1 S.A. No.1223.05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No.1223 OF 2005 Kashibai W/o Kishan Choudhary .. APPELLANT VERSUS Yeshwant Punjaba Choudhary died his L.Rs. ...RESPONDENTS ... Shri. K.G. Kader, Advocate for the appellant CORAM : S.V. GANGAPURWALA, J. DATE : 20h December, 2010. PER COURT : This is plaintiff’s Second Appeal. The plaintiff had filed a suit for declaration and ownership of possession. Both the Courts below dismissed the suit. The plaintiff has assailed the said Judgment in the present Second Appeal. 2. Shri K.G. Khader, the learned Counsel for the appellant submitted that even the lower appellate Court has come to the conclusion that marriage of Satyabhamabai with Kisan was not 2 S.A. No.1223.05 valid and legal marriage, and as such the plaintiff being first wife of Kisan would get an absolute right in the property. Even the son born from the wedlock of Kisan and Satyabhamabai would not get any right, title and interest in the suit property being an in-legitmate son. According to learned Counsel this aspect has not been considered by the Courts below. 3. It is not disputed that the suit properties were owned by Kisan. It is also not disputed that Satyabhambai had one son born to her from Kisan. In view of Section 16 of the Hindu Marriage Act, even if the person is born from a void marriage still he would get rights in the property as that of a legitimate son. In that view of the matter, no error is committed by the Courts below while passing the impugned Judgment and Decree. The Courts below have also taken into consideration that the previously the plaintiff had filed a suit for declaration of ownership and injunction against the present respondent in respect of the same subject matter bearing Regular Civil Suit No. 21 of 1980. The 3 S.A. No.1223.05 said suit was withdrawn by the plaintiff, at the stage of hearing of an injunction application, in the said suit, it was prima facie held that the plaintiff is not in possession of the suit property. 4. In that light of the matter, even the present suit is barred by Order 2 Rule 2 of Civil Procedure Code, withdrawal of the earlier suit tantamounts to the dismissal of the said suit. 5. In the light of the above, the Second Appeal being sans substantial question of law is dismissed. However, there shall be no order as to costs. In view of the dismissal of the Second Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA] JUDGE SDM*