IMPORTANT POINT
The main legal point established in the judgment is that the plaintiff proved his case as the adopted son and was entitled to the lands. The court also highlighted the requirements of a valid adoption, the procedure when a party fails to present a written statement, judgment on admissions, and the conditions for a second appeal.

JUDGMENT :

1. This second appeal, filed by the original defendant No.3, arises from the judgment and decree dated 25.11.2022 passed by the learned Principal District Judge, Botad in Regular Civil Appeal No.25 of 2018, confirming the judgment and order dated 30.06.2016 passed by the learned Principal Civil Judge, Gaghada in Regular Civil Suit No.16 of 2010, allowing the same filed by the plaintiff.

2. The brief facts of the case are that the appellant – Shivrajbhai Bahadurbhai Govaliya has filed a suit for declaration under Section 34 of the Specific Relief Act to declare that the plaintiff is the adopted son of Ravatbhai Dadabhai Govaliya and thereby the declare that the plaintiff is entitled to get the property of said Ravatbhai. The learned trial Court has, after hearing the parties and after considering the evidence – documentary and oral, partly allowed the suit and held that the plaintiff – Shivrajbhai is an adopted son of Ravatbhai and therefore, the plaintiff is entitled to get the lands of said deceased Ravatbhai being his heir, as Ravatbhai has no child and has adopted the plaintiff. Being aggrieved, the defendant No.3, who is his biological brother and after adoption, he is a cousin brother, has challenged the said judgment of the learned trial Court before the learned appellate Court below. The learned appellate Court below has, after hearing the parties, dismissed the appeal. Hence, this second appeal before this Court at the hands of the original defendant No.3.

3. Heard learned advocate Mr.Harnish Darji for learned advocate Mr.Bhunesh Rupera for the appellant.

4.1 Learned advocate for the appellant has submitted that before passing such order for declaration by the learned trial Court, the other side has to be heard without considering the documents of evidence and submission. He has further submitted that the appellant was willing and very vigilant in conducting the matter, but due to unavoidable circumstances, the appellant could not produce his written statement as well as any further evidence to prove his case, though the opportunity is granted earlier as well as allowing Exh.30 application by the learned trial Court.

4.2 He has also submitted that the learned appellate Court below did not consider the facts that the adoption note (Exh.27) does not contain the signature or any kind of stamp from the Mamlatdar and it is not registered with the concerned authority, which indicates that it is forged and it does not have any evidence, which is admissible in Court of law. He has submitted that the name of original plaintiff in all Government document is known as Shivarajbhai Bahadurbhai and not Shivrajbhai Ravatbhai. He has submitted that the respondents are the real brother and the present appellant is the cousin brother, which shows that the respondents in connivance with each other had performed an act of cheating and with fraudulent intention the respondent no.2 had not served the said notice to the appellant of the suit proceeding, and for that, the appellant was deprived of his rights to file the written submission before the learned trial Court and that right was closed.

4.3 He has submitted that the appellate Court below should comply with the Order XLI Rule 31 of the Code of Civil Procedure, 1908, which is mandatory in nature. In support of his submissions, he has relied upon the decision of this Court in the case of Lakhu Karman Bharwad versus State of Gujarat reported in 2015 LawSuit (Guj.) 855 and in the case of K.Karuppuraj versus Ganesan reported in (2021) 10 SCC 777. He has submitted that this appeal may be allowed.

5.1 I have considered the submissions made by the learned advocate for the appellant. I have also considered the averments made in this appeal. I have also considered the documents available on record. I have perused the impugned judgments passed by both the Courts below.

5.2 From record, the following undisputed facts are emerged.

5.2.1 The grand-father of all the parties is Dadabhai Raningbhai.