Karnataka High Court
Shri.Sangamesh A/F Holeppa Parit vs Shri.Holeppa S/O. Basappa Parit on 17 January, 2024
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NC: 2024:KHC-D:978-DB
RFA No. 100288 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 17TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100288 OF 2018 (DEC)
BETWEEN:
SHRI. SANGAMESH A/F HOLEPPA PARIT
AGE: 27 YEARS, OCC: AGRICULTURE,
R/O: ALGUNDI B.K., MUDHOL-587313,
DIST: BAGALKOT.
...APPELLANT
(BY SRI. B.S.KAMATE, ADVOCATE)
AND:
SHRI. HOLEPPA S/O. BASAPPA PARIT
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: ALGUNDI B.K., MUDHOL-587313,
DIST: BAGALKOT.
Digitally signed
...RESPONDENT
by
SHIVAKUMAR
(BY SMT. DEEPA P.DODDATTI, ADVOCATE FOR
HIREMATH
Date:
SRI. PAVAN B.DODDATTI, ADVOCATE)
2024.02.08
12:21:57 +0530
THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 28.04.2018 PASSED IN
O.S.NO.90/2016 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL,
DECREEING THE SUIT FILED FOR DECLARATION AND PERMANENT
INJUNCTION.
THIS RFA COMING ON FOR HEARING, THIS DAY, ASHOK S.
KINAGI, J., DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:978-DB
RFA No. 100288 of 2018
JUDGMENT
This appeal is filed by the appellant challenging the judgment and decree dated 28.04.2018 passed in O.S.No.90/2016 by the Additional Senior Civil Judge and JMFC, Mudhol.
2. For the sake of convenience, parties are referred to as per their ranking before the trial court.
3. Appellant is defendant and respondent is the plaintiff.
4. Plaintiff filed a suit for declaration that plaintiff is the exclusive owner and possessor of the suit schedule property as stated in schedule-B by declaring the adoption deed dated 31.07.2014 is null and void and for the relief of permanent injunction restraining the defendant from obstructing and disturbing the peaceful possession and enjoyment of the suit property. It is the case of the plaintiff, that defendant is his brother's son. His father by name Basappa had 3 sons and daughters and their family having landed properties at Alagundi BK village. During the -3- NC: 2024:KHC-D:978-DB RFA No. 100288 of 2018 lifetime of his father, the partition was effected. In the said partition, R.S.No.88/1 measuring 3.14 acres was allotted to his share and he is in possession and enjoyment of the said suit property since the date of partition. It is contended that, the defendant is no way concerned to the suit land. By taking undue advantage of his weakness, defendant and his henchman are planned to grab the suit property and created one adoption deed dated 31.07.2014 by playing fraud and coercion against him. It is contended that at no point of time he was adopted the defendant as his son. Hence, question of execution of alleged adoption deed does not arise. After the death of his wife, he was mentally unstable and he was not able to decide the things on his own. It is further stated that, the defendant and others tried to trespass over the suit land based on the adoption deed. Thereafter, the plaintiff tried to convenience the defendant through the elders, but the defendant did not heed their request. Hence, cause of action arose for the plaintiff to file a suit for declaration of title and permanent injunction.
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5. The defendant filed written statement and admitted that suit property is acquired by the plaintiff from his ancestor and denied the rest of the averments made in the plaint. It is contended that plaintiff's wife was expired on 01.11.2000 at Alagundi BK village. The plaintiff and his wife are not having any issues, as he was plaintiff's brother's son. As such, plaintiff and his wife have decided to take him in adoption. Accordingly, in the year 2004 in the presence of village elders, it was decided to take him in adoption as per the customs prevailing in their community. After the adoption, himself and plaintiff are in joint possession and enjoyment of the suit property. The adoption deed was not registered due to his tender age and as such, on 31.07.2014, the adoption deed was registered in the presence of the village elders. Defendant filed suit in O.S.No.291/2016 for the relief of partition. The said suit is pending for consideration. Hence, he prayed to dismiss the suit.
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NC: 2024:KHC-D:978-DB RFA No. 100288 of 2018
6. The trial court on the basis of the pleadings of the parties framed following issues:
1) Whether the plaintiff proves that he is the absolute owner of the suit schedule property?
2) Whether the plaintiff proves that he is in possession and enjoyment of the suit schedule property as on the date of suit?
3) Whether the plaintiff proves the alleged interference by the defendant?
4) Whether the plaintiff proves that the alleged adoption deed dated 31.07.2014 is null and void?
5) Whether the plaintiff is entitled for the reliefs sought for?
6) What order or decree?
7. The plaintiff in order to prove his case examined himself as P.W.1 and examined two witnesses as P.Ws.2 and 3 and got marked 2 documents as Exs.P1 and P2.
Defendant examined himself as D.W.1 and examined another witness as D.W.2 and got marked 1 document as Ex.D1. The trial court on assessment of oral and documentary evidence answered issue Nos.1 to 5 in the affirmative and issue No.6 as per the final order. -6-
NC: 2024:KHC-D:978-DB RFA No. 100288 of 2018
8. The suit of the plaintiff was decreed, declaring that the plaintiff is the absolute owner of the suit property and it is also declared that, the alleged adoption deed dated 31.07.2014 is null and void and restrained the defendant from causing interference in the plaintiff's peaceful possession and enjoyment of the suit land. The defendant aggrieved by the Judgment and decree passed by the trial Court, filed this appeal.
9. Heard the learned counsel for the defendant and the learned counsel for the plaintiff.
10. Learned counsel for the defendant submits that, the defendant has proved the adoption by examining D.W.2 who is the witness to the adoption deed and further he submits that, the said adoption deed was registered and the trial Court has not drawn a presumption under Section 16 of the Hindu Adoption and Maintenance Act, 1956, (for Short hereinafter referred to as 'the Act'). He further submits that, in order to prove necessary ceremony of the adoption, the defendant has also -7- NC: 2024:KHC-D:978-DB RFA No. 100288 of 2018 examined D.W.2 has deposed about necessary ceremonies of the adoption. He submits that the trial Court has committed an error in decreeing the suit of the plaintiff. Hence, on these ground, he prays to allow the appeal.
11. Per contra, Smt. Deepa P. Doddatti, learned counsel for plaintiff submits that, the defendant has played fraud on the plaintiff in order to engulf the properties of the plaintiff and further submits that, though if a deed is registered, there is a presumption under Section 16 of the Act, the said presumption is a rebuttal presumption. In order to rebutte the said presumption, the plaintiff has examined P.W.2 and P.W.3, who are said to be attesting witness to the alleged adoption. She further submits that, the defendant has failed to establish the adoption ceremony as per Section 6 of the Act. Hence, the trial Court was justified in decreeing the suit. She submits that the Judgment and decree passed by the trial Court is proper and does not call for any interference. Hence, on these grounds she prays to dismiss the appeal. -8-
NC: 2024:KHC-D:978-DB RFA No. 100288 of 2018
12. Heard and perused the records. The points that would arise for our consideration are:
(i) Whether the plaintiff proves that, the alleged adoption deed dated 31.07.2014 is null and void?
(ii) Whether the defendant proves that, the Judgment passed by the trial Court is perverse, arbitrary and erroneous?
(iii) What order or decree?
13. Answer to Point No.1 : It is the case of the plaintiff that, the defendant is his brother's son and his father by name Basappa had three sons and daughters and their family was possessing landed properties at Alagundi B.K. Village. During the life time of his father there was a partition effected between the plaintiff and his father. In the said partition, R.S.No.88/1, measuring 3.14 acres was fallen to his share and he was in possession and enjoyment of the suit property since from the date of partition. The plaintiff's wife died leaving behind the plaintiff. The defendant taking the advantage of weakness of the plaintiff, got created an adoption deed dated -9- NC: 2024:KHC-D:978-DB RFA No. 100288 of 2018 31.07.2014 by playing fraud and coercion against the plaintiff and it is contended that, at no point of time the defendant has gone in adoption as per the alleged adoption deed. The plaintiff in order to substantiate his case, examined himself as P.W.1. He has reiterated the plaint averments in the examination-in-chief and further in order to prove his case, got marked the documents at Ex.P.1 i.e. RTC extract in respect of R.S.No.88/1 which stands in the name of plaintiff and Ex.P.2 is the certified copy of the adoption deed which discloses that, the plaintiff adopted the defendant in the year 2004 and the same was reduced into writing in the year 2014 and the same was registered. P.W.2 is Sri. Kareppa Tippanna Kalleppagol, who is said to have been an alleged attesting witness to Ex.P.2 and P.W.3 Sri. Bhimappa Ramachandra Nyamagoudar is also said to have been an alleged attesting witness to Ex.P.2. P.W.2 has deposed that, no such adoption was took place in their presence and he has further deposed that, they had been to the Tahasildar Office at Mudhol and at that time the defendant also came
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NC: 2024:KHC-D:978-DB RFA No. 100288 of 2018 to the Sub-Registrar Office and the defendant asked them to put their signature as witness, as he is intending to take loan, as such, he asked them to put their signature as a witness, as P.W.2 and P.W.3 are farmers and defendant is also a farmer. In order to help the defendant, they affixed their signature on a blank paper. They have deposed that, the plaintiff never adopted the defendant as per the alleged adoption deed and further contended that, the plaintiff's wife died in the year 2000 and the plaintiff is not having any issues. In the course of cross-examination they have denied that at the time of registration of adoption deed, the presence of the plaintiff and natural parents of defendant himself and village elderly persons and affixing their signatures on the adoption deed.
14. In rebuttal, the defendant was examined as D.W.1 and has reiterated the written statement averments in the examination-in-chief. In the course of cross- examination, it was suggested to D.W.1 that, he has not produced documents to show that, the adoption ceremony
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NC: 2024:KHC-D:978-DB RFA No. 100288 of 2018 has taken place in the year 2004. The said suggestion was denied by D.W.1 and it is suggested to D.W.1 that, Ex.P.2 was created only with an intention to engulp the suit property. The defendant also examined one witness by name Yamanappa Gyanappa Baragi who was aged about 30 years as on the date of the evidence. He has deposed that, in the year 2004, it was decided in their village to adopt defendant by the plaintiff as per the customs prevailing in their community and the plaintiff has adopted the defendant. At that time, he was present and he has afixed his signature on the adoption deed. From the perusal of the evidence of D.W.2, D.W.2 was examined on 03.11.2017. His age was shown as 30 years. If the age of the D.W.2 is considered as 30 years as on the date of his evidence, he would be minor as on the date of the alleged adoption i.e. in the year 2004 and further the signature of D.W.2 has not identified his signature on Ex.P.2. Further in the course of cross-examination he has deposed that, at the time of adoption, along with him, other two elders by name Kenchappa Pandappa Sonnad and Mallappa Basappa
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NC: 2024:KHC-D:978-DB RFA No. 100288 of 2018 Chichakhandi were present and the defendant has not examined Kenchappa and Mallappa in order to prove necessary ceremony as required under Section 6 of the Act. Though it is the case of the defendant that, the alleged adoption took place in the year 2004 and the document was registered in the year 2014 and further it is the case of the defendant that the wife of the plaintiff was alive as on the date of the adoption, but the plaintiff has denied that his wife was alive as on the date of the alleged adoption. The defendant has not produced any record to show that, the plaintiff's wife was alive as on the date of alleged adoption. Thus, the adoption deed is surrounded by suspicious circumstance. The defendant has failed to examine the witness in whose presence the adoption ceremony took place and further the defendant has not explained the reason for registering the adoption deed after a lapse of ten years from the year of alleged adoption and further P.W.2 and P.W.3 who are said to be an alleged attesting witnesses to the Ex.P.2 i.e. adoption deed have deposed that the plaintiff never adopted the defendant at
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NC: 2024:KHC-D:978-DB RFA No. 100288 of 2018 any point of time and they have also deposed that, the defendant has taken their signature on the blank paper and got created the alleged adoption deed. Ex.P.2 is the registered document, as per Section 16 of the Act there is a presumption as to the registered document relating to the adoption and the said presumption is rebuttable. In the instant case, the plaintiff has examined P.W.2 and P.W.3 who are the attesting witnesses to Ex.P.2 who have deposed that the plaintiff has not adopted the defendant at any point of time. The plaintiff has rebutted the presumption by examining P.W.2 and P.W.3. Thus, in view of the above discussion, we hold that, the plaintiff has proved that the alleged adoption deed got created by the defendant is null and void.
In view of the above discussion, we answer to the above point No.1 in the affirmative.
15. Answer to Point No.2 : As we have recorded the finding for point No.1 in the affirmative for the reason that the defendant has failed to prove the adoption took
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NC: 2024:KHC-D:978-DB RFA No. 100288 of 2018 place in the year 2004 and further the plaintiff has already rebutted the presumption by examining P.W.2 and P.W.3. The said aspect was considered by the trial Court and further the defendant has failed to prove necessary ceremony as required under Section 6 Act. Thus, the trial Court considering the entire material on record was justified in passing the impugned Judgment. Hence, we do not find any ground to interfere with the impugned Judgment.
In view of the above discussion, we answer issue No.2 in the negative.
16. Accordingly, we proceed to pass the following:
ORDER
(i) The appeal is dismissed;
(ii) The Judgment and Decree dated 28.04.2018 passed in O.S.No.90/2016 by the Addl. Senior Civil Judge and JMFC Court, Mudhol is confirmed;
(iii) No order as to costs;
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(iv) In view of the dismissal of the appeal, I.A.No.1/2018 does not survive for consideration. Accordingly, the same is dismissed.
Sd/-
JUDGE Sd/-
JUDGE MBS para 1 to 7 SVH para 8 to end Ct/vh List No.: 1 Sl No.: 9