IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER 2019 BEFORE THE HON’BLE MRS.JUSTICE K.S.MUDAGAL MISCELLANEOUS SECOND APPEAL NO.278/2011 C/W REGULAR SECOND APPEAL NO.2587/2011 IN M.S.A.NO.278/2011:
BETWEEN:
DORESWAMY GOWDA S/O NATURAL PARENTS ANNAYYAPPA & LAKSHMAMMA ADOPTED SON OF LATE VENKATAGIRI THIMME GOWDA & HIS WIFE LATE THIMMAMMA AGED ABOUT 68 YEARS R/AT DOOR NO.395 LINGAIAHNAKERE ROAD KUMBARAKOPPALU, MYSURU – 570 016 … APPELLANT (BY SRI C.M.NAGABUSHANA, ADVOCATE) AND:
1. LAND ACQUISITION OFFICER MYSURU URBAN DEVELOPMENT AUTHORITY, MYSURU – 570 001 2. SIDDAMMA W/O LATE NARASEGOWDANA THIMMEGOWDA AGED ABOUT 74 YEARS 3. KEMPEGOWDA AGED ABOUT 49 YEARS 4. SESHADRI AGED ABOUT 51 YEARS 5. THIRUMALE GOWDA AGED ABOUT 47 YEARS R3 TO R5 ARE S/O R2 SIDDAMMA AND HER HUSBAND NARASEGOWDANA THIMMEGOWDA R2 TO R5 ARE R/AT METAGALLI NO.16, MYSURU TALUK – 570 028 …RESPONDENTS (BY SRI T.P.VIVEKANANDA, ADVOCATE FOR R1;
SRI SANTHOSH S.GOGI AND SRI SHARATH S.GOGI, FOR M/S GOGI & GOGI, ADVOCATES FOR R2 TO R5) THIS MSA IS FILED UNDER SECTION 54(2) OF THE LAND ACQUISITION ACT, 1894 PRAYING TO SET ASIDE THE JUDGMENT DATED 25.08.2011 PASSED BY THE II ADDITIONAL DISTRICT JUDGE, MYSURU IN LACA NO.06/2011 AND TO SET ASIDE THE ORDER DATED 18.12.2010 PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE, MYSURU IN L.A.C.NO.232/2003.
IN R.S.A.NO.2587/2011:
BETWEEN:
DORESWAMY GOWDA S/O NATURAL PARENTS ANNAYYAPPA AND LAKSHMAMMA AND ADOPTED SON OF LATE VENKATAGIRI THIMME GOWDA AND HIS WIFE LATE THIMMAMMA AGED ABOUT 68 YEARS R/AT DOOR NO.395 LINGAIAHNAKERE ROAD KUMBARAKOPPALU, MYSORE – 570 016 …APPELLANT (BY SRI C.M.NAGABUSHANA, ADVOCATE) AND:
1. SIDDAMMA W/O LATE NARASEGOWDANA THIMMEGOWDA AGED ABOUT 74 YEARS 2. KEMPEGOWDA AGED ABOUT 49 YEARS 3. SESHADRI AGED ABOUT 51 YEARS 4. THIRUMALE GOWDA AGED ABOUT 47 YEARS R2 TO R4 ARE S/O R1 SIDDAMMA AND HER HUSBAND NARASEGOWDANA THIMMEGOWDA ALL ARE R/AT METAGALLI MYSURU TALUK – 570 016 … RESPONDENTS (BY SRI SANTHOSH S.GOGI AND SRI SHARATH S.GOGI, ADVOCATES) THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 25.08.2011 PASSED BY THE II ADDITIONAL DISTRICT JUDGE, MYSURU IN R.A.NO.63/2011 AND TO SET ASIDE THE JUDGMENT AND DECREE DATED 18.12.2010 PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE, MYSURU IN O.S.NO.1771/2007.
THESE APPEALS HAVING BEEN HEARD AND RESERVED COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T These appeals arise out of the judgment and decree dated 25.08.2011 in R.A.No.63/2011 and L.A.C.A.No.6/2011 passed by the II Additional District Judge, Mysuru. By the impugned judgment and decree, the First Appellate Court dismissed both the appeals and confirmed the judgment and decree passed by the III Additional Senior Civil Judge, Mysuru in O.S.No.1771/2007 and L.A.C.No.232/2003. By the said judgment and order, the trial Court dismissed the suit of the plaintiff and rejected the claim of the objector in the land acquisition case.
2. Appellant was the plaintiff in O.S.No.1771/2007 and objector in L.A.C.No.232/2003. For the purpose of convenience, appellant will be henceforth referred to as plaintiff and respondent Nos.1 to 4 in R.S.A.No.2587/2011 and respondent Nos.2 to 5 in M.S.A.No.278/2011 are referred to as defendants.
3. Case of the plaintiff in brief is as follows: The suit schedule properties, namely survey No.62/1 measuring 5 acres 24 guntas and Survey No.62/2 measuring 0.39 guntas situated in Metagalli Village, Mysuru Taluk belonged to one Sri Venkatagiri Thimmegowda. After the death of Sri Venkatagiri Thimmegowda, his three sons also died. Therefore his wife Thimmamma adopted the plaintiff. Originally Survey No.62 in all measured 8 acres. Out of that Thimmamma sold 1 acre 17 guntas to one Thimmegowda S/o. Chaluve Gowda on 17.02.1955. The property sold was renumbered as Survey No.62/3. Remaining portion of the property was sub-divided and assigned Survey Nos.62/1 and 62/2 as described in the plaint schedule. Defendants fraudulently got their names entered to the suit schedule properties. When he questioned that before the Revenue Authorities, they held that the matter requires adjudication by the Civil Court, therefore directed him to approach the Civil Court. Thus, he sought declaration of his title to the suit properties and injunction.
4. The defence of the defendants was as follows:
The title of Venkatagirigowda or Thimmamma to the suit schedule properties, the adoption set up by the plaintiff or his possession of any of the suit schedule properties were denied. The only property owned by Thimmamma was 1 acre 17 guntas in Survey No.62/3 which she sold to one Thimmegowda son of Chaluve Gowda and she had no interest in the suit schedule properties. Survey No.62, in all measured 8 acres. Out of that, 6 acres 23 guntas belonged to one Marigante Gowda. After his death under the registered partition deed dated 29.04.1953 his sons Doddamadaiah and Chikkamadaiah got 3 acres 11 ½ guntas each to their share. Said Doddamadaiah and Chikkamadaiah sold the entire land in favour of husband of defendant No.1 and put him in possession. He in turn under the registered partition deed dated 19.12.1971 allotted that to his sons namely, defendant Nos.2 to 4 and they are the absolute owners of the same. Without seeking the relief of possession, the suit was not maintainable. The suit was barred by time.
5. Out of the said 6 acres 23 guntas, 4 acres 20 guntas was acquired by Karnataka Industrial Area Development Board (for short ‘KIADB’), 18 guntas was acquired by Mysuru Urban Development Authority for formation of ring road. Remaining 1 acre 25 guntas was sold to M.Ramakrishna S/o. Late Channappa on 28.06.2005. Therefore, defendants contended that the suit was bad for non-joinder of KIADB, Mysuru Urban Development Authority and Sri M.Ramakrishna as parties.
6. On the basis of such pleadings, the trial Court framed the following issues and an additional issue:
1. Whether the plaintiff proves that he is the absolute owner of suit properties as claimed?
2. Whether defendants prove that suit is barred by limitation?
3. Whether plaintiff proves that he is in lawful possession of suit property as on the date of suit?
4. Whether defendant proves that suit is bad for non-joinder of necessary parties?
5. Whether plaintiff proves that defendants are illegally causing interference in the suit property?
6. Whether plaintiff proves that he is entitled for the relief as claimed?
7. What order or decree?
Additional Issue:
Whether the plaintiff proves that he is the adopted son of one Venkatagiri Thimmegowda and his wife Smt.Thimmamma as pleaded in the plaint?
7. Parties adduced evidence. The trial Court after hearing the parties dismissed the suit on the following grounds:
i) Plaintiff’s evidence and Ex.P3 and Ex.P4 the registered mortgage deeds relied upon by him did not prove valid adoption;
ii) Plaintiff’s possession of the suit schedule properties was not proved.
iii) Since the plaintiff was not in possession of the properties, suit for declaration without seeking possession was not maintainable;
iv) Suit was barred by time; & v) Suit was bad for non-joinder of MUDA, KIADB and one Ramakrishna.
8. Plaintiff challenged the said judgment and decree before the II Additional District Judge, Mysuru in R.A.No.63/2011. As already pointed out, out of Survey No.62/1, 18 guntas was acquired by MUDA for formation of ring road. In the land acquisition proceedings, the plaintiff set up rival claim for the award amount and objected to disburse the award amount to the defendants. Therefore, the Land Acquisition Officer referred the matter under Section 30 of the Land Acquisition Act to the Court for deciding the rival claims of the parties.
9. The matter was registered in L.A.C.No.232/2003 before the III Additional Senior Civil Judge, Mysuru. In that land acquisition matter plaintiff/objector laid claim to award amount on the basis of title of Thimmamma and his adoption. Whereas defendants/claimants laid claim to the award amount tracing their title to Marigante Gowda and his sons Doddamadaiah and Chikkamadaiah.
10. O.S.No.1771/2007 and L.A.C.No.232/2003 were pending before the same Court. The trial Court disposed of O.S.No.1771/2007 and L.A.C.No.232/2003 on the same day, namely, 18.12.2010.
O.S.No.1771/2007 was dismissed. Since judgment in O.S.No.1771/2007 had direct bearing on L.A.C. No.232/2003, the Reference Court rejected the claim of the plaintiff in L.A.C.No.232/2003 and directed for disbursement of the award amount of Rs.1,96,625/- to defendants.
11. The judgment and decree in O.S.No.1771/2007 and L.A.C.No.232/2003 were challenged before the II Additional District Judge, Mysuru in R.A.No.63/2011 and L.A.C.A.No.6/2011. The First Appellate Court by the impugned common judgment dismissed R.A.No.63/2011 and L.A.C.A.No.6/2011 on the ground that the adoption and the ceremonies of adoption were not proved.
12. Aggrieved by the same, plaintiff has preferred the above appeals before this Court. Since the judgment in R.S.A.No.2587/2011 has direct bearing on M.S.A.No.278/2011, both these matters were connected and taken up for disposal together.
13. This Court admitted R.S.A.No.2587/2011 to consider the following substantial question of law:
“Whether the Courts below were justified in holding that adoption of the plaintiff is not established notwithstanding the recitals regarding adoption found in Exs.P3 and P4- two registered mortgage deeds executed by the adoptive mother along with the plaintiff?”
M.S.A.No.278/2011 is also admitted by this Court vide order dated 27.06.2017.
14. Plaintiff can succeed in the suit, only if he proves his adoption by Thimmamma. If he fails to prove that, Thimmamma’s title to the properties becomes inconsequential. To prove his relationship with Thimmamma, plaintiff relies upon the solitary documentary evidence Ex.P3 and Ex.P4 two mortgage deeds dated 28.07.1966 and 17.10.1966.
15. Ex.P3 pertains to mortgage of land bearing Survey No.83 measuring 1 acre 11 guntas of Metagalli Village. Ex.P4 pertains to mortgage of land bearing survey No.5/2 measuring 4 acres and 10 guntas of Metagalli village, Mysuru Taluk. Ex.P3 and Ex.P4 were purportedly executed by Thimmamma and the plaintiff. In those documents, plaintiff was described as adopted son of Thimmamma.
16. Relying on those documents, Sri C.M.Nagabushana, learned Counsel for the appellant submitted that they are 30 years old documents and they carry presumption under Section 90 of the Indian Evidence Act, 1872 (‘Evidence Act’ for short) and they are relevant evidence under Section 32(5) and 50 of the Evidence Act. He further submitted that in ancient adoption, the Courts cannot expect proof of the ceremonies of adoption.
17. In support of his contentions, he relied upon the following judgments:
i) Govinda Gowda vs. Giriyamma [ILR 1965 Mysore 93] ii) L.Debi Prasad (dead) by L.Rs vs. Smt.Tribeni Devi and others [AIR 1970 SC 1286] iii) Harihar v. Nabakishore [AIR 1963 Orissa 45] 18. Per contra, Sri Santhosh.S.Gogi, learned Counsel for defendants/respondent Nos.1 to 4 submitted that claim of adoption requires to be proved by cogent and consistent evidence and burden of proving the same is on the plaintiff. He further submitted that pleadings and the evidence of the plaintiff regarding the particulars of adoption are highly vague and no blood relatives of the plaintiff were examined to prove the adoption. He further submitted that having regard to the admissions of plaintiff and his witnesses that he took share in his natal family properties, the recitals in Ex.P3 and Ex.P4 about his relationship as adoptive son was rightly rejected by the Courts below. He further submitted, benefit of Section 90 of the Evidence Act does not accrue to plaintiff to prove adoption as Ex.P3 and Ex.P4 were not even the documents of adoption and in the light of other evidence on record.
19. In support of his contention, he relies upon the following judgments:
i) Pentakota Satyanarayana v. Pentakota Seetharatnam [(2005) 8 SCC 67] ii) Nilima Mukherjee v. Kanta Bhusan Ghosh [(2001) 6 SCC 660] iii) M.Gurudas v. Rasaranjan [(2006) 8 SCC 367] iv) Gangavva and others vs. Ningavva and others [ILR 2008 KAR 1667] v) Sri Ramachandraiah vs. Sri V.Narayana & Ors. [ILR 2008 KAR 4420] 20. In Govind Gowda’s case relied upon by the learned Counsel for the appellant, natural mother and Patel of the village were examined. They spoke to the mother giving child in adoption. There were also other documents which had come into existence at an undisputed point of time where the person concerned was referred to as adopted son.
21. In L.Debi Prasad’s case, close relatives were disinterested persons and they deposed that ceremonies of adoption was duly performed in the parental home of the child. In Nilima Mukerjee’s case, referring to the judgment in L.Debi Prasad’s case, claim of adoption was rejected holding that there was no iota of evidence to show that the appellant was actually handed over by her parents to the adoptive parents.
22. In Pentakota Satyanarayana’s case referred to supra, observing that no particulars of date, venue or ceremonies of adoption were pleaded in the plaint, the case of adoption was disbelieved.
23. In Gangavva’s case referred to supra, it was held that the registered deed of adoption produced did not bear the signature of the person handing over the child in adoption and therefore, presumption under Section 90 of the Evidence Act and Section 16 of the Hindu Adoption and Maintenance Act, 1956 was not available.
24. In Sri Ramachandraiah’s case referred to supra, this Court held that when a person sets up adoption, he must prove physical act of giving him in adoption by his natural mother to the hands of the adoptive mother.
25. The sum and substance of the aforesaid judgments is that though in ancient adoption one cannot expect to prove ceremonies of adoption, the fact of giving and taking adoption has to be duly proved and that burden of proof has to be discharged by the person setting up the adoption.
26. As rightly pointed out by learned Counsel for the defendants, neither in the plaint nor in the evidence of PW.1 and his witnesses, the date, time and place of adoption were revealed.
27. The suit was filed in the year 2007. From 1968 till 2007, there would have been large number of documents like voters list, ration card, school records etc. to show that plaintiff was recognized as adopted son of Thimmamma and her husband Venkatagiri Thimmegowda. Admittedly, Thimmamma sold 1 acre 17 guntas in survey Number 62/2 on 17.02.1955. PW.1 in his cross-examination unequivocally admits that he was not a party to the said sale deed and he was not shown as an adopted son in that document.
28. Ex.P3 and Ex.P4 were not adoption deeds.
Plaintiff’s claim ruminates around his reference to him in those documents as the adopted son of first mortgager. The reference to the plaintiff in those documents as adopted son of the Thimmamma was not her declaration. The script of the documents narrates that Thimmamma and her adopted son Doreswamy Gowda have executed those mortgage deeds. Thimmamma does not say “myself and my adopted son Doreswamy Gowda are executing the documents.”
29. In Ex.P3 and Ex.P4, Thimmamma has purportedly affixed her thumb mark. That itself shows that she was illiterate. There is nothing to show that recital in those documents regarding description of the plaintiff as adopted son was explained to her. At the most, the Sub-Registrar might have explained about the terms of conveyance. Therefore, Section 90 of the Evidence Act cannot be pressed into service even to hold that there was ratification of that recital on part of Thimmamma.
30. Presumption available to 30 years old documents under Section 90 of the Evidence Act is not irrebuttable presumption. As the word “may” is used in Section 90 of the Evidence Act, that is a rebuttable presumption. Even that presumption is with regard to signature and handwriting of the person executing the documents.
31. The said presumption stood rebutted by the evidence of PW.1 himself and his witnesses to the effect that in the partition of properties of his natal family, plaintiff got his share and that in the sale deed in respect of 1 acre 17 guntas, he had not joined as vendor or there was no reference to his relationship by adoption. Plaintiff did not chose to examine his natal mother to prove that she has given him in adoption.
32. So far as Section 32(5) and Section 50 of the Evidence Act, relied upon by the learned Counsel for the appellant, they only speak of relevancy of the facts. Section 32(5) of Evidence Act states that statement of a dead person regarding the existence of any relationship by blood, marriage or adoption is a relevant fact. Section 50 of the Evidence Act states that opinion of a person regarding relationship of one person to another is relevant, if he has special means of knowledge on the subject.
33. In Dolgobinda Paricha v. Nimai Charan [AIR 1959 SC 914] referring to Section 32(5) and 50 of the Evidence Act, it was held that relevancy of a fact is totally different from proof of such fact. It was further held that, if at all a party wants to rely on such statement or opinion, first of all he has to prove that such statement or opinion was rendered by a person who purportedly rendered such statement or opinion. Therefore, Ex.P3 and Ex.P4 even presuming that were relevant documents, they do not amount to proof of the fact that in those documents Thimmamma declared plaintiff as her adopted son.
34. Except himself, plaintiff did not examine anybody to prove those documents. At least to corroborate the statement made therein, plaintiff did not chose to examine his natal mother or any of his five biological brothers who according to him were alive during the pendency of the suit. Plaintiff and his witnesses state that partition was effected between the plaintiff and his biological brothers in his natal family and he received the properties of his natal family as his share. He did not choose to produce any material with regard to such partition. Thus, there was suppression of material evidence on the part of the plaintiff.
35. As rightly pointed out by the First Appellate Court, PW.2 to PW.6 were not the witnesses to the said adoption. They claimed in their evidence that on the information given by PW.1, they learnt about he being adopted son of Thimmamma. Therefore, their evidence is only hear say evidence.
36. Under such circumstances, the judgments relied upon by the learned Counsel for the appellant in no way advance his case. Having regard to the facts and circumstances of the case, the Courts below were justified in holding that the adoption of plaintiff was not proved, notwithstanding the recitals regarding adoption found in Ex.P3 and Ex.P4. Answering the substantial question of law accordingly, R.S.A.No.2587/2011 is hereby dismissed with costs through out.
37. Once the plaintiff fails to prove adoption set up by him, he is not entitled to draw compensation awarded in respect of property in Survey No.62/1 i.e. plaint schedule item No.1 property. Therefore, rejection of his claim by the Courts below for the award in the Land Acquisition Proceedings warrants no interference. Consequently, M.S.A.No.278/2011 is dismissed with costs through out.
Sd/- JUDGE KSR