-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.97 OF 2007 APPEAL NO.97 OF 2007 APPEAL NO.97 OF 2007 Vimalabai Sopan Kharade ...Appellant vs. Devaibai Hariba Bhong & Ors. ...Respondents Mr.A.A.Kumbhakoni with Mr.A.P.Kulkarni for the Appellant Mr.P.B.Shah for Respondent Nos.2 to 7 CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : JANUARY 18,2008 : JANUARY 18,2008 : JANUARY 18,2008 P.C.: P.C.: P.C.: 1. The submissions of the Advocates for the parties were heard on the last date. Today I have heard further submissions. 2. The Appellant is the original plaintiff. The Appellant filed a suit for declaration that he has become the owner of the suit property on the basis of the sale deed dated 1st November 1974 executed by the first defendant Devaibai in her favour. The Appellant-plaintiff also claimed consequential relief of perpetual injunction on the footing that she was in exclusive possession. 3. Even according to the case of the Appellant-plaintiff, the suit property was owned by late Hari. According to the case of the Appellant-plaintiff, Hari had three wives by the name Gayabai, Devaibai and Devaibai. The second wife Devaibai is -2- dead. The third wife Devaibai is the first Respondent (the first defendant) who has executed the sale deed in favour of the Appellant-plaintiff. The second defendant Subhadrabai is the daughter of deceased Gayabai. The Defendant no.3 to 5 are claiming through the second wife Devaibai. 4. One Dattatraya was claiming to be an adopted son of Hari on the basis of registered deed of adoption dated 7th February 1963. According to the case of the Appellant-plaintiff a civil suit no.155 of 1980 was filed by the first Respondent against the said Dattatraya @ Dattu in which there was a consent decree passed. The said consent decree records that the said Dattatraya had given up right,title and interest in the estate of Hari. Reliance was placed on a writing dated 24th June 1978 executed by the said Dattatraya in favour of the first Respondent in which the said Dattatraya stated that he has cancelled the deed of adoption and therefore, the first defendant in her capacity as the widow of the deceased Hari had become the owner of the property. 5. The trial court dismissed the suit filed by the Appellant-plaintiff by holding that the Appellant has not acquired any title on the basis of the registered sale deed dated 1st November 1974. Though the trial court accepted that the Appellant was in possession, it was held that the Appellant has not established his exclusive possession. An -3- Appeal was preferred before the District Court which has been dismissed. 6. The submission of the learned counsel for the Appellant is that the said Dattatraya never claimed any rights on the basis of the deed of adoption as the adopted son of Hari and he himself cancelled the deed of adoption. The submission is that in view of the consent decree dated 9th September 1980 passed by the court in Suit No.155 1980, Gayabai who is the first defendant became the owner of the suit property and therefore, the Appellant will acquire title to the suit property on the basis of the sale deed earlier executed by the first defendant (first Respondent). Without prejudice to the aforesaid contention it was submitted that the Appellant has acquired undivided share of the first Respondent in the suit property and the appellant being in possession of the suit property on the basis of undivided share,he cannot be dispossessed otherwise than by due process of law. 7. I have carefully considered the submissions. Perusal of the plaint filed by the Appellant shows that the Appellant has claimed a declaration that he has become the exclusive owner of the suit property on the basis of the sale deed dated 1st November 1974 and that none of the defendants in the suit have any right, title or interest in the suit property and on that basis consequential prayer for perpetual injunction has been -4- claimed. 8. Firstly, the courts below and especially the Appellate court has referred to section 15 of the Hindu Adoption and Maintenance Act,1956 and held that no adoption which is validly made can be cancelled by the adoptive father or mother or any other person. The said section provides that nor can the adopted child renounce his or her status as such and return to the family of his or her birth. Relying upon the said section, a finding has been recorded that adoption deed could not have been cancelled by the said Dattatraya. It must be stated that the said Dattatraya is not a party to the suit. Therefore, when the sale deed was executed in favour of the Appellant, there existed a valid deed of adoption executed by the deceased Hari which recorded the fact of the said Dattatraya being taken in adoption by the said Hari. The said Dattatraya also claimed on the basis of the will executed by Hari making a bequest in respect of suit property in his favour. Even assuming that the first Defendant acquired any right,title or interest on the basis of the consent decree in a suit filed by her against the said Dattatraya, at highest, it can be said that the first Respondent was entitled to an undivided share in the suit property. The other respondents are co-owners of the suit property along with the first Respondent. The prayer for declaration made by the Appellant is that she has become exclusive owner of the suit property -5- and consequential prayer for injunction is made on the basis of the exclusive ownership. In no case the Appellant can claim to be the exclusive owner. Grant of injunction in this suit will amount to grant of injunction against the co-owners / co-sharers. 9. Therefore, there is no error in the view taken by the courts below. No substantial question of law arises. 10. Subject to what is stated above, Second Appeal is dismissed with no order as to costs. JUDGE JUDGE JUDGE