Karnataka High Court
Vasantha Kumar @ Vasantha vs T Thirukappa on 6 April, 2017
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06th DAY OF APRIL, 2017
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
REGULAR SECOND APPEAL No.1971/2011(DEC/INJ)
BETWEEN:
Vasantha Kumar @
Vasantha, aged about 49 years,
Adopted S/o Thirukappa,
Thimmenahalli,
Vasana Village,
Harihara Taluk,
Davanagere District-577 002. ....Appellant
(By Sri.M.Vinaya Keerthy, Advocate)
AND:
1. T.Thirukappa,
Thimmenahalli,
Aged about 75 years,
S/o Veerabhadrappa,
Thimmenahalli,
2. Kamalamma,
Aged about 70 years,
W/o Thirukappa,
Thimmenahalli.
3. Nagaraj,
Aged about 29 years,
S/o Gadigeppa,
Paleda.
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4. Gadigappa,
Aged about 55 years,
S/o Basappa paleda.
5. Kalamma,
Aged about 50 years,
W/o Basappa Paleda.
All are residents of
Vasana Village,
Harihara Taluk,
Davanagere District-577 002. ....Respondents
(By Sri.B.C.Seetha Rama Rao, Advocate for R1 to R5)
This RSA is filed under section 100 R/W Order XLII of
CPC, against the judgment and decree dt:16.07.2011 passed in
R.A.No.214/2009 on the file of the II-Additional District Judge,
Davanagere, dismissing the appeal and confirming the judgment
and decree dated:05.08.2009 passed in O.S.No.134/2006 on
the file of the Civil Judge (SR.DN) Harihar.
This appeal coming on for further hearing this day, the
Court delivered the following:
JUDGMENT
This is plaintiff's second appeal against the judgment and decree dated 16.07.2011 passed by the II Addl. District Judge, Davangere in R.A.No.214/2009. By the impugned judgment, the First Appellate Court has dismissed the appellant's appeal and confirmed the judgment and decree passed by the Senior Civil Judge, 3 Harihar in O.S.137/2006 on 05.08.2009 where under the trial Court has dismissed the suit of the plaintiff for declaration that he is the adopted son of defendants 1 and 2 and for permanent injunction.
2. Plaintiff filed O.S.134/2006 claiming that defendants 1 and 2 have adopted him on 10.03.1964 according to Hindu rites and in that regard they executed an adoption deed Ex.P.1 dated 10.03.1964. He further contended that from the date of adoption he was separated from his biological parents and lived with his adopted parents. He contended that soon before the suit defendant no.1 contested an election and the biological brother of the plaintiff supported the rival candidate and due to that anemosity defendants 1 and 2 are denying the adoption and they have created a false adoption deed dated 05.10.2006 as if they have adopted defendant no.3 on 23.01.1992. He claimed that the alleged adoption of 3rd defendant is null and void.
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3. Defendants 4 and 5 are the biological parents of defendant no.3. 1st defendant filed the written statement and contested the suit denying the adoption set-up by the plaintiff. Defendant nos.2 to 5 adopted the written statement filed by defendant no.1 and contested the suit. On the basis of the pleadings, the trial Court framed the following issues:
1. Whether the plaintiff proves that he is validly adopted by defendants 1 & 2 as pleaded in para 4 of the plaint?
2. Whether the plaintiff proves that the Gift Deed dt:28.10.98 executed by the 1st defendant in favour of the 4th defendant and in respect of 'B' schedule is false, nominal and does not bind him as pleaded in para 5 of the plaint?
3. Whether the plaintiff proves that the adoption deed dt:05.10.2006 executed by the defendant Nos.1 & 2 in favour of 3rd defendant is in-valid for the reasons shown in Plaint para 5?
4. Whether the defendants 1 & 2 prove that they have validly adopted the 3rd defendant on 28.01.92 and got registered the adoption deed on 05.10.2006?
5. Whether the plaintiff is entitled for the relief of declaration?
6. Whether the plaintiff is entitled for the relief of permanent injunction?5
7. What Order or Decree?
4. Before the trial Court, the plaintiff got examined himself as PW.1 and PWs.2 and 3 the attesting witnesses to the adoption deed. He also examined the Tahsildar of Harihar as PW4 and got marked Exs.P.1 to P.30. The 1st defendant got himself examined as DW1 and got marked Ex.D.1 to D.8. The trial Court after hearing the parties held that the adoption set-up by the plaintiff is not proved. Hence, dismissed the suit.
5. Plaintiff challenged the said judgment before the First Appellate Court on the ground that the Trial Court failed to appreciate the evidence and the law in question properly. The First Appellate Court by the impugned judgment concurred with the findings of the trial Court that the adoption set-up by the plaintiff is not proved and dismissed the appeal.
6. Learned counsel for the appellants contends that the First Appellate Court without independent 6 appreciation of evidence on record has simply confirmed the judgment of the trial Court. He further contends that the trial Court disbelieved the plaintiffs adoption merely on the ground that PWs.2 and 3 - the attestors were minors as per their evidence and therefore, they being the witnesses to the adoption is improbable. He further contends that PWs.2 and 3 being old aged persons and illiterates, in the cross-examination have deposed about their age on an average basis. He further contends that the trial Court and the First Appellate Court failed to note that in their affidavit and they have stated that they are 70 years old.
7. As against that, the learned counsel for the respondents contends that the First Appellate Court is the last Court on the question of facts and to admit the appeal the appellant has to make out substantial question of law and there is no such substantial question of law in the matter to entertain this appeal.
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8. The substantial questions of law proposed in the appeal memo by the appellant are as follows:
(a) Whether the Trial and Appellate Courts erred in dismissing the suit & appeal without considering the evidence of the attesting witnesses and also the documentary evidence?
(b) Whether the Trial & Appellate Courts erred in not considering Ex.P.1 adoption deed, which explains about adoption of the Appellant by the Respondents 1 & 2?
9. What are the substantial questions of law and what is the scope and power of the second appellate Court under Section 100 CPC is explained by the Apex Court in the Judgment of Santosh Hazari vs Purushotham Tiwari deceased by LRs (2001) 3 SCC,179. The Apex Court at Page 189 held as follows:
"The First Appellate Court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate 8 court even on questions of law unless such question of law to be a substantial one".
10. A reading of the above judgment goes to show that on question of facts, the First Appellate Court is the last Court. Unless, the appellant demonstrates that the Courts below or the First Appellate Court has failed to consider any material document or evidence. Even on the question of law, it is held that each question of law is not a substantial question of law and the appellant has to show that there is a substantial question of law to be decided in the second appeal.
11. The appellant claimed that defendant nos.1 and 2 adopted him on 10.03.1964 and in that regard executed Ex.P.1. When the defendants denied the execution of the said document of adoption, the burden was on the plaintiff to prove the fact of adoption and the execution of Ex.P.1. The trial Court and the First Appellate Court both hold that PWs.2 and 3 in their chief examination (affidavit) stated their age as 70 years and 68 years respectively, but PW2 9 himself admitted in cross examination that he is 1949 born and he also admitted in the electoral roll of the year 2009 his age is shown as 54 years. Similarly, PW.3 in his cross examination admitted that he is born on 05-05-1946.
12. The trial Court and the First Appellate Court observed that PWs 2 and 3 both admitted that their parents were alive in 1964. On the basis of the above admission of PWs.2 and 3, the trial Court assessed the age of PWs.2 and 3 as on 10.03.1964 to be 16 and 17 years respectively. Therefore, the trial Court says that PWs 2 and 3 being the witnesses to the adoption is improbable and they are incompetent to attest any document.
13. The Courts below hold that the plaintiff has not produced any official records like School Records though plaintiff claimed to be a graduate and an employee in a sugar factory. Plaintiff produced the declarations filed before the Tahsildar Exs.P.13 and 18, the declarations allegedly submitted by the 1st defendant before the 10 Tahsildar declaring the plaintiff to be a member of their family. The records show that the trial Court rejected Exs.P.13 and 18 - the declarations and Ex.P.25 - the Wedding Invitation Card on the ground that they are the copies and the originals are not produced. The defendants disputed those documents as concocted documents. Despite that the originals were not produced. Thus, the trial Court declined to accept those documents as credit- worthy and the same is upheld by the First Appellate Court.
14. Absolutely, no perversity is found in the appreciation of the evidence. The appellant is not able to make out any case of failure on the part of the First Appellate Court to consider any material evidence or fact. Again these are all the questions of fact and not questions of law much less substantial questions of law. The appellant has failed to make out any substantial question of law in the matter to admit the appeal.
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15. Having regard to the aforesaid facts and the Judgment in Santosh Hazari's case (supra), this Court holds that no substantial question of law arises in the matter. Therefore, appeal is dismissed. No order as to costs.
Sd/-
JUDGE brn