Karnataka High Court
Channabasappa @ Sangamesh vs Devendra @ Devananand @ Devidas on 3 January, 2024
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RSA No. 7093 of 2012
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.7093 OF 2012 (DEC/INJ)
BETWEEN:
1. CHANNABASAPPA @ SANGAMESH
S/O BASWARAJ GADE,
AGED ABOUT 12 YEARS, MINOR,
U/G OF APPELLANT NO.2 VIDYAVATI,
VIDYAVATI W/O GURUNATH BIRADAR,
R/O JONNIKERI, TQ. AURAD-B,
DIST. BIDAR.
2. VIDYAVATI W/O GURUNATH BIRADAR,
AGED ABOUT 42 YEARS, OCC: HOUSEHOLD,
R/O JONNIKERI, TQ. AURAD-B,
DIST. BIDAR.
Digitally signed
by SACHIN
...APPELLANTS
Location: HIGH
COURT OF
KARNATAKA (BY SRI. R. S. SIDHAPURKAR, ADVOCATE)
AND:
1. DEVENDRA @ DEVANANAND @ DEVIDAS
S/O SIDRAMAPPA GADE,
OCC: AGRICULTURE AND CONTRACTOR,
R/O KAPPIKERI, TQ.AURAD-B,
DIST. BIDAR, NOW AT PUNE
(MAHARASHTRA STATE).
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RSA No. 7093 of 2012
2. SIDRAMMAPPA S/O SANGAPPA GADE,
AGED ABOUT 82 YEARS, OCC: AGRICULTURE,
R/O KAPPIKERI, NOW AT SANTHPUR,
TQ. AURAD-B, DIST. BIDAR.
...RESPONDENTS
(SMT. NEEVA M. CHIMKOD, ADVOCATE FOR R1;
SRI. SHIVAKUMAR KALLOOR, ADVOCATE FOR R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THE APPEAL AND SET-ASIDE THE
JUDGMENT AND DECREE DATED 10.08.2011 PASSED IN
R.A.NO.82/2010 BY LEARNED FAST TRACK COURT-II, BIDAR
AND CONFIRM THE JUDGMENT AND DECREE PASSED IN
O.S.NO.191/2004 BY THE LEARNED ADDL. CIVIL JUDGE
(SR.DN.), BIDAR, DATED 27.09.2010 WITH COSTS
THROUGHOUT.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the appellants/defendant Nos.2 and 3
are assailing the judgment and decree dated 10.08.2011
in R.A. No.82/2010 on the file of Fast Track Court-II,
Bidar, setting aside the judgment and decree dated
27.09.2010 in O.S. No.191/2004 on the file of Additional
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Civil Judge (Sr. Dn.) Bidar, dismissing the suit of the
plaintiff.
2. For the sake of convenience, the parties in the
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. It is the case of the plaintiff that, he is the
adopted son of defendant No.1. It is stated that,
defendant No.2 is minor and he is under the guardianship
of his natural father Baswaraj. It is further stated in the
plaint that, defendant No.1 and the natural father of the
plaintiff are real brothers. They have divided the property,
being members of the Hindu joint family and as defendant
No.1 has no children, he has adopted the plaintiff during
25 years back. It is also stated in plaint that, the plaintiff
and defendant No.1 are members of the joint family and
defendant No.2 is the grand son and defendant No.3 is the
daughter of plaintiff's natural father - Shankereppa. It is
the case of the plaintiff that, defendant No.1 being
adoptive father of the plaintiff, residing at Santhpur, Aurad
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Taluk and he is an illiterate person. It is further stated in
the plaint that, defendant Nos.2 and 3 have illegally made
an attempt to grab the property in question and
accordingly, they have registered a sale deed in respect of
the land in question, which is a nominal sale deed and not
binding on the plaintiff and defendant No.1. It is the case
of the plaintiff that, defendant Nos.2 and 3 are causing
illegal interference and obstruction into lawful and peaceful
possession of the property in question and as such, the
plaintiff has filed suit in O.S. No.191/2004, seeking relief
of declaration that the sale deed No.2349/2001-02 dated
05.01.2002 is null and void and not binding on the
plaintiff. In addition to this, the plaintiff has sought for
direction to the statutory authorities to enter the name of
the plaintiff and defendant No.1 in the revenue records
and further sought for direction to defendant Nos.2 and 3
not to interfere with the schedule property of the plaintiff.
4. After service of notice, the defendants entered
appearance.
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Defendant No.1 filed written statement admitting the
contents of the suit and supported the case of the plaintiff.
Defendant Nos.2 and 3 have filed written statement
and denied the averments made in the plaint and have
specifically taken a contention that the plaintiff is not the
adopted son of defendant No.1. It is also the case of
defendant Nos.2 and 3 that, elder daughter of defendant
No.3 had given in marriage to Baswaraj and their marriage
was performed on 14.05.1999 and thereafter they were
residing at Pune. It is also stated in the written statement
that, the sale deed executed on 05.01.2002 is legal and
binding on the parties to the joint family consisting of
plaintiff as well as the defendants and accordingly, sought
for dismissal of the suit.
5. The Trial Court after considering the pleadings
on record, framed the issues for its consideration.
6. In order to substantiate their case, plaintiff has
examined 3 witnesses as PW.1 to PW.3 and got marked 18
documents as Exs.P1 to P18. The defendants have
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examined 2 witnesses as DW.1 and DW.2 and got marked
9 documents as Exs.D1 to D9.
7. The Trial Court after considering the material on
record, by its judgment and decree dated 27.09.2010,
dismissed the suit. Feeling aggrieved by the same, the
plaintiff has preferred R.A. No.82/2010 before the First
Appellate Court and the appeal was resisted by the
defendants.
8. The First Appellate Court after re-appreciating
the material on record, by its judgment and decree dated
10.08.2011, allowed the appeal and consequently set
aside the judgment and decree passed by the Trial Court.
Feeling aggrieved by the same, defendant Nos.2 and 3
have preferred this Regular Second Appeal.
9. This Court, vide order dated 07.09.2017,
formulated the following substantial questions of law:
"i. Whether the First Appellate Court has
committed any serious legal error in holding
that the sale deed dated 05.01.2002 executed
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by defendant No.1 in favour of defendant
Nos.2 and 3 is fictitious inspite of defendant
No.1 not denying the execution of sale deed?
ii. Whether the First Appellate Court has
committed any serious legal error in
decreeing the suit of the plaintiff to the whole
extent of the property including legitimate
share of defendant No.1 which should have
been allocated to plaintiff by moulding the
relief by the appellate Court itself?
iii. Whether the Trial Court and the First
Appellate Court have committed any serious
legal error in ignoring the provisions of
Sections 12 and 13 of the Hindu Adoption and
Maintenance Act in considering alienable right
of defendant No.1 of his property?"
10. I have heard Sri R.S. Sidhapurkar, learned
counsel appearing for the appellants and Sri Shivakumar
Kalloor, learned counsel appearing for respondent No.2.
11. Sri R.S. Sidhapurkar, learned counsel appearing
for the appellants invited the attention of the Court to the
finding recorded by the Trial Court on issue No.1 as well as
the plea taken by defendant Nos.2 and 3 at paragraph 4 in
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the written statement and submitted that defendant No.1
has not adopted the plaintiff and as such, it is submitted
that the finding recorded by the Trial Court on issue No.1
as well as the First Appellate Court reversing the said
judgment and decree passed by the Trial Court requires to
be interfered with in this appeal.
12. Per contra, Sri Shivakumar Kalloor, learned
counsel appearing for respondent No.2 sought to justify
the impugned judgment and decree.
13. On careful examination of the original records
as well as the contentions raised by the learned counsel
appearing for the parties, the question to be determined in
this appeal is, whether the plaintiff has proved his
relationship as adopted son of defendant No.1, so also, the
sale deed said to have been executed on 05.01.2002 is
void in respect of the plaintiff is concerned. In this regard,
on careful examination of the pleadings on record,
particularly, the pleadings in the plaint, the plaintiff has
stated that defendant No.1 had adopted the plaintiff.
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However, nothing is stated in the plaint relating to on
which date the plaintiff was taken in adoption and whether
the ceremony of giving and taking of the child has been
conducted. On the other hand, defendant Nos.2 and 3
have taken a plea, disputing the averments made by the
plaintiff relating to the adoption. In this regard, on careful
examination of the evidence on record, particularly the
independent witnesses namely, PW.2 and PW.3 as
examined by the plaintiff, do not correlate with the factum
of adoption, as has been taken in accordance with Section
11 of the Hindu Adoption and Maintenance Act, 1956.
Since no document has been produced by the plaintiff to
establish that the adoption has been taken in accordance
with the provisions contained under the above Act, I am of
the view that, as neither any deed of adoption has been
produced, nor any acceptable evidence has been shown
that an actual giving and taking ceremony has been
conducted in the family, the finding recorded by the First
Appellate Court is not correct. Accordingly, as the plaintiff
has failed to prove his relationship with defendant No.1 as
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adopted son, I am of the view that, the finding recorded
by the First Appellate Court is not correct, which requires
to be interfered with in this appeal.
14. Accordingly, taking into consideration the law
declared by the Hon'ble Apex Court in the case of
Santosh Hazari vs. Purushottam Tiwari (deceased)
by LRS. reported in (2001) 3 SCC 179, wherein it is held
that, it is the duty of the First Appellate Court to
re-appreciate the entire material on record, being a last
Court to look into the finding of fact, as in the instant case
the First Appellate Court has not properly re-appreciates
the material on record looking into the scope and ambit of
Order XLI Rule 31 of the Code of Civil Procedure in a
manner as contemplated under Section 96 of the Code of
Civil Procedure, I am of the view that, the reason assigned
by the First Appellate Court is incorrect and therefore, the
substantial questions of law framed above favours
defendant Nos.2 and 3.
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15. Further, taking into consideration the law
declared by the Hon'ble Apex Court in the case of Malluru
Mallappa(D) Thr. Lrs. vs. Kuruvathappa & Ors.
reported in 2020 SCCR 310, wherein it is held that an
appeal is a continuation of the proceedings of the original
court and the First Appellate Court is required to look into
the valuable rights of the parties and to answer the issues
raised by the Trial Court in a manner known to law, as in
the present case the First Appellate Court erroneously
interfered with the judgment and decree passed by the
Trial Court, I am of the view that the appeal deserves to
be allowed and the finding recorded by the First Appellate
Court is required to be set aside.
16. In the result, I pass the following:
ORDER
i. The appeal is allowed.
ii. The judgment and decree dated 10.08.2011 in
R.A. No.82/2010 on the file of Fast Track
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Court-II, Bidar is set aside and consequently,
the suit is dismissed.
Sd/-
JUDGE
LG
