JUDGMENT :

S.M. MODAK, J.

1. The trial Court decreed the suit, it was for declaration as to ownership of land on the basis of adverse possession. Defendant though appeared has not contested the suit by filing written statement. When she went in appeal, she partially succeeded before the First Appellate Court. Though she was not successful in getting a decree for dismissal of the suit, she succeeded in getting remand order from the First Appellate Court. First Appellate Court permitted her to file written statement. There was a direction to the trial Court to decide the matter afresh.

2. The plaintiffs who were having a decree of the trial Court in their favour, were dissatisfied with the order of remand and that is how they are before this Court. The first appellate Court remanded the matter mainly on following three reasons:-

(a) the suit in question was special civil suit no. 142 of 2008. Whereas earlier to that there was civil suit no. 469 of 2006. The First Appellate Court observed “in view of the common subject matter, latterly instituted a suit ought to have been stayed.”

(b) The pleadings of the plaintiff on the point of adverse possession were insufficient.

(c) The defendant ought not to have been given liberty to file written statement (though it was observed that procedure prior to proceeding without written statement was perfectly followed.)

3. Learned advocate Shri Sharma and Shri Kshirsagar argued for plaintiff and defendant respectively. Learned Advocate Shri Sharma emphasized following points:-

(a) Subject matter of two suits are totally different.

(b) There are averments and evidence as to theory of adverse possession.

(c) There was no prayer for grant of permission to file written statement and there was findings of the First Appellate Court that the procedure prior to proceeding without written statement was perfectly followed. Though permission was granted to file written statement.

4. He relied upon the following judgments on the point of adherence to time limit for filing its written statement its consequence if not filed:

(1) Fountainhead Promotions and Events Limited vs. Gitanjali Lifestyle Limited, 2014 (1) Mh. L.J. 468

(2) Gauri Shankar vs. Hindustan Trust Private Limited, 1972 AIR (SC) 2091

(3) Ramchandra Nathu Ghadage and Others vs. Rajaram Nathu Ghadage Since deceased by his LRs. and Others, 2008 (2) Mh. L.J. 754

5. On the point of prohibition to grant relief if there is no pleading and prayer he relied upon following judgments:

(1) Mohd. Yusuf vs. Faij Mohammad and Others, 2009 (2) All MR 486

(2) Saraswati Gurushantayaa Swami vs. Sulbha Malappa Chinchole and Others, 2012 (2) Mh. L.J. 160

6. On the point of restraint on the First Appellate Court to remand the matter, he relied upon following judgments:

(1) Santosh Hazari vs. Purushottam Tiwari deceased by LRs. 2001 (2) Mh. L.J. 786

(2) Bacchaj Nahar P. vs. Nilima Mandal and Another, 2009 AIR SC 1103

7. Whereas the learned advocate for the respondent supported the impugned judgment. According to him in the interest of justice, the order of remand is perfectly legal and considering the contentious issue relating to property, full-fledged trial is required. He relied upon the case of C.N. Ramappa Gowda vs. C.C. Chandregowda (Dead) by LRs. and Others, AIR 2012 SC 2528 and Ashok Kundalrai Mohekar vs. The National Textile Corporation and Another, 2015 (4) BCR 494.

SUBSTANTIAL QUESTIONS OF LAW:

8. While admitting the appeal, certain substantial questions of law were framed. It pertains to “permitting the defendant to file written statement even though there is no prayer to that effect.” It pertains to “there was need to stay the present suit of 2008 in view of pendency of 2006 suit.” It pertains to “whether remand order was right.”

9. While arguing, learned Advocate Shri Sharma also argued about the approach of the first appellate Court. His emphasis was even though there was no written statement, the first appellate Court has opined about lacunae in the evidence and in the plead