SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Doreswamy Gowda S/O Natural … vs Land Acquisition Officer on 10 October, 2019

MSA No.278/2011 C/w
RSA.No.2587/2011
1

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
MSA No.278/2011 C/w
RSA.No.2587/2011
2

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
MSA No.278/2011 C/w
RSA.No.2587/2011
3

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:

JUDGMENT

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
MSA No.278/2011 C/w
RSA.No.2587/2011
4

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
MSA No.278/2011 C/w
RSA.No.2587/2011
5

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
MSA No.278/2011 C/w
RSA.No.2587/2011
6

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
MSA No.278/2011 C/w
RSA.No.2587/2011
7

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?

MSA No.278/2011 C/w
RSA.No.2587/2011
8

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
MSA No.278/2011 C/w
RSA.No.2587/2011
9

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
MSA No.278/2011 C/w
RSA.No.2587/2011
10

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
MSA No.278/2011 C/w
RSA.No.2587/2011
11

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.

MSA No.278/2011 C/w
RSA.No.2587/2011
12

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 (‘SectionEvidence Act’ for short) and they

are relevant evidence under Section 32(5) and Section50 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 SectionL.Rs vs.
Smt.Tribeni Devi and others
[AIR 1970 SC 1286]

iii) SectionHarihar 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
MSA No.278/2011 C/w
RSA.No.2587/2011
13

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) SectionPentakota Satyanarayana v. Pentakota
Seetharatnam
[(2005) 8 SCC 67]

ii) SectionNilima Mukherjee v. Kanta Bhusan Ghosh
[(2001) 6 SCC 660]

iii) SectionM.Gurudas v. Rasaranjan
[(2006) 8 SCC 367]

iv) SectionGangavva and others vs. Ningavva and
others
[ILR 2008 KAR 1667]
MSA No.278/2011 C/w
RSA.No.2587/2011
14

v) SectionSri 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
MSA No.278/2011 C/w
RSA.No.2587/2011
15

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 SectionMaintenance 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.

MSA No.278/2011 C/w
RSA.No.2587/2011
16

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
MSA No.278/2011 C/w
RSA.No.2587/2011
17

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
MSA No.278/2011 C/w
RSA.No.2587/2011
18

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.

MSA No.278/2011 C/w
RSA.No.2587/2011
19

33. SectionIn Dolgobinda Paricha v. Nimai Charan

[AIR 1959 SC 914] referring to Section 32(5) and Section50 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
MSA No.278/2011 C/w
RSA.No.2587/2011
20

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
MSA No.278/2011 C/w
RSA.No.2587/2011
21

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

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation