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2018 Supreme(Kar) 997
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
S.N. SATYANARAYANA, J.
Jyothi Veeranna, S/o Ravindrappa & Ors. - Appellants
Vs.
Jyothi Jagadeeshappa S/o. Mooga Basappa - Respondent
Regular First Appeal No.1484 of 2003 (Dec)
Decided On : 10-07-2018
For the Appellant :Sri. P. Chandrashekar, Advocate
For the Respondent:Sri. G.S. Gurumath, Advocate
Headnote:
Limitation Act, 1963 - Articles 57 and 58 - Criminal Procedure Code, 1973 - Section 340 - Hindu Adoptions and Maintenance Act, 1956 - Section 15 - Civil Procedure Code, 1908 - Section 35(a) - Seeking legal action against seven persons - Grant of compensatory - Whether plaintiff proves his ownership to suit schedule property as an Adopted son of couples Smt. Pathri Basavva & Mooga Basappa - Whether plaintiff further proves that his adoptive father Mooga Basappa is un-heard since 20 years - Whether plaintiff proves his lawful possession to suit schedule properties and alleged illegal interference from defendants - Whether suit of the plaintiff is barred by limitation as contended in written statement para No. - For what order or decree - Whether plaintiff is entitle for the relief’s prayed - Suit in before Court of Civil Judge and JMFC., Hospet, is for the relief of declaration of plaintiff’s title in respect of suit schedule properties viz., lands bearing: Sy. No.284 measuring 04 cents; measuring 09 Acres 13 cents and consequently, for perpetual injunction restraining defendants, their heirs, agents etc., from interfering with his peaceful possession and enjoyment of the suit schedule properties - Sought for a direction to the Revenue authorities to correct the mutation entries in the revenue records pertaining to the suit schedule lands by entering his name as the owner in possession – Held, Declaratory relief granted by the Court below in favour of the plaintiff – respondent herein could only be half share/50% in respect of the suit schedule properties and unless that half share/50% is determined in final decree proceedings initiated by them for division of the suit properties, beneficiaries of the Will of Smt. Pathri Basavva namely, Jyothi Veeranna and Jyothi Kotreshi, who are appellants herein, had/have no right to sell the suit schedule properties either in favour of Siddeshwaragowda or any other person - executed by defendant No.2 – Sri Jyothi Kotreshi and his younger brother, Jyothi Vishwanath, who had impersonated - Appeal is allowed in part
Defendant Nos.1 and 2 in O.S. No.225/2002 (old No.76/1994) on the file of Civil Judge (Sr. Dn.), Harihar, have come up in this appeal impugning the judgment and decree dated 14.08.2003 in decreeing the suit of the plaintiff for declaration and permanent injunction.
2. The facts leading to this second appeal are as follows:
2.1 The suit in O.S. No.76/1994 before the Court of Civil Judge and JMFC., Hospet, is for the relief of declaration of plaintiff’s title in respect of suit schedule properties viz., lands bearing: Sy. No.284 measuring 04 cents; Sy. No.354 measuring 03 Acres 93 cents; Sy. No.355B measuring 01 Acre 39 cents; Sy. No.360B measuring 94 cents and Sy. No.359A measuring 09 Acres 13 cents and consequently, for perpetual injunction restraining the defendants, their heirs, agents etc., from interfering with his peaceful possession and enjoyment of the suit schedule properties. He also sought for a direction to the Revenue authorities to correct the mutation entries in the revenue records pertaining to the suit schedule lands by entering his name as the owner in possession. The said suit was re-numbered as O.S. No.657/2000 on being transferred to the Court of Prl. Civil Judge, Davanagere. Subsequently, it was transferred to the Court of Civil Judge (Sr. Dn.), Harihar, and re-numbered as O.S. No.225/2002.
2.2 The plaintiff is the biological son of Sri Basappa @ Basappa Jyothi and Smt. Annakka @ Annapoornavva. It is stated in the plaint that plaintiff’s grandfather, Jyothi Channa Settappa, had two brothers, namely, Linga Settappa and Mana Settappa. Mana Settappa died issueless. Linga Settappa had a son by name Rudra Settappa. The said Rudra Settappa had only one daughter by name Smt. Pathri Basavva, who was married to her maternal uncle, Mooga Basappa Setty @ Mooga Basappa. Since Smt. Pathri Basavva and Mooga Basappa were issueless, they adopted the plaintiff when he was eight years old in a ceremony by observing the religious and customary formalities, which included giving of the plaintiff by his genitive parents and taking him in adoption by his adoptive parents, in the presence of more than 25 persons. In that behalf, the genitive parents of the plaintiff executed adoption deed dated 16.06.1961, which was registered in the office of Sub-Registrar, Harapanahalli. The suit schedule properties were owned by Mooga Basappa Setty and Smt. Pathri Basavva and they were in possession and enjoyment of the same. The plaintiff referred to the recital in the adoption deed dated 16.06.1961, wherein his adoptive parents had affirmed that the movable and immovable properties of the adoptive family belonged to him.
2.3 It is stated that about one year after execution of adoption deed, misunderstanding arose between the adoptive parents and genitive parents of the plaintiff and as a result, his adoptive parents viz., Sri Mooga Basappa and Smt. Pathri Basavva unilaterally executed registered document dated 21.06.1962 cancelling the adoption deed dated 16.06.1961. It is further stated that the plaintiff’s adoptive father, Mooga Basappa Setty, went missing from Mydooru village about 20 years next before the date of filing of the suit and his whereabouts were not known and he was presumed to be dead. The plaintiff was assisting his adoptive mother, Smt.Pathri Basavva, who was old, by getting her lands cultivated and he was managing the affairs of the house. It is the further case of the plaintiff that the parents of the defendants viz., Smt. Rathnavva and Ravindrappa never took care of Smt. Pathri Basavva except visiting her once in a while on the pretext of enquiring about her health and they were staying at Chikka Janur village near Kampli, which is more than 80 Kms. from Mydur/Mydooru. It is alleged that the defendants by misrepresentation and playing fraud on Smt. Pathri Basavva, got the Will dated 23.08.1989 (mentioned as 03.08.1989 in the plaint) executed by her.
2.4 It is further averred in the plaint that the plaintiff immedia
