1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4997/2009 (NIMBONI SHANKAR UMRE VS. PREMDAS GANBAJI NAGRARE) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri Habibuddin Ahmed, Advocate, for the petitioner. Shri N.A.Vyawahare, Advocate, for Respondent. CORAM : B.P. DHARMADHIKARI, J. DATED : JANUARY 18, 2010. Heard. Advocate Shri Vyawahare is appearing for Respondent. Hence, office objection waived. Petitioner/plaintiff filed a suit for removal of encroachment, claiming title to encroached portion on the basis of a gift by late Ganbaji Nagrare, executed in 1952. The suit was decreed and the present respondent has filed Regular Civil Appeal NO. 34/1996. In the appeal, after final arguments were heard, the petitioner filed application under Order 6, Rule 17, seeking to make prayer in alternative. The proposed prayer is, “That, in the alternative if the plaintiff fails to prove her title by way of Gift, she is entitled to have possession on the basis of her Sanad and as she had been enjoying the peaceful and well settled possession over the land since 1952” Thus, in the alternative, petitioner/plaintiff wanted to rely upon the Sanad executed in her favour in 2 place of the document of Gift Deed. The Court below has rejected that application on 7.10.2009. Advocate Ahmed contends that relief being claimed in the alternative was not inconsistent in any way with the original suit and therefore, ought to have been allowed. Reliance is placed on 1996(2) Civil L.J. 8, B.Nagamma and another vs. Siromanamma and another, where the Hon'ble Apex Court has considered the similar issue and permitted addition of alternate relief. Advocate Vyawahare on the other hand states that suit was all the while contested on the basis of entitlement in view of gift and hence there was no issue in relation to Sanad and the respondent (appellant before lower appellate Court) has not conducted any cross examination or has not led any evidence in relation to that sanad. Advocate Shri Ahmed has invited attention to the issues framed by the trial Court. The issue therein specifically refers to possession of petitioner/plaintiff in pursuance of gift deed. In the circumstances, I do not find any jurisdictional error warranting interference in writ jurisdiction in the matter. However, petitioner/plaintiff is at liberty to challenge the said order dated 7.10.2009 after the appeal is finally decided. Writ petition is accordingly disposed of. No order as to costs. JUDGE Rvjalit.