Bheemanagouda A/F ... vs Somanagouda S/O Shivanagouda ...
2022 Latest Caselaw 921 Kant

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              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

         DATED THIS THE 20TH DAY OF JANUARY, 2022

                           BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

            R.S.A.NO.100764 OF 2014(DEC/INJ)
BETWEEN:

BHEEMANAGOUDA
A/F CHANNABASANAGOUDA PATIL,
AGE: 68 YEARS, OCC: AGRICULTURIST,
R/O: GUDAGUDI, TQ: HANGAL,
DIST: HAVERI, PIN CODE-581104
                                               ...APPELLANT
(BY SRI.GANAPATI M.BHAT, ADV.)

AND:

SOMANAGUDA, S/O SHIVANAGOUDA PATIL,
AGE: 56 YEARS, OCC: AGRICULTURIST,
R/O: GUDAGUDI, TQ: HANGAL,
DIST: HAVERI, PIN CODE-581104
                                            ...RESPONDENT
(BY SRI.R.M.JAVED, ADV.)

     THIS RSA IS FILED U/S 100 OF CIVIL PROCEDURE CODE
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
09.04.2014 PASSED BY THE COURT OF THE SENIOR DIVISION
CIVIL JUDGE, HANGAL AT: HANGAL IN R.A.NO.40/2008 WHICH
CONFIRMING THE JUDGMENT AND DECREE DATED 17.07.2008
PASSED BY THE COURT OF CIVIL JUDGE (JR.DN) & JMFC, AT:
HANGAL    IN  O.S.NO.79/1999   AND   DISMISS    THE  SUIT
O.S.NO.79/1999 FILED BY THE RESPONDENT HEREIN ON THE FILE
OF THE COURT OF CIVIL JUDGE (JR.DN) & JMFC, AT: HANGAL IN
THE INTEREST OF JUSTICE AND EQUITY.
                                           2



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

                                   JUDGMENT

The captioned second appeal is filed by the unsuccessful

defendant questioning the concurrent judgment and decree of

the Courts below wherein the suit filed by the

respondent/plaintiff is decreed declaring the plaintiff as

absolute owner of the suit schedule properties and

consequently, appellant is directed to handover possession of

the suit schedule property.

2. The facts leading to the case are as under:

The respondent/plaintiff has filed suit for declaration and

injunction. The respondent/plaintiff specific case is that the

suit schedule properties were originally owned by his father

Shivanagouda Patil. The appellant/defendant is none other

than own brother of the respondent/plaintiff. However, the

respondent/plaintiff has specifically contended that after the

death of his father, his mother has given the

appellant/defendant in adoption on 18.03.1961 to one

Channabasanagouda Patil @ Dodda Basanagouda. Therefore,

the respondent/plaintiff contends that after adoption, the

appellant/defendant has lost his rights in the genitive family.

The respondent/plaintiff has also further contended that the

adoptive father of the appellant/defendant namely

Channabasanagouda Patil was looking after the family affairs

on account of death of Shivanagouda Patil since the

appellant/defendant and respondent/plaintiff were minors. It

is also stated in the plaint that the adoptive father of the

appellant/defendant died on 10.12.1989 and the mother of the

appellant/defendant died about eight years back.

3. The grievance of the respondent/plaintiff is that the

appellant/defendant who was looking after the affairs of the

suit lands, highhandedly got his name entered to the suit

lands and started asserting right over the suit lands. Though

Panchayat was held and though the relatives advised the

appellant/defendant to rectify the revenue documents,

however, the appellant/defendant was adamant and was not

in a mood to give heed to the advise of elders. Therefore, the

respondent/plaintiff was compelled to file the present suit in

O.S.No.79/1999.

4. The Trial Court having assessed the oral and

documentary evidence answered issue Nos.1, 3, 4 and 5 in the

affirmative by recording a finding that the respondent/plaintiff

has established his right and title over the suit schedule

property and answered issue No.2 in the negative by holding

that the appellant/defendant has failed to establish his right

and title over the suit lands. The Trial Court having assessed

the oral and documentary evidence accepted the contention of

the respondent/plaintiff and on perusal of the records, the

Trial Court found that the appellant/defendant was given in

adoption. Since this fact is not in dispute, the Trial Court was

of the view that the appellant/defendant has lost all his rights

in the genitive family and therefore, he cannot claim his right

and title in the suit schedule property.

5. The Appellate Court on re-appreciation of oral and

documentary evidence negatived all the contentions urged in

the appeal memo. The Appellate Court also found that for the

first time in appeal, the appellant/defendant made an attempt

by contending that the suit lands were re-granted in favour of

his adopted father on 22.08.1966 and after his death, the

appellant/defendant has succeeded to the suit schedule

properties. These contentions were also negatived by the

Appellate Court. The Appellate Court was of the view that

though the grounds urged in the appeal memo contending that

these are watan lands and the same was granted in favour of

Channabasanagouda Patil who is the adopted father of the

appellant/defendant, however, no documents are produced

and further, the Appellate Court was of the view that these

contentions were not raised in the written statement and no

evidence was placed before the Trial Court. Therefore, the

Appellate Court having concurred with the findings of the Trial

Court proceeded to dismiss the appeal.

6. Heard learned counsel for the appellant and learned

counsel for the respondent. Perused the judgment under

challenge.

7. The short point that would arise for consideration is

whether the appellant/defendant who was given in adoption

by his mother after the death of his genitive father, namely,

Shivanagouda Patil, is entitled to lay a claim over the

properties owned by genitive family. The answer is 'No'.

8. If the appellant/defendant was given in adoption

way back in 1961, it is trite law that the moment adoption

takes place, the son who is given in adoption would

consequently lose all his rights in the genitive family. The

question of divesting would not arise only in those cases

where adopted son is exclusive owner of the properties which

originally belonged to the genitive family and in such cases

even after adoption, he would continue to hold title over such

properties if they are exclusively allotted to the son who is

given in adoption. Such eventuality is neither pleaded nor

proved in the present case on hand. In that view of the

matter, both the Courts have rightly dealt with the material on

record and have come to conclusion that the

respondent/plaintiff has succeeded in establishing his title over

the suit schedule properties and in absence of rebuttal

evidence lead in by the appellant/defendant indicating as to

how he has acquired right and title over the suit land, both the

Courts have rightly decreed the suit of the respondent/plaintiff

to handover possession.

9. Therefore, no substantial questions of law would

arise for consideration in the present appeal. Accordingly, the

appeal is dismissed.

Sd/-

JUDGE

CA