- 1 - RSA No. 2287 of 2007 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF JUNE, 2023 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.2287 OF 2007 (MOR) BETWEEN: BOLARINAIKA S/O MAJI CHAIRMAN SANNANAIKA, R/AT MANCHABAYANAHALLI VILLAGE, GANADAGERE HOBLI , HUNSUR TALUK – 105. …APPELLANT (BY SRI. MAHANTESH S. HOSMATH.,ADVOCATE) AND: DEVO BAI SINCE DEAD BY HIS LRS: S/O LATE BHAGAVANTH RAO SINDHE RAMACHANDRA RAO SINDHE S/O LATE BHAGAVANTH RAO SINDHE AGED ABOUT 50 YEARS R/AT D.NO.28, BAZAAR ROAD, K.R.NAGAR TOWN, DISTRICT MYSORE-571 607. …RESPONDENT (BY SRI. B. V. RAMAN, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 20.06.2007 PASSED IN R.A.NO.47/1998 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), HUNSUR, DISMISSING THE Digitally signed by ARUN KUMAR M S Location: HIGH COURT OF KARNATAKA - 2 - RSA No. 2287 of 2007 APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DATED 26.02.1998 PASSED IN O.S. NO.32/1995 ON THE FILE OF THE MUNSIFF & JMFC, HUNSUR. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT 1. In this appeal, appellant / defendant is challenging the Judgment and Decree dated 20.06.2007 in R.A. No.47/1998 on the file of the Civil Judge (Sr. Dn.) at Hunsur, confirming the Judgment and Decree dated 26.02.1998 in O.S. No.32/1995 on the file of Court of Munsiff and JMFC, Hunsur, decreeing the suit of the plaintiff. 2. Relevant facts for adjudication of this appeal are that, the scheduled property belongs to one late Bhagavanth Rao Sindhe of Manchabayanahalli Village and plaintiff is the wife of the said Bhagavanth Rao Sindhe. Husband of the plaintiff died in the year 1992 and as such, it is contended in the plaint that the plaintiff is the sole legal heir. During the pendency of the proceedings, wife of late Bhagavanth Rao Sindhe died and as such her adopted son continued the proceedings before the - 3 - RSA No. 2287 of 2007 Trial Court. It is stated in the plaint that late Bhagavanth Rao Sindhe, mortgaged the scheduled land in favour of the defendant on 24.02.1969 for a sum of Rs.1,500/- and the defendant has been put in possession and enjoyment of the property. It is further stated in the plaint that, the plaintiff made a request to the defendant to redeem the mortgage, however, the defendant refused to accept the redemption of mortgage and as such, the plaintiff issued legal notice dated 11.03.1995 and same was served on the defendant on 14.03.1995 and since there was no redemption of mortgage, the plaintiff has filed suit in O.S. No.32/1995 seeking relief of redemption of mortgate in respect of the scheduled property. 3. On service of notice, the defendant entered appearance and filed detailed written statement denying the averments made in the plaint. It is the case of the defendant that, schedule property was mortgaged in his favour by late Bhagavanth Rao Sindhe. However, it is stated that, as the defendant is cultivating the schedule property for more than forty years and further the said Bhagavanth Rao Sindhe had executed an agreement of sale dated 23.03.1983 to sell the scheduled property for sum of Rs.8,000/- and accordingly it is - 4 - RSA No. 2287 of 2007 contended by the defendant, that the suit for redemption is liable to be dismissed. 4. The Trial Court after considering the pleadings on record, framed issues for its consideration. The plaintiff has examined 7 witnesses as P.W.1 to P.W.7 and produced 26 documents and same were marked as Exs.P1 to P26. Defendant has examined two witnesses as D.W.1 and D.W.2 and got marked 7 documents as Exs.D1 to D7. The Trial Court, after considering the material on record, by its Judgment and Decree dated 26.02.1998 decreed the suit and as such directed the defendant to redeem the mortgage in favour of the plaintiff. Feeling aggrieved by the same, defendant has filed R.A. No.47/1998 before the First Appellate Court and same was resisted by the plaintiff. The First Appellate Court, on considering the material on record, by its Judgment and Decree dated 20.06.2007, dismissed the appeal. Feeling aggrieved by the same, defendant has presented this appeal. 5. This Court, by order dated 17.09.2007 framed the following substantial questions of law: - 5 - RSA No. 2287 of 2007 “(1) Whether the Court below was justified in recording the finding that S. Ramachandra Rao Shinde is adopted son of Devo Bai and Bhagavanth Rao Shinde, having regard to the provisions of Hindu Adoption and Maintenance Act? (2) Whether the concurrent finding of fact of the Court below calls for interference?” 6. I have heard SRi. Mahantesh S. Hosmath, learned counsel for the appellant and Sri. B.V. Raman, learned counsel for the respondent. 7. Sri. Mahantesh S. Hosmath contended that, the original plaintiff i.e., wife of late Bhagavanth Rao Sindhe herself has stated that she has no legal issues and accordingly the finding recorded by both the Courts below that the legal heir of the plaintiff has been adopted cannot be accepted. He further contended that, the adoption has to be proved in the matter and therefore, as the plaintiff has failed to prove the adoption, the Judgments and Decree impugned are liable to be set aside. - 6 - RSA No. 2287 of 2007 8. Per contra, Sri. B.V. Raman, learned counsel appearing for the respondent sought to justified the impugned Judgments. 9. Having heard the learned counsel appearing for the parties, I have carefully examined the impugned Judgment and Decree passed by the Courts below and the arguments advanced by the learned counsel for the parties. 10. In order to answer the substantial questions of law, on careful examination of the evidence of P.W.2 to P.W.4, who are the relatives of both late Bhagavanth Rao Sindhe and his wife, have deposed that the plaintiff - Ramachandra Rao has been taken in adoption by the original plaintiff. P.W.2 has deposed that, Sri. Ramachandra Rao Sinde is the son of sister of Devo Bai and the said Ramachandra Rao was taken in adoption when he was aged about 2 to 3 years. P.W.3 is the sister of the original plaintiff – Devo Bai and she deposed about the adoption of Ramachandra Rao and P.W.3 is the biological mother of Ramachandra Rao. 11. Perusal of the evidence of P.W.5 to P.W.7 would indicate that the said plaintiff - Ramachandra Rao was taken in adoption by late Bhagavanth Rao Sindhe and Devo Bai. P.W.5 is the - 7 - RSA No. 2287 of 2007 Head Master of Machabayanahalli Govt. Primary School and he deposed that the said Ramachandra Rao was taken in adoption and by referring to Ex.P16, the name of the father of Ramachandra Rao was shown as Bhagavanth Rao Sindhe. P.W.6 is the Head Master of Government Higher Primary School, K.R. Nagara, referred to Exs. P17 and P18 and deposed that Ramachandra Rao was taken in adoption by late Bhagavanth Rao Sindhe and Devo Bai. P.W.7 - Teacher at Government Higher Primary School, K.R. Nagara, refers to Ex.P19 and deposed about the relationship between Ramachandra Rao and late Bhagavanth Rao Sindhe as that of father and adopted son. 12. In the background of these aspects I have carefully examined the evidence of D.W.1 and D.W.2 and the perusal of depositions of these witnesses do not corroborate disputing the adoption of Ramachandra Rao by Bhagavanth Rao Sindhe and the Trial Court after considering the material on record, rightly answered issue No.1 in favour of the plaintiff. Taking into consideration the fact that the plaintiff has proved that he is the adopted child of late Bhagavanth Rao Sindhe and Devo Bai, the substantial questions of law framed above favours the - 8 - RSA No. 2287 of 2007 plaintiff. I have also noticed from the findings recorded by the Trial Court on issue No.2 wherein the Trial Court after considering the material on record, particularly with regard to Ex.D3, has rightly come to the conclusion that the alleged agreement of sale (Ex.D3) has not been enforced by the parties to the agreement and therefore the reasons assigned by the Trial Court at paragraph 10 of the impugned Judgment and Decree is just and proper and does not call for interference. 13. I have also given my anxious consideration with regard to the findings recorded by the First Appellate Court. The First Appellate Court having re-appreciated the evidence on record in accordance with the provisions contained under Order 41 Rule 31 of CPC has rightly dismissed the appeal filed by the defendant. The First Appellate Court has also made an observation that though the defendant has pointed out about the sale agreement dated 23.03.1983, however no steps have been taken by the defendant calling upon the plaintiff to perform his part of contract and therefore, the First Appellate Court has rightly arrived at the conclusion that Ex.D3 does not create any right in favour of the defendant over the schedule property. Since both the Courts below, have concurrently - 9 - RSA No. 2287 of 2007 analysed the issues on merits rightly and come to the conclusion that Sri. Ramachandra Rao was given in adoption to late Bhagavanth Rao Sindhe and Devo Bai and therefore, I do not find any merit in the appeal, and the substantial questions of law are answered in favour of the plaintiff. 14. Resultantly, appeal fails. 15. Send a copy of this Judgment to both the Trial Court and the First Appellate Court along with concerned records, forthwith. SD/- JUDGE sac List No.: 2 Sl No.: 1