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.114 OF 2007. APPEAL NO.114 OF 2007. APPEAL NO.114 OF 2007. Shri Bhimaji Thakuji Ghodekar ...Appellant Versus. Shri Ramchandra Baburao Naik ...Respondent Shri G.S.Godbole for the Appellant. Shri R.A.Thorat for the Respondent. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 28th MARCH, 2008. : 28th MARCH, 2008. : 28th MARCH, 2008. P.C.: P.C.: P.C.: 1. Heard advocate for the appellant and the advocate for the respondent. The second appeal is preferred by the original plaintiff. A suit was filed by the appellant-plaintiff for declaration of ownership and perpetual injunction. In the said suit a counter claim for possession was filed by the respondent. The trial Court dismissed the suit and allowed the counter claim and a decree for declaration and possession was passed in favour of the first respondent. 2. The case of the appellant is that he is the brother of one Dalimbibai Babu Naik. Babu Naik was the owner of the suit property who died in the year 1929-30. Thereafter the name of Dalimbibai was mutated in the revenue records. The appellant is the real brother of Dalimbibai. According to the case of the appellant he had maintained Dalimbibai till her death on 13th November, 1980. The appellant claimed that he was in : 2 : 2 : 2 : peaceful possession and cultivation of the suit property for a period of more than 50 years and that his name appears in the cultivation column. His case is that earlier he was in possession as a tenant of Dalimbibai and after her demise he is in possession as her heir. According to the plaintiff the first respondent was relying upon a sham and bogus registered Adoption Deed. It is contended that the second defendant (since deceased) got registered the said Deed without intimating the said Dalimbibai. It is the case of the appellant that on the basis of an application made by the first defendant for mutating his name in the revenue records after demise of said Dalimbibai, he came to know about the alleged adoption of the respondent herein (first defendant) by Dalimbibai. It is alleged that as the defendant tried to obstruct the possession of the appellant-plaintiff, the suit was required to be filed for declaration and perpetual injunction. The respondent (first defendant) filed written statement and an additional written statement alongwith counter claim. In the written statement and counter claim it was contended that it was Dalimbibai who was cultivating the suit land during her life time with the assistance of first and second defendants. It was contended that by a Deed of Adoption dated 08th October, 1955 the said Dalimbibai adopted the first defendant-respondent. It is the case of the respondent that he was in possession : 3 : 3 : 3 : and the appellant dispossessed him on the basis of an order of temporary injunction obtained by him. The counter claim was for recovery of possession and for declaration. In the written statement filed by the appellant-plaintiff to the counter claim, it was contended that the Adoption Deed was sham and bogus. 3. The trial Court held that the respondent was the adopted son of deceased Dalimbibai. The trial Court held that the respondent inherited the suit property from the said Dalimbibai. The trial Court held that the respondent has proved that the appellant dispossessed him on the basis of an order of temporary injunction passed in the suit. Therefore, the trial Court proceeded to pass a decree for declaration of ownership in favour of the respondent in the counter claim as well as a decree for possession. The trial Court accepted the case made out by the respondent-defendant that by taking undue advantage of temporary injunction the appellant-plaintiff had dispossessed him. 4. Appeal preferred by the appellant was dismissed by the District Court. 5. Submission of the learned advocate for the appellant is that the counter claim filed by the respondent was not maintainable. He submitted that the : 4 : 4 : 4 : respondent filed written statement on 23rd April, 1981. Thereafter, on 01st July, 1981, the application for injunction made by the appellant-plaintiff was rejected by vacating ad-interim order. An appeal preferred by the appellant against the judgment and order of the trial Court was allowed by the District Court on 30th December, 1981 and temporary injunction was granted against the respondent and second defendant. He pointed out that the counter claim was filed subsequently on 20th December, 1989. He submitted that the alleged cause of action for filing counter claim arose when the respondent was dispossessed on the basis of the judgment and order dated 30th December, 1981 passed by the District Court in an Appeal from Order. He, therefore, submitted that the counter claim filed on the basis of the cause of action arising in the year 1981 i.e during the pendency of the suit was not maintainable. He submitted that in the written statement the respondent had come out with a case that the original Deed of Adoption was lost. However, at the time of recording of evidence, he came out with a case that one Krishnaji Patil was in the custody of the Deed of Adoption and he has received same from the said Krishnaji. He submitted that the Adoption Deed and contents thereof are not duly proved. He submitted that the husband of Dalimbibai died before coming into force of the Hindu Women’s Right to Property Act, 1937 and therefore, the said Dalimbibai : 5 : 5 : 5 : could not have taken the advantage of said provisions of the said Act of 1937. Relying upon the genealogy which forms part of the judgment of the Appellate Court, he submitted that the husband of Dalimbibai had male heirs and relatives who will inherit the property of husband of Dalimbibai as the said Dalimbibai became a widow prior to coming into force of the said Act of 1937. He submitted that the respondent (first defendant) herein has no right in respect of suit property in as much as he claims the suit property as the adopted son of Dalimbibai and the said Dalimbibai had no rights under the said Act of 1937. He submitted as the counter claim was not maintainable, there was no occasion to pass a decree of declaration of ownership and possession in the counter claim. 6. I have carefully considered the submissions. It must be stated that the case of the appellant in the plaint was that he had been cultivating the agricultural lands of Dalimbibai as a tenant and he was also maintaining Dalimbibai. Reference to the judgment of the trial Court and in particular paragraph No.9 thereof shows that an issue of tenancy was framed in the suit and was referred to the tenancy authorities. Against the orders of the authorities, the matter was carried to this Court and ultimately this Court held that the appellant was not the tenant of the suit land. This : 6 : 6 : 6 : issue is concluded against the appellant and therefore, the very basis of the suit that appellant was in possession as a tenant goes away. The other contention is that the appellant is the heir of Dalimbibai. 7. The suit proceeds on the footing that Dalimbibai was the only heir of Babu and that the said Dalimbibai inherited the property of her husband. In the Second Appeal a new contention was sought to be raised that Dalimbibai has not inherited the property of her husband as she became a widow prior to 1937. In fact, the said contention is not raised in both the courts below. In the suit, the appellant has not disputed that Dalimbibai was the owner of the property and that she became the owner on demise of her husband. Infact the appellant claimed to be the tenant of Dalimbibai. Therefore, the submission that the said Dalimbibai and consequently the respondent cannot be the owner will have to be discarded provided the respondent establishes his Adoption by Dalimbibai. 8. The original Deed of Adoption was produced before the trial Court. The trial Court has invoked section 90 of the Indian Evidence Act, 1872 as the Deed of Adoption was found to be a thirty year old document. It must be, however, stated that the appellant disputed the execution of the said Deed of Adoption by : 7 : 7 : 7 : Dalimbibai. The respondent examined a witness by the name Bhikaji Vithoba Jambukar. He filed affidavit in lieu of examination in chief deposing that the adoption took place on 08th October, 1955 in a temple at village Narodi between 10.00 a.m to 11.00 a.m. He stated that necessary religious ceremony was held. He described the details of the religious ceremonies and rituals performed at that time. He stated that on 10th October, 1955 the deed of adoption was executed in the Registrar’s office and the Dalimbibai affixed her thumb impression in his presence and thereafter he himself, the appellant and other witnesses executed the same as witnesses. He stated that from the date of adoption, the respondent changed his name and he was being identified as the son of Dalimbibai by all concerned. It is stated in the affidavit that last rites of Dalimbibai were performed by the respondent. After considering the evidence of the said witness, the learned trial Judge held that execution of the registered the Deed of Adoption has been duly proved. The appellate Court has also scanned the evidence including the evidence of the respondent. The respondent who was eight years old at the time of adoption has also deposed about the performance of various ceremonies held at the time of adoption. Considering the evidence on record, concurrent findings of fact have been recorded regarding the adoption and : 8 : 8 : 8 : the proof of the execution of Deed of Adoption by which Dalimbibai adopted the respondent. 9. As regards possession, the appellate Court has referred to certain criminal proceedings filed by the appellant on the ground of removal of crop of sugar-cane by the respondent and second defendant. The criminal proceedings were filed immediately after the death of Dalimbibai. On the basis of the averments made in the said proceedings, the trial Court and in particular appellate Court held that the allegation made by the applicant in the said criminal proceedings that the respondent removed standing crop shows that the suit property was in possession of the respondent and the appellant distributed the possession of the respondent. 10. The appellate Court held that the finding of the trial Court that the appellant had no right in respect of the suit property was correct. The appellate Court found that as the respondent was dispossessed by the appellant after obtaining an order of temporary injunction, after dismissal of the suit filed by the appellant, status-quo ante has to be restored. The finding of the trial Court is also that after the order of temporary injunction was passed by the District Court, the appellant dispossessed the respondent. At the time of dismissal of the suit on merits, the learned : 9 : 9 : 9 : trial Judge has rightly chosen to restore status-quo ante as the respondent was dispossessed on the basis of interim relief granted in the suit. 11. The appellate Court has rightly held that it was not necessary to go into the merits of the counter claim in as much as in view of settled legal principles, the possession of the respondent-defendant will have to be restored as possession was taken by the appellant after the institution of the suit on the basis of an order of temporary injunction. It is difficult to find fault with this approach. 12. The only title claimed by the appellant was as a tenant. The issue of tenancy has been conclusively decided against the appellant. There is a concurrent finding of fact that after obtaining temporary injunction, the plaintiff-appellant dispossessed the respondent-defendant. Therefore after having found that the appellant had no right, title or interest in the suit property and that the appellant had dispossessed the respondent during the pendency of the suit, an order of restoration of status-quo ante has been passed by the courts below. It is not possible to interfere with the reasonable view taken by the Courts below. 13. No substantial question of law arises. Second : 10 : 10 : 10 : Appeal is accordingly dismissed with no orders as to costs. On the prayer made by the learned advocate for the appellant, decree for possession shall not be executed till 31st July, 2008. Judge. Judge. Judge.