCS No.244 of 1995. The extraneous material
which is relied upon by Ms. Shrikhande was not placed before the
Courts which gave rise to the Second Appeal proceedings. Ms.
Shrikhande seeks to assail the findings of fact arrived at by the First
Appellate Court in Appeal arising out of RCS No.34 of 2010 based on
evidence and findings arrived at in RCS No. 244 of 1995 and revenue
proceedings, which is impermissible in exercise of review jurisdiction.
Patil-SR (ch) 12 of 17
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20. It is settled that in exercise of its review jurisdiction, the Court
exercises a very limited power circumscribed by the limitations
enumerated under Order 47 Rule 1 of CPC and review proceedings are
not by way of an appeal. It is also settled that the review court does
not sit in appeal over its own order and review jurisdiction constitutes
an exception to the general rule of non-alteration of the judgment
once it is signed or pronounced. It is not demonstrated that there is
any sufficient reason for this Court to exercise review jurisdiction
particularly considering the case of Janaradan Pandurang Lipane
(supra).
21. In the present case, based on the submissions canvassed at the
initial hearing of the Second Appeal, this Court considered the findings
of the First Appellate Court to hold that as no plea of tenancy was
raised and the only claim of plaintiff in support of possession was of
ownership which the Plaintiff failed to establish, the Appellate Court
has held that ownership follows the possession and directed the
possession to be handed over. This Court further held that the Plaintiff
had instituted suit claiming ownership on the basis of Section 32G
certificate and the Civil Court was not called upon to determine the
issue whether the Plaintiff was tenant in respect of the suit property,
in which case the bar under Sections 85 and 85A of Tenancy Act would
Patil-SR (ch) 13 of 17
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have operated. It is not permissible in review jurisdiction to re-argue
the appeal afresh as if the same is original round of litigation based on
extraneous evidence.
22. The reliance placed on the judgments passed in some other
matters which have held that the Respondent Nos.3 to 7 are not the
legal hairs of Yashwant Pagare are disputed questions of fact which
were arrived on the basis of evidence led before the Courts in those
proceedings. Those judgments were neither produced before the First
Appellate Court nor before this Court at the time of hearing of second
appeal. Though it is sought to be contended that the same were not
within the knowledge of Petitioner, there is no pleading to
demonstrate that despite exercise of due diligence, the Plaintiff could
not produce the said documents.
23. As regards the contention that the matter be remanded,
considering that it has been held that the judgment in Second Appeal
cannot be reviewed on the basis of additional evidence sought to be
produced, there is no necessity to consider the decisions cited by Ms.
Shrikhande. It is well settled that there are limited powers exercised in
review jurisdiction unlike appellate powers. Despite the said position,
this Court has considered the various decisions cited.
Patil-SR (ch) 14 of 17
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24. In the case of Usha Bharti v. State of UP (supra), the submission
canvassed was that under Section 114 of CPC, there was full power to
the Court to pass any order in the interest of justice and the Court has
power to re-hear the entire case in order to do complete justice
between the parties. The Hon'ble Apex Court accepted the submission
that in exercise of review, the Court can reopen the case and rehear
the entire matter, however, the Hon'ble Apex Court also noted that
while exercising such powers, the Court cannot be oblivious to the
parameters contained in order 47 Rule 1 of CPC. The said proposition
does not assist the case of Review Petitioner seeking remand in
exercise of powers of review jurisdiction.
25. The decision in the case of BCCI v. Netaji Cricket Club (supra)
considered the provisions of Section 114 and Order 47 Rule 1 of CPC to
hold that a mistake on the part of Court, which would include a mistake
in the nature of undertaking, also call for review of the order. The said
decision also cannot support the case of Review Petitioner seeking a
remand.
26. In the case of Soundararaj v. Devashayam (supra) the review
petition came to be filed against the order passed in second appeal
where learned Single Judge noticed an error in Exhibit "C2" and "C3"
and opined that in view of the said mistake, there should be fresh
consideration of the question which went into appeal before the Apex
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Court. The Hon'ble Apex Court held that learned Single Judge was not
fully justified in allowing the review petition and setting aside not only
his own judgment, but also the judgment of first two courts and
remanding the suit to the Court of first instance without adopting
more equitable and just method of framing some additional issues, if
any, strictly arising out of the pleadings and call for findings from the
trial Court with liberty to both the parties for adducing evidence. The
said decision is clearly distinguishable on facts as the error was noticed
in the evidence which was produced before the Trial Court itself. The
Hon'ble Apex Court in fact did not approve the course adopted by
learned Single Judge of setting aside its own judgment and the
judgments of the first two Courts and remanding the suit to the Court
of first instance. The said judgment in fact assists the case of the
Respondent that there can be no remand in review. What the Hon'ble
Apex Court held acceptable is exercising the equitable method of
framing additional issues and that too in the facts of that case where
there was an error noticed in the documents exhibited before the trial
Court.
27. In Hariom C. Jaipuriye v. Manoj G. Chamedia (supra), the Co-
ordinate Bench of this Court was considering the review petition in the
context of error apparent on the face of record. In that case, there was
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no issue as regards the power of the Court to remand in exercise of
review jurisdiction.
28. In the light of above, Review Petition is devoid of merits and
stands dismissed. In view of the disposal of Review Petition, nothing
survives for consideration in the pending interim applications and the
same stand disposed of.
[Sharmila U. Deshmukh, J.]
Patil-SR (ch) 17 of 17
Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 08/08/2025 20:45:30
