1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.182 OF 2011. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 27.04.2011. 1. Heard. 2. This is appeal by the original plaintiff who had filed a suit for declaration that the adoption of the present defendants is illegal, so also restoration of possession in respect of property bearing land S.No.7-B and S.No.20-B. The trial Court dismissed the suit holding that the adoption was legal and valid so also concluded that the transaction of sale dated 6.8.1973 in favour of defendant No.7 is for legal necessity. Further held that the plaintiff does not have any preferential right to purchase the suit house. 2 3. The transaction in respect of the property bearing S.No.7-B was that of out and out sale and not a mortgage. Aggrieved thereby, the plaintiff filed appeal before the District Court. The District Court also dismissed the appeal, confirming the judgment and decree passed by the trial Court. The plaintiff has assailed the said judgment in the present Second Appeal. 4. Mr.S.M.Kulkarni, learned counsel for the appellant submits that the Court below only on the evidence of the natural mother has held the adoption of Respondent No.1 by deceased Keshav. All other witnesses are disbelieved. The mother being interested person would always depose in favour of the adoption. According to the learned counsel even the deed of adoption can not be said to be proved. The recitals of deed of adoption shows that even the property which belongs to the plaintiff or to the branch of Pundlik, have been shown in the said adoption deed. According to the learned counsel the sale deed of property bearing S.No.7-B in fact, is a deed of mortgage and the plaintiff is entitled for 3 redemption. The Courts have not properly interpreted the said document. Moreover, even the appellant has got a preferential right to purchase the suit house in view of Section 22 of the Hindu Succession Act. 5. With the assistance of the learned counsel, I have gone through the judgments. Regarding the adoption the Courts have taken into consideration the provisions of Article 56 of the Limitation Act. The plaintiff in his evidence admitted that he got the knowledge of adoption of Respondent No.1 by Keshav in the year 1983. As per Article 56 of the Limitation Act, the suit was barred by limitation seeking declaration about the said adoption. Even the previous litigation of RCS No.192/1983 has also been considered. The adoption deed is a registered adoption deed and the attending circumstances were also considered. The view taken by the Courts in that regard is a possible view supported by the evidence. The transaction in respect of the property bearing S.No.7-B in favour of the defendant No.7 by defendant No.1 that of sale 4 can not be termed as a mortgage. The recitals of the said sale deed are that of out and out sale. The arguments of Mr.Kulkarni, learned counsel that in a deed of adoption even other properties which belong to the branch of Pundlik are shown is not germane to the present dispute inasmuch as the other properties were not subject matter of the suit and the Courts were not called upon to dilate about the ownership of the properties which were not the subject matter of the suit. The Courts have restricted its decision regarding declaration of adoption and the suit properties. 6. In light of the above, the Second Appeal being devoid of any substantial question of law, is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.27.04.2011. asp/office/sa182.11 5