Smt. Gulab Vijya Barua vs Mrs. Ranjana Keshavlal Makwana
2025 Latest Caselaw 5349 Bom

Bombay High Court

Smt. Gulab Vijya Barua vs Mrs. Ranjana Keshavlal Makwana on 8 September, 2025

2025:BHC-AS:37578

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE JURISDICTION

                      CIVIL REVISION APPLICATION NO.293 OF 2019

             Gulab Vijya Barua (since deceased through
             Legal heirs 1[a] Reema Vijay Barua @ Reema
             Sanjay Ingle and Ors.                                                      ....Applicant
                  V/S
             Ranjana Keshavlal Makwana                                                   ....Respondent

                                        WITH
                           CIVIL APPLICATION NO.210 OF 2019
                                         IN
                      CIVIL REVISION APPLICATION NO.293 OF 2019

             Gulab Vijya Barua (since deceased through
             Legal heirs 1[a] Reema Vijay Barua @ Reema
             Sanjay Ingle and Ors.                                                      ....Applicant
                  V/S
             Ranjana Keshavlal Makwana                                                   ....Respondent

                                                     _________

             Mr. Ashish Gatagat with Mr. Hiren Gummala, for the
             Appellant.

             Mr. Ghanshyam                       Mishra    with Ms. Ekta Bhalerao,                           for
             Respondent.
                                                     __________


                                                 CORAM : SANDEEP V. MARNE, J.

DATE : 8 SEPTEMBER 2025.

P.C.:

1. By this Revision the Applicant/Defendant challenges judgment and decree dated 2 March 2019 passed by the learned

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Judge of City Civil Court partly decreeing S.C. Suit No.1148 of 2006. By the impugned decree, the Defendant is directed to handover possession of the suit premises to the Plaintiff.

2. It appears that the suit was initially filed under provisions of Section 6 of the Specific Relief Act, 1963 (the Act) complaining of dispossession of Plaintiff without following due process of law. During pendency of the suit, it appears that the suit premises were transferred in the sole name of Defendant by MHADA. Plaintiff accordingly was advised to incorporate prayer clause (a1) in the Plaint which reads thus:

(a1) That it be declared that the transfer of the suit premises i.e. Room No. 224, Plot No.3, Bharat Nagar, Bandra Kurla Complex, Bandra (E), Mumbai 400051 alone in the name of Defendant is illegal, bad in law, improper and not binding upon the Plaintiff.

3. On account of incorporation of prayer clause (a1) in the plaint, it appears that the suit was treated as for 'declaration, possession and perpetual injunction'.

4. Perusal of the impugned decree dated 2 March 2019 would indicate that the Trial Court has partly decreed the suit as if it continued to remain as a suit filed under Section 6 of the Act. The learned Trial Judge has apparently ignored prayer clause (a1) incorporated by way of amendment in the plaint. It further appears that by order dated 11 April 2016 additional issue was framed on account of amendment of the plaint as under:

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"Whether the plaintiff has proved that the suit property was transferred in the name of defendant illegally not binding upon the plaintiff".?

5. However, the learned Trial Judge has failed to even reproduce the above additional issue in the impugned judgment and decree, much less has answered the same. Since one of the issues remains unanswered, it would be appropriate to remand the suit for fresh decision. An order of remand would also assist the Trial Court in determining whether the suit would remain as filed under Section 6 of the Act after addition of prayer clause (a1) thereto. In the event the Trial Court comes to a conclusion that Plaintiff is seeking declaration of title in respect of the suit premises, the suit would become a normal suit for recovery of possession based on title. If on the other hand, additional prayer clause (a1) or the additional issue does not have any impact of Plaintiff's prayer for recovery of possession, the suit can be decided under Section 6 of the Act.

6. In that view of the matter, it is necessary that the additional issue is decided by the Trial Court, which would assist it in deciding whether the suit would continue to remain as a suit for seeking possession under Section 6 of the Act.

7. I accordingly proceed to pass the following order:

i) Judgment and decree dated 2 March 2019 passed by the Trial Court in S.C. Suit No.1148 of 2006 is set aside.

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                               ii)     S.C. Suit No.1148 of 2006 is remanded for being

decided afresh by answering all the issues framed by the Trial Court.

iii) The Trial Court is requested to decide the remanded suit in an expeditious manner preferably before 30 June 2026.

iv) Considering the fact that the suit is being remanded at the instance of the Applicant/Defendant, it is appropriate that the Defendant does not create any third party rights in respect of the suit property during pendency of the suit.

v) All contentions of parties on merits are expressly kept open.

8. With the above directions, the Civil Revision Application is partly allowed and disposed of.

9. In view of the disposal of the Civil Revision Application, nothing would survive in the Civil Application and the same is also accordingly disposed of.

SUDARSHAN
RAJALINGAM                                                       (SANDEEP V. MARNE, J.)
KATKAM