- 1 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100051 OF 2022 (DEC) BETWEEN: 1. SMT. RAMABAI W/O GOVIND NAIK AGE. 57 YEARS, OCC. HOUSEHOLD, R/O. ICE FACTORY CHENDIA, TQ. KARWAR, DIST. UTTARA KANNADA-581308. 2. GANAPATI KHEMU INAIK AGE. 67 YEARS, OCC. COOLIE, R/O. HALEKOT, KADWAD, TQ. KARWAR, DIST. UTTARA KANNADA-581339. 3. SMT. MEENAXI D/O KHEMU NAIK @ ASHA SATISH NAIK AGE. 63 YEARS, OCC. HOUSEHOLD, R/O. NEAR NAGANATH TEMPLE, NANDANGADDA, TQ. KARWAR, DIST. UTTARA KANNADA-581304. 4. ANANDU KHEMU NAIK AGE. 52 YEARS, OCC. COOLIE, R/O. SEABIRD COLONY, TODUR, TQ. KARWAR, DIST. UTTARA KANNADA-581324. 5. SMT. BABY D/O KHEMU NAIK @ SAROJA PANDURANG NAIK AGE. 53 YEARS, OCC. HOUSEHOLD, R/O. DANDEBAG, HARWADA, TQ. ANKOLA, DIST. UTTARA KANNADA-581316. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.03.01 11:19:18 +0530 - 2 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 6. UMESH KHEMU NAIK AGE. 50 YEARS, OCC. COOLIE, R/O. SEABIRD COLONY, TODUR, TQ. KARWAR, DIST. UTTARA KANNADA-581324. 7. SMT. LALITA D/O KHEMU NAIK @ AKSHATA W/O ASHOK NAIK AGE. 51 YEARS, OCC. HOUSEHOLD, R/O. KOMARPANTWADA, KODIBAG, TQ. KARWAR, DIST. UTTARA KANNADA-581321. …APPELLANTS (BY SRI. SHIVASAI M PATIL, ADV) AND: 1. SEETARAM LEKU KALAS AGE. 54 YEARS, OCC. COOLIE, R/O. POST CHENDIA, TQ. KARWAR, DIST. UTTARA KANNADA-581324. …RESPONDENT (BY SRI. VENKATESH M. KHARVI, ADV) THIS RFA IS FILED UNDER SECTION 96 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DATED 05.06.2020 PASSED IN O.S.NO.28/2018 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, KARWAR, DISMISSINS THE SUIT FILED FOR DECLARATION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 3 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 ORAL ORDER (PER: HON'BLE MR JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellants, challenging the judgment and decree dated 5.6.2020 passed in O.S.No.28/2018 by the learned Additional Senior Civil Judge, Karwar. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellants were the plaintiffs, and the respondent was the defendant. 3. Brief facts, leading rise to the filing of this appeal, are as follows: The plaintiffs filed a suit against the defendant for a declaration, to declare that they are the owners of the suit schedule properties being the Class II legal heirs of late Uga Mahadev Naik and late Bhagirathi Uga Naik, and order to pay the re-determined amount of compensation regarding suit schedule property at serial no.2 by the SLAO, Naval Base Project, Karwar, to the plaintiffs and consequently, to restrain the defendant from trespassing into the suit schedule property at serial no.1, and to restrain him from receiving the re- - 4 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 determined amount of compensation under the award by granting a permanent injunction. 3.1. It is the case of the plaintiffs that, one Mahadev Pandurang Naik was the original propositus. He had a wife by name of Omi Mahadev Naik. Both of them, had two sons by names, Uga and Khemu. Uga had a wife by name Bhagirathi. Both of them died issueless. The plaintiffs are the sons of Khemu. The defendant is not a family member of Mahadev Pandurang Naik. It is contended that, the Land Tribunal, Karwar, granted occupancy rights regarding the suit schedule properties in favour of Uga Mahadev Naik. On the strength of the said order, the name of Uga Mahadev Naik was mutated vide M.E.No.6757 of Chendia Village. Uga Mahadev Naik died on 21.9.1984, and thereafter, his wife inherited the suit schedule property, and her name was mutated vide M.E.No.2350 of Kodar Village. The defendant mutated his name regarding the suit schedule property-sl.no.1 vide ME No.8059 by colluding with the revenue authorities without the consent and knowledge of Bhagirathi Mahadev Naik. The suit schedule property at sl.no.2 was acquired for SEABIRD Naval Base Project, Karwar in 1986, and the award was passed by the - 5 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 SLAO in the name of Bhagirathi Uga Naik. Bhagirathi Uga Naik died on 4.10.1999. After the demise of Bhagirathi Uga Naik, the defendant filed an application under Section 28A of the Land Acquisition Act, 1894 for enhancement of compensation of the acquired land at sl.no.2 in the suit schedule property by falsely contending that, he is the adopted son of Uga Mahadev Naik and Bhagirathi Uga Naik. It is contended that, they never took the defendant in adoption as their son at any point in time, and never executed any adoption deed. Thus, the plaintiffs are the Class-II legal heirs of Uga Naik, and Bhagirathi Uga Naik and are entitled to claim the suit schedule properties. The possession of the suit schedule property at sl.no.1 is with the plaintiffs, and the possession of the suit schedule property at sl.no.2 was also with the plaintiffs, till its acquisition by Naval Base Project authorities. The Land Acquisition Officer has re-determined the compensation of the acquired land at Sl. No.2. Hence, the plaintiffs are constrained to file the suit for declaration and permanent injunction. Accordingly, prays to decree the suit. 3.2. The defendant filed a written statement denying the averments made in the plaint and contending that, the suit - 6 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 filed by the plaintiffs is not maintainable. It is contended that, Bhagirathi Uga Naik is the sister of Leku Pandu Kalas, who is none other than the father of the defendant. The said Bhagirathi married one Uga Naik of Kodar, and led a happy marital life, but they could have issues even after many years of marriage, and upon examination and check-up, they came to know that, there is no chance of having issues with them. So, both Bhagirathi Uga Naik, and her husband Uga Naik decided to adopt a male child as Leku Pandu Kalas, who is the brother of Bhagirathi, having two sons, was desirous of giving in adoption his elder son by name Seetaram Leku Kalas i.e., the defendant. Hence, Bhagirathi, with the consent of her husband, decided to adopt the defendant as her son and accordingly, the ceremony of adoption was fixed on 16.8.1969 in Chendia in the residence of Leku Pandu Kalas. Dattahoma was also performed on the same day by one Janaka Joshi, priest, and after the ceremony of giving, and taking was performed before the Tulsi Katta of Leku Pandu Kalas and Chandrabhagi Leku Kalas, the original parents of the defendant, lifted their son-Seetaram, who was aged 12 years at that time, to Bhagirathi and her husband Uga Naik. Uga Naik took the defendant, and made him sit on the - 7 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 lap of Bhagirathi, and accordingly, both Uga Naik and Bhagirathi, adopted the defendant as their adopted son with free will and consent of each other on 16.08.1969. At that time, as both Bhagirathi and Uga Naik unaware of the legal provision that, an adoption deed has to be registered, they could not put the same in writing. Uga Naik died in 1984, and thereafter, the original parents of the defendant and Bhagirathi Uga Naik, to avoid further legal complications, registered the adoption deed in the presence of two witnesses. Further, after the demise of Bhagirathi Uga Naik, the defendant submitted an application for a varsa certificate for which Seetabai w/o. Khemu Naik (brother of Uga Naik) and others filed the objections. The Tahasildar decided the dispute. The defendant produced the Adoption Deed before the Tahsildar, and the Tahsildar passed an order for issuing varsa patra. The Tahsildar passed an order issuing varsa patra to the defendant. The plaintiffs did not challenge the said varsa patra/order. It is contended that, the suit filed by the plaintiffs is barred by limitation. It is contended that, the suit is filed by the plaintiffs for declaration without challenging the adoption deed is not maintainable. It is denied that, Khemu is the brother of Uga Naik, and the genealogy - 8 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 shown in the plaint is incorrect. It is contended that, the defendant is in possession of the suit schedule properties. The plaintiffs were never in possession of the suit schedule properties at any point in time. Hence, he prays to dismiss the suit. 3.3. The trial Court, based on the pleadings of the parties, framed the issues. ISSUES “1. Whether the plaintiffs prove that, they are absolute owners of suit schedule properties being the Class-II heirs of late Uga Mahadev Naik and late Bhagirathi Uga Naik? 2. Whether the plaintiffs prove that, they are entitled compensation amount for acquisition of Sl.No.2 property for SEABIRD Project? 3. Whether the defendant proves that, he being the adopted son of deceased Uga Mahadev Naik and late Bhagirathi Uga Naik? 4. Whether the plaintiffs are entitled for relief claimed in the suit? 5. What order or decree?” - 9 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 3.4. The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW.1 and marked 10 documents as exhibits P.1 to P.10. On the other hand, Defendant No.1 was examined as DW.1 and marked 5 documents as Ex.D.1 to D.5. After recording evidence, and hearing both the sides, and on assessment of oral and documentary evidence, answered issues No.1, 2 and 4 in the negative, issue No.3 in the affirmative, and issue No.5 as per the final order. The suit of the plaintiffs was dismissed vide judgment dated 5.6.2020. The plaintiffs, aggrieved by the judgment and decree passed in O.S.No.28/2018, have filed this Regular First Appeal. 4. Heard the learned counsel for the plaintiffs, and learned counsel for the defendant. 5. The learned counsel for the plaintiffs submitted that, though the adoption ceremony took place on 16.08.1969, the adoption deed was registered on 16.11.1998, which creates doubt regarding the alleged adoption itself. The trial Court has not adequately considered the material on record and has committed an error in passing the impugned judgment. He submits that Uga Naik died issueless; the plaintiffs are the legal - 10 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 heirs of Khemu i.e., the brother of Uga and therefore, the plaintiffs fall under Class II of the Schedule to the Hindu Succession Act, 1956. Except the plaintiffs, there are no other legal representatives of the deceased Uga and Bhagirathi. The plaintiffs alone have succeeded to the estate of deceased Uga Naik. The trial Court did not properly appreciate the said aspect and has committed an error in dismissing the suit. He also submits that the defendant has failed to prove the adoption, as alleged in the written statement. Hence, on these grounds, he prays to allow the appeal. 6. Per contra, learned counsel for the defendant, submits that the plaintiffs are unrelated to Uga Naik. Khemu Naik is not the brother of Uga Naik, and there is no relationship between Uga Naik and Khemu. He submits that Bhagirathi is the defendant’s maternal aunt. Uga Naik and Bhagirathi Naik had no issues. Bhagirathi’s brother had two sons. So, they decided to adopt the defendant. Uga Naik and Bhagirathi have taken the defendant in adoption by performing Dattahoma, and the ceremony of giving and taking was performed on 16.8.1969 in the presence of relatives, in Chendia Village. He submits that, the said adoption was subsequently reduced into writing - 11 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 and registered on 16.11.1998. He submits that as per Section 16 of the Hindu Adoption and Maintenance Act, 1956, a presumption has to be drawn regarding the execution of the documents. He submits that though the adoption deed was registered on 16.11.1998, the suit was filed in 2018. Hence, the suit filed by the plaintiffs is barred by limitation. He further submits that, the trial Court has considered the entire evidence on record, and has rightly passed the impugned judgment. He submits that the impugned judgment passed by the trial Court is just and proper and do not call for any interference. Hence, to prays to dismiss the appeal. 7. Perused the records, and considered the submissions of the learned counsel for the parties. 8. The points, that arise for our consideration are : i) Whether the plaintiffs prove that, they are the Class II heirs of late Uga Mahadev Naik and late Bhagirathi Uga Naik ? ii) Whether the defendant prove that, Uga Mahadev Naik and Bhagirathi Naik had adopted the defendant as their adopted son? - 12 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 iii) Whether the plaintiffs prove that the judgment and decree passed by the trial Court is perverse and arbitrary? iv) What order or decree ? Re. point No.1 and 2 : 9. Since, these two points are inter-linked with each other, to avoid repetition of the facts, they are taken for common discussion. 9.1. The plaintiffs, to substantiate their case, examined plaintiff No.1 as PW.1. She has deposed that, one Mahadev Pandurang Naik was the original propositus. He had a wife by name Omi Mahadev Naik. Both of them, had two sons named Uga and Khemu. Uga had a wife by name Bhagirathi. Both of them died issueless. The plaintiffs are the children of Khemu. The plaintiffs being the Class II heirs are entitled to the properties of deceased Uga Naik. She has deposed that the defendant has created an adoption deed, and contended that he is the adopted son of Uga Naik and Bhagirathi, whereas, the defendant is not their adopted son. She has deposed that sl.no.2 of the suit schedule properties, which stood in the name of Bhagirathi, had been acquired by - 13 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 the Government and compensation had been re-determined by the Reference Court. 9.2. In support of their contention, the plaintiffs have produced the documents. Ex.P.1 is a RTC of the land at sl.no.2, standing in the name of Uga Naik; Ex.P.2 is the mutation entry bearing No.2350 of Kodar village; Ex.P.3 is the mutation entry bearing No.8059 of Chendiya village, Ex.P.4 is the death certificate of Uga Mahadev Naik, who passed away on 21.9.1984. Ex.P.5 is the death certificate of Bhagirathi, who passed away on 4.10.1999. Ex.P.6 is the copy of the award passed by the Land Acquisition Officer, which disclose that sl.no.2 of the suit schedule property was acquired for SEABIRD project, Ex.P.7 is the mutation entry bearing No.8059 of Chendiya village, Ex.P.8 is the certified copy of the judgment passed in O.S.No.17/2018, wherein the present plaintiffs have filed a suit against Smt. Ramabai @ Sumitra Govind Naik and another for declaration, declaring that they are the Class II heirs of late Uga Mahadev Naik. The said suit was decreed vide judgment dated 11.7.2018 declaring that the plaintiffs and defendant are Class II heirs of late Uga Mahadev Naik and Bhagirathi Naik, Ex.P.9 is the certified copy of the decree - 14 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 passed in O.S.No.17/2018, and Ex.P.10 is the certified copy of the objections filed before the SLAO, SEABIRD, Karwar. During the course of cross-examination, PW.1. has elicited that, her father’s name is Khemu Mahadev Naik, and her husband’s name is Govind Sairu Naik; she does not know to read and write English; Bhagirathi, wife of her uncle- Uga Mahadev Naik, is her aunt; she (PW.1) is at present aged about 58 years, and her marriage was performed when she was aged about 18 years; her father Khemu Mahadev Naik died about 20 years back and her uncle, Uga Mahadev Naik passed away about 30 years back; she has admitted that, they (plaintiffs) filed a suit in O.S.No.17/2018 and that, the present defendant was not a party to the said suit; it was suggested to PW.1 that, the defendant is the adopted son of Uga Mahadev Naik, and Bhagirathi and they took him in adoption. The said suggestion was denied by PW.1. 9.3. In rebuttal, the defendant examined himself as DW.1, and he has deposed that there is no relationship between Uga Mahadev Naik and the plaintiffs, and he submitted that Uga Mahadev Naik and Bhagirathi had no issues. Both of them adopted the defendant on 16.8.1969. The adoption ceremony - 15 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 and Dattahoma were performed on 16.8.1969. Uga Mahadev Naik died, and after his death, the adopted mother of the defendant- Bhagirathi and the genetic father of the defendant, executed a registered adoption deed on 16.11.1998. He also deposed that, he is the Uga Mahadev Naik’s adopted son and he has succeeded to the estate of Uga Mahadev Naik. He has deposed that, the plaintiffs, behind the back of the defendant, filed a suit in O.S.No.17/2018, and the defendant is not a party to the suit. The judgment and decree passed in O.S.No.17/2018 is not binding on the defendant. 9.4. To prove his defence, the defendant has produced certain documents. Ex.D.1 is the registered adoption deed dated 16.11.1998 which discloses that, Bhagirathi married Uga Naik and led a happy marital life but, they could not have issues even after many years of marriage and upon examination and check-up with doctors, they came to know that, there are no chances of having issues to them. So, Bhagirathi Uga and her husband, Uga Naik, decided to adopt a male child. Leku Pandu Kalas, the brother of Bhagirathi, having two sons, was desirous of giving into adoption of his elder son by name Seetaram Leku Kalas i.e., the defendant. Hence, - 16 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 Bhagirathi, with the consent of her husband, decided to adopt the defendant as her son and accordingly, the ceremony of adoption was fixed on 16.8.1969 in Chendia, the residence of Leku Pandu Kalas. Dattahoma was performed on the same day by one Janaka Joshi, priest and after that, the ceremony of giving and taking was performed before the Tulsi Katta of Leku Pandu Kalas, the genetic father of the defendant. Ex.D.2 is the death certificate of Bhagirathi (Ex.P.5), Ex.D.3 is the order of the Tahasildar, Karwar, which discloses that, after the demise of Bhagirathi, the defendant applied for issuing Varasa Patra. Smt. Ramabai and others filed objections before the Tahsildar for issuing Varasa Patra. The Tahsildar, after holding an enquiry, issued Varasa Pathra stating that, the defendant is the adopted son of Uga Mahadev Naik and Bhagirati Naik. Ex.D.4 is the certificate issued by the Tahsildar dated 29.03.2001 and Ex.D.5 is the affidavit sworn by Bhagirathi w/o.Uga Mahadev Naik, wherein she has stated that, she along with Khemu Mahadev Naik have got a joint right over sy.no.99 of Kodar Grama, and the said land was acquired by the Government for the purpose of SEABIRD and an award was passed. Her husband died long back, and she has no issues, and she - 17 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 adopted her brother’s son, Seetharam, during the lifetime of her husband with the consent of her husband, and since then, she has been living with him and she has adopted. 9.5. From a perusal of the registered adoption deed, it discloses that Uga Mahadev Naik and Bhagirathi adopted the defendant on 16.8.1969. Subsequently, the adoption deed was registered on 16.11.1998. The adoption of the defendant is evidenced through a registered adoption deed and the same is marked as Ex.D.1. Section 16 of the Hindu Adoption and Maintenance Act, 1956 enables the Court to draw a presumption regarding due adoption, and the burden is always upon the person who disputes the genuineness or authenticity or validity of such adoption. Anyhow, the trial Court has held that the defendant is the adopted son. In case, if the defendant failed to prove that, he is the adopted son of the late Uga Mahadev Naik and late Bhagirathi Naik, then the plaintiffs would have succeeded to the estate of deceased Uga Mahadev Naik and Bhagirathi Naik as Class II heirs. Admittedly, in the instant case, the defendant is the adopted son of Uga Mahadev Naik and Bhagirathi Naik. As per Section 9 of the Hindu Succession Act, 1956, among the heirs specified in the - 18 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; those in the second entry shall be preferred to those in the third entry; and so on in succession. 9.6. Admittedly, the defendant, being the adopted son, falls in Class I and he succeeds to the properties left by deceased Uga Mahadev Naik and Bhagirathi Naik. The plaintiffs will not become the absolute owners of the suit schedule properties as long as the defendant is alive. In view of the above discussion, we answer point No.1 in the negative, and point No.2 in the affirmative. Re.Point No.3 : 10. Though, it is the contention of the plaintiffs that, Uga Mahadev Naik and Bhagirathi Naik died issueless and after their demise, they have succeeded to the estate of Uga Mahadev Naik and Bhagirathi Naik. It is contended that the plaintiffs have filed a suit in O.S.No.17/2018 for a declaration that they are the Class II heirs of late Uga Mahadev Naik and Bhagirathi - 19 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 Naik, and the defendant contended that, Uga Mahadev Naik and Bhagirathi Naik had adopted the defendant on 16.8.1969, and a registered adoption deed was executed as per Ex.D.1, further the defendant is not a party to O.S.No.17/2018. The judgment and decree passed in O.S.No.17/2018 is not binding on the defendant. Admittedly, the defendant has produced the registered adoption deed marked as Ex.D.1 and there is a presumption under Section 16 of the Hindu Adoption and Maintenance Act, 1956. The plaintiffs have not rebutted the said presumption. The defendant, being the adopted son of Uga Mahadev Naik and Bhagirathi Naik, is a Class I heir of Uga Mahadev Naik and Bhagirathi Naik, and he succeeds to the estate of Uga Mahadev Naik and Bhagirathi Naik. The trial Court was justified in dismissing the suit of the plaintiffs. Hence, we do not find any error in the impugned judgment. In view of the above discussion, we answer point No.3 in the negative. Re.Point No.4 : 11. As we have answered points No.1 to 3 in favour of the defendant. Accordingly, we proceed to pass the following order: - 20 - NC: 2025:KHC-D:3484-DB RFA No. 100051 of 2022 ORDER i) The Appeal is dismissed. ii) The judgment and decree passed in O.S.No.28/2018 dated 05.06.2020 by the learned Additional Senior Civil Judge, Karwar, is hereby confirmed. No order as to the costs. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE RS CT: BSB