Sri.Channabasappa S/O. Siddappa Sanglad Vs Smt.Yallavva W/O. Bhimanagouda Doddagoudar

RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 09.10.2019 PASSED IN O.S.NO.104/2011 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, GADAG, DECREEING THE SUIT FILED FOR DECLARATION AND CONSEQUENTIAL RELIEF OF PERMANENT INJUNCTION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 08.07.2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THROUGH VIDEO CONFERENCE, THIS DAY,

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R. NATARAJ J., DELIVERED THE FOLLOWING:

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CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND

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THE HON'BLE MR. JUSTICE RAJESH RAI K

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CAV JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE R.NATARAJ)

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The defendant No.1 in O.S No.104/2011 on the file of the Additional Senior Civil Judge, Gadag has filed this appeal challenging the judgment and decree dated 09.10.2019 by which, suit was decreed and it was declared that the plaintiffs and defendant No.2 are the owners in possession of suit schedule properties and the defendant No.1 was restrained from obstructing the possession of the plaintiff and defendant No.2.

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The parties shall henceforth be referred to as they were arrayed before the Trial Court. Appellant herein was the defendant No.1 while the respondents Nos.1 and 2 were the plaintiffs and respondent No.3 was the defendant No.2.

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(i) The suit in O.S. No.104/2011 was filed for declaration that the plaintiffs are the owners of the suit properties and for perpetual injunction to restrain the defendant No.1 from obstructing with their possession and enjoyment of the suit properties. The suit properties were the land bearing Sy.No.72 of Madagunaki village, Nargund Taluk, Gadag District

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and Sy.No.513/2 of Konnur village, Nargund Taluk, Gadag Distirct measuring 22 acres 05 guntas and 10 acres 23 guntas respectively.

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(ii) The plaintiffs claimed that the suit properties were owned and possessed by the propositus Sri. Yallappa Sangalad who had two daughters and three sons namely, (i) Yallamma, (ii) Neelamma, (iii) Uliveppa, (vi) Adiveppa and (v) Maliyappa. Amongst them Smt. Neelamma was married to Sri.Irappa Ainapur and she had no male issues but had a daughter named Smt.Basavva who was married to her uncle - Sri.Maliyappa Sangalad. Since Smt. Neelamma had no male issues, she adopted her brother - Sri. Uliveppa. The said Smt. Neelamma had relinquished her right in respect of Sy.No.72 of Madagunaki Village, in favour of her daughter - Smt. Basavva vide M.E.No.1803 dated 15.07.1992. The name of Smt.Basavva continued in revenue records until her death on 27.12.2002.

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(iii) The plaintiffs being the daughters of Smt. Basavva submitted a Varadi before Tahsildar, Nargund who mutated their names in the revenue records of the suit properties. Accordingly, the Varadi was registered in M.E.No.2497 of Madagunaki village,

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Nargund Taluk, Gadag district. Later, the father of the defendant No.1 named Sri. Siddappa Adiveppa Sangalad filed objections against certifying M.E.No.2497. As such, the issue was referred to Tahsildar, Nargund for adjudication, who held proceedings in RTS/D/CR-2003-04 and rejected the mutation and directed the plaintiffs to approach the Civil Court. Against the said order of Tahsildar, Nargund, the plaintiffs filed an appeal before the Assistant Commissioner, Gadag in RTS/AP/61/2005-06 which was allowed in terms of an order dated 25.11.2008. The defendant No.1 then filed an appeal before the Assistant Commissioner, Gadag challenging the certification of M.E.No.1803 and he also challenged M.R.130/2005-06 by virtue of which, the name of the plaintiffs and defendant No.2 was entered in the revenue records in respect of Sy.No.513/2 of Konnur Village. The said appeals were allowed in terms of an order dated 20.07.2010. The plaintiffs claimed that they challenged it before the Deputy Commissioner, Gadag.

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(iv) The plaintiffs claimed that the suit properties were the ancestral properties of their father and defendant No.2 by name Sri. Holeyappa. The defendant No.1 claimed that he was the

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adopted son of Sri.Uliveppa, Ainapur though there was no such adoption. The plaintiffs claimed that the defendant No.1 was the only son of his father Sri. Siddappa Sangalad and therefore, he could not have been given in adoption to Sri.Uliveppa. They alleged that the defendant No.1 was not connected to the family of Sri. Uliveppa Ainapur but was trying to grab the suit properties claiming to be the adopted son of Sri. Uliveppa. They claimed that Sri.Uliveppa died issueless and therefore, the plaintiffs and defendant No.2 being the grand daughters of Smt.Neelamma had succeeded to the estate of Smt. Neelamma which was succeeded by Smt.Basavva. The plaintiffs therefore, sought declaration of their title to the suit properties and for consequential injunction.

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(i) The suit was contested by the defendant No.1 who filed his written statement inter alia contending that the suit properties were owned by Smt. Neelamma. He claimed that Smt. Neelamma had adopted her brother Sri. Uliveppa as she had no male or female children. The said Sri.Uliveppa also did not have any children and he therefore, adopted defendant No.1 as per the customs and practices prevalent in his caste and community

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such as, giving and taking the defendant No.1 in adoption on 24.10.1968. The said Sri. Uliveppa had executed a deed of adoption which was duly registered, evidencing the fact that he had adopted defendant No.1.

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(ii) He claimed that he was aged 06 years when he was adopted and consequently succeeded to the suit properties as the adopted son of Sri.Uliveppa. He claimed that Smt. Neelamma did not have a daughter by name Sri.Basavva. He also denied the fact that the plaintiffs were the daughters of Smt.Basavva. He alleged that the plaintiffs were in no way connected to Smt.Neelamma or Sri.Uliveppa. He claimed that after the death of Smt. Neelamma, Sri.Uliveppa, adopted son of Smt.Neelamma succeeded to the suit properties and that he and Sri.Uliveppa were coparceners who possessed undivided half share in the suit properties.

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(iii) He claimed that after the death of Sri.Uliveppa, he succeeded to the half share of Sri.Uliveppa and therefore, he was the full and absolute owner in possession of the suit properties. He denied that the plaintiffs had anything to do with suit properties and they were not the grand children of

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Smt.Neelamma. He denied the revenue entries in favour of plaintiffs and the Varadi submitted by Smt. Neelamma which resulted in M.E.No.1803 dated 15.07.1992. He admitted the revenue proceedings before the revenue authority and contended that the suit for declaration of title was not maintainable against him.

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Based on these contentions, the Trial Court framed

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the following issues:

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1. Issue No.1 has been deleted as per order dated 12.09.2019 by this court?

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2. Whether the plaintiffs prove that themselves and defendant No.2 only succeeded the property Basavva the daughter of Neelavva Ainapur?

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3. Whether the defendant No.1 prove that he is adopted son of Ulavappa?

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4. Whether defendants No.1 prove that he has succeeded the property of Ulavappa?

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5. Whether plaintiffs entitled for the relief?

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RECASTED ISSUES

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1. Whether the plaintiffs proves that themselves and defendant No.2 are the absolute owner and in possession over the suit schedule property by virtue of Sec.15 of Hindu Succession Act-1956?

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6. What order or decree?"

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The plaintiff No.1 was examined as PW.1 and she marked exhibits - P1 to P31. The plaintiff No.2 was examined as PW.2 and a resident of Ramadurga village, Gonnagara Taluk, was examined as PW.3. The defendant No.1 was examined as DW.1 and he marked exhibits - D1 to D3. He examined two residents of Byranahatti village as DWs.2 and 3.

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The Trial Court after considering the oral and documentary evidence held that the plaintiffs had proved their title to the suit properties having succeeded to them from Smt. Basavva, daughter of Smt. Neelamma Ainapur. It rejected the claim of the defendant No.1 that he was the adopted son of Sri.Uliveppa and held that he did not succeed to the suit properties. Consequently, it decreed the suit and declared that the plaintiffs and defendant No.2 are the owners of the suit properties and restrained the defendant No.1 from interfering with their possession.

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Being aggrieved by the said judgment and decree, the defendant No.1 is before this Court.

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The learned counsel for the defendant No.1 urged the following contentions in support of this appeal:

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(i) That the defendant No.1 had specifically contended that Smt. Basavva, the mother of the plaintiffs and defendant No.2, was not the daughter of Smt.Neelamma and therefore, it was incumbent upon the plaintiffs to adduce sufficient evidence to justify the relationship as stipulated under Section 50 of the Indian Evidence Act, 1872. She contends that the Trial Court

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placed the reverse burden on the defendant No.1 to establish that Smt.Basavva was not the daughter of Smt.Neelamma. She also contends that the Trial Court committed an error in inferring that the defendant No.1 had admitted the relationship of the plaintiffs with Smt. Neelamma. She contends that the defendant No.1 did not dispute regarding the relationship of plaintiffs and defendant No.2 but had disputed that Smt. Basavva was the daughter of Smt. Neelamma. She contends that the Trial Court misdirected itself in holding that the defendant No.1 had admitted the relationship of

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plaintiffs and defendant No.2 with Smt. Basavva and Smt.Neelamma.

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(ii) That there was no dispute that Smt. Neelamma had adopted Sri. Uliveppa which was admitted by PWs.1 and 2. She contends that Smt.Neelamma died on 29.05.1989 and Sri. Uliveppa predeceased Smt.Neelamma on 15.12.1976, by which time, he had adopted defendant No.1 on 24.10.1968. The defendant No.1 therefore, being the grand son of Smt. Neelamma had succeeded to the suit properties and was therefore the absolute owner of suit properties. She further contends that the adoption of Sri.Uliveppa was evidenced by document which was duly registered on 23.03.1934 and therefore a presumption had to be drawn that the adoption was in accordance with law as prescribed under Section 16 of the Hindu Adoptions and Maintenance Act, 1956. She contends that there is a custom amongst Hindus following Bombay school of Mithakshara to adopt his or her own sibling. In support this contention, she relied upon the judgment in the

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case of Yadao Vs. Namdeo - (1922) 24 BOMLR 609 . She also referred to the judgment in Champabai Vs. Raghunath Rao - (1946) Nagpur 217 . She also contends that even if the defendant No.1 was the only child of his natural parents, there was no embargo or prohibition against being given in adoption. In support of this contention, she relied upon the judgment in the case of Sri. Balusu Gurulingaswami Vs. Sri. Balusu Ramalakshmamma - (1899) 22 Mad. 398. She therefore, contends that in the absence of any proof to show that the adoption was not valid, the Trial Court committed an error in disbelieving Ex.D1 and holding that the plaintiffs and defendant No.2 were the daughters of Smt. Basavva and that they alone were entitled to succeed to the suit properties.

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(iii) She contends that contrarily the Trial Court held that there was no documents to show that Sri. Uliveppa was the adopted son of Smt.Neelamma and that it was not mentioned in any of the property documents that Sri.Uliveppa was adopted by Smt.Neelamma. She

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contends that the Trial Court held that there was no documents like ration card, voter ID and Aadhaar card to show that Sri. Uliveppa was adopted by Smt.Neelamma. She contends that the Trial Court over stepped by recording such a finding, though PWs.1 and 2 specifically admitted that Sri. Uliveppa was adopted by Smt. Neelamma.

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(iv) She contends that the Trial Court misdirected itself in holding that the adoption deed is compulsorily attestable document and therefore is subject to proof under Section 68 of the Indian Evidence Act, 1872. She further contended that the Trial Court committed an error in holding that the defendant No.1 did not examine any attesting witness to the adoption deed/Ex.D1 and that defendant No.1 did not prove the customs in his community and the factum of giving and taking him in adoption. It also committed an error in holding that the defendant No.1 failed to produce any documents such as, school record, ration card, voter ID and Aadhaar card to show that he was adopted by Sri.

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Uliveppa. It also committed an error in holding that defendant No.1 admitted that he has not filed any application to enter his name in the records of the suit properties after the death of Smt.Neelamma and that there were no documents to show that he was in possession of suit properties after the death of Smt.Neelamma. She contends that the Trial Court thrashed the evidence of PWs.2 and 3 on the ground that there were no documentary evidence to corroborate the claim of the defendant No.1 that he was adopted by Smt. Neelamma. She contends that the Trial Court committed an error in rejecting the evidence of DW.2 based on the answers given by DW.2 during the course of his cross-examination. She contends that the Trial Court must have dealt with the issue in an open mind.

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(i) The learned counsel for the plaintiffs submitted

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that Smt. Neelamma had relinquished her right in respect of Sy.No.72 of Madagunaki village in favour of her daughter and the same was recorded in M.E.No.1803 dated 15.07.1992 - Ex.P11.

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Therefore, he contends that this was sufficient proof of the fact that Smt. Basavva was a daughter of Smt. Neelamma. He further contends that the plaintiffs being the daughters of Smt.Basavva had submitted a Varadi to enter their name in the revenue records and accordingly M.E No.2497 was registered. He contends that the natural father of the defendant No.1 who had no locus standi filed objections against certifying M.E.No.2497. He contends that this was resulted in the revenue proceedings before the authorities. He contends that the plaintiffs being children of Smt. Basavva and the grand children of Smt. Neelamma were entitled to the properties which were relinquished by Smt. Neelamma in favour of Sri. Basavva.

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(ii) He contends that the defendant No.1 was the only of Sri. Siddappa Adiveppa Sangalad and therefore, he could not have been given in adoption to Sri.Uliveppa. Besides this, he contends that the defendant No.1 had failed to prove the adoption deed allegedly executed by Sri. Uliveppa. He submits that Sri. Uliveppa predeceased Smt.Neelamma and hence, the plaintiffs were entitled to succeeded to the properties of Smt. Neelamma. He further submitted that the defendant No.1 had

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un-authorisedly sold off the properties that fell to the share of the father of the plaintiffs, though, he was not in any way concerned with it. Therefore, he contends that the entitlement of the properties of their father should be suitably compensated by allotting the share that eventually fell to the defendant No.1. In support of this, he has filed an application for production of additional documents which is already rejected by this Court.

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(iii) The learned counsel further contends that it was incumbent upon the defendant No.1 to prove the adoption and that the ceremonies that had to be observed to conclude the adoption were performed or not. He therefore, contends that the Trial Court was right in decreeing the suit.

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We have considered the submission of learned counsel for the plaintiffs as well as the learned counsel for the defendant No.1. We have perused the judgment of the Trial Court.

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In our opinion the following points arise for our consideration in this appeal:

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(i) Whether the defendant No.1 was the grand son of Smt.Neelamma, having been adopted by Sri.Uliveppa in terms of the adoption deed dated 24.10.1968?

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(ii) Whether the plaintiffs have adduced any evidence to establish their relationship with Smt.Neelamma?

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(iii) What the reliefs that the parties are entitled to?

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In so far as 1^st point for consideration is concerned, the plaintiffs specifically admitted in the plaint that

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Smt. Neelamma adopted Sri.Uliveppa, in the following words:

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"As Neelamma @ Neelavva had no male issues appears to have adopted Uliveppa her another younger brother who after adoption was called Uliveppa adopted S/o. Irappa Ainapur" .

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The defendant No.2 also reiterated this in his written statement. PW.1 did not mention about the adoption of Sri. Uliveppa by Smt. Neelamma and she was not crossexamined but PW.2 deposed as follows:

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"G½ªÉ¥Àà gÀªÀgÀÄ vÀªÀÄUÉ ªÀÄPÀÌ¼ÀÄ E®è JAzÀÄ ¥ÀæwªÁ¢ £ÀA.1 gÀªÀjUÉ 1968gÀ°è zÀvÀÛPÀ ¥ÀqÉ¢zÀÝgÀÄ J£ÀÄßªÀÅzÀÄ ¤d. ¥ÀæwªÁ¢ £ÀA.1 gÀªÀgÀ d£ÀPÀ vÀAzÉ ¹zÀÝ¥Àà ªÉÄÃgÉUÉ ¥ÀæwªÁ¢ £ÀA.1 gÀªÀgÀ£ÀÄß ¸ÀA¥ÀæzÁAiÀÄzÀ ¥ÀæPÁgÀ »jAiÀÄgÀ ¸ÀªÀÄPÀëªÀÄ ¸ÀªÀÄäwAiÉÆA¢UÉ zÀvÀÛPÀ ¹éÃPÁgÀ ªÀiÁr £ÀAvÀgÀ ¸ÀzÀj zÁR¯ÉAiÀÄ£ÀÄß £ÉÆAzÀtÂ ªÀiÁr¹gÀÄvÁÛgÉ

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J£ÀÄßªÀÅzÀÄ ¤d. ¸ÀzÀj PÁUÀzÀ ¥ÀvÀæPÉÌ G½ªÉ¥Àà ºÁUÀÆ ¹zÀÝ¥Àà gÀªÀgÀÄ ¸À»UÀ¼À£ÀÄß ªÀiÁrgÀÄvÁÛgÉ J£ÀÄßªÀÅzÀÄ ¤d. G½ªÉ¥Àà gÀªÀgÀÄ CªÀgÀ£ÀÄß zÀvÀÛPÀ ¥ÀqÉzÁV¤AzÀ CªÀgÀ ªÀÄ£ÉAiÀÄ°è zÀvÀÛPÀ ªÀÄUÀ£ÁV ªÁ¸À EgÀÄwÛzÁÝgÉ J£ÀÄßªÀÅzÀÄ ¤d. ZÀ£Àß§¸À¥Àà gÀªÀgÀÄ G½ªÉ¥Àà gÀªÀgÀ J¯Áè D¹ÛUÀ¼À£ÀÄß ¥ÀqÉ¢gÀÄvÁÛgÉ J£ÀÄßªÀÅzÀÄ ¤d. ¥ÀæwªÁ¢ £ÀA.1 gÀªÀgÀÄ G½ªÉ¥Àà gÀªÀgÀ J¯Áè D¹ÛUÀ¼À ªÀ»ªÁl£ÀÄß £ÉÆÃrPÉÆAqÀÄ §A¢gÀÄvÁÛgÉ J£ÀÄßªÀÅzÀÄ ¤d."

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A perusal of the above, shows that even plaintiff No.2 had acknowledged that defendant No.1 was the adopted son of Uliveppa. Therefore, there is no doubt that Smt. Neelamma had adopted Sri.Uliveppa and that Sri. Uliveppa adopted the defendant No.1 as per Ex.D1. The defendant No.1 therefore was exempt from proving the lawful execution of Ex.D1. Therefore, we have no hesitation to hold that the defendant no.1 was the grand son of Smt.Neelamma.

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As regards, the 2^nd point for consideration, the plaintiffs claimed that they are the children of Smt.Basavva who was the daughter of Smt.Neelamma. In order to establish this, she has marked M.E. No.1083 as Ex.P11 which shows that Neelamma had submitted a Varadi on 15.07.1982 to register the name of her daughter Smt. Basavva in respect of land bearing

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Sy.No.72 of Madagunaki village pursuant to a partition. Except this document there is no other document to establish that Smt. Basavva was the daughter of Smt. Neelamma. PW.3 was a resident of Byranahatti and was aged 70 years who deposed that Smt. Neelamma had a daughter named Smt.Basavva and that since she did not have any sons she adopted Sri.Uliveppa and that her daughter - Smt. Basavva was given in marriage to her another brother - Sri.Maliyappa. However in his crossexamination, he deposed that he has no knowledge about the family of Smt. Neelamma and whether she had adopted Ulivappa. He claimed that except signing the affidavit, by way of chief examination, he did not know anything about the case. Therefore this witness was of no help to the case of the plaintiffs. Ex.P18 is the RTC extract of Sy.No.72 of Madagunaki village for the year 1976-77 till the year 1992-93 which shows that the mutation proceedings in M.E 1803 was given effect to and the name of mother of the plaintiffs was entered after rounding off the name of Smt.Neelamma. However, since PW.1 was not cross-examined and no evidence was extracted from PW.2, to prove that they were the grand children of Smt.Neelamma, applying the best evidence rule, it has to be held that the

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plaintiffs had proved that they were the grand daughters of Smt. Neelamma.

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In view of the aforesaid finding, the 3^rd point for consideration, is to be answered partly in favour of the defendant No.1 by holding that he, plaintiffs and defendant No.2 are entitled to an equal share in both the suit schedule properties, in view of the fact that plaintiffs and defendant No.1 were the grand children of Smt. Neelamma. Therefore, a suit for declaration that the plaintiffs were the absolute owners of the suit property and to restrain the defendant No.1 from interfering with their possession was not maintainable in view of the settled position of law that one co-owner cannot claim exclusive ownership over joint properties. Nonetheless, since the parties are litigating from the year 2011, this Court considers it appropriate to mould the reliefs and declare the share of plaintiffs and defendants under Order VII Rule 7 of Civil Procedure Code.

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In view of the above, this appeal is allowed in part

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and the suit filed for declaration of title and for consequential injunction is dismissed. It is declared that the plaintiffs and

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defendant No.2 are entitled to 1/4^th share each in the suit schedule properties and the defendant No.1 is entitled to remain in possession of 1/4^th share in the suit schedule properties. Accordingly, the parties may take out proceedings to draw a final decree for partition of suit schedule properties by metes and bounds.

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Office is directed to draw a preliminary decree declaring that the plaintiffs and defendant Nos.1 and 2 are entitled to 1/4^th share each in suit schedule properties.

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19. Parties to bear their own costs.

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Sd/(R.NATARAJ) JUDGE

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Sd/(RAJESH RAI K) JUDGE

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HJ

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List No.: 19 Sl No.: 1

Sri.Channabasappa S/O. Siddappa Sanglad v. Smt.Yallavva W/O. Bhimanagouda Doddagoudar

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Sri.Channabasappa S/O. Siddappa Sanglad v. Smt.Yallavva W/O. Bhimanagouda Doddagoudar

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