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2016 Supreme(Bom) 59
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
T.V. NALAWADE, J.
Saraswati & Ors. - Appellants
Versus
Chandrabhan & Anr. - Respondents
Second Appeal No. 45 of 1995
Decided on : 11-1-2016
Advocate Appeared:
Smt. C.S. Deshmukh, Advocate, for the appellant.
Shri. B.S. Shinde, Advocate, for the respondent No.1.
Important Point – If appraisal of evidence by Trial court suffers from material irregularity or is based on inadmissible evidence or on a misreading of evidence or on conjectures and surmises appellate court is entitled to interfere with finding of fact.
Headnote:Civil Procedure Code, 1908 – Section 100 – Second appeal – Disputed adoption – When case of adoption rests on direct evidence and there is nothing like document of adoption or Yadi prepared for adoption and adoption itself is challenged by a party like widow against whom rights are claimed by so called adopted son, Court is expected to take more care while appreciating direct evidence given on factum of adoption – When trial Court has done such exercise, appellate court is expected to keep in mind scope in appeal of appreciation of such direct evidence – Evidence of so-called priest shows that entry about this ceremony was not made in record of community and he himself did not maintain record of such ceremonies – There is virtually no record but evidence is given on creation of such record – Judgment and decree of first appellate Court set aside and judgment and decree of Trial Court restored.
Result – Second Appeal allowed.
1) The appeal is filed against the judgment and decree of Regular Civil Appeal No.351 of 1984 which was pending in the District Court Beed. The District Court, first appellate Court, has set aside the judgment and decree of trial Court, the Civil Judge, Junior Division, Beed. Present respondent, plaintiff, had prayed for relief of declaration in respect of immovable properties and the sale transactions and such decree is given by the first appellate Court. Both the sides are heard.
2) Survey No.84 admeasuring 2 acres 15 gunthas and survey No.92 admeasuring 1 acre 35 gunthas situated at village Ghargaon, Tahsil and District Beed are the suit lands. One house property situated in village Ghargaon is also suit property. Its number is not given but the boundaries of the property are given.
3) One Rambhau was natural father of the plaintiff Chandrabhan. Baliram was real brother of Rambhau and they were residents of Ghargaon. Defendant No.1 Yamunabai is widow of Baliram and defendant No.2 Champabai is a daughter of sister of Yamunabai. Defendant No.2 is the wife of plaintiff Chandrabhan. During pendency of the suit Yamunabai died.
4) It is the case of the plaintiff that Baliram had no issue and Rambhau had two sons and daughters. It is contended that right from beginning Baliram had treated the plaintiff as his son and ultimately he adopted the plaintiff in the year 1950. It is contended that plaintiff was aged about 14 years at the relevant time. It is contended that the plaintiff was adopted in the presence of panchas and respectable persons and adoption ceremonies were performed as per custom of society of the plaintiff. It is contended that parties are Sudras as per Hindu law.
5) It is the case of the plaintiff that after the adoption, he lived with Baliram and defendant No.1 in the house of Baliram and he was treated as son by them. It is contended that after six months of the adoption, in the year 1951, Baliram died. It is the case of the plaintiff that the suit properties were owned by Baliram and since the death of Baliram the plaintiff has been in possession of the suit properties.
6) It is the case of the plaintiff that the income of the aforesaid properties was not sufficient for the livelihood and so he shifted to village Wadgaon, Tahsil Kaij, District Beed. It is contended that he did labour work there and he maintained defendant Nos.1 and 2.
7) It is the case of the plaintiff that defendant No.1 in collusion with Talathi of the village entered her name in 7/12 extract of the suit properties behind his back. It is his case that defendant No.1 executed gift deed in favour of defendant No.2 Champabai and then name of Champabai was also entered in the revenue record. It is contended that the suit house was however entered in the name of the plaintiff. It is contended that aforesaid entries in the record of agricultural lands were made behind his back and so they are not binding on him. It is contended that cause of action took place when he learnt about such entries on 1-4-1979 and when he received information that defendant No.1 and 2 were trying to dispose of the suit properties.
8) The suit was filed on 9-5-1979. During pendency of the suit, on 28-5-1979, the suit lands were sold by defendant Nos.1 and 2 in favour of defendant Nos.3 to 6 and amendment was carried out in the plaint on 15-7-1982 and this circumstance was mentioned and plaintiff then claimed relief of declaration that sale deeds are not binding on him.
9) Defendant Nos.1 and 2 filed joint written statement. They denied that plaintiff was adopted by Baliram. They denied that during life time of Baliram, plaintiff had lived in the house of Baliram with Baliram and Baliram was treating plaintiff as his son. They however admitted that plaintiff is son of Ramrao and Ramrao was brother of Baliram.
10) It is the case of defendant No.1 and 2 that the suit properties and other agricultural lands like Survey Nos.86/1, 100/3 and 109/2 situated at Ghargaon were also
