H S Swamy vs H P Nagappa
2023 Latest Caselaw 6830 Kant

                                               -1-
                                                         NC: 2023:KHC:35207
                                                       RSA No. 1490 of 2019




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 27TH DAY OF SEPTEMBER, 2023

                                             BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 1490 OF 2019 (PAR)

                   BETWEEN:

                   1.    H.S.SWAMY
                         S/O. H.P. SIDDAPPA
                         ADOPTED FATHER BY
                         NAME H.P. NAGAPPA,
                         AGED ABOUT 49 YEARS,
                         R/O. SY. NO.11, FARM HOUSE,
                         HASAGULLI VILLAGE,
                         BEGUR HOBLI,
                         GUNDLUPET TALUK,
                         PIN CODE-571 111.
                                                               ...APPELLANT

                           (BY SRI SOMASHEKAR KASHIMATH, ADVOCATE)

                   AND:
Digitally signed
by SHARANYA T      1.    H.P.NAGAPPA
Location: HIGH           S/O. LATE PUTTAMADAPPA
COURT OF
KARNATAKA                AGED ABOUT 79 YEARS
                         R/O. HASAGULI VILLAGE,
                         BEGUR HOBLI,
                         GUNDLUPET TALUK,
                         PIN CODE-571 111.

                   2.    SUB-REGISTRAR
                         SUB-REGISTRAR OFFICER,
                         B.N. ROAD,
                         GUNDLUPET TOWN,
                         PIN CODE-571 111.
                                -2-
                                             NC: 2023:KHC:35207
                                          RSA No. 1490 of 2019




3.   KUMAR
     S/O. SIDDARAJU
     AGED ABOUT 43 YEARS
     R/O. 2ND WARD, KSN LAYOUT,
     GUNDLUPET TOWN,
     PIN CODE-571 111.
                                                ...RESPONDENTS

           (BY SRI R.C. NAGARAJ, ADVOCATE FOR R1;
           SMT. SPOORTHY HEGDE N., HCGP FOR R2;
                         R3 IS SERVED)

     THIS RSA IS FILED UNDER SEC. 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 20.02.2019 PASSED IN
R.A.NO.25/2018, ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC AT GUNDLUPET, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 13.08.2018
PASSED IN O.S.NO.181/2009 ON THE FILE OF THE PRL. CIVIL
JUDGE AND JMFC, GUNDLUPET.

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

                          JUDGMENT

This matter is listed for admission and I have heard the

learned counsel for the appellant and learned counsel for the

respondents.

2. The factual matrix of the case of the plaintiff before

the Trial Court is that he is an adopted son of defendant No.1

and it is also the case that suit schedule properties are

ancestral and joint family properties and the plaintiff and

NC: 2023:KHC:35207 RSA No. 1490 of 2019

defendants are in joint and constructive possession of suit

schedule properties.

3. The defendants appeared and filed the written

statement contending that plaintiff and the defendants are not

cultivating their properties jointly at any point of time. Hence,

the Trial Court taking note of the pleadings of the plaintiff and

the defendants, framed issues whether the plaintiff proves that

he is an adopted son of defendant No.1 and whether the suit

schedule properties are the ancestral and joint family

properties of plaintiff and the defendants and whether they are

cultivating the suit schedule properties jointly.

4. The Trial Court, considering both oral and

documentary evidence placed on record, comes to the

conclusion that the plaintiff has not proved that he is an

adopted son of defendant No.1 and dismissed the suit with cost

of Rs.3,000/-. Being aggrieved by the judgment and decree of

the Trial Court, an appeal is filed before the First Appellate

Court in R.A.No.25/2018 and the First Appellate Court also,

having considered the grounds urged in the appeal, formulated

the points whether the plaintiff has established that he is an

NC: 2023:KHC:35207 RSA No. 1490 of 2019

adopted son of defendant No.1 and whether the judgment and

decree of the Trial Court requires interference.

5. The First Appellate Court also, on re-appreciation of

both oral and documentary evidence placed on record and also

considering the material available on record, comes to the

conclusion that, in order to substantiate that the plaintiff is an

adopted son of defendant No.1, no material is placed before the

Court and also taken note of Section 11(4) of the Hindu

Maintenance and Adoption Act, 1956 and observed that if the

adoption is an oral adoption, the same is admissible, if the

custom prevails and also comes to the conclusion that plaintiff

has not proved the essential ingredients of Section 11(4) of the

Hindu Maintenance and Adoption Act, 1956. The First Appellate

Court comes to the conclusion that the Trial Court has not

committed any error having considered the material available

on record and rightly dismissed the suit. Being aggrieved by

the dismissal of appeal and also the suit, present second appeal

is filed before this Court.

6. Learned counsel for the appellant would vehemently

contend that both the Courts failed to appreciate the evidence

NC: 2023:KHC:35207 RSA No. 1490 of 2019

available on record and not exercised the discretion in a proper

perspective and this Court has to admit the appeal and frame

substantial question of law whether both the Courts were

justified in holding that the plaintiff is not an adopted son of

defendant No.1 though there is evidence of P.Ws.1 to 3.

7. Per contra, learned counsel for the respondents

would submit that the very natural father has filed the affidavit

before the Trial Court stating that at no point of time, he has

given his son for adoption and the same is also taken note by

the Trial Court in Para No.15 of the judgment and in the

absence of any material regarding giving the child by the

natural father and actual taking of child by the adopter, Trial

Court and the First Appellate Court have not committed any

error in not accepting the case of the plaintiff.

8. Having heard the learned counsel for the appellant

and learned counsel for the respondents, it is the case of the

plaintiff that he was given in adoption and he is an adopted son

of defendant No.1 and in order to substantiate the same,

though it is contended that an oral adoption has taken place,

but to substantiate the same, nothing is placed on record and

NC: 2023:KHC:35207 RSA No. 1490 of 2019

so also with regard to joint cultivation as pleaded by the

plaintiff and in order to show that the suit schedule properties

are ancestral and joint family properties, no material is placed

before the Court. On the other hand, having considered the

material on record and also the defence, comes to the

conclusion that the plaintiff and defendants are not cultivating

the said properties jointly at any point of time and the First

Appellate Court also, having taken note of both oral and

documentary evidence placed on record, formulated the point

and answered the same as 'negative', in coming to the

conclusion that the appellant has not proved the very adoption

and not complied with Section 11(4) of Hindu Adoption and

Maintenance Act, 1956.

9. Having considered the reasons assigned by the Trial

Court and the First Appellate Court and though the learned

counsel for the appellant would vehemently contend that both

the Courts are not justified in holding that he is not an adopted

son, but in order to substantiate the same, nothing is placed on

record and both the Courts have given finding on fact and law

with regard to the contention of the appellant that he is an

adopted son and unless any material is placed before the Court

NC: 2023:KHC:35207 RSA No. 1490 of 2019

with regard to proof of adoption and in the absence of any

material to prove the same, both the Trial Court and the First

Appellate Court rightly comes to the conclusion that adoption

has not been proved. Hence, I do not find any error committed

by the Trial Court and the First Appellate Court and this Court

can exercise the discretion under Section 100 of C.P.C., if any

perversity is found in the judgment of the Trial Court and the

First Appellate Court and no grounds are made out to admit the

appeal and frame any substantial question of law.

Accordingly, the appeal is dismissed. In view of dismissal

of the appeal, I.As., if any do not survive for consideration and

the same stand disposed of.

Sd/-

JUDGE

ST