Karnataka High Court
Sri Yellappa S/O Late Muniyappa vs Smt. Yellamma W/O Narayanaswamy, Sri ... on 25 June, 2007
Equivalent citations: AIR2007KANT181, 2008(1)KARLJ493, AIR 2007 KARNATAKA 181, 2008 (2) ALJ (NOC) 385 (KAR.) = AIR 2007 KARNATAKA 181, 2008 (1) AJHAR (NOC) 117 (KAR.) = AIR 2007 KARNATAKA 181, 2007 (5) AIR KAR R 495, 2007 A I H C 3495, (2008) 1 HINDULR 302, (2008) 2 ICC 361, (2008) MATLR 4, (2008) 1 KANT LJ 493
Author: Ajit J. Gunjal
Bench: Ajit J. Gunjal
ORDER Ajit J. Gunjal, J.
1. Notice to respondent No. 1 dispensed with as she has entered caveat.
This appeal is taken up for final disposal with the consent of the appellant as wall as the first respondent. During the course of this judgment, parties would be referred to as per their ranking before the trial court.
2. Third-defendant is questioning the judgment and decree dtd 9-1-2007 passed by the learned trial Judge in OS No. 4910/1993 decreeing the suit with costs and directing the defendant No. 3 to vacate and deliver vacant possession of the suit property to the plaintiff within three months from the date of the judgment and dismissing the suit against defendants 1 and 2.
3. The plaintiff filed the suit against the defendants for delivery of possession of the schedule property and for damages at the rate of Rs. 400/- per month from the date of the suit till delivery of possession and for costs and other reliefs.
The suit schedule property is a house bearing No. 134, Kaneshumari No. 129, measuring east to West 9' and North to South 14' situated at Arakee Village, Hulimavu Post, Bangalore South taluk. The plaintiff is the only heir of Muniella and His wife has predeceased him. The total extent of the property is 40' x 30' and the same was granted to the plaintiff's father Muniella in the year 1973 and a site was formed in Sy. No. 4/3 and site number was given as 19. Plaintiff's father had put up a construction on the said site towards northern side and retained vacant space towards the southern aide. Suffice it to say that the plaintiff's father died 12 years hack, leaving behind the plaintiff as the only legal heir. Defendants are none other than the sons of the brother of the plaintiff s father and he was allotted a site towards the eastern side of site No. 19. Defendant No. 2 died during the pendancy of the suit and his legal representatives were brought on record as defendants 2(a) and (g). It is the further case of the plaintiff that defendants requested the plaintiff to provide them accommodation in a portion of the house constructed by his father and accordingly plaintiff permitted them to occupy the same with a condition to vacate as and when required. The defendants continued to be in permissible possession of the suit schedule property sand they are not tenants nor they have any right over the suit schedule property. When the Plaintiff requested the defendants to deliver vacant possession of the property. The Defendants refused to vacate the same and as such the plaintiff filed a suit for recovery of possession and also for mesne profits at the rate of Rs. 400/- per month.
4. The case of the defendants is that since Muniella had no male issues, he adopted the third defendant Yellappa as his son by following adoption ceremony about 28 years prior to the institution of the suit. The third defendant being the adopted son of Muniella, is having half share in the suit property. It is further contended that the plaintiff was adopted by one Dasappa and she is residing at Mallasandra in her husband's house and that she is not entitled to the relief sought for. They would also contend that she was not in possession and enjoyment of the property. The alternative contention taken by the defendants is that since they are in possession and enjoyment of the property for more than 12 years with the knowledge of the plaintiff without any interruption, they have perfected their title by adverse possession and hence there is no question of permissive possession.
5. On the basis of these pleadings, the following issues have been framed toy the trial court;
(1) Whether the plaintiff proves that D-1 is in permissive possession of the plaint schedule property?
(2) Whether the plaintiff is entitled for possession of the plaint schedule property?
(3) Whether the plaintiff is entitled for damages at the rate of Rs. 400/-per month?
(4) Whether the suit is bad for nonjoinder of parties?
(5) Whether the court fee paid is sufficient?
(6) What decree or order?
6. During the course of trial, on behalf of the plaintiff, husband of the plaintiff was examined as PW-1 and one more witness was examined as PW-2; 6 documents were marked as Ex.P1 to P6. On behalf of the defendants four witnesses were examined as DWs. 1 to 4, however, no documents were marked. Learned trial Judge, having assessed both oral and documentary evidence has recorded a finding that the defendant No. 1 is in permissive possession of the suit schedule property and in so far as defendant No. 3 is concerned, has decreed the suit granting certain time to vacate and deliver vacant possession of the suit schedule property and the suit as against the defendants 1 and 2 was dismissed.
7. Mr. Sunil, learned Counsel fox appellant- third defendant would strenously argue that a perusal of the judgment passed by the learned trial Judge would disclose that issues have not been framed in so far as adoption and adverse possession even though evidence in that regard was led by the parties to the lis. He would also submit that the suit being one for possession, the learned trial Judge was not justified in not recording a finding regarding adoption and adverse possession. He further submits that the plaintiff did not step into the witness box and the evidence is adduced by the General Power of Attorney, who is the husband of the plaintiff. Hence, his evidence could not have been considered. He also submits that the plaintiff is not entitled for any other relief sought for.
8. Learned counsel appearing for the plaintiff would support the judgment and decree of the learned trial Judge and submits that notwithstanding non-framing of issues, the impugned judgment cannot be faulted in as much as the parties have led evidence on the said issue. He also submits that the husband of the plaintiff was in know of the facts and his evidence cannot be eschewed on the ground that he is only a power of attorney holder.
9. After hearing the learned Counsel for the parties, and after perusal of the impugned judgment, the following points arise for consideration in this appeal.
1) Whether the judgment and decree of the trial court is Vitiated for nonframing of necessary issues?
2) Whether the findings recorded by the learned trial Judge in the absence of any issue can be sustained?
10. In so far as the first point is concerned, it is no doubt true that a specific contention is taken by the third defendant that he is the adopted son of Muniella and in the partition half share in the suit schedule property was allotted to him. In fact it is to be noted that it is specific case of the third defendant that he was adopted by Muniella 28 years prior to the institution of the suit. Alternate contention taken by the third defendant is that he has perfected his title by adverse possession as he has been residing in the suit schedule property for more than 12 years. Apparently, the trial court has not framed any issues regarding adoption and also regarding adverse possession, but however, that by itself is not an infirmity in the proceedings. It is to be noticed that parties to the lis are aware as to the pleadings and also the evidence, which is supposed to be let in by them. It is to be noticed that the specific case of the defendants regarding adoption has been dealt with extensively by the learned trial Judge. In paragraph 18 of the impugned judgment, it is to be noticed that four witnesses have been examined on behalf of the defendants. Defendant No. 3 is examined as DW-1 and DWs.2 to 4 are the witnesses and one of them is the brother of DW-1. Indeed when a plea of adoption is taken, there must be sufficient evidence let in by the parties in respect of the plea of adoption to show that the adoption has taken place in accordance with law in as much as in accordance with the Hindu Adoptions and Maintenance Act, 1956. It is also required of the parties to prove that in absence Of any ceremonies for adoption, there is a custom in the community to take in adoption in a particular fashion. No such evidence is let in by the defendant No. 3. The oral evidence does not disclose on which date, month or year the defendant has been adopted. No evidence is let in to show as to whether religious ceremonies or rites were performed by the parents as to when they took the third defendant in adoption. In fact one of the witnesses would state that DW-1 was given in adoption when he was 10 to 15 years old. The other witness has stated that when the third defendant was taken in adoption he was hardly six months or three ye are old baby. DW-2 would state that when the adoption was taken place, he was a minor, which would necessarily mean that DW-2 was a minor when the adoption took place. This part of the evidence has been viewed with circumspection by the learned trial Judge.
Section 5, 6 and 7 of the Hindu Adoptions and Maintenance Act, 1956 would disclose as to the ceremonies which are required to followed during the course of adoption. It is to be noticed that none of the provisions under the Act have been followed. In the absence of any registered adoption deed, and in the absence of the ceremonies being performed, to my mind, the findings recorded by the learned trial Judge to the effect that the adoption has not taken place cannot be faulted. In fact a perusal of the evidence would disclose that there is absolutely no material on record to prove, that the defendant No. 3 was adopted.
Incidentally it is always desirable that whenever a plea of adoption is sat up either of the genetic parents who is alive must give evidence to that effect. It is stated that they have given their consent for adoption to the adoptive father, but there is no evidence to that effect at all. To say the least, the. evidence in support of the plea of adoption is vary scanty. In fact DW-3 has stated in his evidence that the plaintiff was the only daughter to her parents and the third defendant was taken in adoption about 28 to 29 year's ago and the plaintiff was taken in adoption by one Dasappa. During cross-examination he has stated that when defendant No. 3 was adopted, ha was 13 or 14 years old and he has also stated about the partition held in the year 1991-92 in the Panchayat. Once again no evidence is forthcoming about this fact. In so fan as DW-4 is concerned,. he is none other than the brother of the defendant No. 3 and the defendant No. 1 in this case. He also comes up with the plea of adoption and speaks about the plaintiff's father Muniella and his wife having adopted defendant. No. 3 after performing religious ceremony. He further says that when the defendant No. 3 was adopted, he was only five years old and no shastras were observed, but only sweets were distributed and no function was performed and there was no purohit to perform the ritual. The evidence on record is not sufficient to hold that the defendant No. 3 was adopted by the father of the plaintiff. The courts will have to be vigilant and careful not to be ensnared by the feeble evidence, In case of adoption on the basis of oral evidence, if there are suspicious circumstance, the same are required to be dispelled to the satisfaction of the court beyond all reasonable doubt. In the absence of any material, I am of the view that adoption plea set up by the third defendant cannot be accepted.
11. In so far as the second point regarding adverse possession is concerned, incidentally it is to be noticed that the defendants have not established in evidence before the court that they have been in possession since 12 years prior to the institution of the suit. The evidence adduced by the third defendant also does not inspire confidence so as to show that there is animus and hostility to the title of the plaintiff. It is also to be noticed that except taking up the plea of adverse possession in the written statement, no evidence is let in by the defendants on this aspect of the matter. In these circumstance, I am of the view that the question of declaring that the defendants have perfected their title toy adverse possession does not arise. One can refer to the decision of this Court reported in 1991(2) KLJ 256 and. 2003 (1) KLJ 291 with regard to adverse possession.
12. With regard to the point as to whether in the absence of framing any issue the trial court was right in recording its findings, one can refer to the judgment of the Apex Court reported in Nedunuri Kameshwaramma v. Sampati Subba Rao wherein the it is observed as under;
Where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case or that there was that, mis-trial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer.
Incidentally, it is to be noticed that indeed the learned trial Judge has not framed issues regarding adoption and adverse possession, hut the parties were aware as to the pleadings and evidence was let in on these two aspects. The learned trial Judge has indeed considered the evidence and has come to the conclusion that the defendant No. 3 has miserably failed to prove that he has been adopted by the plaintiffs father and that he has perfected his title by adverse possession. It is not a case where parties to the lis were taken unawares. In these circumstances, non-framing of the issues by the learned trial judge with regard to adoption and adverse possession does not vitiate the proceedings. Defendant No. 3 can not make a grievance to that affect and seek remittance of the matter to the trial court.
12. In so far as the contention regarding the husband of the plaintiff - PW-1, letting in evidence is concerned, it is to be noticed that it is not as though the plaintiff is the only person who is in know of facts and that she is required to step into the witness box. It is also to ha noticed that whatever-evidence let in by PW-1 is based on record. When that is the case, I am of the view that the exception which is covered by the judgment in the case of Janki Vashdao Bhojwani v. Indusind Bank Ltd. is attracted, wherein it is observed that if the power of attorney holder has rendered some 'acts' in pursuance of power of attorney, he may depose fox the principal in respect of such acts. In this circumstance, this contention cannot be accepted.
13. Incidentally, a. contention was raised by the learned Counsel for the defendant No. 3 that findings on adoption and adverse possession could not have been recorded by the learned trial Judge as they are outside the purview of the suit. Learned counsel for the third defendant is not right in saying so. It is to be noticed that the suit filed by the plaintiff is on the basis of title and for possession. It is not a suit for ejectment When that is the case, I am of the view that the trial court was justified in recording a finding on the pleadings and evidence which was let in.
14. Having perused the judgment and decree of the trial court, I am of the view that the findings arrived at by the learned trial Judge cannot be faulted. There is no merit in this appeal. Appeal stands dismissed.