dated this the 29 th present the hon’ble mr.justice...

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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 29th

DAY OF JUNE, 2016

PRESENT

THE HON’BLE MR.JUSTICE ANAND BYRAREDDY

AND

THE HON’BLE MR.JUSTICE L.NARAYANA SWAMY

REGULAR FIRST APPEAL No. 200042/2014

C/W

REGULAR FIRST APPEAL No. 200049/2014

REGULAR FIRST APPEAL No. 200042/2014:

BETWEEN:

1. Girish S/o Late Vithalrao Kulkarni

Age: 33 years, Occupation: Agriculture,

Resident of Village Markhal,

Taluk: Humnabad,

District: Bidar – 585 401.

2. Manik Rao S/o Late Vithalrao Kulkarni

Age: 47 years, Occupation: Agriculture,


Taluk: Humnabad,


3. Smt. Sulochana Bai

R

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W/o Late Vithalrao Kulkarni,

Age: 67 years,

Occupation: Agriculture & Household


Taluk: Humnabad,


4. Kalavati W/o Late Murlidhar Rao

Age: 57 years, Occupation: Household,


Taluk: Humnabad,


5. Ramesh S/o Late Murlidhar Rao



Taluk: Humnabad,


… APPELLANTS

(Shri Ameet Kumar Deshpande, Advocate)

AND:

1. Champabai W/o Late Ramrao Kulkarni

Age: 72 years,

Occupation: Agriculture & Household,


Taluk: Humnabad,


2. Vanita W/o Manikrao Joshi


Resident of Village Kodli village,

Taluk: Chincholi,

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District: Gulbarga – 585 201.

3. Roopa W/o Shankerao Kulkarni


Resident of Village Changlera,

Taluk: Humnabad,


4. Asha W/o Raghavendra Joshi


Resident of Chalkapur,

Taluk: Bhalki,


… RESPONDENTS

(Shri S. Sreevatsa, Senior Advocate for

Shri Ravi B. Patil, Advocate for Caveat Respondent No.1,

Shri Ashok S. Kinagi, Advocate for Respondents No. 2 to 6

Shri R.S. Sidhapurkar, Advocate for Respondents No. 7 & 8)

This Regular First Appeal is filed Under Section 96 of

Civil Procedure Code, against the Judgment and Decree dated

01.07.2014, passed in Original Suit Old No.26/2007 New

No.61/2011 on the file of the Senior Civil Judge at Humnabad,

wherein, the suit was decreed.

REGULAR FIRST APPEAL No. 200049/2014:

BETWEEN:

Muralidhar Rao S/o Late Vithal Rao

Since deceased by LRs.

1. Smt. Vanitha W/o Manikrao Joshi

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Age about 37 years, Occupation: Household,

Resident of Village Kodli village,

Taluk: Chincholi,

District: Gulbarga – 585 307.

2. Smt. Roopa W/o Shankar Rao Kulkarni


Resident of Village Changlera,

Taluk: Humnabad,


3. Asha W/o Raghavendra Joshi

Age about 26 years,

Occupation: Household,

Resident of Chalkapur,

Taluk: Bhalki,


… APPELLANTS

(Shri Ameet Kumar Deshpande, Advocate)

AND:

1. Champabai W/o Late Ramrao Kulkarni

Age about 79 years,



Taluk: Humnabad,


2. Girish S/o Late Vithalrao Kulkarni

Age about 33 years, Occupation: Agriculture,


Taluk: Humnabad,

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3. Manik Rao S/o Late Vithalrao Kulkarni

Age about 47 years, Occupation: Agriculture,


Taluk: Humnabad,


4. Smt. Sulochana Bai

W/o Late Vithalrao Kulkarni,

Aged about 67 years,



Taluk: Humnabad,


5. Smt. Kalavati W/o Late Muralidhar Rao



Taluk: Humnabad,


6. Ramesh S/o Late Muralidhar Rao



Taluk: Humnabad,


7. Laxmibai @ Shoba W/o Govindrao

Aged:52 years,


Resident at Halikhed – B,

Taluk: Humnabad,

District: Bidar.

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8. Suvarna W/o Achutrao

Age: 48 years,


Resident of Kherda-B,

Taluk: Basava Kalyan,

District: Bidar. … RESPONDENTS

(Shri S. Sreevatsa, Senior Advocate for

Shri Ravi B. Patil, Advocate for Caveat Respondent No.1,

Shri Ashok S. Kinagi, Advocate for Respondents No. 2 to 6

Shri R.S. Sidhapurkar, Advocate for Respondents No. 7 & 8)

This Regular First Appeal is filed Under Section 96 of

Civil Procedure Code, against the Judgment and Decree dated

01.07.2014, passed in Original Suit Old No.26/2007 New

No.61/2011 on the file of the Senior Civil Judge at Humnabad,

wherein, the suit was decreed.

These appeals having been reserved on 9.6.2016 and

coming on for ‘Pronouncement of Judgement’ this day, Anand

Byrareddy J., delivered the following:

JUDGMENT

These appeals are heard and disposed of by this common

judgment, as the same are filed by two sets of defendants in the

same suit.

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2. The appeal in RFA 200042/2014 is filed by Defendant

nos.1, 2, 3, 4 (i) & (ii). And the appeal in RFA 200049/2014 is

filed by Defendant nos.4(iii), (iv) and (v), arraying the other

defendants along with the plaintiff as the respondents.

The suit was filed on the following assertions. The suit

properties were agricultural lands of Markhal village,

Humnabad Taluk, Bidar District. Champabai, aged 72, the

widow of Ramrao Kulkarni claimed as the owner of the said

properties, which were described in the Schedule to the plaint.

She claimed to have inherited the properties from her husband.

It is said that Ramrao had two wives, his first wife –

Chandrabai was dead.

The genealogical tree of the family is said to be as

under:-

RAMRAO

(Common ancestor who died long back)

MANIKRAO

(Died long ago)

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Harnabai (Wife)

(Died long ago)

Govind Rao (Died) Ramrao (Died) Hanmanth Rao

(Wives) (He has gone in adoption at

Maergaon Village

1. Bapurao (died 30.7.94)

Radha Bai (Wife)

(died on 22.1.2001

2. Vithalrao (Died)

3. Sulochanabai (Wife)D-3 1) Chandrabai (1st Wife

(died)

Shantabai

(Sons)

(Daughter)

Manikrao D-2. Girish D-1 W/o Baburao Tadpalli

3) Kamalabai

4) Murlidhar Rao D-4 R/o Marka (died)

5) Champabai (2nd

wife)

Plaintiff.

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Ramrao is said to have died in the year 1972, leaving

behind the two widows and a daughter - Shantabai. At the time

of filing the suit, the first wife, Chandrabai and the daughter,

Shanta bai, were no more. Hence the plaintiff was claiming as

the sole heir to the suit properties.

It is stated that there was a family partition in the year

1968, as between the sons of Manik Rao, namely, Govind Rao

and Ramrao. It is said that a third son of Manik Rao, namely,

Hanmanthrao had been given in adoption much prior to the

said partition. The suit properties are said to have fallen to the

share of the plaintiff's husband at the said partition.

It is stated that as Ramrao had no sons, he had adopted

Bapurao, a son of his brother Govindrao, in the year 1958, at a

ceremony with the consent of his wives and the natural father of

the adopted son.

Govindrao's sons, namely, Vithalrao and Muralidharrao,

are said to have partitioned the properties that had fallen to their

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branch, in the year 1978, under a registered partition deed and

Hanmanthrao was not given any share, in view of his adoption

by Ramrao.

The plaintiff along with Chandrabai and Bapurao is said

to have jointly enjoyed the properties till the death of Bapurao

in the year 1994 and the subsequent death of Chandrabai. It is

claimed that it was after the death of Bapurao, that the

defendants are said to have started interference with the

peaceful possession of the suit properties by the plaintiff. It was

claimed that the first defendant had been adopted by Bapurao,

during his life time and hence he had laid claim to the suit

properties. In this regard Girish, the first defendant is said to

have filed a civil suit in OS 349/1994, on the file of the Court of

Munsiff, Humnabad, naming , Radhabai, the widow of

Bapurao, and the other defendants in the present suit, seeking

partition and separate possession of the properties described in

that suit, which included the present suit properties. Radhabai

is said to have contested the suit and had filed her written

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statement denying the adoption claimed by Girish, the plaintiff

in that suit. While asserting that she had inherited the

properties after the death of Bapurao. However, Radhabai is

said to have died as on 22.1.2001, during the pendency of the

said suit and before issues could be framed in the said suit.

Champabai, the present plaintiff is said to have filed an

application seeking to implead herself as a defendant in the said

suit, OS 349/1994. But the application is said to have been

rejected by the court, by an order dated 19.3.2002.

It is stated that the other defendants, who were the uncle,

brother and the mother of the plaintiff- Girish, are said to have

filed their consent written statement admitting the claim of

Girish. The said suit was accordingly decreed as prayed for, by

a judgment and decree dated 6.6.2002.

Incidentally, it is stated that Radhabai, the widow of

Bapurao had filed a civil suit in O.S.No.6/1997 on the file of

the Civil Judge, Basavakalyan, in order to counter the suit filed

by Girish, seeking to protect the very suit properties involved

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herein. The suit had been contested by Girish and others, who

had incidentally contended that the suit was bad for non-joinder

on account of the present plaintiff and the other widow of

Ramrao not having been made parties. It then transpires the

present plaintiff was sought to be impleaded as a party

defendant in that suit. But before service of notice on this

plaintiff, Radhabai the sole plaintiff, having died, the suit was

said to have been abandoned and was said to have been

dismissed as having abated by an order dated 7.7.2001.

It is in this background it is alleged that the defendants

had proceeded to dispossess the plaintiff from the suit

properties in December 2005. Hence the suit for the relief of a

declaration that the plaintiff is the absolute and exclusive owner

of the suit properties and for recovery of possession of the same

and for a further declaration that the decree in O.S.No.349/1994

dated 6.6.2002 as not binding on the plaintiff and other

incidental reliefs.

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The defendants nos.1 to 4 had filed written statement to

claim that the plaintiff was not residing in Markhal village since

the year 1973, after the death of Ramrao. And that she had no

subsisting interest in the suit properties. It was contended that

the suit was bad for non-joinder. In that, the first wife of

Ramrao had a daughter, Shantabai, who was married to

Baburao Talpalli, though she had pre-deceased her father, she

had left behind two daughters Shoba and Suvarna who were

alive and this fact had been suppressed by the plaintiff.

It is stated that Ramrao, the husband of the plaintiff did

have two wives namely Chandrabai and the plaintiff

Champabai. Chandrabai had a daughter Shantabai who was

married to Baburao Tadpalli of the same village. She however,

predeceased her father. She had two daughters, Shoba and

Suvarna who were alive. Ramrao died in the year 1973.

Chandrabai died in the year 1998. Ramrao had an elder brother

Govindrao and a younger brother Hanmanth Rao. Hanmanth

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Rao was given in adoption to a family in Madergaon village.

Govindrao had three sons namely, Bapurao, Vithalrao and

Muralidharrao. Govindrao and Ramrao had partitioned their

properties and Vithalrao was the father of Defendant No.1 and

Defendant No.2 and husband of Defendant No.3. He had died

in the year 1993. After the death of Vitthalrao, Bapurao and

Radhabai who had no children, are said to have adopted

Defendant No.1 Girish, after due ceremony. Bapurao had died

in the year 1994 leaving behind his widow Radhabai and Girish

his adopted son, as his legal heirs. Radhabai is also said to have

died in the year 2001 and Girish was the only legal

representative. The plaintiff did not have any children. She

had lived with her husband only for a short while. It is claimed

that after the death of Ramrao, Champabai, the plaintiff and

Chandrabai had made an application to the Village Accountant,

Markhal, for grant of mutation with regard to landed properties

of late Ramrao. In their application, it was mentioned that after

the death of their husband, the land bearing Sy.Nos.19/2, 19/3,

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65, 67/2, 73, 128 and 133 all of Markhal village could be

mutated; namely land bearing Sy.No.67/2 measuring 7 acres 2

guntas could be made in the name of Chandrabai and it was

also requested to mutate land bearing Sy.No.73 measuring 7

acres 27 guntas in the name of Champabai, the plaintiff and it

was further stated to have been requested to mutate the all other

lands in the name of Bapurao, the son-in-law of Chandrabai.

Accordingly, the pahanis were made out as requested for the

years 1974-74 to 1993-94 and that pursuant to such partition,

Champabai had sold 3 acres of land bearing Sy.No.73 in favour

of Bhimarao under a registered sale deed dated 19.11.1991 and

she had sold a further extent of 2 acres 30 guntas of the said

land to one Ganpathrao under a registered sale deed dated

19.11.1991 and the remaining area of 1 acre 27 guntas had also

been sold under a registered sale deed dated 13.03.2007 to one

Sharnamma. It is denied that the plaintiff’s husband Ramrao

had taken Bapurao in adoption and Bapurao is said to have

separated from the family during the lifetime of Govindrao and

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he had been given land bearing Sy.No.68 measuring 3 acres 5

guntas and land bearing Sy.No.71/Aa measuring 3 acres 20

guntas, apart from a site. It was admitted that Govindrao and

his sons Vithalrao and Muralidhar Rao had also partitioned the

remaining properties of Govindrao under a registered partition

deed dated 23.10.1978 and Bapurao had sold the land bearing

Sy.No.68 to one Arvind and land bearing Sy.No.71/Aa to one

Laxman Rao and the site to one Gudusab, long ago. It was

denied that after the death of Ramrao, the suit properties were

inherited by Chandrabai, Champabai, Shantabai and Bapurao

jointly. It was denied that the defendants interfered with the

plaintiff or her properties. It is asserted that by virtue of the

application filed in the year 1974 by the plaintiff and

Chandrabai, the lands have been divided as aforesaid and

therefore, she has lost all right and interest in the properties

other than the properties that were taken by her. It is the curse

the plaintiff was seeking to lay claim to other properties with

the civil suit in O.S.No.349/1994 filed by Girish against

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Radhabai. In the suit, though the plaintiff had made an attempt

to implead herself, the said application filed by her was rightly

rejected and that order having become final, would bind the

plaintiff and without questioning the said order, the plaintiff’s

suit was not tenable.

The allegation of the suit in O.S.No.349/1994 being a

collusive one, is denied as false and the fact that Radhabai had

instituted a suit in O.S.No.6/1997 and Radhabai having died

during the pendency of the suit, there was no bar for the

plaintiff to have transposed herself as the plaintiff in that suit.

The contention that though she was made a defendant, the suit

had abated is a plea of convenience and disentitles the plaintiff

to lay any such claim. It is therefore asserted that the suit is

false and not maintainable.

It is on these above pleadings that the court below had

framed the following issues:

“1. Whether the plaintiff proves that, she

is the owner of suit properties?

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2. Whether the plaintiff proves that, the

decree in O.S.No.349/1994 on the file of the

Prl. Civil Judge (JD) Court, Humnabad is a

collusive decree and got obtained illegally?

3. Whether the plaintiff proves that, the

defendants have illegally occupied the suit

properties by way of dispossessing her as

alleged?

4. Whether the defendants prove that,

the suit of the plaintiff is barred by limitation

as pleaded in para No.12 of their written

statement?

5. Whether the plaintiff proves that, she

is entitled for mesne profits?

6. Whether the plaintiff proves that, she

is entitled to get rectify entries of the ROR of

suit properties?

7. Whether the plaintiff is entitled for the

reliefs as sought for?

8. What order or decree?”

The Trial Court has answered Issue Nos.1 to 3, 5 to 7 in

the affirmative and Issue No.4 in the negative and has decreed

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the suit. It is that which is under challenge in the present

appeals.

3. It is contended by the learned counsel for the

appellants that the Trial Court has overlooked Section 58 of the

Evidence Act, 1872, namely that a fact which is admitted need

not be proved. As the plaintiff had admitted the defence taken

by the defendants in their written statement in the course of

cross-examination, however that admission has been

overlooked by the court below. In that, the plaintiff has

admitted that she had indeed filed an application seeking

mutation as already stated in respect of several items of land in

the name of defendants and based on such an application, the

revenue authorities had indeed effected mutation as early as in

the year 1974 and the defendants had been put in possession

and as reflected in the revenue records, had been paying

revenue and enjoying the lands to the exclusion of the plaintiff

ever since. Whereas, the false assertion of the plaintiff that she

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was dispossessed in the year 2005 has been readily believed,

overlooking the admission supported by ample material.

It is contended that the suit was hopelessly barred by

limitation, as the suit properties were mutated in the name of

the defendants as early as in the year 1974, whereas the suit is

filed in the year 2007 and therefore, was barred by limitation as

it was filed after a lapse of 33 years and defendants asserting

their title over the land.

It is contended that there was no issue framed by the

court below as regards the denial of the adoption of Defendant

No.1 by Bapurao and in the absence of an issue, the court

having proceeded as if he was not the adopted son, was

impermissible. As in the absence of an issue, the defendants

had no occasion to address the same in the said circumstances

and hence, such a finding cannot be sustained. It is also stated

that the court below has failed to take into account the fact that

the plaintiff was estopped from laying claim to the suit

properties in the light of the admitted circumstance that the

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lands had been voluntarily handed over to the defendants by the

plaintiff along with Chandrabai who had voluntarily made an

application in that regard.

It is also contended that the suit was bad for non-joinder,

as the defendants had raised a specific plea that the plaintiff had

suppressed the circumstance that Shantabai, the daughter of

Chandrabai was not made as party and the plaintiff could not

claim as an exclusive owner of the suit properties when

admittedly the daughter of Chandrabai would have a right over

the properties.

4. On the other hand, the learned Senior Advocate Shri

S. Sreevatsa appearing for the counsel for the respondents

would contend that as regards the contention that the court

below had not framed an issue regarding adoption but has

proceeded to arrive at a finding that there was no adoption of

Defendant No.1 by Bapurao, is not significant, as it is open for

this court under Order XLI Rule 24 of the Code of Civil

Procedure, 1908 (hereinafter referred to as ‘the CPC’, for

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brevity), to resettle the issues and based on the evidence on

record, affirm the finding of the Trial Court on the issue of

adoption. He would submit that there are certainly pleadings to

deny the adoption of Defendant No.1 and ample evidence to

demonstrate that the court below was justified in arriving at

such a finding.

It is pointed out that Defendant No.1 had filed a civil suit

in O.S.No.349/1994 seeking partition and separate possession

of the suit properties claiming as the adopted son of Radhabai

and Bapurao, S/o. Govindrao and Radhabai had filed a written

statement denying that Girish, Defendant No.1 was adopted by

her husband Bapurao and her. She had died before issues could

be framed. On the death of Radhabai, though the plaintiff

therein had to bring the legal representatives on record, he had

not chosen to do so or if there were none, to have applied to the

court, the Administrator General or other officer of the court to

represent the estate of the deceased and the suit could have then

been proceeded with in terms of Order XXII Rule 4 C.P.C. It

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is then the judgment would have been binding on the estate of

the deceased.

On the other hand, the other defendants had readily

compromised the suit on their consent written statement having

been filed and therefore, the judgment in O.S.No.349/1994 did

not bind the estate of the deceased Radhabai. Having regard to

the fact that Radhabai had died after filing her written

statement, the pleadings could not have been ignored and the

question of adoption therefore sprung up as being directly and

substantially in issue in that suit and Girish was bound to prove

his adoption independently, as held by the Supreme Court in the

case of Pentakota Satyanarayana & Others vs. Pentakota

Seetharatnam AIR 2005 SC 4362. In any event, neither was

adoption proved in O.S.No.349/1994 nor in the present suit.

Girish, Defendant No.1 had not even entered the witness box.

Therefore, the issue of adoption would have to be answered in

the negative.

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It is further pointed out that the appellant had denied that

Bapurao was adopted by Champabai, but claimed that

Chandrabai and Champabai gave Bapurao the suit property by

virtue of Exhibit D-1, the application for mutation and as the

appellant was adopted by Bapurao, he was entitled to the same.

The adoption by Bapurao and Radhabai has been denied by

Radhabai and the adoption has not been proved independently.

Therefore, there was no question of Girish laying claim to the

estate of Bapurao, but he claims the suit properties were part of

the estate of Bapurao.

Further, it was impermissible in law for the court to have

treated the letter of 1974 for mutation, as a deed of partition.

Since the appellant himself has denied that Bapurao was

adopted by Champabai, in the absence of any registered

conveyance of the property to Bapurao, the reliance placed on

Exhibit D-1 is wholly misplaced. Therefore, the judgment and

decree in O.S.No.349/1994 was not tenable.

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It is further contended that the plea of estoppel set up

against the plaintiff was also not tenable, in the absence of any

registered conveyance to Bapurao, which was a legal

requirement.

Therefore, there could be no legal status conferred on the

appellant when the statute does not lay such a claim to be made.

Reliance is placed on the decision of the Apex Court in the case

of B.L. Sreedhar and Others vs. K.M. Munireddy (Dead) and

Ors AIR 2003 SC 578, in support of this proposition.

It is also contended that the plea of non-joinder of the

daughters of Shantabai who was the daughter of Chandrabai, is

no longer relevant, as they have been made respondents in the

present appeal as Respondents 7 and 8 and that there is no

conflict of interest between the plaintiff and those respondents.

The question of limitation does not arise. The learned counsel

would assert that the denial of title was only in 2005. The

argument that in view of Exhibit D1, it ought to be treated that

there was a denial of title of the plaintiff, is untenable.

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It is further pointed out that in the Civil suit in

O.S.No.6/1997, the present respondent – plaintiff though made

a party in that suit, was never issued with suit summons and the

suit abated and in O.S.No.349/1994, the present plaintiff was

not made a party and it had ended in a collusive compromise

decree to which again the plaintiff was not a party. Therefore,

the same would not bind the plaintiff.

It is also contended that the plaintiff had placed evidence

that she was the owner of the land as against the appellant and

other defendants. The relief sought was against the defendants

and not any other persons. The judgment is in personae and

nothing more was required to be done by the plaintiff.

5. In the light of the above rival contentions, insofar as

the primary contention on behalf of the appellant that the Trial

Court had failed to frame an issue regarding adoption, but had

proceeded to arrive at a finding that the appellant had not been

adopted, could not preclude this court from determining the

27

case finally in terms of Order XLI Rule 24 of the CPC, if the

evidence on record is sufficient to enable this court to

pronounce judgement and in order to do so, resettle the issues,

if necessary, in finally determining the suit.

It is not in dispute that the appellant had filed a civil suit

in OS 349/1994, seeking partition and separate possession of

the very suit properties, claiming as the adopted son of

Bapurao, son of Govindrao and Radhabai. Radhabai had

entered appearance and filed written statement denying that

Girish was adopted by her and her late husband. This did give

rise to an issue in that suit. But on account of Radhabai’s death

before the issues could be framed and in view of other

defendants having blindly conceded the prayer of the appellant,

who was the plaintiff therein, the question was not addressed.

But however, Girish, the appellant herein was required in law to

independently establish that he was the adopted son, as claimed.

As held in Rahasa Pandiani and others vs. Gokulananda Panda

and Others, AIR 1987 SC 962 by the apex court, an adoption

28

would divert the normal and natural course of succession.

Therefore, the court has to be extremely alert and vigilant to

guard against being ensnared by schemers, who indulge in

unscrupulous practices out of their lust for property. If there are

any suspicious circumstances, just as the propounder of the will

is obliged to dispel the cloud of suspicion, the burden is on one

who claims to have been adopted to dispel the same beyond

reasonable doubt. In the case of an adoption which is claimed

on the basis of oral evidence and is not supported by a

registered document or any other evidence of a clinching

nature, if there exist suspicious circumstances, the same must

be explained to the satisfaction of the conscience of the court

by the party contending that there was such an adoption.

Again in Kishori Lal vs. Mt. Chaltibai, AIR 1959 SC 504,

it is held that as an adoption results in changing the course of

succession, depriving wives and daughters of their rights and

transferring properties to comparative strangers or more remote

relations, it is necessary that the evidence to support it should

29

be such that it is free from all suspicion of fraud and so

consistent and probable as to leave no action for doubting its

truth.

Therefore, in the absence of appellant Girish, ever having

established by cogent evidence that he was the adopted son of

Baburao and Radhabai, either in the suit in OS 349/1994 or in

the suit instituted by the present respondent no.1, it give rise to

an important issue, which the court below had failed to frame.

Hence, we proceed to frame the following issue:-

“Whether Girish, defendant no.1 had

established and proved that he was the adopted

son of Baburao and Radhabai?”

The above issue is answered in the negative for the

reasons already stated. It is pertinent to note that Girish had

not even entered the witness box in the present case on hand.

Therefore, it is definitely not proved that Girish was the

adopted son as claimed.

The second point for consideration is as follows:-

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“Whether Exhibit D.1,which is an

application said to have been made by Champabai

and Chandrabai and that in terms of the

application, Bapurao had been put in possession of

the suit properties mentioned therein and on that

basis, the appellant having laid claim to the estate

of Bapurao as his adopted son would have to fail

on both the counts.”

The said document could never be construed as

conveyance by Champabai and Chandrabai in favour of

Bapurao and even if it could be so construed, Girish, the

appellant could not claim as the adopted son of Bapurao.

Therefore, the court was justified in negating the same.

However, the letter of the said Exhibit D.1 having been

treated as a partition deed, when the appellant himself had

denied that Baburao was adopted by Champabai, the said

document could not have been treated as a partition deed.

The third point for consideration is as follows:

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“ Whether the plaintiff was estopped from

laying claim to the suit schedule properties by

virtue of Exhibit D.1”

As rightly contended by the learned Senior Advocate

Sreevatsa, in the absence of any registered conveyance, which

is the legal requirement, there can be no plea of estoppel

having the effect of conferring a legal status on the appellant,

which is denied to him by statute.

As regards the plea of non-joinder of the daughters of

Shantabai is no longer relevant as they have been made

respondents no.7 and 8 in the present appeal and there appears

to be no conflict between them and the first respondent.

The question of limitation also does not arise against the

first respondent in filing a suit, as the assertion was that the

denial of title of respondent no.1 herein to the suit properties

was only in the year 2005 and the suit had been filed in the

year 2007. Exhibit D.1, as already stated, cannot be set up to

deny the title of the plaintiff. There is no other evidence of

32

denial of title. Though in O.S.No.6/1997, respondent no.1

herein was a party and she was never issued with suit

summons and the suit had abated. Insofar as the civil suit in

OS No.349/1994, the present respondent no.1 was not made a

party and it had ended in a compromise. Any decree therein

was certainly not binding on respondent no.1. Therefore, on

all counts, none of the grounds urged are tenable.

The appeals fail and are dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

KS/nv

dated this the 29 th present the hon’ble mr.justice...

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