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
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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
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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
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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
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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
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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
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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?
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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
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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
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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
11regarding 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.
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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
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13submitted 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
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14v) 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
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15ceremonies 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
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1626. 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
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17Thimmamma 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
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18signature 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.
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1933. 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
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20share. 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
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21awarded 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
