Karnataka High Court
Veerabhadrayya R. Hiremath S/O ... vs Irayya A.F. Basayya Hiremath on 16 March, 2006
Equivalent citations: ILR2006KAR1740, AIR 2006 (NOC) 852 (KAR), 2006 (3) AIR KANT HCR 252, 2006 A I H C 1734, (2006) 3 CIVILCOURTC 655, (2006) 2 MARRILJ 544, (2006) 3 RECCIVR 165, (2006) 3 ICC 294, (2006) 2 HINDULR 261, (2006) MATLR 541, (2006) 2 KCCR 989, 2006 (3) AIR KAR R 252
Author: K.L. Manjunath
Bench: K.L. Manjunath
JUDGMENT K.L. Manjunath, J.
Page 0309
1. This is a plaintiff's second appeal. The appellants are the LRs of one Vearabhadrayya R Hiremath who was the plaintiff in O.S. No. 46/92 before the Civil Judge, (Jr.Dn.), Kalghatagi. The plaintiff filed the suit against the defendant to declare the adoption of the defendant by one Basayya has null and void and does not bind the plaintiff.
2. According to the plaint averments, the defendant is the son of one Shivappa Murolli of Astakatti village and is a Lingayat by caste. The plaintiff had a maternal uncle by name Basayya Channaveerayya Viraktmath, who died six years prior to the filing of the suit. The plaintiff and deceased Basayya are Jangams by caste. Except the plaintiff deceased Basayya had no other relatives. According to him, he is in lawful possession and enjoyment of the properties of Basayya since he is the only legal heir. According to him, Basayya was an illiterate old man and was incapable of understanding and managing his affairs. Therefore, he was taking the help of Yellappagouda who was the Police-Patil of Astakatti village and Basayya had reposed full confidence in Police-Patil. Police-Patil obtaining the signature of Basayya on some blank papers and in collusion with the mother of defendant, Gangavva created a registered adoption deed in the year 1961 by playing fraud and undue influence on Basayya and that the defendant would not get any right, title or interest over the properties of Basayya on the strength of the adoption deed. According to him, the ceremonies of adoption were not performed and defendant was not given in adoption to Basayya. On the strength of the adoption deed and at the instance of Police-Patil of Astakatti the defendant filed Form No. 7 for grant of occupancy rights in respect of certain properties of Basayya in the year 1979. According to the plaintiff, he also filed Form No. 7 before the Land Tribunal in the year 1974 itself. On the strength of the adoption deed, the defendant gave a varadi to the Village Accountant and got entered his name in Khabjadar's column in the record of rights of R.S. No. 11 of Astakatti village behind the back of the plaintiff. Therefore, plaintiff filed the suit for declaration to declare the adoption as illegal, null and void and does not bind the plaintiff.
3. The defendant contested the suit. He denied the relationship of the plaintiff with deceased Basayya. According to him, Basayya. was enjoying all the suit properties till his death and thereafter as his adopted son he has been enjoying the suit properties. He denied that the adoption deed was registered by playing fraud on Basayya at the instance of Police-Patil Yellappagouda. According to him, all the ceremonies had been performed before he was taken in adoption and in view of the registered adoption deed, the suit of the plaintiff has to be dismissed. According to him, the present suit is filed to grab the property of the defendant.
Page 0310
4. Based on the above pleadings, the following issues were framed by the Trial Court:
1) Whether plaintiff proves that the registered adoption deed got executed in the year 1961 by Yallappagouda by practising fraud and undue influence on the deceased Basayya?
2) Whether the said adoption deed is illegal/ void and not binding upon the plaintiff?
3) Whether the plaintiff proves that there is no valid adoption of defendant?
4) Does he prove that defendant has not acquired legal right or title in the estate of deceased adoptive father Basayya?
5) Is plaintiff entitled to the declaration sought for?
6) To what decree or order?
Additions Issues;
1) Whether the defendant proves that the correct date of birth is not mentioned in the form No. 7 under the Land Reforms Act?
2) Whether plaintiff proves that the age of the defendant is 39?
3) Whether the suit is barrad for declaration?
5. The plaintiff in order to prove his case, examined himself as PW-1. He relied upon the evidence of three more witnesses who were examined as PW.2 to PW.4. He also relied upon Ex.P1 to P12. The defendant examined himself as DW-1 and he relied upon Ex.D1.
6. The Trial Court after considering the evidence let in by the parties, held issues-1 to 4 in affirmative, issue-5 in affirmative, additional issues-1 to 3 in negative and decreed the suit of the plaintiff on 21.2.1998.
7. Aggrieved by the Judgment and decree of the Trial Court, the defendant filed an appeal before the Civil Judge, (Sr.Dn.), Dharwad, in R.A. No. 27/98, which appeal came to be transferred to the court of II Additional District Judge, Dharwad and renumbered as R.A. No. 124/2003. The lower Appellate Court after hearing the parties, formulated the following points for its consideration:
1) Whether the finding recorded by the Court below that the adoption deed dated 24.4.1961 executed by late Basayya Channaveerayya Hiremath is null and void and not binding on the plaintiff, is proper?
2) Whether the judgment and decree of the Court below call for my interference?
3) What Order?
8. The lower Appellate Court after re-appreciating the entire evidence held both the points in affirmative and allowed the appeal by reversing the Judgment and decree of the Trial Court and dismissed the suit filed by the appellants herein in O.S. No. 46/92.
Page 0311
9. Being aggrieved by the divergent findings of the Courts below, the present appeal is filed by the plaintiff.
10. I have heard the learned Counsel for the appellants.
11. According to the learned Counsel for the appellants, the appreciation of evidence by the lower Appellate Court is perverse and the Appellate Court did not consider that the defendant failed to prove that ceremonies as per the customs were performed when he was given in adoption to late Basayya and that the Appellate Court did not consider the evidence of PWs.2 to 4 in proper perspective.
12. But I am unable to accept the arguments advanced by the learned Counsel for the appellants for the following reasons:
The appellant admits the execution of the adoption deed taking the defendant in adoption by Basayya. According to the appellant the adoption deed as per Ex.D1 came into existence by playing fraud on deceased Basayya. According to him, Basayya died six years prior to the institution of the suit. It is also his case that he cams to know of adoption of the defendant by Basayya in the year 1979. The suit was filed in the year 1992. If Basayya of died six years prior to the institution of the suit, in all probabilities Basayya was alive till 1986. If plaintiff had come to know of the adoption deed in the year 1979, if really adoption deed had been obtained by the defendant by playing fraud on Basayya, there was no difficulty for the appellant-plaintiff to request Basayya to challenge the adoption deed contending that the same was obtained by misrepresentation or fraud. But such an action has not been taken by the plaintiff, requesting Basayya to file a suit to challenge the adoption deed. Admittedly, the suit is filed six years after the death of Basayya and 13 years after coming to know of the adoption of the defendant by Basayya. In the normal circumstances, adoption can be challenged either by the natural parents of the boy or by the adoptive parents or by the child who has been given in adoption. But in the instance case, the plaintiff is a stranger to the defendant. If really, a fraud had been played on Basayya, it-was for Basayya to file a suit for cancellation of the adoption. The very fact that the plaintiff had not requested Basayya to file a suit for cancellation on the ground that Ex.D1 had come into existence on account of the fraud played by Police-Patil of Astakatti village on Basayya, it is not open for the plaintiff to challenge the adoption of defendant, six years after the death of Basayya. In other words/ this Court is of the opinion there is no cause of action for the plaintiff to file the suit.
13. Even if the contention of the appellant is accepted, the suit of the plaintiff has to be dismissed only on the ground of limitation. When the plaintiff admits in the cross-examination that he came to know of the adoption deed as per Ex.D1 in the year 1979, he has chosen to file the suit only in the year 1992, when defendant has filed a Writ Petition before this Court Page 0312 challenging the order passed by the Land Tribunal, Kalaghatagi in favour of the plaintiff herein. Therefore, the burden was heavy on the plaintiff to prove that Ex.D1 had come into existence on account of the fraud played on Basayya by Police-Patil. No evidence was placed by the plaintiff to show that a fraud or misrepresentation. was practiced on Basayya by Police-Patil. Even otherwise, it is not the case of the plaintiff that the defendant is a party to such misrepresentation or fraud.
14. Therefore, under any stretch of imagination, this Court cannot reverse the findings of the Lower Appellate Court which is based on proper appreciation of evidence and on consideration of Section 16 of Hindu Adoptions and Maintenance Act, 1956.
15. In the circumstances, the appeal is dismissed as no substantial question of law arises.