Case Note & Summary
The High Court of Bombay partly allowed First Appeal No. 945 of 1994 by modifying the trial court's decree regarding adverse possession. The original suit was for possession of land measuring 688.50 sq. ft. from CTS No. 185, Goregaon. The trial court had dismissed the Appellant's suit and declared Respondents owners by adverse possession of 170 sq. yards. During the appeal's pendency since 1994, the Court Receiver measured the property through an Architect's report dated 13 October 1995, which recorded Respondents in possession of only 38 sq. metres (409 sq. ft.). A status quo order dated 10 November 1995 was maintained for over three decades. The Appellant did not press the appeal on merits but sought modification of the decree to conform with the Court Receiver's report. The Court, exercising appellate powers under Order XLI Rules 32 and 33 of CPC, modified the decree to declare Respondents owners by adverse possession only of 38 sq. metres (409 sq. ft.) as per the Court Receiver's report, dismissing the suit with no order as to costs.
Headnote
The High Court of Judicature at Bombay -- In First Appeal No. 945 of 1994 -- Heard the appeal arising from Judgment and Decree dated 4 March 1994 passed by Bombay City Civil Court in Suit No. 5989 of 1974 -- The trial court had dismissed Appellant's suit for possession of 688.50 sq. ft. land and declared Respondents owners by adverse possession of 170 sq. yards -- During appeal pendency, Court Receiver measured the property through Architect's report dated 13 October 1995 -- Report recorded Respondents in possession of only 38 sq. metres (409 sq. ft.) -- Status quo order dated 10 November 1995 maintained for over three decades -- Appellant did not press appeal on merits but sought modification of decree to conform with Court Receiver's report -- Court relied on Order XLI Rules 31, 32 and 33 of Code of Civil Procedure, 1908 (CPC) and Supreme Court decision in Chandi Prasad v. Jagdish Prasad -- Held that appellate court has power to vary or modify decree where trial court decree merges in appellate decree -- Modified decree to declare Respondents owners by adverse possession only of 38 sq. metres (409 sq. ft.) as per Court Receiver's report
Issue of Consideration
Whether the appellate court should modify the trial court's decree regarding adverse possession based on the Court Receiver's report and long-standing status quo order
Final Decision
First Appeal No. 945 of 1994 partly allowed. Judgment and Decree dated 04 March 1994 modified. Suit No. 5989 of 1974 dismissed with no order as to costs. Declared that Defendants acquired ownership by adverse possession only in respect of 38 sq. metres (409 sq. ft.) from out of CTS No. 185 as per Court Receiver's report. Civil Application No. 2125 of 1994 disposed of.
Law Points
- Appellate court's power to modify decree under Order XLI Rules 31
- 32 and 33 of Code of Civil Procedure
- 1908 (CPC)
- Doctrine of merger of trial court decree in appellate decree
- Principles of adverse possession
- Court's discretion to modify decree based on changed circumstances and long-standing status quo
Case Details
2026 LawText (BOM) (02) 31
First Appeal No. 945 of 1994 with Civil Application No. 2125 of 1994
Mr. Drupad Patil a/w Mr. Rohan Karande and Mr. Sandeep Wankhede i/by Divekar & Co. for Appellant, None for Respondents, Mr. Swayam S. Chopda, OSD, Court Receiver
1. Adyaprasad Hingoo Mishra (Since deceased by his heirs and Legal representatives) 1(a) Lilawati Adyaprasad Hingoo Mishra (Since deceased through legal heirs 1(b) to 1(f)) 1(b) Ankaleshwar Adyaprasad Hingoo Mishra 1(c) Ajay Kumar Adyaprasad Hingoo Mishra 1(d) Vinod Kumar Adyaprasad Hingoo Mishra 1(e) Sanjay Kumar Adhyaprasad Hingoo Mishra 1(f) Jagdish Kumar Adhyaprasad Hingoo Mishra 2. Harishankar Hingoo Mishra (Since deceased through legal heirs) 2(a) Rajmani Harishankar Mishra 2(b) Kaushal Harishankar Mishra 2(c) Rajesh Kumar Harishankar Mishra All residing at Room No. 103, Hari Shankar Mishra Chawl, Gotewadi, Aarey Road, Goregaon (E) Mumbai 400 006
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Nature of Litigation
Civil appeal against trial court judgment in land possession suit
Remedy Sought
Appellant sought modification of trial court decree regarding adverse possession area to align with Court Receiver's report
Filing Reason
Appeal filed against trial court's judgment dated 4 March 1994 which dismissed Appellant's suit for possession and declared Respondents owners by adverse possession of 170 sq. yards
Previous Decisions
Trial court dismissed Appellant's suit for possession of 688.50 sq. ft. land and declared Respondents owners by adverse possession of 170 sq. yards in Judgment and Decree dated 4 March 1994
Issues
Whether the appellate court should modify the trial court's decree regarding adverse possession based on the Court Receiver's report and long-standing status quo order
Submissions/Arguments
Appellant did not press appeal on merits but sought modification of decree to conform with Court Receiver's report dated 13 October 1995
Appellant relied on Order XLI Rules 31, 32 and 33 of CPC and Supreme Court decision in Chandi Prasad v. Jagdish Prasad
Appellant submitted that parties adhered to status quo order dated 10 November 1995 for over three decades
Ratio Decidendi
Appellate court has power under Order XLI Rules 32 and 33 of CPC to modify decree where trial court decree merges in appellate decree. Court may modify decree based on changed circumstances and long-standing status quo order. Where parties have regulated possession according to court order for decades, court may modify decree to reflect actual possession.
Judgment Excerpts
Held that this Court, in Appellate jurisdiction, is empowered to vary or modify the decree, whereupon the decree of the Trial Court stands merged in the appellate decree
Held that in these peculiar facts and circumstances of the case, and having regard to the unequivocal statement made on behalf of the Appellant, this Court is of the view that the ends of justice would be met by accepting the said statement and modifying the impugned decree accordingly
Held that in exercise of Appellate Powers under Order XLI Rules 32 and 33 of the CPC, this Court deems it appropriate to modify the impugned Judgment and Decree, strictly in terms of the area recorded in the Court Receiver's report dated 13 October 1995
Procedural History
Suit No. 5989 of 1974 filed in Bombay City Civil Court -- Judgment and Decree dated 4 March 1994 passed dismissing Appellant's suit and declaring Respondents owners by adverse possession of 170 sq. yards -- First Appeal No. 945 of 1994 filed in 1994 -- Civil Application No. 3125 of 1994 filed -- Order dated 7 September 1995 directing Court Receiver to measure property -- Architect's report dated 13 October 1995 submitted -- Status quo order dated 10 November 1995 passed -- Appeal heard finally on 3 February 2026 -- Judgment pronounced on 6 February 2026
Acts & Sections
- Code of Civil Procedure, 1908: Order XLI Rule 31, Order XLI Rule 32, Order XLI Rule 33
