AO-604-2026.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER NO. 604 OF 2026

WITH

INTERIM APPLICATION NO. 41571 OF 2026

IN

APPEAL FROM ORDER NO. 604 OF 2026

1) Gazi Salauddin Rehamatulla Hoole

Alias Pardeshi Baba Trust, A Public Trust

registered under The provisions of the

Bombay Public Trust Act, 1950 and having Its

O�ce at- Kasar Vadavali, Ghodbundar Road,

Thane.

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2) Mr. Bashir Mohammed Hussein Patel

Age: Adult, Occ. Trustee of the Defendant

Trust, Having o�ce at Kasar Vadavali,

Ghodbandar Road, Thane

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3) Mr. Shabbir Abdul Rehman Shaikh

Age: Adult, Occ. President of Defendant

Trust, Having o�ce at: Gazi Salauddin

Rehamatulla Hoole

Alias Pardeshi Baba Trust, Borivade

Kasar Vadavali, Ghodbundar Road, Thane.

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4) Mr. Bahauddin Mohammed Ayyud Shaikh,

Age: Adult, Occ. Secretary of Defendant

Trust Having o�ce at: Gazi Salauddin

Rehamatulla Hoole

Alias Pardeshi Baba Trust, Borivade

Kasar Vadavalı, Ghodbundar Road, Thane

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5) Zafar Suleman Shaikh

Age: Adult, Occ. Treasurer of Defendant

Trust

Having o�ce at: Gazi Salauddin Rehamatulla

Hoole

Alias Pardeshi Baba Trust, Borivade

Kasar Vadavali, Ghodbundar Road, Thane.

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...Appellants

Versus

1) 1. New Shree Swami Samartha,

Borivade Housing Company Private Linvited

A Company registered under the Companies

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Act, 1956, having its Registered O�ce and

principal Place of business at Revenue Sr. No.

46, Village Borivade Taluka and District

Thane- 400607 Known before conversion as

New Shree Swami Samartha Borivade Village

Co-operative Housing Society registered

under The Maharashtra Co-operative

Societies Act, 1960, having its Administration

o�ce at 11A, Suyash, Near Amar Hind

Mandal, Gokhale Road (North),

Dadar, Mumbai 400 028

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2) Mr. Niyaz Amir Sheikh,

Age: Adult, Occ. Member of Defendant No. 1,

Having o�ce at: Gazi Salauddin Rehamatulla

Hoole

Alias Pardeshi Baba Trust, Borivade)

Kasar Vadavali, Ghodbundar Road, Thane

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3) Mr. Sahul Abdul Kadi Varekar

Age: Adult, Occ. Trustee of the Defendant

Trust, Having o�ce at Kasar Vadavali,

Ghodbundar Road, Thane

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4) Mr. Mustak Ahmed Ga�ur Shaikh

Age: Adult, Occ. Trustee of the Defendant

Trust,

Having o�ce at Kasar Vadavali,

Ghodbundar Road, Thane

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5) Arif Merchand

Age: Adult, Occ. Trustee of the Defendant

Trust,

Having o�ce at Kasar Vadavali,

Ghodbandar Road, Thane

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6) Mr. Abu Ibrahim Shaikh

Age: Adult, Occ. Trustee of the Defendant

Trust,

Having o�ce at Kasar Vadavali,

Ghodbundar Road, Thane

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7) Mr. Mohammed Hasan Abdul Gafur Warekar,

Age: Adult, Occ. President and

Trustee of the Defendant Trust, Having

o�ce at Kasar Vadavali,

Ghodbundar Road, Thane

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8) Mr. Afzal Umar Abdul Sattar Umarbhai

Age: Adult,

Occ. Vice President and Trustee of the

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Defendant Trust

Having o�ce at Kasar Vadavali,

Ghodbundar Road, Thane.

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9) Mr. Zhahir Anwar Mohammed Ismail Warekar

Age: Adult, Occ. Trustee of the Defendant

Trust, Having o�ce at Kasar Vadavali,

Ghodbundar Road, Thane

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...Respondents

Mr. Kailas Dewal i/b Mr. Yash Dewal a/w Mr. Ashwin Kulkarni, for the

Appellants.

Mr. Shanay Shah (Counsel) a/w Mr. Hamza Lakhani (Counsel), Mr. Danish

Qureshi, Mr. Ishaan Zaveri, Ms. Samaya Sharma, for Respondent No-1.

CORAM : SHARMILA U. DESHMUKH

RESERVED ON : JUNE 16, 2026

PRONOUNCED ON : JULY 01, 2026

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ORDER :

1. Heard. Admit. With consent taken up for �nal disposal.

2. The Appeal is at the instance of the original Defendants, being

aggrieved by the judgment dated 7

th

May, 2026 passed by the District

Judge at Thane in Regular Civil Appeal No. 124 of 2025 remanding the

suit to the Trial Court to frame and decide two additional issues and

granting injunction till the �nal disposal of the suit.

3. The facts necessary to be exposited is that RCS No. 318 of 2002

was �led by the Plainti�s seeking recovery of possession of the suit

property, described in the plaint as comprising of a tomb and other

structures surrounded by a fencing totally admeasuring 122’ × 57’ or

22m + 15.5 m on western side, x16.25 m on northern side, 22.25 m + 16

m on eastern side, and 17.25 m on southern side situated on survey no.

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46, situated at Revenue Village Borivade, registration sub district and

district of Thane. The Plainti� also sought the relief of permanent

prohibitory injunction restraining the Defendants from making further

encroachments upon said property, obstructing the ingress and egress

of the Plainti� and its members in or upon the said property , and

preventing the Plainti�s from carrying out desired activities upon the

said property.

4. The Plainti�’s case is that the Plainti� was initially a co-operative

housing society limited which, during the pendency of the suit, was

converted into a private limited company. Under an agreement dated

17

th

June, 1982, the original owners alienated landed property bearing

survey no. 46, admeasuring 1H-81R-1P, described as "said property", in

favour of Samartha Development Corporation, a partnership �rm, who

then executed a package deal agreement on 29

th

June, 1982, with M/s

Venus Housing Enterprises, who was a developer. Since the property

was a�ected by green zone reservation, the property continued to

remain barren land without any development. Eventually, it was decided

between the original owner, Samartha Development Corporation and

M/s Venus Housing Enterprises, and the o�ce bearers of the original

Plainti� society that a deed of conveyance would be executed in favour

of the Plainti� herein. Accordingly, the deed was executed on 9

th

December, 1989, and the Plainti� was put in possession of the said

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property and every part thereof.

5. It is pleaded that in the year 1990-1991, a tomb was illegally

constructed by the Defendants on a small portion, admeasuring 10’ × 6’,

on the western portion of the property. Recently, there was further

encroachment upon the area surrounding the said tomb, and a structure

and fencing were constructed. The encroached portion, which was part

and parcel of survey no. 46, has been described in the plaint as the suit

property. Despite repeated requests made to the Defendan ts to

remove the unauthorised construction, the Defendants failed to comply

with the requisitions.

6. In December 2001, the Defendant No. 1 �led Regular Civil Suit

No. 151 of 2001 in the Civil Court for declaration and injunction, laying

claim to the entire survey no. 46. It is pleaded that, except the suit

property, the entire survey no. 46 is vacant and in the peaceful

possession of the Plainti�. The cause of action is stated to have arisen

only after October 1990-1991, when the Defendants encroached on the

said property from time to time and also arose in the �rst week of April

2002, when entry of the members of the Plainti� was threatened to be

prevented and threats of further encroachments was given.

7. In the written statement, the Defendants raised an objection to

the maintainability of the suit as the Society was required to obtain

permission from Deputy Registrar of Societies, and on valuation. The

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Defendants claimed to be in possession of said property including the

suit property since last 200 years and that the religious functions of the

Defendant No. 1 were being performed upon the said proper ty

including the suit property openly to the knowledge of the original

owners. It was contended that the 7/12 extract produced by the

Plainti� makes it clear that the suit property and survey no. 46 stands in

the name of the original owners in kabjedar column and in the crop

cultivation column, the name of Defendant No. 1 is shown. It further

contended that neither the Plainti� nor Venus Housing Enterprises have

the right to purchase the said property. It was contended that the

Defendant trust had �led RCS No. 151 of 2001 which is pending before

the Civil Court, and therefore, the present suit is required to be stayed.

8. The parties led evidence and the Trial Court vide judgment dated

5

th

April, 2025 answered the following issues:

Sr. No. ISSUES FINDINGS

1. Does plainti� prove its ownership and

possession to the suit property ?

...Partly

A�rmative

2. Does plainti� prove that defendants have

encroached upon the suit land ? ...A�rmative

3. Whether the suit is properly valued and the

court fee paid is proper ? ...No

4. Whether suit is bad for want of permission

under Maharashtra Co-operative Societies Act

? ...No

5. Whether suit is barred by law of limitation ? ...Yes

6. Do defendants prove that their title to the

suit land has been perfected by virtue of

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adverse possession ? ...Negative

7. Ae the plainti� is entitled to decree for

possession ? ...Negative

8. Whether Plainti�s are entitled to decree of

perpetual injunction order ? ...Negative

9. Whether Plainti�s are entitled for the reliefs

prayer for ? ...Negative

10. What order and decree ? ...As per �nal

order

9. The Trial Court noted the admitted facts about possession of

Defendants over portion of suit land and institution of RCS No 151 of

2001 by the Defendants against the Plainti�. As far as the issue of

ownership and title is concerned, upon consideration of the evidence

on record, the Trial Court held that the Plainti� is in possession of the

land, except for the area of the dargah and answered the issue partly in

the a�rmative. While answering the issue, the Trial Court noted the

order dated 10

th

March, 2025 passed by the High Court in Civil Writ

Petition No 6607/2024 directing removal of encroachment. The Trial

Court scrutinized the pleadings and evidence led by the Defendants to

answer the issue of adverse possession against the Defendants in

respect of entire Survey No 46. It held that extent of possession is not

proved neither the Defendants have established as to when the

possession became hostile to the Plainti�.

10. On the issue of limitation, the Trial Court noted that the

prescribed period of limitation for a suit for possession is twelve years.

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The Trial Court noted the existence of a dargah shown in the 7/12

extract of the year 1989 and on 30

th

August, 1990, an area of 50’ × 100’

was declared as trust property by the Assistant Charity Commissioner.

On the basis of the documents, it held that the dargah had existed prior

to 1990, and that the period of limitation would begin in 1989 and

expire in 2001 and the suit is barred by limitation.

11. Before the Trial Court during the �nal arguments, the order

passed in Writ Petition No. 6607 of 2024, was tendered. The Trial Court

considered the order passed by the High Court and noted that the

proceeding was for demolition of an unauthorised illegal encroachment

on survey no. 46 and that demolition was carried out of a structure

being ground + one story of a mosque admeasuring 60 × 60 including a

prayer hall admeasuring 10 × 20. The Trial Court held that this structure

was distinct from the suit property, and that further encroachment and

illegal construction by the Defendant trust was the subject matter of

the suit being RCS No. 592 of 2023, which was withdrawn on 19

th

July,

2024. It observed that further encroachment by illegal construction by

Defendant trust was subject mater of the suit and writ petition and that

regarding the tomb as mentioned in the suit in hand, no other litigation

was pending. Thus, holding that the Plainti� has not been able to prove

the extent of encroachment, suit not being within limitation and being

undervalued, the Trial Court dismissed the suit.

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12. The dismissal of the suit was challenged by the Plainti�s by �ling

Regular Civil Appeal No. 124 of 2025 and cross objections were �led.

The Appellate Court framed and answered the following points for

determination :

Sr. No. ISSUES FINDINGS

1. Whether plainti� is the owner of the suit

property ?

Yes.

2. Whether defendants had encroached upon the

suit property ?

Yes.

3. Whether defendants have perfected their title

by virtue of adverse possession ?

No.

4. Whether suit property is improperly valued

and insu�ciently stamped ?

Redundant.

5. Whether the suit is bad for the want of

permission or Pre-suit notice under

Maharashtra Co-operative Societies Act or the

Maharashtra Public Trust Act ?

No.

6. Whether the suit is barred by limitation ? No.

7. Whether the suit is maintainable for the want

of authority to institute the suit ?

Issue to be

tried by Trial

Court.

8. Whether plainti� is entitled to the decree for

perpetual injunction in the light of withdrawal

of relief of possession in Appeal due to

subsequent developments pending the

Appeal ?

Issue to be

tried by Trial

Court.

9. Whether interference into the judgment and

decree under Appeal is called for ?

Yes.

10. What order and decree ? Appeal and

Cross-

objection are

partly

allowed with

an order of

remand

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under Order

XLI, Rule 23-A

of the Code

of Civil

Procedure,

1908, in

terms of �nal

order.

13. Before the Appellate Court, the argument on behalf o f the

Plainti� was that as the unauthorised structure of Defendants was

demolished pursuant to the order passed by High Court, the Plainti�,

now being in vacant possession of the entire survey number does not

require the relief of recovery of possession and the suit to that extent is

withdrawn. The claim was restricted to perpetual injunction against the

continued unlawful activities of attempted encroachment or

dispossession on part of the Defendants. The Appellate Court records

that an application has been �led under Order XLI, Rule 27 of CPC for

production of evidence in form of copies of High Court orders,

information obtained under Right to Information Act, 2005.

14. The order of Appellate Court records the submission on behalf of

Defendants that the original Plainti� being a registered society,which

was converted into private limited company, there should have been

some resolution or authority letter in favour of signatory of plaint,

amended plaint and evidence a�davit, which is absent.

15. The Appellate Court con�rmed the �ndings of the Trial Court on

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the issue of Plainti�’s ownership, encroachment by the Defendants and

on the issue of adverse possession. On the issue of limitation, the

Appellate Court held that a suit for possession based on title is

governed by Article 65 of the Limitation Act and can be barred by

limitation only when Defendant succeeds in proving their plea of

prescription of title by adverse possession. It noted that the Trial Court,

on one hand, held that the Defendants could not prove prescription of

title by adverse possession and, at the same time, held the suit to be

barred by limitation.

16. The Appellate Court thereafter proceeded to examine the issue

of validity of authority to institute the suit. The Appellate Court noted

the non framing of the issue and the absence of evidence on the issue

of authorization to �le the suit. It opined that an opportunity needs to

be given to lead evidence after framing the said issue, without which

�nal decision in the suit cannot be rendered.

17. The Appellate Court noted the contention of Defendants that the

removal of encroachment is a subsequent event during the pendency of

the Appeal and without the same being proved and the Defendants

being still in possession, the suit for simpliciter injunction would not lie.

It framed the additional issue as to whether the Plainti� is entitled to a

decree for perpetual injunction in light of the withdrawal of the relief of

possession in Appeal due to subsequent developments.

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18. The Appellate Court partly allowed the Appeal and cross

objection and remanded the suit to the Trial Court under Order XLI, Rule

23-A of the Code of Civil Procedure, 1908 (for short “CPC”) by framing

two additional issues. Noting the application �led by the Plainti� for

temporary injunction in view of the subsequent event of demolition and

accepting the Plainti�’s contention of Defendant’s attempt to encroach

the suit property, the Appellate Court restrained the Defendants from

interfering with the peaceful possession of the suit property till �nal

disposal of the suit.

SUBMISSIONS :

19. Mr. Dewal, learned counsel for the Appellant would point out the

suit property described in the plaint as tomb and other structures being

part and parcel of survey no. 46. He submits that the Plainti� claimed

to be in possession of balance portion of Survey No 46 except the suit

property, whereas the Defendants claimed possession of entire survey

no. 46. He has taken this Court through the �ndings of the Trial Court

dismissing the suit as barred by limitation and �ndings against the

Defendants on adverse possession, as against which cross objection was

�led.

20. He would submit that in the Writ Petition , the relief was sought

by the Plainti� against the Corporation to initiate action against

unauthorised illegal encroachment, which structures came to be

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demolished. He submits that in the Writ Petition there was a reference

to the pending suit. He would further point out that by order dated 10

th

March, 2025 passed by the Hon’ble Division Bench of this Court

reproducing the prayers in the Petition as regards the unauthorised,

illegal extended encroachment made in the year 2023. He submits that

the Trial Court in its judgment dated 5

th

April, 2025 took note of the

orders passed by the Division Bench of this Court in the Writ Petition

and held that the further encroachment by illegal construction was the

subject matter of that Writ Petition. He submits that the Plainti� had

also �led a subsequent Suit, being RCS No. 592 of 2023, which pertained

to the extended encroachment. He submits that the demolition ordered

was only in respect of the extended encroachment, which was the

subject matter of the Writ Petition �led before the Division Bench.

21. He would further point out that during the pendency of the

Appeal, on 28

th

April, 2026, a pursis was �led by the Plainti� in view of

the orders passed by this Court giving up relief of possession and

praying simpliciter for injunction. He submits that once the prayer for

possession was given up, a suit simpliciter for injunction was not

maintainable, as even though, the structures were demolished, the

Defendants remained in possession of the vacant land.

22. He would further submit that the Appellate Court err ed in

restraining the Defendants from interfering with the Plainti�’s

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possession of the suit property and from creating encroachments

thereon until the �nal disposal of the suit by placing reliance on the

orders of the Division Bench, which was only in respect of the extended

encroachment.

23. He submits that the Appellate Court was required to consider

whether the suit for injunction was maintainable. He submits that for

the purpose of framing of issues, the proper course required to be

adopted was under Order XLI, Rule 25 of the CPC.

24. He submits that during the trial court proceedings an application

for interim injunction was �led and vide order dated 16

th

February,

2005, the Defendants were restrained from creating any obstructions to

the Plainti�’s possession of survey no. 46, while enjoying their

occupation on a piece of land on which the dargah stands. He submits

that by passing the injunction order, the Appellate Court modi�ed the

original injunction and injuncted the Defendants from entire survey no.

46 until �nal disposal.

25. He submits that in an application �led by the Defendants seeking

a stay of the judgment and order passed by the Appellate Court, the

Appellate Court rejected the application holding that preventive

temporary injunction has been in existence even in the Trial Court which

indicates that the Appellate Court could not have granted an injunction

against the entire property. In support he relies upon the following

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decision :

(i) P. Purushottam Reddy And Another vs Pratap Steels

Limited

1

26. Per contra, Mr. Shah, learned counsel for the Respondent No. 1

submits that the Appeal is �led under Order XLIII, Rule 1(u) of CPC,

which is to be heard only on the substantial questions of law and not on

questions of fact, drawing support from the decision of the Hon’ble

Apex Court in the case of Narayanan vs Kumaran And Others

2

.

27. He submits that RCS No. 151 of 2001, �led by the Defendants

against the original owner, was dismissed for default in 2009. He

submits that since the order of the Hon’ble Division Bench of this Court

ordered demolition and directed the handover of possession to the

Petitioner, a pursis was �led restricting the claim solely for the purpose

of injunction.

28. He submits that the Appellate Court has reversed the �nding on

the aspect of limitation and suit was remanded by framing two

additional issues, and would point out the discussion in that context in

the impugned order. He submits that the Hon’ble Division Bench rightly

noted the substantial prayers in the Writ Petition, which sought the

demolition of unauthorised and illegal encroachment located near the

western boundary on land bearing survey no. 46. The interim relief

1 (2002) 2 SCC 686

2 (2004) 4 SCC 26

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sought was the issuance of a show cause notice to the Defendants to

explain why the unauthorised illegal extended encroachment made in

2023 should not be demolished and to take suitable action.

29. He would further point out the order dated 30

th

April, 2025

passed by the Hon’ble Division Bench, where the Plainti� pointed out

that the entire structure had not been demolished and that the

Defendants continued to carry out repairs around the unauthorised

structure. He further points out that the Hon’ble Division Bench took

cognizance of the additional a�davit �led by the Commissioner of the

Brihanmumbai Municipal Corporation on 29

th

April, 2025 disclosing that

the structure was much larger structure admeasuring 17,610.02 square

feet and no permission was granted. He would further point out that

the Hon’ble Division Bench noted that the Defendant started with the

construction of 160 square feet at the inception, which expanded to

approximately 20,000 square feet, and demolition was directed of

around 3,500 square feet. He submits that subsequently the entire

structure came to be demolished.

30. He submits that the Hon’ble Division Bench considering the

application �led by the Defendants in the Writ Petition noted the

submissions that by reason of dismissal of the Plainti�’s suit by the Trial

Court, the directions passed by the Hon’ble Division Bench stands

vitiated. He points out that the Hon’ble Division Bench held that the

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suppression of the dismissal of the suit had no bearing on the illegality

of the Defendant’s structure and also points out that the �nding that

the dismissal of the suit does not prove that the land belongs to the

Defendants or that they were the owners of the said structure. He

submits that the �nding of the Hon’ble Division Bench is that by virtue

of the dismissal of the suit, there is no con�rmation of any right of the

Defendant either on the structure or on the land and th at the

Defendants must independently prove their right to the structure as

well as the land. He further points out that the Hon’ble Division Bench

concluded that Defendants have encroached upon the suit land, and the

Plainti�s have established ownership of the suit land.

31. He further points out that the Hon’ble Division Bench has noted

the contentions of the Defendants as recorded in the judgment of the

Trial Court that the present Writ Petition was in respect of the di�erent

property and not the same as dargah and that implies an admission on

behalf of the Defendant that the dargah is on a di�erent property and

not on the property for which the Writ Petition was �led and orders

were passed.

32. He submits that the �ndings of Hon'ble Division Bench

conclusively establishes the ownership right of the Plainti� and by

reason of demolition of the structures as the possession of entire

survey no. 46 came to the Plainti�, there was no requirement of seeking

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the relief of recovery of possession. He would further point out that the

Trial Court’s �ndings of ownership and possession were in favour of the

Plainti� and the remand was necessitated by reason of the issues being

framed of maintainability for want of authority and whether the

subsequent developments of demolition would entitle the Plainti� to a

decree of perpetual injunction.

33. In rejoinder, Mr. Dewal would submit that the Appellate Court

relied on the temporary injunction which was in existence till the

disposal of the suit as the basis for restraining the Defendants from

interfering with the peaceful possession. He submits that the injunction

was only in respect of the another portion of the property and not in

respect of the suit property and the Appellate Court could not have

injuncted the Defendants pending the disposal of the suit upon remand.

34. Rival contentions now fall for determination:

35. The Appeal has been �led under Order XLIII, Rule 1 (u) of the CPC,

being aggrieved by the order of remand by the Appellate Court. For

challenging the impugned judgment on merits, the remedy is to �le

First Appeal. In captioned Appeal from Order, the inquiry is con�ned to

the legality and proprietary of the remand order made by the First

Appellate Court.

36. The power of remand conferred on the Appellate Cour t �nds

place in Order XLI governing Appeals from original decree. Rules 23, 23-

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A, 24, 25 and 27 of Order XLI sets out the statutory provisions governing

the �nal determination of Appeals and reads as under :

23. Remand of case by Appellate Court.—Where the Court from whose

decree an Appeal is preferred has disposed of the suit upon a preliminary

point and the decree is reversed in Appeal, the Appellate Court may, if it

thinks �t, by order remand the case, and may further direct what issue or

issues shall be tried in the case so remanded, and shall send a copy of its

judgment and order to the Court from whose decree the Ap peal is

preferred, which directions to re-admit the suit under its original number

in the register of civil suits, and proceed to determine the suit; and the

evidence (if any) recorded during the original trial shall, subject to all just

exceptions, be evidence during the trial after remand.

[23A. Remand in other cases.—Where the Court from whose decree an

Appeal is preferred has disposed of the case otherwise than on a

preliminary point, and the decree is reversed in Appeal and a re-trial is

considered necessary, the Appellate Court shall have the same powers as

it has under rule 23.

24. Where evidence on record su�cient Appellate Court may determine

case �nally.—Where the evidence upon the record is su�cient to enable

the Appellate Court to pronounce judgment, the Appellate Court may,

after resettling the issues, if necessary, �nally 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.

25. Where Appellate Court may frame issues and refer them for trial to

Court whose decree Appealed from.—Where the Court from wh ose

decree the Appeal is preferred has omitted to frame or try any issue, or to

determine any question of fact, which appears to the Appellate Court

essential to the right decision of the suit upon the merits, the Appellate

Court may, if necessary, frame issues, and refer the same for trial to the

Court from whose decree the Appeal is preferred, and in such case shall

direct such Court to take the additional evidence required;

and such Court shall proceed to try such issues, and shall return the

evidence to the Appellate Court together with its �ndings thereon and

the reasons therefor 1[within such time as may be �xed by the Appellate

Court or extended by it from time to time].

27. Production of additional evidence in Appellate Court.—(1) The parties

to an Appeal shall not be entitled to produce additional evidence,

whether oral or documentary, in the Appellate Court. But if —

(a) the Court from whose decree the Appeal is preferred has refused to

admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that

notwithstanding the exercise of due diligence, such evidence was not

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within his knowledge or could not, after the exercise of due diligence, be

produced by him at the time when the decree Appealed against was

passed, or]

(b) the Appellate Court requires any document to be produced or any

witness to be examined to enable it to pronounce judgment, or for any

other substantial cause,

the Appellate Court may allow such evidence or document t o be

produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an

Appellate Court, the Court shall record the reason for its admission.

37. The statutory hierarchy demands �nal determination, when the

evidence on record is su�cient for the Appellate Court to �nally

determine the Appeal. In cases where the Trial Court has omitted to

frame the essential issues or determine essential question of fact,

Order XLI Rule 25 enables the Appellate Court to frame the issues and

refer it to the trial court for taking additional evidence. In such

eventuality, the trial court proceeds to try the issues and returns the

evidence to the Appellate Court together with its �ndings and reasons

therefor, which forms part of record of the suit and the Appellate Court

then determines the Appeal. Order XLI Rule 27 confers power on the

Appellate Court to permit production of additional evidence before the

Appeal Court.

38. The emphasis is thus on the �nal determination by the Appellate

Court itself either on the basis of available evidence or by directing

additional evidence whenever necessary. The power of remand is to be

exercised sparingly in cases where the suit is disposed of upon a

preliminary point and upon reversal of decree, the Appellate Court

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remands the case with directions as to the issues to be tried and in

other cases where re-trial is considered necessary.

39. The Honorable Apex Court in the case of Arvind Kumar Jaiswal

vs Devendra Prasad Jaiswal Varun

3

has held as under :

“An order of remand prolongs and delays the litigation and hence, should

not be passed unless the Appellate Court �nds that a re-trial is required,

or the evidence on record is not su�cient to dispose of the matter for

reasons like lack of adequate opportunity of leading evidence to a party,

where there had been no real trial of the dispute or there is no complete

or e�ectual adjudication of the proceedings, and the party complaining

has su�ered material prejudice on that account. Where evidence has

already been adduced and a decision can be rendered on appreciation of

such evidence, an order of remand should not be passed remitting the

matter to the lower court, even if the lower court has omitted to frame

issue(s) and/or has failed to determine any question of fact, which, in the

opinion of the appellate court, is essential. The �rst appellate court, if

required, can also direct the Trial Court to record evidence and �nding on

a particular aspect/issue in terms of Rule 25 to Order XLI, which then can

be taken on record for deciding the case by the appellate court. (Emphasis

supplied)”

40. The distinction between the provisions contained under Order XLI

Rule 23, 23-A and 25, was explained by the Hon’ble Apex Court in the

case of J. Balaji Singh vs Diwakar Cole And Others

4

as under:-

“There are three provisions in the Code which deal with the power of the

Appellate Court to remand the case to the Trial Court. These provisions

are Order XLI Rules 23, 23-A, and 25.

14.1. So far as Order XLI Rule 23 is concerned, it enables the Appellate

Court to remand the case to the Trial Court when it �nds that the Trial

Court has disposed of the suit upon a preliminary point. The Appellate

Court in such cases is empowered to direct the Trial Court to decide all

the issues on evidence on record.

14.2. So far as Rule 23-A is concerned, it enables the Appellate Court to

remand the case to the Trial Court when it �nds that though the Trial

Court has disposed of the suit on all the issues but on reversal of the

decree in appeal, a re-trial is considered necessary by the Appellate Court.

14.3. So far as Rule 25 is concerned, it enables the Appellate Court to

3 2023 SCC Online SC 112

4 AIR 2017 SC 2402

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frame or try the issue if it �nds that it is essential to the right decision of

the suit and was not framed by the Trial Court. The Appellate Court in

such case may, accordingly, frame the issues and refer the same to the

Trial Court to take the evidence and record the �ndings on such issues

and return to the Appellate Court for deciding the appeal. In such cases,

the Appellate Court retains the appeal to itself."

22. In the present case, the matter was not disposed o� on the

preliminary issue. Thus, Order XLI Rule 23 is not attracted. Since the

Lower Appellate Court remanded the matter back after f raming

additional issue, the power invoked is relatable to Order XLI Rule 25.

41. In the present facts, the Appellate Court sets aside the judgment

of Trial Court and reverses the decree of dismissal, permits amendment

of plaint, frames issues, permits leading of evidence and directs Trial

Court to record �ndings and deliver judgment based on the �ndings on

the additional issues and �ndings of the Appellate Court.

42. The �nding of the Appellate Court in paragraph 39 of the

impugned judgment reads as under:

“Point No.10: In view of the �ndings to points No.1 to 9, although �ndings

to the issues framed by the learned Trial Court, barring two of the said

issues, have been recorded, as the decision cannot be completely

rendered on the basis of the issues so far framed and evidence on record

in absence of the above-mentioned two issues, and as plainti� needs to

amend his pleadings for bringing on record the post decree events

occurred and as this recourse require the trial of two important issues by

recording the sumptuous evidence, the adoption of recourse to which, in

the appellate court itself would deprive the parties of their right to prefer

�rst appeal in the District Court, the circumstances justify an order of

remand instead of trying the unframed issues in the appellate court itself

so as to make out a rare case necessitating exercise of power under Order

XLI, Rule 23-A of the Code of Civil Procedure, 1908. The learned Trial

Court, therefore, needs to frame the following issues after giving

opportunity to plainti� to amend its pleadings for bringing o� record the

post decree events as stated in pursis Exh.53:

(i) Whether the suit is maintainable for the want of authority to institute

the suit?

(ii) Whether plainti� is entitled to the decree for perpetual injunction in

the light of statement of facts and abandonment of claim to recovery of

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possession made in pursis Exh.53 ?”

43. The Appellate Court has opined that decision cannot b e

completely rendered on the basis of issues framed in absence of

determination of the two additional issues, which �ndings should have

led to an order under Order XLI Rule 25, while retaining the Appeal with

itself. The Appellate Court was mindful of the fact that parties would

have been deprived of their right to prefer appeal in the District Court,

without noticing that the �nality of the issues determined by the

Appellate Court, which would form part of the judgment of the Trial

Court decided afresh would have the same e�ect.

44. The Appellate Court has remanded the suit for determination of

two issues (a) validity of authority to institute the suit and (b)

entitlement of plainti� to decree for perpetual injunction in light of

withdrawal of relief of possession in appeal.

45. As to the validity of authority, it is not demonstrated to this Court

that any such objection was taken in the written statement. For the �rst

time before the Appeal Court, the objection was taken and as the

Appellate Court has itself recorded that the issue is mixed question of

fact and law, in the absence of any pleading, the issue was rightly not

framed. The Appellate Court did not render a �nding that it was unable

to decide the issue of maintainability, for want of authority on the basis

of existing material. If it was of the opinion that the suit must fail for

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want of authority, the Appellate Court could have rendered such a

�nding. If the Appellate Court was of the opinion that the issue was

required to be framed, which was essential to the right decision of the

suit upon merits, the course which was required to be adopted by the

Appellate Court was under Order XLI, Rule 25, directing the Trial Court

to take additional evidence and return the evidence to the Appellate

Court. The purpose of remand is not to �ll in the lacuna in the evidence.

The Appellate Court has held in paragraph 32 and 33 as under:

“[32] The learned Trial Judge, although, refers to the suit having been

brought without authority of the Chairman of the society basing its

opinion on the lack of Board Resolution or minutes of meeting or other

documents showing that the decision to institute the suit was that of

society, there being no issue framed prior to the trial and the parties not

having been accorded any opportunity to adduce evidence and be heard

on such an issue, the learned Trial Judge has declined to record any

�nding thereof, which is failure to exercise jurisdiction by the court. The

learned Trial Judge has recorded �nding to the issue as to requirement of

statutory pre-suit notice/permission under the Maharashtra Co-operative

Societies Act, 1966; but she ought to have paid heed also to this

unresolved important issue as to the authority to institute the suit. This

unresolved issue requiring recording of evidence cannot, for the �rst

time, be dealt with in the appeal, particularly, when this important issue

has never been framed prior to the trial, when it was very much germane

to the adjudication of the suit.

[33] Perhaps, the non-framing of issue misled both of plainti� or

defendants, who, otherwise, would have had an opportunity to adduce

respective evidence on this issue. The want of resolution of the society or

the Board Resolution of the Company and the e�ect of rati�cation could

not have been appreciated without the proper framing of the issue and

collecting evidence in that behalf for being appreciated, of course, after

putting the parties to the notice of the framework of the said issue. The

learned advocate for defendant have vehemently argued that, for the

want of authority, the suit must fail, for which sake, he has relied upon

various judgments. However, no �nding to this issue can be recorded

without there being framing of issue in order to put parties to the notice

of speci�c issue and the requirement of leading evidence in that behalf,

particularly when, the issue happens to be a mixed question of facts and

law, with more colour of factual aspects. Such an issue, therefore, needs

to be directed to be framed and an opportunity needs to be extended to

the parties to lead evidence on the issue and of being heard thereupon,

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without which, no �nding to this issue and the �nal decision in the suit

can be rendered. Accordingly, the �nding to point No.7 is recorded.”

46. The Appellate Court has held that there is omission to frame an

essential issue of fact in which case the appropriate course to be

adopted was under Order XLI Rule 25 of CPC or Rule 27 and 28 of CPC.

47. In so far as the second issue is concerned, the impugned judgment

records that the Plainti� has �led an application under Order XLI Rule

27 for leading additional evidence for producing the copies of orders of

the High Court. There is no adjudication of the said application and the

Appellate Court holds in paragraph 37 as under:

“[37] The learned Advocate for defendants has pointed out that the

contention of plainti� that the encroachment on the suit property has

been removed by virtue of execution of the order of Hon'ble High Court

connotes the fact subsequent to the passing of the decree in the suit and

pending the appeal, so that the said fact needs to be pleaded by way of

amendment so as to be responded to by the defendants before

adjudicating the claim. He has pointed out that, if this subsequent fact

pleaded does not come to be proved and defendants still happen to be in

possession of the suit property, in such an eventuality, the relief of

perpetual injunction cannot be granted as the same happens to be

without "e�cacious remedy" of removal of encroachment or recovery of

possession so as to disentitle plainti� to decree of perpetual injunction.

The submission of learned Advocate for defendants indeed commands

signi�cance in as much as the plainti� is harping only on the relief of

injunction simplicitor without there being relief of possession, which

needs to be scanned for the applicability or inapplicability of Section 41(h)

of the Speci�c Relief Act, 1963, for which sake, plainti� needs to amend

the suit for bringing on record the subsequent facts post decree and

pending the appeal justifying the abandonment relief of possession and

the claim to simplicitor injunction. The opportunity needs to be given to

the adversary to controvert the subsequently pleaded facts and evidence

also needs to be recorded so as to �nd out whether plainti� would be

entitled to perpetual injunction without claiming recovery of possession,

which is an exercise, in the circumstances, inexpedient to be got

accomplished in the appellate court as the parties would lose the

opportunity of �rst appeal in the District Court. Even otherwise, as there

is one more issue, erstwhile referred to, which was omitted to be framed

and is required to be tried by the Trial Court, in the overall circumstances

of the case, this issue also needs to be framed and tried by the learned

Trial Judge. The issue, therefore, needs to be directed to be framed by

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the Trial Court for being tried and adjudicated afresh upon plainti�s

requisite amendment in the pleadings for incorporation of the

subsequent events. Accordingly, the �nding to point No.8 is recorded.”

48. The application was �led under Order XLI Rule 27 precisely for

bringing the subsequent events on record. The Appellate Court ought to

have adjudicated the application and if the application is allowed, the

route of Rule 28 of Order XLI ought to have been followed and in event

of dismissal ought to have proceeded to determine the maintainability

of simpliciter suit for injunction. The entire inquiry to be conducted is

whether the evidence was essential to enable the Appellate Court to

pronounce the judgment or for any other substantial cause. The

Appellate Court has opined that as one issue is already framed, this

issue can also be framed and tried by the Trial Court. It is trite that

remand cannot be ordered as a matter of course as it has the e�ect of

prolonging the litigation.

49. By the impugned judgment, the Appellate Court passed t he

following order :

1. Appeal and Cross-Objection are partly allowed by setting aside the

judgment and decree of dismissal of suit under Appeal with the following

order of remand vide Order XLI, Rule 23-A of the Code of Civil Procedure,

1908:

(a) Suit shall stand restored to its original number and plainti� would be

permitted to amend his pleadings for bringing on record the post decree

events proposed in pursis Exh.53.

(b) Trial Court shall frame the following issues and extend opportunity to

the parties to lead evidence and of being heard on these issues :

(i) Whether the suit is maintainable for the want of authority to institute

the suit ?

(ii) Whether plainti� is entitled to the decree for perpetual injunction in

the light of statement of facts and abandonment of claim to recovery of

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possession made in pursis Exh.53 ?

(c) Trial Court shall record the �ndings to the aforesaid two issues, and in

consideration of the �ndings so recorded upon trial of these issues with

the �ndings to other issues recorded by this court, the learned Trial Judge

shall deliver the judgment after hearing the parties.

(d) In consequence of the allowing of the application Exh.22, defendants

are temporarily restrained from interfering into possession of plainti� as

to suit property and from creating encroachment thereupon, till �nal

disposal of the suit.

e) The learned Trial Judge shall adjudicate the costs of Exh.23 with the

costs in cause, for the belated production of documents.

(f) The learned Trial Judge is expected to dispose of the suit with the

pronouncement of judgment so directed as expeditiously as possible.

(g) Parties shall appears in the Trial Court on 15/06/2026.

2. Decree be drawn up accordingly.

3. Record and proceedings be sent to the Trial Court.

50. The framing of additional two issues and directing evidence to be

led, is an exercise of powers under Order XLI, Rule 25 of CPC and the

Appellate Court ought to have retained the Appeal with itself to be

�nally determined after the evidence and �ndings are sent by the Trial

Court. The error occurred by the order of remand under Order XLI Rule

23A, which remand was permissible where re-trial is considered

necessary. The consequence of the impugned judgment is that the

�ndings of the Appellate Court on the issues determined has attained

�nality qua the Trial Court and the Trial Court was directed to decide the

two additional issues, record evidence and deliver judgment. An

anomaly is created as though the Trial Court would render judgment

afresh, the Appellate Court’s �ndings on the issues would form part of

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the �ndings and could not be appealed again before the Appellate

Court, whilst the �ndings of the Trial Court on the additional two issues

could form subject matter of appeal before the Appellate Court.

51. It is precisely to avoid such a situation, that the provisions of

Order XLI Rule 25 sets out the course to be adopted where there is

ommission to frame essential issues by the Trial Court. The appropriate

course to be adopted was to frame the additional issues and either take

the evidence itself or direct the Trial Court to take evidence and to

remit the evidence to the Appellate Court, which shall then determine

the Appeal �nally. The impugned judgment is an exercise of

amalgamation of powers under Rule 23A and Rule 25 of Order XLI,

which is unsustainable.

52. The Appellate Court opined that the �nal determination of the

Appeal requires �ndings on the additional issues framed. Framing of the

additional issues does not, by itself, justify remand and the appropriate

course was to adopt the route under Order XLI, Rule 25 of CPC.

53. By the impugned judgment, the Appellate Court has allowe d

Exhibit “22”, �led by the Plainti�s for grant of temporary injunction and

has restrained the Defendants from interfering with the possession of

Plainti� as to the suit property and from creating encroachment

thereupon till �nal disposal of the suit.

54. The Appellate Court has noted the Plainti�’s contention based

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on the subsequent events of demolition pursuant to the order of the

High Court and the attempted encroachments by the Defendants. It

held that the Plainti� has made out prima facie case in view of what has

been recorded by the High Court in Writ Petition No. 6607/2024 and the

compliance A�davit �led by Thane Municipal Corporation. It noted that

barring the two additional issues, all the issues covering the main

controversy have been recorded in favour of plainti�. It held that

balance of convenience is in favour of the Plainti� and it would su�er

irreparable loss if injunction is refused, as there were repeated police

complaints by the Defendants even after the order of the High Court

claiming rights in the suit property on the basis of dismissal of the suit

55. The Appellate Court has conducted fresh adjudication of the

application for temporary injunction and not merely continued with the

injunction by the Trial Court. The application for temporary injunction

was premised on the basis of the subsequent events leading to

demolition of the structures on Survey No 46. The Appellate Court has

granted injunction after a �nding on prima facie case, balance of

convenience and irreparable loss and injury.

56. The submissions of Mr. Dewal concentrated on the restraint order

against the Defendants. He has taken this Court through the pleadings

and the orders passed during the pendency of trial to contend that the

Plainti�’s possession was accepted in respect of the balance portion of

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survey no. 46, excluding the suit property. He would also emphasize the

prayers sought in the Writ Petition �led before this Court, that the

demolition was sought of the extended illegal encroachment and not

for the suit property described in the plaint.

57. There is no dispute as to the fact that the demolition of all

structures on survey no. 46 has taken place, and the a�davit of the

o�cial of Thane Municipal Corporation states that survey no. 46 is now

a barren land.

58. The Hon'ble Division Bench of this Court, in its order dated 9

th

July, 2025 speci�cally held that the Defendants must independently

prove their right to both the structure and the land in order for the

Court to direct the protection of the structure. The Trial Court and the

Appellate Court have rendered concurrent �ndings on the Plainti�'s

ownership of Survey No. 46. The fact that the Defendants have taken a

plea of adverse possession amounts to a clear admission on their part of

the Plainti�'s ownership of the entire Survey No. 46.

59. Before the Appellate Court, the application for injunction was

premised on the subsequent event of demolition of all the structures on

Survey No 46 and the attempted encroachments by the Defendants,

which found favour with the Appellate Court. The factual position about

Survey No 46 changed by reason of the demolition order passed by the

Hon’ble Division Bench of this Court and the orders passed during the

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pendency of the trial were immaterial to decide the application below

Exhibit “22”. The Appellate Court has rendered speci�c �ndings in

favour of the Plainti� noting the existence of prima facie case. It has

further noted that the Defendants are �ling repeated police complaints

even after the order of the High Court claiming right in the suit

property. To support the grant of injunction, it noted the grant of

injunction during the pendency of trial. The observation does not place

any embargo on the Appellate Court to decide the application of

temporary injunction on the basis of subsequent event of demolition

qua the entire property.

60. The purpose of grant of injunction is to preserve the status quo of

the subject property. The Appellate Court has rendered �ndings of

ownership in favour of the Plainti� and has rejected the plea of adverse

possession. As the ownership issue is decided in favour of the Plainti�

and the Defendant’s structures already stands demolished as

unauthorised prima facie the Defendants cannot claim any right in the

subject property. The apprehension of the Plainti�s about being

dispossessed and attempts of encroachments have found favour with

the Appellate Court and there are no submissions canvassed to assail

the said �ndings. The Appellate Court has therefore rightly adjudicated

the application for grant of temporary injunction.

61. In light of the discussion above, the following order is passed:

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O R D E R

(a) The direction of remand of the Suit to the Trial Court under

Order XLI Rule 23-A of CPC contained in paragraph 1(a) in the

impugned judgment and order dated 7

th

May, 2026 is hereby

quashed and set aside.

(b) Regular Civil Appeal No 124/2025 is restored to �le of the

District Judge, Thane at Thane.

(c) The Appellate Court is directed to adjudicate the interim

application �led under Order XLI Rule 27 by the Plainti� for

leading additional evidence and if the application is allowed,

either to take such evidence or direct the Trial Court to take

such evidence and send it to the Appellate Court.

(d) The Appellate Court to examine whether the Appeal can be

�nally determined on the basis of the existing record after

hearing the parties.

(e) In event, the Appellate Court comes to a conclusion that

the two issues framed by the impugned judgment are

essential for �nal determination of the Appeal, the Appellate

Court to follow the course of Order XLI Rule 25 of CPC, and

retain the Appeal with itself until the evidence together with

the �ndings and reasons are sent by the Trial Court.

Resultantly, Clause 1(c), (e), and (f) of the impugned judgment

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are quashed and set aside.

(f) Clause 1(d) of the impugned judgment and order remains

undisturbed.

62. The Appeal from Order is allowed in the above terms.

63. Interim applications do not survive for consideration and stand

disposed of.

(SHARMILA U. DESHMUKH, J.)

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