1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 1192 OF 2004 Gurlingappa Ratnappa Mule .. APPELLANT VERSUS Sushilabai Limbanappa Gove & another .. RESPONDENTS Shri B.R. Sontakke Patil, Advocate for the appellant. ===== CORAM : R. M. BORDE, J. DATE : 3 rd August, 2009. PER COURT : 1 This is an appeal by original plaintiff raising exception to the judgment and decree passed by the first appellate court in Regular Civil Appeal no. 369/1994 whereby the decree passed by the trial court in Regular Civil Suit no. 205/1985 came to be modified by the learned District Judge, Osmanabad. 2 Plaintiff instituted Regular Civil Suit no. 205/1985 claiming decree of declaration and injunction. He claims to be the adoptive son of original 2 defendant nos. 2 and 3. Defendant no. 1 Sushilabai is the daughter of defendant nos. 2 and 3. It is contended that there was gift deed executed by defendant nos. 2 and 3 in favour of Sushilabai thereby gifting the ancestral property in her favour. In an earlier litigation it was held that the gift is invalid. It is contended by plaintiff that he is in possession of the property and he being the adopted son of defendant nos. 2 and 3, defendant no. 1 is not entitled to claim entitlement topossession. As such, plaintiff claims declaratory decree to the effect that the gift deed is legal and proper as well as seeks decree in respect of perpetual injunction restraining defendant no. 1 from interfering in his possession. 3 Trial court granted decree in favour of the plaintiff as prayed for. However, the appellate court has modified the decree while dealing with Regular Civil Appeal no. 369/1994 and thereby quashed and set aside the order in respect of grant of perpetual injunction granted in favour of the plaintiff. Appellate court took a view that even if the gift deed executed by defendant nos. 2 and 3 in favour of defendant no. 1 Sushilabai is held to be invalid, still she being the legal heir of defendant nos. 2 and 3 is entitled to have share in the property. The first appellate court has recorded finding that the decree of perpetual injunction cannot be issued against the co- 3 sharers and as such refused to grant relief as claimed by the plaintiff. 4 I have perused the judgment and order passed by the courts below. View adopted by the first appellate court appears to be proper. Even if assuming that Sushilabai is not entitled on the basis of gift deed executed by her parents, still she is entitled to have share in the ancestral property left behind by her parents. Defendant no. 1 being co-sharer in the property, cannot be restrained by a decree of perpetual injunction from claiming her entitlement to the ancestral property. The view adopted by the first appellate court is legal and proper. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 5 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa1192.04.odt