Document Fragment View
Fragment Information
Showing contexts for: Adoption in Ramachandra Dagdu Sonavane(D)By Lrs& ... vs Vithu Hira Mahar(Dead) By Lrs.& Ors on 9 October, 2009Matching Fragments
(i) Do the plaintiffs prove that they were in possession of the suit property as Watandars as alleged?
(ii) Do defendants prove that defendant no.1 (Vithu) was he adopted son of his grandmother and as such was in possession of the suit property?
5) The trial court after considering the pleadings and the oral and documentary evidence on record had answered the first issue in the affirmative and the second issue in the negative. In so far as the first issue, the trial Court had concluded that the plaintiffs are in possession of the suit lands as Watandars. While answering the second issue of adoption, the trial court had observed, that, even though Vithu had stated in the cross examination that he had the necessary documents to prove the adoption, the same was never produced, and the testimony of the Vithu and his witnesses with regard to the year of adoption was inconsistent. Therefore the trial court held that the adoption of Vithu had not been proved. Accordingly, the trial court had decreed the suit and thereby had permanently restrained the respondents from obstructing the Vahiwat of the plaintiffs/appellants in the suit lands.
12) The appellants being aggrieved by the order passed by the SDO dated 22.11.1979, had preferred an appeal before the Additional Commissioner and also had filed a civil suit, O.S. No.2353 of 1979 before the Civil Judge, Junior Division, Pune, for a declaration that the said order of the SDO was illegal and void ab initio. The appellants had also prayed for permanent injunction against the respondents from taking possession of the suit lands.
13) The trial court while passing the judgment and decree in the suit filed by the appellants has noticed that, once the issue of adoption was conclusively decided by the civil court in the suit filed in the year 1953 by the appellants against Vithu, the same would operate as res- judicata and thereby preclude Vithu from raising the issue of adoption again before the Sub Divisional Officer. Secondly, ignoring the judgment and decree passed by the civil court, the SDO could not have allowed the claim of Vithu and recognized him as watandar, since he was not the adopted son of deceased watandar.
21) We have heard learned counsel Shri Vinay Navare for the appellants and Shri Shekhar Naphade, learned senior counsel for the respondents. The learned counsel for the appellants has submitted, that, the civil court in a properly constituted suit has decided that Vithu is not the adopted son of deceased Watandar and that finding has become final in view of the order passed by the High Court in the regular second appeal filed by Vithu and, therefore, the revenue authorities could not have examined and decided the issue of adoption once over again. It is further submitted that the High Court was not justified in relying on the order passed by the Mamlatdar in the year 1931, which was discarded both by the trial and the first appellate court, on the ground that Vithu had failed to adduce oral and documentary evidence in support of his claim that he is the adopted son of the deceased Watandar. It is further contended that the Sub- Divisional Officer had no jurisdiction under the Act, to review and modify the regrant order passed by the Deputy District Collector under Section 5(1) of Watan Abolition Act, 1958. It is further submitted that the issue regarding adoption decided by the civil court and confirmed by the High Court in the regular second appeal between the same parties operates as res-judicata and, therefore, the High Court was not justified in re-examining the same issue and taking a different view in the matter. It is also submitted that the High Court erroneously has come to the conclusion that the subject matter of 1953 suit and 1979 was different and, therefore, Principles of re- judicata are not attracted.
30)Question regarding adoption :- As regards whether there is valid adoption or not, that question pertains to the status and legal character of an individual, which falls within the purview of Section 34 of the Specific Relief Act, 1963, and a suit for declaration before a civil court is maintainable. Therefore, the question whether a particular person has been given in adoption or not is different from whether a person has hereditary interest or rights in respect of a watan property. If this distinction is drawn, there is no exclusion of civil courts jurisdiction under the Act. When a person claims on the basis of adoption, such an adoption cannot be decided by the Collector as the same involves legal status/character of a person which can only be decided by the civil court. Whether Vithu is an adopted son or not is concluded and decided in O.S. No.104 of 1953. A specific issue had been framed and a finding was recorded though it was a suit for injunction and the findings on this issue has been confirmed by the Appellate Court and by the High Court in Regular Second Appeal.