1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 424 OF 2008 SECOND APPEAL NO. 424 OF 2008 SECOND APPEAL NO. 424 OF 2008 IN Mr. Uttam Shankar Thakar ... Appellant Vs. Mr. Kailas shankar Thakar & Anr. ... Respondents Mr. S.A.Sawant, Advocate, for the appellant. Mr. P.N.Joshi, Advocate, for the respondents. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 5th August, 2008. DATE: 5th August, 2008. DATE: 5th August, 2008. P.C. P.C. P.C. 1. Heard the learned Counsel for the parties. 2. Regular Civil Suit No.19 of 1985 was filed by the plaintiffs- Kailas and Parvatibai, who are respondent Nos. 1 and 2 before this Court. It was their contention that Parvatibai was the wife of Shankar and Kailash was born shortly after the death of Shankar. The suit property being Gat No.19 admeasuring 1 hectare 2 11 Ares situate at Village Kolgaonmal, Taluka Sinnar, belonged to Shankar and after his death, the plaintiffs are the owners of the said property. It was contended that the defendants have, in collusion with each other, created some false documents to show that the defendant No.5 Uttam,who is the appellant before this Court, was adopted by the plaintiff NO.2 - Parvatibai under a registered adoption deed in 1977. Taking benefit of that document, the defendants were trying to obstruct in her possession over the suit property. With this contention, they sought decree for perpetual injunction restraining the defendants from causing any interference in their possession. In the alternative, they pleaded that if they were not found to be in possession, the decree for possession be passed in their favour. 3. The defendants contested the suit. According to them, Parvatibai had married some other person after the death of her first husband Shankar and plaintiff No.1 Kailash was not born to her from Shankar and, therefore, Kailash being not the son of Shankar cannot claim to be owner of that property. They contended that plaintiff No.2 Parvatibai had adopted defendant no.5 - Uttam as son under a registered adoption deed in 1977 and after his adoption, he is in possession and cultivation of the property and,therefore, the suit is liable to be 3 dismissed. 4. After hearing the evidence led by both parties, the trial Court rejected the contention of the defendants that Kailash is not the son of Parvatibai from Shankar and also rejected the contention that defendant No.5 - Utam was adopted by her. The trial Court found that the defendants were creating obstruction in her possession. In the result, the trial Court passed the decree declaring that the adoption deed was not valid and cannot be acted upon. The trial Court also passed a decree for perpetual injunction in favour of the plaintiffs and against the defendants. The defendants preferred Civil Appeal No.137 of 1999. The appellate Court partly allowed the Appeal by the impugned judgment dated 16.1.2008 and set aside that part of the decree passed by the trial Court under which the adoption deed was declared to be invalid and not binding. However, the appellate Court came to conclusion that Kailash is not the son of Shankar and the plaintiff - Parvatibai alone is the owner of the property. The appellate Court also came to the conclusion that the defendant no.5 had taken possession, but he had no right because the adoption deed could not make him the adopted son. He held that mere execution of the adoption deed would not mean that he is entitled 4 to the property of Shankar or Parvatibai. In the result, the appellate Court passed the decree of possession in favour of the plaintiff No.1 with mesne profits against defendant No.5. That is why the defendant No.5 has preferred the Second Appeal. 5. After hearing the learned Counsel for both parties and after going through the Judgments of the Courts below, inspite of certain inconsistent approach of both the Courts below, I find that both the Courts have come to conclusion that defendant No.5 has not proved that he is the adopted son and he does not get any right over the suit property. Though the trial Court held that both the plaintiffs are entitled to suit property, the appellate Court held that Parvatibai, being wife of Shankar and owner of the property,is entitled to possession. In fact, there is no dispute that the suit property belonged to Shankar, the deceased husband of Parvatibai. If the adoption of defendant No.5 is not proved, he can have no legal right over that property. As the plaintiffs have not sought declaration that the adoption deed was not valid and not binding, it was not necessary for the trial Court to pass a decree to that effect and that part is set aside by the appellate Court. However, both the Courts have given concurrent finding that the property belonged to Shankar and 5 defendant No.5 does not get any right over that property and as the appellate Court, after considering the evidence, found that the defendant No.5 is in possession, he passed a decree for possession in favour of the plaintiff No.2 Parvatibai. 6. Taking into consideration the material on record, I do not see any substantial question of law is involved in the present Appeal and therefore, in my considered opinion, the Second Appeal is liable to be dismissed summarily. 7. It may be noted that the appellate Court made certain comments about the second marriage of Parvatibai as well as paternity of Kailash. However, as no Appeal has been preferred by the plaintiff against the said judgment, I have not considered that aspect, while disposing of this Second Appeal filed by the defendant no.5. 8. In view of the above circumstances, the Second Appeal stands dismissed summarily. 9. As the Appeal itself is dismissed, the C.A.No.1051 of 2008 does not survive and stands disposed of accordingly. 6 (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)