Bombay High Court
Nabi Davji Gawit vs Janya Tetya Mavachi And Another on 18 September, 2025
2025:BHC-AUG:25032
1 SA.32 of 1999.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.32 OF 1999
Smt. Nabi W/o. Davji Gavit,
Age: 50 Years, Occu: Agril.,
R/o: Sonkhadke, Post Kolde,
Tq. Navapur, Dist. Nandurbar. ... APPELLANT
(Original Plaintiff)
VERSUS
1. Janya S/o. Tetya Mavachi,
(Deceased through L.Rs.)
1/A. Shantibai W/o. Janya Mavachi,
Age: 60 Years, Occu: Household,
R/o: Sonkhadke, Post Kolde,
Tq. Navapur, Dist. Nandurbar.
1/B. Naktibai W/o. Abhishek Gavit,
Age: 32 Years, Occu: Household,
R/o: Pimpran, Post Patibedki,
(Karanji Bk.), Tq. Navapur,
District Nandurbar.
2. Moghya S/o. Tetya Mavachi,
Age: 53 Years, Occu: Agril.,
R/o: Sonkhadke, Post Kolde,
Tq. Navapur, Dist. Nandurbar. ... RESPONDENTS
(Orig. Defendants)
...
Advocate for Appellant : Mr. N. L. Jadhav.
Advocate for Respondent No.2 : Mr. P. P. Mandlik.
...
CORAM : SHAILESH P. BRAHME, J.
RESERVED ON : 12.09.2025
PRONOUNCED ON : 18.09.2025
2 SA.32 of 1999.odt
JUDGMENT
1. Heard both sides.
2. Second appeal is emanating from concurrent findings of
facts in dismissing appellant's suit for injunction. Appeal was
admitted on following substantial questions of law vide order
dated 15.02.2001.
(i) When there is a decree for specific performance of
contract in favour of the plaintiff/appellant whether the
First Appellate Court was right in ignoring the said
decree by keeping the finding reserved ?
(ii) What is the effect of the decree passed in R.C.S.
No.4 of 1993 on the present suit ?
(iii) The plaintiff who was initially not entitled for
property, if during the pendency of the suit becomes
entitled for the said property, whether his suit for
injunction has to be rejected.
3. Appellant is original plaintiff who claims to be in
possession of land Gut No.115/A situated at Sonkhadaki,
3 SA.32 of 1999.odt
Tahsil Navapur, District Nandurbar. It was belonging to Hurji.
He was having three wives. Plaintiff claims to be a
granddaughter of his first wife. The second wife was issue less.
His third wife Vestibai survived. It is contended that plaintiff
was looking after her mother Nendadibai and Vestibai. She was
cultivating the suit land. A mutation entry No.10 was effected
on 05.11.1977. The respondents are alleged to have obstructed
her possession with an intention to grab the land. Hence, the
suit was filed.
4. Respondents contested the suit and denied entitlement
of the plaintiff as well as her possession over the suit land. The
relationship also denied. They claimed to be nephews of Hurji.
It is contended that as Hurji was not having any male issue and
his daughter Nendadibai was already married. They were
cultivating suit land with Hurji till his death and thereafter
also. Vestibai was residing at her daughter's place.
5. Parties adduced oral evidence. Trial Court dismissed the
suit holding that plaintiff was not in possession. Interestingly,
plaintiff's mother Nendadibai who was witness of the
respondents/defendants deposed against the claim of the
4 SA.32 of 1999.odt
plaintiff, whose version was relied upon. The theory that
plaintiff was looking after Nendadibai and Vestibai was
discarded. The suit was dismissed on 31.01.1987.
6. Being aggrieved, plaintiff preferred Regular Civil Appeal
No.177 of 1990 (Old Civil Appeal No.40 of 1987). Plaintiff
amended plaint during pendency of appeal in pursuance of
order dated 15.07.1997 below Exh.32. The subsequent
developments were brought on record. It was additionally
pleaded that on 11.02.1991 Vestibai executed agreement in
favour of plaintiff and her husband as she was in need of
money. Plaintiff filed Regular Civil Suit No.4 of 1993 for
specific performance of contract and it was decreed. In
pursuance of the subsequent developments, additional issue
was framed by the Lower Appellate Court.
7. Lower Appellate Court considering material on record as
well as subsequent events dismissed appeal vide judgment
dated 28.07.1998.
8. Learned counsel Mr. Jadhav appearing for appellant
submits that when amendment to the plaint was allowed and
thereafter additional issue was framed, it was necessary to
5 SA.32 of 1999.odt
permit plaintiff to adduce evidence and for that purpose to
remand the matter to the Trial Court. But, no opportunity was
given. He would submit that having secured decree of specific
performance of contract in Regular Civil Suit No.4 of 1993, not
only possession but the title of the plaintiff has been
confirmed. It is submitted that the material on record is not
properly appreciated by the Lower Appellate Court. It is
submitted that inability of the plaintiff to prove her
relationship with Vestibai does not disentitle her to protect her
possession.
9. Learned counsel further submitted that when there was
a partition in between Hurji and defendant's father Tetya, there
was no question of joint cultivation of the suit land. Learned
counsel refers to Order 41 Rule 24 to 28 to buttress that
Appellate Court was obliged to take into account the
subsequent events either by itself or by remitting the matter to
the Trial Court. Reliance is placed on the judgment of Ram
Kumar Barnwal Vs. Ram Lakhan ; 2007 (5) Supreme 53 and
Smt. Sarladevi Wd/o Kundanlal Vs. Shailesh S/o Gourishankar
Namdeo and others ; 1996 (3) Bom.C.R. 537.
6 SA.32 of 1999.odt
10. Per contra, learned counsel Mr. Mandlik submits that
there are concurrent findings of facts recorded by Courts below
after appreciating material on record which need no
interference. It is submitted that no tangible material was
placed on record in the Trial Court to show that plaintiff was
having any title or possession. It is vehemently submitted that
the additional issue was specifically answered by assigning
reasons. It is contended that attempt was being made by the
plaintiff in the Trial Court itself for giving evidence of Vestibai
by making application Exh.59 but it was rejected and became
final.
11. It is submitted that no endeavour was made by the
plaintiff to lead additional evidence or to refer the matter to
the Trial Court. It is further contended that in the absence of
any prayer for declaration a suit simplicitor for injunction was
not tenable. It is further submitted that plaintiff's mother
deposed against her. She did not even examine Vestibai.
12. I have considered rival submissions of the parties.
Plaintiff examined herself and Davji. Defendants examined
defendant No.1 Janya and Nendadibai. In the Trial Court
7 SA.32 of 1999.odt
application Exh.59 was filed by the plaintiff seeking permission
to place on record affidavit of examination-in-chief of Vestibai,
but it was rejected. The order was not challenged during
pendency of the suit or appeal also. Plaintiff's mother
Nendadibai appeared as a witness of the defendants and
supported their case. She denied plaintiff's possession.
13. In Lower Appellate Court, plaintiff brought on record
subsequent developments of a decree dated 16.04.1993 passed
in her favour in Regular Civil Suit No.4 of 1993. Her
application Exh.32 was allowed. Following additional issue was
framed ;
"Does plaintiff prove that in view of decree of specific
performance, passed by learned Civil Judge Junior
Division, Navapur in Regular Civil Suit No.4 of 1993, she
(plaintiff) became the owner of the suit land and
continued her previous possession over the same?"
In paragraph No.10 of the judgment, Lower Appellate
Court considered the additional issue and held against her.
14. The subsequent events were permitted to be brought on
record by Lower Appellate Court. The amendment to the plaint
was allowed at the appellate stage and effect of decree passed
8 SA.32 of 1999.odt
in Special Civil Suit No.4 of 1993 was considered. It was
decree of specific performance of contract directing the
plaintiff to deposit Rs.3,000/- and the sale deed was to be
executed after securing permission from the Collector through
Court Commissioner. It was suit filed by plaintiff and her
husband against Vestibai. In her written statement, it is stated
that her husband Hurji acquired suit land in partition. After his
death, she became owner. She does not admit relationship with
Nabi, rather she says she is absolute owner.
15. It's a matter of record that plaintiff did not examine
Vestibai. Though her application to lead evidence of Vestibai
was rejected, no attempt was made to get the said order set
aside from the Appellate Court or High Court. Her own mother
Nendadibai deposed against her and appeared as defendant's
witness. It is very surprising that her own mother was not
supporting her case. In these peculiar circumstances, the best
possible evidence for the plaintiff has not come before the
Court and the best possible evidence did not corroborate her
case that she is residing with her mother Nendadibai and
Vestibai.
9 SA.32 of 1999.odt
16. The Trial Court has rightly drawn inference from this
situation against the plaintiff. Pertinently her mother
categorically deposed that land was not transferred to plaintiff.
It is further deposed that Vestibai is not residing with her but
residing at her daughter's place who was begotten from
wedlock of Vestibai's first marriage. It is surprising that
Nendadibai even did not accept the plaintiff as her daughter.
17. The Trial Court found that plaintiff's deposition and case
is not trustworthy considering various circumstances. Her
mother Nendadibai deposed against her and flatly stated that
she was also not residing with plaintiff. Her statement before
Mamlatdar Exh.55 and her deposition before Court are
inconsistent. It is recorded that she is unable to tell her
grandfather's name as well as her father's name. The Trial
Court has rightly drawn conclusion that plaintiff is not
trustworthy and her relationship with Nendadibai and Vestibai
is not established. The findings are rightly confirmed by Lower
Appellate Court.
18. Plaintiff has come up with a theory that suit land was
transferred to her but no document is produced on record to
10 SA.32 of 1999.odt
show the transfer. Merely reliance is placed on mutation entry
No.10. The mutation entry is not sufficient to prove her lawful
possession. She is unable to establish as to how she is inducted
in the suit land. Although revenue record from 1977-78 to
1979-80 shows name of the plaintiff, the revenue record
produced after 1986-87 onwards supports the defendants' case
and show their possession. In such a situation defendant's case
appears to be more probable than the plaintiff's.
19. After decision of the Trial Court, RCS.No.4 of 1993 was
filed by the plaintiff and her husband for specific performance
of contract. The suit was not contested on merits because
defendants in that suit namely Vestibai admitted the plaintiff's
case. Decree passed in the suit and written statement of
Vestibai are on record. Perusal of the written statement of
Vestibai does not show her relationship with plaintiff. Rather it
shows that after death of Hurji, Vestibai became absolute
owner which is against the status of plaintiff. Under these
circumstances, the decree passed in the suit disclosing
possession of plaintiff over the suit land creates doubt.
20. The written statement filed by Vestibai in RCS No.4 of
11 SA.32 of 1999.odt
1993 is very clinching and there is every reason to infer that it
is after thought move to file suit for specific performance of
contract and to get it decreed by way of admission or
compromise. Considering overall conduct of the plaintiff, I am
of the considered view that she is neither in possession of the
suit land nor holds any title.
21. Plaintiff has filed suit for injunction simplicitor. In the
written statement, the relationship and her title are disputed
by the defendants. Despite that no efforts are made to claim
relief of declaration. It was necessary for plaintiff when her
title was doubted to claim relief of declaration. Learned
counsel for respondents is right in contending that such a suit
for injunction is not sufficient and tenable.
22. Both sides relied on provisions of Order 41 Rule 23 to
28. It is not that in every case, when subsequent events are
brought on record and additional material is placed, the matter
is required to be remanded to the Trial Court. Following
provision is relevant.
"24. Where evidence on record sufficient Appellate Court
may determine case finally.--Where the evidence upon
12 SA.32 of 1999.odt
the record is sufficient to enable the Appellate Court to
pronounce judgment, the Appellate Court may, after
resettling the issues, if necessary, finally determine the
suit, notwithstanding that the judgment of the Court from
whose decree the appeal is preferred has proceeded
wholly upon some ground other than that on which the
Appellate Court proceeds."
It would depend on facts and circumstances of each case
as to whether to remand the matter to the Trial Court or not.
23. The Appellate Court has jurisdiction under Order 41
Rule 27 to allow additional evidence or the documents. After
receiving the additional evidence, the following mode is
prescribed.
"28. Mode of taking additional evidence.--Wherever
additional evidence is allowed to be produced, the
Appellate Court may either take such evidence, or direct
the Court from whose decree the appeal is preferred, or
any other subordinate Court, to take such evidence and
to send it when taken to the Appellate Court."
24. It is the discretion of the Appellate Court either to
consider additional evidence or to direct the Trial Court to
record the evidence. In the present case, it was necessary for
the plaintiff to request the Lower Appellate Court to remand
13 SA.32 of 1999.odt
the matter for recording evidence. She is estopped from
contending that the Appellant Court should have suo-motu
remanded matter to the Trial Court. Submissions made in that
regard by learned counsel Mr. Jadahv cannot be approved.
25. Learned counsel for the appellant relied upon Ram
Kumar Barnwal. The propositions laid down by the Supreme
Court in the judgment are not disputed. The Court has power
to look into the subsequent events and mould reliefs
accordingly to shorten the litigation. In the present matter, the
Appellate Court took into consideration the subsequent events.
Therefore, it cannot be said that the approach of the Lower
Appellate Court is against the ratio laid down by Supreme
Court.
26. Further reliance is placed on the judgment of Sarladevi.
It is tried to be submitted by referring to paragraph No.41 that
a person in possession is entitled to protect the same against
the defendant who has no better title. The proposition cannot
be disputed but case is distinguishable on facts. It has been
recorded by both Courts below that plaintiff is not trustworthy
and put up a false case. She has failed to prove her title as
14 SA.32 of 1999.odt
well as possession. Hence, this judgment does not help the
plaintiff.
27. There are concurrent findings of facts recorded by both
Courts below. The substantial questions of law framed by this
Court needs to be answered in the following manner :
Q.(i) When there is a decree for specific
performance of contract in favour of the
plaintiff/appellant whether the First Appellate Court
was right in ignoring the said decree by keeping the
finding reserved ?
Ans. The Lower Appellate Court has rightly
discarded the decree of specific performance of
contract by assigning reasons.
Q.(ii) What is the effect of the decree passed in
R.C.S. No.4 of 1993 on the present suit ?
Ans. The decree in RCS No.4 of 1993 is
inconsequential and does not enure to the benefit of
the plaintiff.
Q.(iii) The plaintiff who was initially not entitled for
15 SA.32 of 1999.odt
property, if during the pendency of the suit becomes
entitled for the said property, whether his suit for
injunction has to be rejected.
Ans. The plaintiff is unable to prove her possession
despite decree passed in RCS.No.4 of 1993. Her title
is also doubtful.
28. Second appeal dismissed.
29. No order as to costs.
(SHAILESH P. BRAHME, J.)
...
vmk/-
30. After pronouncement of judgment, learned counsel for
the appellant prays for continuation of interim injunction,
which is in operation till today.
31. Learned counsel for the respondents opposes the
request.
32. It transpires that injunction is in operation not only in
16 SA.32 of 1999.odt
second appeal, but during the pendency of matter before the
Trial Court as well as lower Appellate Court. Appellant desires
to approach the Apex Court. It would be in the interest of
justice to continue the interim injunction for further period of
four (04) weeks from today. It shall stand vacated thereafter
without reference to this Court.
(SHAILESH P. BRAHME, J.)
...
vmk/-
