Chandalingappa S/O. Sharanappa ... vs Shivalingavva W/O. Late Kuntappa ...
2022 Latest Caselaw 543 Kant

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH AT
                    DHARWAD

        DATED THIS THE 12TH DAY OF JANUARY, 2022
                         BEFORE
 THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM
              R.S.A.NO.5557/2013 (DEC/INJ)
BETWEEN :

SRI CHANDALINGAPPA,
S/O SHARMANAPPA ARAMANI,
MINOR BY HIS NEXT FRIEND &
MINOR GUARDIAN NATURAL FATHER
SHARANAPPA S/O YELLAPPA ARAMANI,
AGED 52 YEARS, OCC: AGRICULTURE,
R/O BANDI, TALUK: YELBURGA,
DIST: KOPPAL-583236.
                                             ... APPELLANT
(BY SRI GIRISH BHAT, ADV.)

AND :

SMT.SHIVALINGAVVA
W/O LATE KUNTEPPA SUDI,
AGED 66 YEARS, OCC: AGRICULTURE,
R/O BANDI, TALUK : YELBURGA,
DIST: KOPPAL-583236.
                                          ...RESPONDENT
(BY SRI SADIQ N.GOODWALA, ADV.)

       THIS APPEAL IS FILED UNDER 100 READ WITH ORDER
XLII, RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908 PRYING
THIS COURT TO SET ASIDE THE JUDGMENT AND DECREE
DATED 28.11.2012 PASSED IN R.A.NO.3/2012 BY THE SENIOR
CIVIL JUDGE, YELBURGA AND JUDGMENT AND DECREE DATED
16.01.2012    PASSED    IN  O.S.NO.80/2005   PASSED   IN
O.S.NO.80/2005 DECREEING THE SUIT OF THE RESPONDENT
AND FURTHER BE PLEASED TO DISMISS THE SUIT OF THE
RESPONDENT/PLAINTIFF WITH COSTS IN THE INTEREST OF
JUSTICE AND EQUITY.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
                                2




                           : ORDER :

The captioned second appeal is filed by

unsuccessful defendant who is challenging the

concurrent judgments and decrees of the Courts

below in declaring the respondent/plaintiff as the

absolute owner of the suit schedule property.

2. Respondent No.1 plaintiff filed a suit in

O.S.No.80/2005 by contending that she is the

absolute owner and in possession of land bearing

Sy.No.19/1 measuring 3 acres 6 guntas.

Respondent/plaintiff contended that her husband died

in a road traffic accident. After his death,

respondent/plaintiff claims that she has inherited the

properties left behind by her husband and she has

become the absolute owner and she is in actual

possession and cultivation of the suit land. The

respondent/plaintiff has attributed serious allegations

against father of the minor appellant/defendant that

with an ill-motive, the father of defendant has

concocted the document styled as adoption deed. This

factum of alleged adoption was seriously disputed by

the respondent/ plaintiff. Having come to know that,

father of minor defendant has got the name of

appellant/defendant mutated in the record of rights

along with respondent/ plaintiff on the premises that

he is the adopted son, filed present suit seeking relief

of declaration and consequential relief of injunction.

3. The appellant/defendant contested the

proceedings through his guardian and set up the

defence contending that the appellant/defendant was

in fact taken in adoption by way of "Dyamusha

Kayana" on 03.04.2002 in the presence of elders and

that the appellant/defendant was taken in adoption by

respondent/plaintiff. The appellant/defendant also

contended that the said adoption deed came to be

registered before the Sub-Registrar, Yelburga and

therefore contended that he is the adopted son of

respondent/plaintiff.

4. The Trial Court having assessed oral and

documentary evidence, answered Issue Nos.1 to 3 in

the affirmative and recorded finding that the

respondent/ plaintiff has succeeded in establishing

that as she is the absolute owner of the suit schedule

property and further held that the guardian of

appellant/defendant has taken signatures on blank

papers on the premises that the same are required for

the purpose of claiming compensation before the

Tribunal and has created a adoption deed. On these

set of reasonings, the Trial Court decreed the suit and

the same is confirmed by the Appellate Court.

5. Heard learned counsel for the appellant and

learned counsel for the respondent. Perused the

concurrent judgments passed by both the Courts

below.

6. The Trial Court has negatived the

contention of the appellant/defendant and recorded a

categorical finding that there is an express bar under

Section 4 of the Hindu Adoption & Maintenance Act,

1956 and therefore any customary practice of

adoption stands prohibited. Therefore, the contention

of appellant/defendant that he was given in adoption

namely "Dyamusha Kayana" adoption was rightly

rejected by the Trial Court by recording a finding that

the same is not recognized under law, after

codification of the Hindu Adoption & Maintenance Act,

1956. The said finding is confirmed by the First

Appellate Court. Both the Courts have concurrently

held that the alleged adoption deed as per Ex.D.4 is

created by the guardian of appellant/defendant and

therefore, both the Courts have answered Issue No.3

in the affirmative and both the Courts have

concurrently held that the appellant/defendant has

failed to prove that the respondent/plaintiff has taken

appellant/defendant in adoption. Both the Courts have

concurrently held that "Dyamusha Kayana" adoption is

not recognized under law as per the provision of

Section 4 of the Hindu Adoption & Maintenance Act,

1956. The judgments and decrees of the Courts below

in decreeing the suit of respondent/plaintiff declaring

the plaintiff as absolute owner is based on evidence on

record and does not warrant any interference at the

hands of this Court. No substantial question of law

arises in the present case on hand. The appeal is

devoid of merits and accordingly the same stands

dismissed.

Sd/-

JUDGE EM