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. ________________ CORAM: SANDEEP V. MARNE, J. 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 MADHAVRAO KALE Digitally signed by PRIYANKA MADHAVRAO KALE Date: 2026.09.01 10:52:16 +0530 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